Mold lawsuit droppedPublished 9:33pm Tuesday, March 5, 2013
After reconsidering the issue, the plaintiff in a mold-related lawsuit against Suffolk Public Schools dropped the case Tuesday morning, planning to bring it back after receiving an opinion from the Virginia Supreme Court on the school system’s level of immunity.
The jury trial was to have begun Tuesday. More than 100 potential jurors had been summoned for the trial, only to be sent home early.
The lawsuit was filed by Deborah Simpson, who claimed her son suffered physical ailments, permanent injury and educational setbacks while attending Southwestern Elementary School from September 2007 to March 2009.
Tests on the boy came back positive for allergic reactions to mold. The lawsuit accuses school officials of concealing facts and manipulating tests to hide the extent of the mold problem in the school.
During a hearing Monday, Judge Rodham T. Delk Jr. dismissed the School Board as a defendant on the lawsuit. He 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, which would entitle the school system to immunity.
David Bailey of the Environmental Law Group, which represented Simpson, had argued maintenance is a proprietary function.
Rather than continue the trial against one retired and one current employee, Bailey said the plaintiffs had decided to await an opinion from the Virginia Supreme Court on the issue.
“The basic decision was, notwithstanding the fact that it would give the defendants the advantage to fix some of their pleadings, it just didn’t make sense to pursue a three-week trial on gross negligence against the two employees” when the losing side would likely appeal to the Supreme Court anyway, he said.
The Virginia Supreme Court has not addressed the issue at hand in more than 50 years, and then only in passing, Bailey said.
“It leaves the judge a really difficult decision.”