ALBANY – Nine years after a parasite invaded a Finger Lakes water park and turned a summertime outing into stomach-wrenching agony for thousands of visitors, 2,501 claimants are still waiting for their day in court.
And they may have to wait even longer.
Although Syracuse Court of Claims Judge Nicholas Midey Jr. (See Profile) has scheduled a trial for May 5, the Attorney General’s Office is seeking a delay until 2015 to challenge several pretrial rulings. Midey has refused to dismiss the case, or to disqualify an expert witness and bar one of the plaintiff firms from continuing to work for claimants it has represented since the case began in 2005.
Assistant Attorney General Edward McArdle, who is defending the case, said in a March 14 motion that the state needed time to pursue an appeal and deal with some trial logistics and last-minute evidentiary issues.
But an attorney for the claimants said the state is simply stalling.
“If a private company had done the things the state has done, the state would be the first to protect the interests of the boys and girls who were made terribly sick during the summer of 2005,” said Paul Nunes, a partner at Underberg & Kessler in Rochester. “They would be champions for these innocent kids, and their parents. I have a lot of respect for the AG’s office and [Attorney General Eric] Schneiderman. However, the handling of this case has made me very sad.”
Schneiderman’s office declined comment.
Springer v. State, 111361, turns on a seemingly straightforward question: Is the state liable for the cryptosporidium outbreak that inflicted several thousand visitors to a state-run “spray park” at Seneca Lake State Park southeast of Rochester?
The answer has proven elusive in a case that has spanned the administrations of three attorneys general, spurred extensive motion practice, resulted in sanctions against the state for ignoring discovery directives and is now headed for an appellate court review.
Springer began at a state-owned spray park, a summer attraction in which 100 water jets spray water into the air and kids run through the shower in a glorified version of jumping through the lawn sprinkler. Spray parks are popular with kids and attractive to proprietors because they require far less maintenance than a public pool and, with little or no standing water, do not present a drowning hazard.
The claimants allege the Seneca Lake spray park was unfenced, so there was no limit to how many people could use it at any given time. There also was no clear ban on diaper-clad toddlers scampering through the shower and leaving trace fecal material behind. At the time, the spray park used a design in which the water was recycled and reused after draining through a filtration system and being chlorinated.
During the summer of 2005, the water was contaminated by cryptosporidium or “crypto,” a highly contagious, chlorine-resistant, fecal-borne parasite that afflicted thousands of people. The state Department of Health shut down the park in mid-August 2005 because of the outbreak, but allowed it to open the following season with a revamped sanitation system.
A class action including those who were directly infected at Seneca Lake, those who contracted crypto because they were exposed to it through someone who got sick at the park and those who paid the medical bills was certified in 2006. The case has since been mired in a series of motions, a futile attempt at mediation and an estimated two-year delay when the state’s motion for summary judgment was pending in the Court of Claims.
Now the trial faces further delays with the attorney general’s request for a stay while it appeals Miday’s pretrial rulings.
In September, Midey found a triable issue of fact, despite the state’s claim that there was no evidence, that it had violated any statutory or regulatory requirements in its construction, maintenance and operation of the spray park.
Midey also refused to toss Underberg & Kessler from the case or preclude the testimony of an expert fact witness for the claimants, microbiologist Jennifer Clancy.
The state’s objection to Clancy and the law firm stemmed from the fact that the scientist had been a consultant to an engineering firm retained by the Office of Parks, Recreation and Historic Preservation to determine the cause of the outbreak. Schneiderman’s office claimed that Underberg & Kessler poached the state’s witness and possibly learned confidential information.
Midey found no basis to disqualify Clancy or Underberg & Kessler, but the state indicated in court papers that it intends to appeal that issue, as well as the summary judgment ruling, to the Appellate Division, Fourth Department.
“The Court could well end up trying the claim twice if the State prevails on either of its appeals, which would not promote judicial economy,” said McArdle, the assistant attorney general, in his motion. “The parties would also be prejudiced if the claim ended up being tried twice because of the additional outlay of expenses to try the claim. Staying the liability trial until the appeals are decided by the Fourth Department would best serve judicial economy.”
In his response papers, Nunes said “there are 2,501 reasons” why the court should deny the state’s application for a stay.
“They are the boys and girls who with their parents attended the Spray Park during the late summer of 2005 and suffered significant gastrointestinal illness as a result of being exposed to cryptosporidium at the State’s negligently designed, built and operated Spray Park,” Nunes said in opposing a stay. “They have waited nearly nine years to have their claims heard by this Court.”
In an interview, Nunes said the state has no defense, despite its claim that there is no evidence it departed from any mandatory practice or procedure.
“It was a model of how not to run a water park,” Nunes said. “I can say with conviction that there is nothing they did right. Usually you have a case and find something they did wrong and tie everything to that. What makes this so peculiar is we can’t find anything they did right.”
Also representing the class are Donald Boyajian and James Peluso of Dreyer Boyajian in Albany and Bruce Clark of Marler Clark in Seattle.