Wednesday, September 21, 2016

Kiddie Kollege daycare mercury exposure case: the government cannot be held responsible for duties that include processing licenses and permits and issuing approvals

Last court appeal denied in Kiddie Kollege daycare case
Posted on September 21, 2016 by Sheryl Barr

Source:, September 20, 2016
By: Jan Hefler

The New Jersey Supreme Court has denied an appeal filed to force two government agencies to contribute to a medical-monitoring fund for the nearly 100 children who were exposed to toxic mercury vapors at their day-care center, Kiddie Kollege, more than a decade ago.

The court last week rejected without comment the appeal by the class-action suit lawyers who represented the children in a trial and subsequent appeals.

In 2011, Superior Court Judge James Rafferty decided the day care building’s owner, Franklin Township, Gloucester County, and the state Department of Environmental Protection were all negligent, and ordered them to contribute to a $1.5 million medical-monitoring fund.

Rafferty said the agencies had put the children at risk by issuing permits, conducting inspections, and taking other official actions that allowed the day care to open despite the building’s history of contamination.

The vapors can cause brain and kidney ailments, and were reported to be 30 to 50 times beyond acceptable limits.

The building owner and the county reached a settlement, but Franklin Township and the state appealed, arguing they were protected by immunity from lawsuits involving routine performance of their duties.

The judge had ordered the town and DEP to pay $675,000 into the fund and $1.6 million in legal fees to the children’s five attorneys.

In May, an appeals court agreed with Franklin and the DEP and overturned the ruling of the judge, now retired. Though mistakes were made, the government cannot be held responsible for duties that include processing licenses and permits and issuing approvals, the panel said.

The following month, the children’s lawyers appealed.

“We are pleased the matter is now complete and the township has no liability,” said M. James Maley Jr., who represented Franklin Township in the matter. “Local governments are not responsible for enforcing the environmental laws of the state. . . . As far as I know, this ends all the litigation.”

The Attorney General’s Office, which represented the DEP, declined to comment Monday. Attorneys Michael DeBenedictus and Thomas Booth, who represented the children in the latest litigation, were unavailable.

The children’s attorneys said recently that none of the parents had filed a lawsuit alleging that their children suffered harm directly caused by the vapors, but that there was concern that the effects may be latent.


N.J. Supreme Court rejects appeal in contaminated daycare case
By Matt Gray | For
on September 20, 2016 at 2:46 PM

Franklin Township and the state Department of Environmental Protection do not have to contribute to a medical monitoring fund for kids who attended a daycare in a former thermometer factory.

The state Supreme Court denied an appeal to an earlier appellate court ruling that found the township and DEP were protected from liability in the case because they are government agencies.

The Accutherm thermometer plant operated in Franklin Township from 1987 until 1994. Kiddie Kollege daycare opened on the site in 2004 and was operating until the DEP shut it down in 2006 because of mercury contamination discovered on the property.

A class action lawsuit brought on behalf of the kids and adults who worked or visited the daycare sought a court-administered medical monitoring fund, punitive damages and attorney's fees.

Plaintiffs alleged that the township, its construction zoning official, the county and the past and present owners of the site were all liable in the case.

Franklin Township was deemed negligent in allowing permits to be issued for Kiddie Kollege, according to the suit, since officials were aware of the previous issues with contamination at the thermometer plant.

Concerns with contamination at the site date back to the late 1980s.

While a trial judge previously ruled in favor of the families, an appellate panel ruled earlier this year in favor of Franklin and the DEP, saying they both are immune from liability under the state Tort Claims Act.

Gloucester County and the firm that leased the property to the daycare operators previously agreed to pay into the medical monitoring fund.

"We are pleased the litigation is finally concluded," said attorney M. James Maley Jr., who represented Franklin Township in the case. Effort to reach attorneys for the plaintiffs were unsuccessful Tuesday.

More than 100 children were exposed to mercury contamination at Kiddie Kollege. Many had high levels of mercury in their system when tested. Medical monitoring for Kiddie Kollege attendees began in 2012.

The current and former owners of the property were found liable for millions in cleanup costs at the site.

The building has been demolished and the property cleaned up.

10-year fight over toxic daycare ends in $6M judgement

  By Rebecca Forand | For
on May 05, 2016 at 3:45 PM

FRANKLIN TWP. — The fight over who has to pay to clean up a contaminated thermometer plant that later became a daycare center is over after the state Supreme Court affirmed a lower-court ruling, according to a report.

What was the Accutherm thermometer plant from 1987 through 1994 was bought by Jim Sullivan Inc. at a tax sale in 1999. That company then leased the building to Kiddie Kollege, a daycare center that cared for children between eight months and 13 years old before the Department of Environmental Protection shut the center down due to mercury contamination.

The DEP remediated the site, but charged the former and current owners, James Sullivan Inc. — which consist of Sullivan and his three siblings — and former factory owner Philip J. Guiliano, for the $2 million cleanup, as well as a $4 million fine for neglect. An appeal followed, but in January an appeals court ruled that the DEP's actions were just, according to the report.

Seven sites in Gloucester County remain on the federal Environmental Protection Agency's list of Superfund program sites.

That court did rule, however, that Jim Sullivan Jr. was not personally liable for the damages.

Sullivan Inc. attempted to appeal again, however the Supreme Court last week refused to hear the matter, letting the ruling stand and ending the 10-year ordeal.

More than 100 children were exposed to mercury contamination during the years Kiddie Kollege was open. Many had extremely high levels of mercury in their system when tested and in 2012 medical monitoring was ordered for the kids affected.