Wind Turbine Syndrome victims sue noise engineer (New York)

Nov 10, 2012

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Big Guy v. Little Guy

.—Calvin Luther Martin, PhD

A team of Syracuse, NY, lawyers is suing the Spanish wind energy giant, Iberdrola, on behalf of scores of people who have succumbed to Wind Turbine Syndrome, loss of property value, loss of living amenity, loss of business income, and damage to domestic animals and livestock.  All of the plaintiffs live in the shadow of the Hardscrabble windfarm in Herkimer County, NY.

Click here to read the legal brief, dated October 22, 2012.

What makes the case especially interesting is (a) the number of individuals named as plaintiffs, (b) the uniformity of their complaints, and (c) the fact that they have named several “versions” and layers of Iberdrola in their suit, together with Atlantic Renewable Energy and a shadow corporation identified in the suit as Corporation X.

But what makes the case unique, so far as I know, is that the noise engineer for the wind developer is being sued.  Mark Bastasch.  Both Bastasch and his employer, an outfit named CH2M Hill, are named in the brief.

Here are some high points from the suit:

94. The Defendants represented to the Town of Fairfield and residents in the areas where the turbines were placed that the subject wind turbines would not be noisy, would not adversely impact neighboring houses, and there would not be any potential health risks.

95. Defendant Atlantic Renewables LLC released “projected” noise levels that showed that the wind turbines would not go over 50 dB.

96. The aforementioned 2006 noise level study by Defendant Atlantic Renewables LLC was based on projections for General Electric 1.5LSE, 389-foot tall turbines, and not the Gamesa G90, 476-foot turbines, that Defendants collectively placed in the Hardscrabble project.

98. The Defendants failed to adequately assess the effect that the wind turbines would have on neighboring properties including, but not limited to, noise creation, significant loss of use and enjoyment of property, interference with electrical functioning of homes such as satellites, television, internet and telephone services, diminished property values, destruction of scenic countryside, various forms of trespass and nuisance to neighboring properties, and health concerns; among other effects.

99. Despite the foregoing, and in opposition to many residents who own property in close proximity to the wind turbines, in 2010 the Defendants erected 37 Gamesa G90 wind-turbines that stand 476 feet tall in and around the Towns of Fairfield, Middleville, and Norway, New York.

102. In 2011, the Defendants conducted a noise study that showed noise levels as high as 72 dB.

103. As a result of the aforementioned 2011 study, the Defendants thereafter faulted their own study and conducted two additional noise studies to demonstrate compliance with the Town of Fairfield’s Local Ordinance 1 of 2006, which sets the maximum noise level at 50 dB.

104. These new studies conducted by the Defendants show the average wind speeds, direction and expected percentage of operation.

105. The Defendants’ new studies did not measure the maximum wind speeds and do not measure the noise levels in the winter months, when the noise levels are higher.

106. The Defendants’ new studies fail to acknowledge and assess the extent of the problems, including the full log of Plaintiffs’ complaints that are in the thousands.

108. Since the huge wind turbines in this project produce very little electricity, when the government subsidies expire, the people in the Hardscrabble area will be confronted with a poorly maintained and deteriorating wind energy facility that may one day become derelict.

114. The Defendants’ noise studies also fail to address the aforesaid levels of infra and low frequency sounds by only focusing on audibility, and not on other sensations such as vestibular and other symptoms that fit with the Wind-Turbine Syndrome profile or other health concerns.

115. The wind turbines are causing such significant problems and/or injuries that residents, including the Plaintiffs, are continuing to have many difficulties on their properties, house values have been significantly compromised, and some residents were even forced to abandon their homes; among other damages as set forth in this complaint.

121. The aforesaid Defendants carelessly and negligently created and/or assisted in the creation of the massive wind-turbine structures that have caused and continue to cause significant harm to residents in the area of the turbines.

122. The aforesaid Defendants carelessly and negligently failed to adequately disclose the true nature and effects that the wind turbines would have on the community, including the Plaintiffs’ homes.

125. The amount of the damages sustained herein by Plaintiffs exceed the jurisdictional limits of all lower courts.

Excerpts from the case against noise engineer Mark Bastasch and his employer, CH2M Hill:

128. The studies performed by CH2M Hill, Inc. and Mark Bastasch, P.E., INCE lacked a total and real assessment as it related to the potential harm.

129. It is a requirement of acoustic engineers, pursuant to the International Conference on Electrical and Electronics Engineering and civil engineers (as per New York State licensure) to protect public safety, health, and welfare.

130. Defendants knew or should have known that the wind turbines erected produce acoustic pressure pulsations that affect peoples’ health.

131. It was the responsibility of CH2M Hill, Inc. and Mark Bastasch, P.E., INCE to advise their clients and the public, including Plaintiffs, of the potential for adverse health risks and other impacts to property in the Hardscrabble project area.

133. As a result of the aforesaid, the Plaintiffs have suffered significant and permanent injuries as more fully set forth herein.

134. The amount of the damages sustained herein by Plaintiffs exceed the jurisdictional limits of all lower courts.

Several other highlights:

136. Plaintiffs have a private interest in their land and Plaintiffs allege that the Defendants have interfered with and/or invaded their interest by conduct that was negligent, careless, intentional and/or unreasonable.

137. The wind turbines constitute a private nuisance because: (i) the wind turbines create significant noise; (ii) the wind turbines interfere with the private enjoyment and use of Plaintiffs’ properties; (iii) the wind turbines cause blinking, flashing and/or flickering effects that impact neighboring properties; and (iv) the wind turbines are adversely affecting property values; among other private nuisances.

149. Plaintiffs allege that the giant wind turbines that Defendants have placed around their property results in a trespass by the Defendants due to invasion of their land by noises, lights, flickering, and low-frequency vibrations which penetrate their homes, thereby destroying the use and enjoyment of the Plaintiffs’ land; among other trespass.

156. Defendants criteria for the wind turbines are beyond the recommendations of the Environmental Protection Agency and the World Health Organization to the detriment of Plaintiffs.

171. Based on the aforesaid, Plaintiffs allege that all of the Defendants have caused significant damage to the Plaintiffs and that such damage is substantial, irreparable, and was proximately caused by the acts of the Defendants as set forth in this complaint.

233. In addition to the aforesaid, all Plaintiffs are entitled to damages related to the diminution of their property values; compensatory damages for the destruction of their homes and lifestyle; loss of use and enjoyment of their properties; damages in the form of relocations costs and lost time spent relocating their homes; mental anguish; destruction of scenic countryside; physical pain and suffering; difficulty sleeping; nuisance; trespass; interference with electrical functioning of their homes such as satellites, telephone and televisions; loss of business profits; special damages that include anxiety, stress, worry and inconvenience; some Plaintiffs may have a need for future medical monitoring and/or medical care; and the effects of the lights and noise the wind turbines have on the Plaintiffs’ properties; among other injuries.

WHEREFORE, Plaintiffs demand judgment against the Defendants on each of the causes of action for the damages stated herein, in an amount to be determined which exceeds the jurisdictional limits of all lower courts, together with attorney’s fees, court costs and the disbursements of this action.

Unfortunately, the plaintiffs don’t have the funds to hire the experts they need, whereas the defendants have boundless funds to hire the usual parade of charlatans and self-important hacks who prostitute their services as physicists and noise engineers and clinicians to Big Wind.  

I say that with a sigh of regret.  

Unfortunately, in other words, the plaintiffs will likely lose.  But—God bless ’em in the effort.

  1. Comment by Marco Bernardi on 11/11/2012 at 3:12 am

    Calvin,

    It is not said that the plaintiffs will lose. In Italy six seismologists were sentenced to six years in jail because of their wrong evaluation of an earthquake in the region of L’Aquila, where 309 people died.

    So it is not always quack but sometimes quake. Let this lawsuit be a “quake.”

    http://www.bbc.co.uk/news/world-europe-20025626

    Marco

    Editor’s reply: I hope you’re right, my friend! Although I fear you may be mixing “apples” and “oranges” when you compare “earthquake seismology” with infrasound from industrial wind turbines. (“Mixing apples & oranges”: English expression, meaning that someone is equating two non-equatable issues.)

    Bear in mind, wind energy is an international religion, or perhaps more accurately it’s a subset of the new global religion of Averting Global Warming.

    The other thing is, the neuro-pathological mechanisms of WTS are not clearly understood. Nor is clarification or new knowledge likely to be gained anytime soon, since neuro-otologists (with the exception of Dr. Alec Salt) are not interested in studying the inner ear response to amplitude modulated (rapidly pulsed) infrasound.

    If the Herkimer County plaintiffs could afford to hire several Harvard University School of Medicine experts (Dr. Steven Rauch and Dr. Nelson Kiang), along with Rob Rand and Rick James and Dr. Malcolm Swinbanks, along with Dr. Carey Balaban (Univ. of Pittsburgh School of Medicine) and Dr. Carl Phillips (epidemiologist) and Dr. Nina Pierpont and Dr. Sarah Laurie—they might well win, depending of course on how good the trial lawyers are.

    null

    The trial lawyers would be smart to scrutinize Dr. Geoff Leventhall, beginning with his doctoral thesis (which I own). They should do the same with Dr. Simon Chapman (whose “research” into a number of issues is worth commentary). Ditto for Dr. Robert McCunney.

    Unfortunately, none of this will happen. I have witnessed other lawsuits, in Canada and the USA, and the lawyers—though nice and well-meaning men—were incompetent. And the plaintiffs were financially broke. “Incompetent” lawyers and “broke” plaintiffs is a formula for failure. (Sadly, the two lawyers representing the Herkimer County plaintiffs are going to be eaten alive by Iberdrola’s defense team.)

    This is not the voice of cynicism speaking; it’s the observation of someone who has been watching this unfolding fiasco for over 8 years. Nevertheless, the lawsuit is laudable—and it’s a beginning, especially when the hireling noise engineer is likewise being hauled into court.

  2. Comment by Karen Bessey Pease on 11/11/2012 at 1:32 pm

    Thank you, once more, for sharing such important information, and BRAVO to the citizens of New York for standing up to the huge, powerful and wealthy Iberdrola.

    I understand your ‘realistic’ view, Calvin. I’ve become a cynic since getting involved in this issue, as well. Nevertheless, I find myself feeling hopeful that this will be a landmark case. A watershed moment. Perhaps we’ve finally reached the tipping point.

    We’re all in this together. So … let’s look for a way to help solve the problems confronting the attorneys and their clients.

    First … do we know if any of those experts you’ve mentioned would be willing to work pro bono? It doesn’t hurt to ask, I don’t think—surely not as much as it would hurt to lose without even attempting to give them the opportunity to say ‘yes’ or ‘no’.

    And if they can’t afford to work for free, maybe they’ll work at a reduced rate, or come to an agreement that they will be paid upon the successful outcome of the trial. In my former career in real estate, I ONLY got paid when I brought a sale to a successful conclusion and deed and ‘consideration’ had changed hands. It didn’t matter how much time I might have dedicated or how much money I spent in the process; I got paid for my success, not my efforts. Perhaps the experts will be willing to take the same risks?

    Or, how about this? A ‘David vs. Goliath’ request, where the plaintiffs’ attorneys request of the judge that Iberdrola pay the fees for their experts? It’s not unheard of, when the playing field is so uneven. Couldn’t the court establish a reasonable escrow account—under the court’s control, not Iberdrola’s—from which the plaintiffs’ experts would be paid?

    And if that doesn’t work … well, how much money are we talking about? Any rough estimates? $50,000.00? Twice that? I have no concept of the costs involved, but surely we can’t allow such an important case to be crippled due to an inability to hire and present expert testimony…

    I don’t know the answer, as you can plainly see. But I DO believe there’s an answer. We just have to work together to find it.

    Can I help? And if so … how?

    Kaz

    Editor’s reply: God bless you, Kaz! You never fail to lift my spirits! Regarding the pro bono suggestion. What’s required is for real experts (like those I listed) to spend days, even weeks, going over the evidence which Iberdrola and their noise engineer relied on to justify placing those turbines so close to people’s homes. It’s highly technical stuff. The court needs to hear in detail from Drs. Rauch and Kiang about the response of the vestibular organs to rapidly pulsed infrasound with high sound pressure levels. Dr. Balaban can also address this. Unfortunately, Dr. F. Owen Black, NASA’s and the US Navy’s expert in these matters—and a great admirer of Nina’s book—died this past summer. Dr. Black would have been an ideal witness.

    Again, the neurotologists would need to spend much time poring over the absolutely ridiculous arguments and so-called evidence of the wind energy hirelings. They could also easily dispense with the foolishness of “nocebo effect” and so forth.

    The noise engineers (Rand & Ambrose, and James), together Dr. Swinbanks, would have to do the same for the farcical noise studies put forward by Iberdrola and Bastasch.

    All this requires reviewing literally a mountain of evidence produced by the defendants—all of it horseshit—and then explaining to the court why it’s horseshit. Then these experts need to explain to the court what’s really going on, using real neuro-physiology and real noise studies and real physics, while exposing the physics of people like [fill in the blank] as unworthy of a college freshman.

    In short, it’s not a matter of simply showing up for the trial and taking the witness stand for an hour.

    Would the court require the defendants to pay the expert witness fees for the plaintiffs? I have no idea, but, yes, it would be wonderful—and the amount would be in the many hundreds of thousands of dollars, if not in the millions. (Shocked? Don’t be! WTS is a big-ass industrial disease caused by a big-ass industry, and that big-ass industry is going to spend millions, if necessary, to protect its big-ass.)

    null

    David versus Goliath is a marvelous story—and, Lord knows, one of my very favorite—but this battle ain’t gonna be won by a couple of amateurs with a $50K slingshot. Frankly, it’s gonna be won by a Blue Stocking Boston or NYC or Washington DC law firm, and it’s going to take years in court, along with appeals, and it will require many millions of dollars to win, along with a host of real experts—the clinicians and scientists whose work Nina used in her book. (Nina, by the way, would be no more than a secondary expert. The real “pros” would be the neuro-otologists and neuro-physiologists and people like Swinbanks.)

    Despite that pronouncement, I wish the Herkimer crowd well! The lawsuit is a rousing and spirited gesture. Even if they win in the first round, Iberdrola will appeal and win on appeal.

    Sorry to be such a “Cassandra.”

  3. Comment by Karen Bessey Pease on 11/11/2012 at 7:27 pm

    Maybe millions, huh? Of dollars … Well, I love a good challenge.

    (I really do appreciate all the information you just provided, as discouraging as it was. Thank you, ‘Cassandra’. :o)

    So, I’m still a little naive, it appears. But dammit, once in awhile, ‘right’ has to win over ‘might’, or there’s no point in ever even trying. And if there’s no point, there’s no hope.

    I refuse to believe that this is a hopeless cause. I believe, instead, that the wind industry’s days of omnipotence are numbered. People are waking up, learning the facts, getting angry and demanding change. The industry is simply too arrogant to recognize that its glory days are in the past.

    This lawsuit will be a good reminder to them that the People are unwilling to allow corporate interests to take away their rights, health, well-being and wealth. Iberdrola will have to spend millions on this lawsuit? Well, since many of those millions came from American tax-payers and rate-payers by way of grants, federal loan guarantees, renewable energy mandates, Production Tax Credits, Tax Increment Financing agreements, accelerated depreciation and transmission build-out fees, it’s only fair that we get to use some of OUR money to protect OUR interests. Iberdrola must fund an escrow account, matching dollar for dollar what they spend on their defense, to be used for the plaintiff’s experts.

    That’s right. We want our money back.

    If you can think of any way in which I can help, please let me know.

    Good night from Lexington Township. (And my thanks to all the veterans who visit this site. I hope we can preserve what you’ve sacrificed so much to protect … )

    Kaz

    null

  4. Comment by Marsh Rosenthal on 11/12/2012 at 7:42 pm

    How can you both be right? It seems like an impossible paradox. I have just returned to my Berkshire home from Falmouth, MA, where we held the the first Conference on Human Rights. We (Dave Moriarty and I) booked up an impossible lineup of presenters and it took an extra hour to get said what all was said. Never mind the techno-glitches; they were overcome.

    The Hardscrabble plaintiffs are up against impossible odds, and maybe they can’t win in court against the wind gonniffs, but a lot of people have become aroused about the lying and plundering that has been given a pass by every level of governance in this captive republic.

    Let me give you an example. Many people are incensed by the promulgation of wind siting Laws, like WESRA in Massachusetts, because they erode local home rule. In our republic, having local boards decide on matters of permitting industrial applications is the closest approximation to democracy we have come up with.

    What we are seeing is that local Zoning and Health Boards are deferring to the layer of governance above them and so on up to the State DEP and DPH. They, in turn, repeat the Administration party line that has been signed onto with the Big Renewable Energy cartel.

    What we have here, folks, is the process of Totalitarianization (phew, what a mouthful) of the social and political life of this nation. The courts, like the Nazi courts, consider the righteous dissidents to be traitors to the “greater good” of the renewable energy initiative.

    I’m like you, Kaz, because they can’t burn the idealism out of me. I’m like you, Calvin, because I can see that they have us outgunned. Look, how many battles did the “Father” of this country, General George Washington, actually win? Very damned few. His biggest concern was to save the Continental Army from destruction, run away and come back and fight another day. Did you know that fellow Masons who were British officers, helped the Continental soldiers escape at critical moments during our Revolution?

    This battle makes strange bedfellows, too. If this lawyer can’t get it done, perhaps that one, using a different strategy, will. If we can convince Donald Trump that it is in his interests to protect his golf resort in Scotland by funding a lawsuit in New York State, what’s stopping us from beating down his door?

    That’s something to think about. A little prayer can go a long way 🙂

  5. Comment by mtumba on 11/12/2012 at 8:11 pm

    Calvin, some time ago your site had a post that mentioned the formation of a venture capital group that would provide seed money for class action law suits. I can’t find the post, but perhaps you might be able to find it. Perhaps the lawyers or plaintiffs could approach the legal venture capital group for funds. There are so many individuals worldwide suffering from these monstrous machines I continue to believe the answer is persuading a large law firm that there’s money to be made suing these big ass criminals.

    Editor’s reply: This is the article you’re referring to, “Now you can sue Big Wind! Maybe.

  6. Comment by Kay Siddell on 11/13/2012 at 6:12 pm

    I have 53 in front of the house, a cluster of 10 between 680m and 900m away on the hill overlooking the house. Height is 110m. Two applications for 30 more to the side and the back of the house.

    We have suffered over 10 years of noise, and my health is failing. I am now attempting to obtain a biopsy on my lungs to test the accuracy or not of the effects of vibro-acoustic disease. It is supposed to change the internal organs by building up much thicker collagen levels in a unique pattern.

    If I am successful, I will report back and other people in our situation can use the evidence.

    Kay Siddell
    Ayrshire Scotland

  7. Comment by Jeff DeFrancisco, Esq. on 01/03/2013 at 12:01 pm

    I am writing this in response to a few of the statements made above. I am one of the Syracuse lawyers representing the Plaintiffs in this lawsuit. Just to clarify a few things, my office solely handles litigation matters with an emphasis on personal injury. As you can tell from my website, I have been extremely blessed with having very favorable outcomes for clients, although no attorney can ever guarantee outcomes for clients.

    I have handled many other claims, including products liability matters that were against billion dollar companies, so that is no deterrent for us. My co-counsel on this matter is an environmental lawyer, so this partnership is well suited for this endeavor. We have already done extensive research on this matter and we are very optimistic about our chances of success.

    As for the statement regarding experts and litigation costs, we have a variety of credible experts available to assist us on this matter and expert costs are of no concern.

    In closing, we are representing many individuals who have been injured as a result of the turbines. The problem is so bad for some individuals that some people literally abandoned their homes. Others simply cannot afford to leave because no one will buy their homes with the destroyed landscape and constant disturbances from the turbines.

    It is simply not right for corporations to come into communities, make significant profits to construct these turbines, then leave many families with homes they can no longer enjoy and with reduced property values—among other damages.

    We are doing what we believe is right and fair, and we will not be deterred.

    And to the many people and organizations that have contacted us from literally all over the world, we thank you for your support.

    Jeff DeFrancisco, Esq.

The comments are closed.