School Board dismissed from mold lawsuitPublished 10:26pm Monday, March 4, 2013
Trial continues for employees
A Suffolk judge on Monday dismissed a lawsuit against Suffolk Public Schools, but a jury trial will continue for two individuals also named in the suit.
Additionally, the plaintiff’s lawyer plans to appeal the dismissal of the school system to the Virginia Supreme Court, he said after the hearing.
The lawsuit was filed by Deborah Simpson, the mother of a former Southwestern Elementary School student. She says her son suffered from frequent vomiting, sinus infections, skin rashes, watery eyes, ear infections and other ailments while he attended the school from September 2007 to March 2009.
Tests on the boy came back positive for allergic reactions to mold. Eventually, the child and his sister were transferred to Hillpoint Elementary School. However, the boy “faces future long-term medical treatment” and “suffered permanent immune system and cognitive injury,” according to the lawsuit.
During Monday’s hearing, Judge Rodham T. Delk Jr. agreed with the School Board’s counsel, Ann Sullivan of Crenshaw, Ware and Martin, that the court lacked jurisdiction over a complaint against the School Board because maintenance of school buildings is a governmental function, even though the plaintiff’s attorney, David Bailey of the Environmental Law Group, used case law to argue it was a proprietary function.
Bailey said he will appeal that decision to the Virginia Supreme Court, but in the meantime, the trial will go on for retired Suffolk Public Schools employee James D. Thorsen, who at the time was executive director for facilities and maintenance, and Terry Napier, who was assistant director for facilities and maintenance and was promoted to Thorsen’s position when he retired.
Superintendent Deran Whitney was originally named in the lawsuit but dismissed as a defendant last year.
The lawsuit also claims that school officials concealed facts and manipulated tests to make the mold problem seem less severe.
The jury trial, which begins Tuesday, is expected to last from one to three weeks. If the Supreme Court reverses Delk’s decision on the School Board’s dismissal, it will have to be repeated.