Source: http://www.philly.com, 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.