Law.com: Lawsuit Blaming Fla. Judge's Death on Courthouse Mold Dismissed

[Guest guest]

This decision is based on sovereign immunity alone as far as I can see.

_http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=1202433219730_

(http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=1202433219730)

Lawsuit Blaming Fla. Judge's Death on Courthouse Mold Dismissed

Pacenti

Law.com

08-21-2009

A federal judge has dismissed the lawsuit filed by the children of the late

U.S. Magistrate Judge Theodore Klein against the U.S. government, claiming

their father's fatal lung ailment was _due to moldy conditions at the

W. Dyer Courthouse in Miami_

(http://www.law.com/jsp/article.jsp?id=900005557251) .

Klein died in 2006 at 66 from a severe respiratory infection. His children

blamed the courthouse's condition on poor maintenance by the General

Services Administration, which operates all federal courthouses. The Dyer

courthouse was plagued for years with water leaks and mold that worsened after

a

spate of hurricanes hit South Florida in 2004 and 2005. It has since been

shuttered.

U.S. District Court Judge W. Story in Atlanta granted the

government's motion to dismiss July 17, ruling he had no jurisdiction because

the

lawsuit seeking damages from the federal government is barred by the Federal

Employees' Compensation Act. The law provides a maximum $1,000 compensation

for the death of an employee resulting from an on-the-job injury.

Story was hearing the case because of conflicts of interest for judges and

magistrates who served with Klein and who may have worked in the Dyer

building. Other Southern District of Florida courthouses, such as the _

Lawrence King building in Miami_

(http://www.law.com/jsp/article.jsp?id=1205491404497) and the G.

building in West Palm Beach, also have

developed mold problems.

In a footnote, Story said he " understands plaintiffs' frustration with the

limited compensation authorized by FECA under the circumstances of this

case. "

Alan Goldfarb, a Miami attorney representing the Klein family, tried to sue

under the Federal Tort Claims Act and the Florida Wrongful Death Act based

on a negligence claim. He could not be reached for comment by deadline.

There is no indication in the court file that he plans to appeal the judge's

decision.

The government's attorneys argued the Klein family's position " stands the

entire concept of sovereign immunity on its head. "

and Klein, children of the late judge, also have a lawsuit

pending in Miami-Dade Circuit Court against the federal contractors and

companies that did the maintenance work at the Dyer Courthouse.

After Klein's death, the Wilkie D. Ferguson Jr. Courthouse opened across

the street, and all federal magistrates were moved out of the Dyer building.

The GSA has a feasibility study under way to determine whether the Dyer

building should be gutted or if mold in the building can be removed, and how

much it would cost to renovate the building.

The limestone building was constructed in 1933 as Miami's main post office

and was added to the National Register of Historic Places in 1983.

A government-funded study of the courthouse detected fungal spores but

said they were not likely to cause health problems unless someone was in an

immuno-compromised state. An inspector hired by Klein's children found

unhealthy levels of pencillium fungus and aspergillus mold, which are known to

infect lungs.

Story said he felt constrained to follow the law but was compelled to

acknowledge Klein's service. Story said his conclusion " in no way diminishes the

exemplary service Judge Klein provided to this country. "