Published on HamptonRoads.com | PilotOnline.com (http://hamptonroads.com)
Feb. 3, 2012
Lawsuit claiming mold caused illness to go forward
SUFFOLK, VIRGINIA. A lawsuit claiming a boy was sickened by longstanding
moldy conditions at his elementary school will move forward against the
School Board and two of its employees, albeit with fewer claims, a judge
decided this week (first week of February, 2012).
Circuit Judge Rodham T. Delk Jr. dismissed claims of simple negligence in a
written opinion issued Tuesday. The board, current facilities director Terry
Napier and retired facilities director James Thorsen are covered by
sovereign immunity because they were performing a governmental function,
Sovereign immunity doesn't apply to the suit's claims of fraud and gross
negligence, the opinion said. Delk also dismissed Superintendent Deran
Whitney from the complaint, writing that the plaintiff failed to specify a
claim for which he is liable.
Suffolk schools spokeswoman Bethanne Bradshaw declined to comment because
the case is still pending.
The $7.85 million lawsuit, filed in 2010, says Deborah Simpson's son grew
ill the day he entered kindergarten at Southwestern Elementary in 2007. The
5-year-old experienced rashes, sinus infections and frequent vomiting. He
became so sick he could hardly make it through a full week of school,
according to the complaint.
The boy's symptoms continued through first and second grade at Southwestern,
the suit said. Doctors eventually diagnosed him with a mold allergy and
recommended he switch schools. That request was initially denied.
Simpson's complaint says she shared concerns about mold with building and
central office employees, but administrators insisted it wasn't a problem.
The suit contends they tried to hide an infestation by cleaning classrooms
before mold testing was done and allowing an untrained employee to conduct
The boy is now behind in school and faces long-term medical treatment
because of mold exposure, the complaint alleges.
Constitutional claims outlined in the suit were dismissed a year ago by a
federal judge. A jury trial on the remaining state law claims is scheduled
for June 25 in Circuit Court.
"We obviously disagree with the judge's call on the sovereign immunity
question," Simpson's attorney, David Bailey, said Thursday. "But it doesn't
change that the case is going forward."