Mold lawsuit advances

Published 8:45 pm Thursday, February 2, 2012

A Circuit Court judge this week dismissed one of the plaintiffs and upheld Suffolk Public Schools’ plea of sovereign immunity in a lawsuit surrounding alleged mold in one of its schools.

However, sovereign immunity doesn’t protect the school division from claims of gross negligence and fraud, so the case will proceed to trial, scheduled for June.

The lawsuit centers on a former Southwestern Elementary School student whose mother filed the lawsuit and is seeking $7.5 million in damages.

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Deborah Simpson claims that son suffered from frequent vomiting, sinus infections, skin rashes, watery eyes, ear infections and other ailments while he attended the school.

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 child “faces future long-term medical treatment” and “suffered permanent immune system and cognitive injury,” according to the lawsuit.

The lawsuit was filed against James D. Thorsen, who at the time was executive director for facilities and maintenance; Terry Napier, who was assistant director for facilities and maintenance; Superintendent Deran Whitney, who was interim superintendent at the time; and the School Board.

Thorsen has since retired, and Napier was promoted to his position.

The lawsuit alleges simple and gross negligence, as well as fraud, claiming that school officials concealed facts and willfully or negligently manipulated tests.

In his decision, Judge Rodham T. Delk Jr. found that no claim had been made against Whitney and dismissed him as a defendant.

He also found the School Board, Thorsen and Napier have sovereign immunity, which protects them from claims of simple negligence.

However, he overruled the pleas of sovereign immunity to protect the defendants against gross negligence and fraud.

He also dismissed the school system’s claim of statute of limitations. The limitation in this case is two years. The boy entered school in 2007, and the lawsuit was not filed until Sept. 20, 2010.

However, Delk found, the boy’s attendance at the school and illness had continued until 2010, and his diagnoses of mold-related illness did not occur until Oct. 22, 2009 — well within the statute of limitations.

The jury trial is set to begin June 25.