About one year after 13 prisoners brought a federal lawsuit for allegedly suffering ailments related to radon exposure at the Garner Correctional Institution, current and former employees of the prison Thursday filed their own suit in state court.
The state lawsuit, filed in Waterbury Superior Court, comes on the heels of a motion to dismiss the federal lawsuit. U.S. District Judge Janet Arterton heard that motion, and is weighing a decision. In the federal case, the state’s July 23 motion to dismiss alleges defendant, Connecticut Department of Correction Commissioner Scott Semple, has qualified immunity and that the state has sovereign immunity from such lawsuit.
Six attorneys — led by Martin Minnella of Minnella, Tramuta & Edwards in Middlebury and Milford — represent the plaintiffs in both suits.
Minnella told the Connecticut Law Tribune Monday that officials knew in the early 1990s that the site chosen for the Newtown-based facility was contaminated, but continued to build anyway.
The claims involve radon, a naturally occurring odorless and radioactive gas that the National Cancer Institute has called the “second leading cause of lung cancer in the United States.”
“The state knew that the site was considered by the [Environmental Protection Agency] to be the No. 1 radon site in Connecticut before they built it,” Minnella said. ”The site was used as a waste site by Fairfield Hills Hospital. For $50,000 to $60,000 they could have remediated the problem back at the time, but they did not spend the money. When you have waste, it permeates through the concrete and radon comes in more easily. It comes in through the cracks of the foundation.”
“It was a like the perfect storm,” Minnella added. “It’s the No. 1 site for radon; you are building on a waste site, and you do not put a remediation system in place for $60,000. It’s just unbelievable.”
The state lawsuit lists 22 plaintiffs, including current and former employees. It seeks to allow employees and former employees to obtain medical care and other workers’ compensation benefits.
In both lawsuits, the plaintiff attorneys are seeking class-action certification. No decision on certification has been reached in either suit.
The lawsuit in state court alleges that radon caused the death of employees. It claims Kathleen Hanson was diagnosed with lung cancer and later died from the disease. Hanson had worked at Garner for 10 years, beginning in 1992, when the facility opened. A second worker, retired prison guard Lawrence Andrews, also died from the effects of the radon, Minnella said.
Other plaintiffs report ailments. For example, the lawsuit cites the case of Frank Crose, Garner’s first warden, who worked at the institution from 1992 through 1996. Crose has been diagnosed with nodules on his lungs, according to the suit.
Federal guidelines, the lawsuit states, warn of radon levels in excess of 4.0 picocuries per liter. But tests done at the facility in December 2013 and January 2014 showed different parts of the facility had radon levels from two to five times higher than the limit set under federal guidelines. Those levels, the lawsuit states, exposed employees “daily to the equivalent of smoking up to 2 1/2 packs of cigarettes a day.” After a private company conducted the first tests, beginning at the end of 2013, the state said it had undergone remediation efforts. Another batch of radon tests were conducted in June, and those results are pending, Minnella said.
The inmates’ suit alleges their constitutional rights under the Eighth Amendment, which protects against “cruel and unusual punishment,” were and, possibly are still, being violated because of the radon exposure. The suit seeks noneconomic and compensatory damages.
Meanwhile, the lawsuit in state court seeks an unspecified amount of monetary damages, including compensatory and economic.
In its motion to dismiss the complaint in federal court, the state says it is “immune from suit.”
“The defendants’ qualified immunity bars the federal individual-capacity claims seeking money damages,” the motion argues. “Connecticut’s 11th Amendment of sovereign immunity bars the official-capacity claims and the equitable relief sought.”
The state was represented by four assistant attorneys general: Stephen Finucane, DeAnn Varunes, Michael Martone and Terrence O’Neill. Speaking for the Office of the Attorney General, spokeswoman Jaclyn Severance told the Connecticut Law Tribune Monday, “We are reviewing the complaints and will respond appropriately in court.” Andrius Banevicius, Department of Correction public information officer, said department policy prohibits commenting on active litigation.
“Nonetheless,” Banevicius said, ”we take the health and wellbeing of our staff and those in our care very seriously.”
Assisting Minnella in the cases are Joe Tramuta of Minnella, Tramuta & Edwards; Proloy Das of Murtha Cullina; Lori Welch-Rubin, a solo practitioner from Bethany; and Michael Stratton and Michael Skiber, both of Stratton, Skiber & Giordano in Norwalk.