Published: October 25, 2007 11:49 pm         

Mold trial pushed back to 2009

Wabash Valley Surgery and Eye Care employees filed suit in 2002

TERRE HAUTE — Plaintiffs in a five-year-old personal-injury lawsuit against a Terre Haute eye clinic may have to wait until at least early 2009 for their day in court.

A trial date of Feb. 23, 2009, was set Thursday in the lawsuit that alleges that 14 employees became ill because of mold in the Wabash Valley Surgery and Eye Center.

Filed in April 2002, the case came before Judge Phillip Adler on Thursday for a new trial date and for the parties to argue three separate motions for summary judgment – two from defendants and one from plaintiffs.

The case stems from incidents in 1995 through 2001, in which employees at the eye center began experiencing respiratory illnesses, headaches and fatigue.

One defendant – CDI Inc., the builder of the eye center – is arguing for summary judgment on a theory that the plaintiffs failed to file the lawsuit within the statute of limitations. Two other defendants, Associated Physicians & Surgeons Clinic LLC, and AP&S LLC II, are arguing for summary judgment on a theory that AP&S was not the entity responsible for maintaining the building at the time of the alleged illnesses, and should not be included in the suit. Finally, the plaintiffs seek summary judgment to stop defendant CDI Inc. from naming one of its subcontractors as a non-party to the lawsuit.

After arguments Thursday, Adler said he would review the pleadings and rule in 30 days.

Twelve of the plaintiffs are represented by Terre Haute attorney Chris Gambill; one by Chou-Il Lee, and another by Keith L. Johnson, both Terre Haute attorneys.

CDI Inc. is represented by John H. Daerr of the Locke Reynolds law firm in Indianapolis; AP&S LLC and AP&S LLC II both are represented by Joseph D. O’Connor III of the Bunger & Robertson law firm in Bloomington, and Artenka Design, the architect, is represented by Jeff Blazi of the Stuart & Branigin law firm in Indianapolis.

As part of the initial lawsuit, plaintiffs alleged that building contractor CDI Inc. and owner AP&S failed to:

• Properly maintain the building at 422 Poplar St.;

• Repair it after defects were discovered;

• Require adequate heating, ventilation and air conditioning to be installed;

• Make CDI design and build properly and use the proper materials; and

• The builder’s and property owner’s negligence led to the growth of stachybotrys and other types of molds that sickened the staff working in the building.

Stachybotrys is a greenish-black, slimy mold that thrives on damp cellulose products such as wood and paper. It and other types of mold can release toxic chemicals known as mycotoxins. Exposure to stachybotrys can cause chronic respiratory disease, including the development of asthma, according to the Centers for Disease Control and Prevention.

Plaintiffs had developed adult-onset asthma, memory loss, sinusitis and allergic rhinitis, according to a Tribune-Star report in 2004.

According to Craig McKee, former attorney for AP&S Clinic, Union Hospital took steps to fix the problem when mold was discovered at the facility in 2000. AP&S Clinic is part of Union Hospital Health Group. The physicians who work at the clinic belong to AP&S but the support staff are employees of Union Hospital, which leases the building from AP&S.

Workers removed mold, replaced windows and repaired the roof. The repairs were finished in 2001.

Adler said Thursday that an earlier trial date for the case will not be possible because of renovations in the Vigo County Courthouse. Adler, who presides over cases in Vigo County Superior Court Division 2, has been occupying a small courtroom in the Community Corrections Center at the corner of Ohio and First streets where he hears civil lawsuits.

He said Thursday that the AP&S trial “can’t happen in this courtroom,” because of the great number of attorneys and exhibits.

The permanent courtroom for Division 2 — in the courthouse — is not expected to be complete until at least summer 2008, Adler said. Because the trial is expected to last about four to five weeks, Adler suggested delaying it until early 2009.

Adler also said he looked into borrowing another judge’s courtroom in the courthouse, but it isn’t workable. Part of the reason Adler was temporarily assigned to the Community Corrections building is that he hears only civil cases, in which the defendants are not incarcerated.

All the other Vigo County judges hear criminal cases, and many of their defendants are coming to court from the Vigo County jail – across Ohio Street from the Community Corrections building.

If Adler were to switch courtrooms with another judge for the duration of the trial, he said, the Sheriff’s Department would have to hire additional security to escort inmates from the jail to the other building. Currently, inmates are walked from the jail a short distance to the courthouse.

Deb Kelly can be reached at (812) 231-4254 or deb.mckee@tribstar.com.