Old News - How Was This Resolved?? Deadly Fungus in Museum Basement (Soho) Prompts Big Lawsuit

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http://palimpsest.stanford.edu/byorg/abbey/an/an18/an18-6/an18-604.html

Volume 18, Number 6

Oct 1994

Deadly Fungus in Museum Basement Prompts Big Lawsuit

Condensed from the New York Observer, v. 8 #7, Feb. 21, 1994, p. 1 & 17,

where it appeared under the title, " A Deadly Black Mold Grows in SoHo;

Museum Staff Seeks Legal Remedy. Bloblike Fungus Bred in New Museum's

Basement; Memo Says Management Knew of Hazards in 1990. "

A nearly $400 million class-action lawsuit has been brought against the New

Museum of Contemporary Art by 11 current and former employees because of a

highly toxic black mold that has been growing in the subbasement of the

museum's aging building at 583 Broadway. The plaintiffs claim that the mold,

Stachybotrys atra, has caused them a series of symptoms and illnesses

ranging from minor to severe. The trouble began in 1990, after the

subbasement flooded during a heavy downpour, when an estimated 30% of the

employees began to complain of headaches, chronic fatigue and respiratory

ailments.

During the Cold War, NATO and West Germany tried to develop an antidote for

Stachybotrys atra, fearing it was part of the Soviet Union's biological

warfare arsenal. They were unsuccessful. There is no antidote or cure. Those

who were exposed to it originally now have to scrupulously avoid any future

exposure, not only to the mold, but sometimes to a wide range of previously

harmless substances to which they are now allergic. Affected employees who

continue to work for the museum have been relocated to a nearby office

building and are referred to by administrators as " the medically removed. "

The building was seriously substandard, and neither the museum management

nor the landlord took action to remedy its defects, despite the

conscientious documentation provided by Kirschner, the museum's

Director of Operations, in a series of internal memos. The city did not

close the museum down, despite its lack of both a valid public assembly

permit and a current certificate of occupancy. In February, 18 violations

issued by the city's Buildings Department were still outstanding.

It did not help when the first environmental firm they consulted turned in

an inadequate report. (That firm is now one of the defendants in the

lawsuit.) The second environmental firm they approached, Clayton

Environmental Consultants, correctly identified the mold and issued the

first of several scathing reports in November 1991, confirming and

supplementing Kirschner's documentation. These reports blamed an

inadequate ventilation system that did not properly circulate air and a

relative humidity that could exceed acceptable levels. They noted that the

museum's outdoor air intakes were positioned over an air shaft full of

stagnant water, which could foster the growth of molds and bacteria, and

that " the intakes were covered with pigeon feces and a dead pigeon that can

harbor pathogenic fungi. " They also recommended that employees who worked

near the subbasement get medical attention.

Some employees had already gone to Mt. Sinai Hospital's Occupational Health

Clinical Center for diagnosis. Dr. Eckardt Johanning, who examined several

of them, was puzzled because these complaints looked much worse than the

normal " sick building syndrome. " After he saw the Clayton reports, he

immediately suspected that the mold was the cause of his patients' health

problems, and told the museum administrators of his diagnosis. Ms. Kirschner

then arranged a meeting between the doctor and employees. Signs were posted,

and the basement was sealed off.

Dr. Johanning also wrote a letter to Ms. Kohlreiter at Realty Fund Partners,

the museum's landlord, which, he said, had to be delivered by registered

mail because she refused to acknowledge receipt of any of his

correspondence. (The firm has since lost the building in a foreclosure, and

its telephone has been disconnected.)

The ventilation system has been upgraded, but Unibank, the new landlord, has

still not agreed to spend $100,000 on a mold abatement program. Instead,

they are trying to sell the building. Dr. Johanning continues to monitor the

employees who were exposed to the mold, and recently gave two papers at a

Helsinki conference on what has come to be called " the New Museum case. "

If the plaintiffs win their case, the museum's board of directors will be

personally liable for awards in excess of the amount the museum can pay. The

plaintiffs are aiming for the deep pockets of directors Henry Luce III, Vera

List, Herman Schwartzman and art collector Arthur Goldberg.

As Monona Rossol says in her report of the mold disaster and resulting

lawsuit (ACTS Facts, May 1994, v. 8, #5, p. 1), " All board members of

non-profit corporations such as museums, theaters, schools and galleries are

similarly liable. They are responsible for protecting the institution, the

employees, and the public that visits their facilities. The board's

liability is at risk if their buildings harbor hazards like mold, water

damage, poor sanitation, black dust floating out of air-supply grates, or

ventilation systems that deliver insufficient amounts of fresh air. "

That issue of ACTS Facts also has a list of diseases that can be contracted

from biological hazards like mold. Seven of the 27 diseases in the list are

mycoses. The source of the disease organisms is given for each.