Garner Correctional Institution in Newtown. Garner Correctional Institution in Newtown.

A federal judge has ruled that a lawsuit filed on behalf of current and former Garner Correctional Institution prisoners who were allegedly exposed to radon while incarcerated can proceed, paving the way for possible class action certification.

In her Sept. 27 ruling, U.S. District Judge Janet Bond Arterton denied Connecticut’s motion to dismiss. In her sharply worded ruling, Arterton said the claim of radon exposure by the plaintiffs, including lead plaintiff and current inmate Harry Vega, “are not merely speculative.”

Radon is a naturally occurring odorless and radioactive gas that is the second leading cause of lung cancer, after smoking, according to the National Cancer Institute.

“Given the facts alleged in the plaintiff’s amended complaint, the long history of alleged cover-up and failure to remediate radon, and the specific allegations involving failure to test housing blocks at Garner, plaintiffs’ allegations that they face an ongoing risk or unreasonably dangerous exposure to radon are not merely speculative,” Arterton wrote. “At the very least, class members currently incarcerated at Garner may properly seek prospective relief both for continued testing to check the cell blocks’ radon level as well as baseline medical screening and medical monitoring.”

The state also sought to dismiss a claim by the plaintiffs alleging violations of the Eighth Amendment of the U.S. Constitution, which protect against cruel and unusual punishment. That request was also rejected.

The state, on behalf of about 15 defendants, including Department of Correction Commissioner Scott Semple, has indicated it plans to appeals to the U.S. Court of Appeals for the Second Circuit, according to Martin Minnella of Minnella, Tramuta & Edwards in Middlebury.

Minnella, one of six attorneys representing the plaintiffs, said Thursday that the judge’s decision was “so well thought out, and articulated so well that I do not think there is any possibility the Second Circuit will reverse her decision.”

The state had a chance to avoid the current situation, Minnella said.

“They built Garner in the early 1990s and, according to the EPA, they were in an ‘A’ radon zone,” Minnella said. “If you are in such a zone, you are supposed to test and they did not do that. If they tested for radon in the beginning, it would have costed them only $40,000 to $50,000 more to put in a remediation system. That would have resolved everything.”

The judge’s Eighth Amendment ruling is crucial as the federal case moves forward, Minnella said.

“You are talking about cruel and unusual punishment. These people [prisoners] have no choice and are housed there 24/7,” Minnella said. “They do not have ventilation with windows open and they don’t have access to any fresh air coming into the building. We call it the ‘death box.’ It’s an enclosed facility with no outside ventilation.”

Minnella said prison personnel were told between 2013 and 2014 about the radon, but inmates were not notified. Minnella and his colleagues also have a pending lawsuit in state court against Connecticut on behalf of personnel and staff.

The state said it underwent remediation efforts after a private company did tests in December 2013 and January 2014. Another batch of radon tests were conducted in June. Those results have been finalized, and Minnella said he hopes to learn the results soon.

Prisoner safety will remain a concern, regardless of what the new results reveal, Minnella said.

“They tested everywhere except the cells,” he said. “They tested the medical units, classrooms, visiting areas and administrative offices.”

Lori Welch-Rubin, also a plaintiffs attorney and a Bethany-based solo practitioner, said plaintiffs will seek class certification after the appeal process is completed. Welch-Rubin, noting the judge also denied the defendant’s motion to dismiss the claim for injunctive and declaratory relief, said, “the state does not pay for damages. But the question now is whether the named individuals will be held in violation. That includes Semple, former commissioners, former warders and people in charge of the facility.”

It’s not clear if any former inmates have died because of radon exposure, or how many have contracted lung cancer, Welch-Rubin said. “We have not done discovery yet to see how many inmates have been impacted. That is the next step.”

The number of current and former inmates that have been housed at Garner since 1993 is in “the thousands,” she said.

Arterton did rule for the defense in dismissing a Fourteenth Amendment claim for denial of access to the court.

The state was represented by four assistant attorneys general: Stephen Finucane, DeAnn Varunes, Michael Martone and Terrence O’Neill. A spokeswoman for the office, Jaclyn Severance, declined to comment.

Andrius Banevicius, a Department of Correction public information officer, said the department is reviewing the decision.

Assisting Minnella and Welch-Rubin are Joe Tramuta of Minnella Tramuta; Proloy Das of Murtha Cullina in Hartford; and Michael Stratton and Michael Skiber, both of Stratton, Skiber & Giordano in Norwalk.