'Sick' courthouses spur suits.

From coast to coast, workers are blaming courthouses laden with asbestos, mold, poor ventilation systems, and other health hazards for ailments that range from headaches and nausea to serious respiratory problems and cancer. As workers' compensation claims pile up, trial attorneys in states from California to Massachusetts are joining justice system employees in taking private companies and government officials to court over "sick" courthouses.

Sometimes the problems stem from the buildings' old age; other times, from renovations meant to improve the facilities. In the Salinas, California, courthouse in Monterey County, asbestos-abatement work has been conducted with people in the building. Last September, the entire courthouse was temporarily shut down due to asbestos contamination. Its north wing had been closed previously on several occasions for the same reason.

In October, Monterey County Superior Court Judge Albert Maldonado, his former bailiff, and a courthouse maintenance worker filed lawsuits against the two contractors overseeing renovation of the north wing for injuries resulting from exposure to asbestos and other toxic chemicals. All three plaintiffs are suffering from similar respiratory problems, said their attorney, James Spiering of Monterey.

"When you release those types of toxic substances and they are micro in size, you're in effect poisoning people who are in that area without protective gear," Spiering said.

The lawsuits seek medical expenses and exemplary damages against contractors Skanska USA Building and Nova Partners, as well as their respective project managers. Noting that the effects of asbestos exposure may not be fully known for 10 to 20 years, Spiering said the lawsuits seek compensation to meet his clients' ongoing medical needs. (See e.g. Maldonado v. Skanska USA Bldg., No. M 81385 (Cal., Monterey Co. Super. filed Oct. 20, 2006).)

Spiering chose to sue the contractors and not the county because he believed they "sold the county a bag of goods."

"These large corporations said essentially, 'We can do this work while you're here,' and they did not use any form of [air quality] monitoring system. They shouldn't have done it while people were there," he said, noting that although the companies initially monitored the level of asbestos in the air, they stopped because doing so was too costly.

The lawsuit follows an indictment of the four defendants by the state attorney general's office, which accused them of various felonies and misdemeanors for improper management of asbestos--including allowing workers to saw-cut and jackhammer concrete on the second story of the building, which released asbestos dust into the court's ventilation system. The project managers ignored warnings by the county's asbestos-abatement company because they were under pressure to meet construction deadlines, according to grand jury testimony.

In November, Skanska pleaded no contest to four misdemeanor charges in a plea bargain that included a $750,000 fine and a permanent court injunction requiring it to obey all laws, particularly those regarding the handling of toxic materials. All charges against its project manager were dismissed. Judge Barry Hammer signed the settlement and stayed sentencing on the criminal matter for a year--at which point he will dismiss the charges if Skanska has abided by the terms of its agreement.

At press time, attempts to reach a settlement with Nova had failed, and the case was set for trial early this year.

From bad to worse

Two days after Skanska entered its plea, work the company had scheduled and approved on a temporary facility near the courthouse led to more trouble: During roof work, toxic fumes from a sealant were pumped directly into Maldonado's temporary courtroom through the ventilation system, interrupting the session and sickening several people, including the judge.

Then, in early December--as if the courthouse didn't have enough problems--a light fixture fell in the basement, sparking some asbestos. Firefighters were able to put out the fire that ensued, but they had to spend hours in quarantine because of exposure to the asbestos in the room. Afterward, they had to discard the protective gear they wore--which was worth about $60,000--because it was damaged beyond repair by the exposure, Spiering said.

As in Salinas, an asbestos-abatement program at the Edward J. Sullivan Courthouse in Cambridge, Massachusetts, initially permitted abatement work while people were in the building. But after much resistance from courthouse employees and an investigation by a Massachusetts Bar Association-appointed tribunal that determined abatement could not be done safely with people present, the commonwealth agreed to suspend the project until workers are relocated later this year.

But last April, elevators in the courthouse--whose shafts and mechanical rooms contained asbestos--failed the state's health inspection, prompting the courthouse to commence maintenance work on them. Fearing exposure to asbestos, the Massachusetts Academy of Trial Lawyers joined Middlesex County's clerk, prosecutor, and more than 200 other employees in a suit against Robert Mulligan, the chief justice for administration and management (CJAM), alleging that he failed to implement an asbestos maintenance program that adhered to the safety measures required by law. Last December, Massachusetts's Supreme Judicial Court granted the plaintiffs standing to sue for declaratory and injunctive relief on the principle of equitable estoppel.

"The plaintiffs have alleged sufficient facts to show that they are in danger of suffering serious harm as a direct result of the CJAM's purported breach of his statutory and common law obligations," Justice Francis Spina wrote. (Sullivan v. C.J. of Admin. & Mgt. of Tr. Ct., 2006WL 3627944 (Mass. Dec. 15, 2006).)

The plaintiffs are seeking full implementation of the asbestos program, which calls for thorough asbestos inspections; certification and training of maintenance and other workers; use of containment, respiratory-protection, and personal-exposure-monitoring systems for any work that may disturb asbestos; hazard communication, including warning signs and asbestos notifications to employers bidding on work and to employees performing work that may disturb asbestos; safe work practices for housecleaning and maintenance; and communication with building employees about the details of any asbestos-related work.

The court rejected Mulligan's claim that he was immune from suit, finding that sovereign immunity did not apply because he was negligent and had made safety assurances to the plaintiffs on which they had relied.

"While the plaintiffs' complaint does not specifically include a count for negligence, the thrust of their complaint is negligent maintenance of the Sullivan courthouse by the CJAM," Spina wrote. The case was remanded to the Supreme Judicial Court for Suffolk County.

Richard Zielinski of Boston, Mulligan's attorney, said his client broke no promises and noted that an air-quality testing system and document depository with notifications and other materials regarding maintenance work are already in place. He said that the courthouse has seen several improvements in the last two years, noting that its budget for renovations has grown from $17 million in 2005 to $130 million in 2007.

But Chris Milne, the Dover attorney who represented the plaintiffs pro bono, said the CJAM has not done enough to address the health hazards at the courthouse. "The problem is of great magnitude," he said. "People there work under really inhumane conditions."

In 2002, Milne won a suit against Norfolk County on behalf of three trial attorneys and 58 courthouse employees of the Norfolk Probate and Family Court in Dedham, who claimed they were suffering from sick building syndrome (SBS). Symptoms of SBS include headache; eye, nose, or throat irritation; dry cough; dry or itchy skin; nausea; difficulty concentrating; and fatigue. In the typical SBS case, no specific illness or cause can be pinpointed, but symptoms can be linked to a person's time spent in a building.

The Massachusetts Superior Court issued an order to close the courthouse and move operations into a new, more suitable facility. (Schmidt v. Co. of Norfolk, 2002 WL 31187827 (Mass. Super. Aug. 15, 2002).) In that case, an SBS expert hired by the plaintiffs concluded that the fact that employees experienced health problems only temporarily--while they were in the courthouse--was consistent with SBS.

"Adequate air quality is an essential element for humans to live and work in. There is no ventilation system operating in the building," Justice Elizabeth Donovan wrote (her emphasis). She noted that the attorneys suing Norfolk County also constantly dealt with overcrowding and lack of privacy--conditions that constituted "an invasion of the attorney/client privilege because everyone can overhear conversations with their clients," Donovan wrote.

Inadequate ventilation is a leading cause of SBS, but chemical contaminants from indoor or outdoor sources and biological agents--bacteria, molds, pollen, viruses, insects, and bird droppings--can also produce the condition.

Milne said investigations of the Sullivan courthouse had found "a constellation of problems consistent with SBS, but the lawsuit has not involved that [claim] because proving SBS is extremely expensive." It was easier to pursue the sick-building argument in the case against Norfolk County, he said, because the lawsuit involved a smaller courthouse that housed only about 75 employees.

"We were able to hire the experts and to interview the witnesses necessary to prove SBS. In Sullivan, we're dealing with a 23-story building and hundreds of workers. It's more complex," Milne said.

Nationwide woes

California and Massachusetts are not alone in their battles with "sick" courthouses. In the last five years, courthouse employees in 16 states and the District of Columbia have filed health hazard evaluation requests with the Department of Health & Human Services' National Institute for Occupational Safety and Health, according to news reports.

For example, Baltimore's criminal courthouse was plagued with rodents, bats, and insect infestations, and workers were diagnosed with respiratory problems, unexplained rashes, and several cases of non-Hodgkin's lymphoma, including one that was fatal. Instead of suing the county, Baltimore's County and Municipal Employees Local 3674 sent sick union workers to the state's workers' compensation commission and pressured officials for new facilities. Court and city officials agreed to a new criminal courthouse and the complete renovation of existing buildings.

Although courthouse aging is part of the problem, even newer buildings have health issues. The Elbert County Courthouse in Kiowa, Colorado, for example, is only 21 years old, but it has been closed for most of the last two years due to mold-related health hazards caused by a leaky roof and an unsealed foundation.

As the list of repairs and renovations needed to get courthouses up to date grows, civil lawsuits may be a way to accelerate the process. "They probably have been the biggest motivation for change," Spiering said.