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Children still not tested for mercury

Despite a court order, those exposed at a N.J. day-care center still are not being monitored for health issues.

Catherine Cuffy and son Garrett, 8, at the Franklin Township site of a former thermometer factory where the now-demolished Kiddie Kollege day care once stood. Garrett, who attended there, has been diagnosed with ADHD. (Michael S. Wirtz / Staff Photographer)
Catherine Cuffy and son Garrett, 8, at the Franklin Township site of a former thermometer factory where the now-demolished Kiddie Kollege day care once stood. Garrett, who attended there, has been diagnosed with ADHD. (Michael S. Wirtz / Staff Photographer)Read more

Despite a judge's order more than a year ago, the children who inhaled toxic mercury vapors in the infamous former Kiddie Kollege day care still have not been monitored for potential medical problems.

The story attracted national attention in July 2006, after New Jersey inspectors discovered babies and children playing inside a heavily contaminated Gloucester County building that had once been a thermometer factory.

Kiddie Kollege has become a frequently cited cautionary tale as laws have been adopted to keep other children from being subjected to toxins. But the 100 who were exposed over two years at the Franklin Township day care and nursery school have been nearly forgotten in a bitter court fight that is again gathering steam.

A motion for a retrial is pending in Superior Court in Gloucester County.

"I keep wondering how our kids got lost in the system," said Catherine Cuffy, whose son, Garrett, attended Kiddie Kollege from age 18 months to 3.

"Other than demolish the building, they haven't done anything for the children," Cuffy said. "There was no follow-up to find out 'did the mercury affect them, and how?' "

Garrett, now 8, has been diagnosed with attention-deficit/hyperactivity disorder, which his mother says may have resulted from his exposure to mercury. Health experts say the toxin can cause neurological and kidney dysfunction.

Cuffy wants Garrett monitored to determine whether he develops other conditions that could be attributed to his exposure.

When the state Department of Health tested the children's urine in the weeks after the day care was closed, Garrett's had an elevated level of the toxin. Subsequent tests showed the levels had dropped.

Garrett says he wants continuing testing "to find out if I am OK."

Months after Kiddie Kollege was closed, a class-action lawsuit was filed against the building's owners and against local, county, and state government agencies alleging negligence. The children's lawyers asked the court to establish a fund to pay for medical monitoring.

Years of litigation led to a stormy three-month trial and a Jan. 11, 2011, verdict by New Jersey Superior Court Judge James Rafferty. All of the defendants were negligent, he said, because they knew of the contamination before the day care obtained approvals to open.

Rafferty, who delayed his retirement to finish the case, ordered the defendants to contribute to a $1.5 million fund for neuropsychological tests until the children reached age 24. Relying upon expert medical testimony, the judge said there was a need for early detection and treatment if health problems emerged.

But the testing was never launched.

There are myriad reasons, among them a court battle over legal fees and negotiated settlements. Those arguments are now before Superior Court Judge Anne McDonnell, who had to catch up on five years of legal wrangling when she replaced Rafferty.

There also have been conflicts between Franklin Township and its insurer over whether litigation costs exceeded the policy limit and over who is responsible for paying $525,000 the court has ordered the town to contribute toward the children's medical tests.

As of March 2011, M. James Maley, who represents Franklin Township, had been paid more than $1.4 million in legal fees by the county's Environmental Joint Insurance Fund. The insurer wanted to rein in the costs and/or be reimbursed by the township because the judge found town officials knew of the contamination before they allowed the factory to be converted.

An arbitration panel, however, said the insurer must pay the $525,000 and unlimited legal fees.

Maley has filed numerous motions in the litigation and appealed one ruling to the state appellate division. Reached this month, he said he didn't know how much his legal fees now total.

But Maley has objected to the more than $3 million in legal fees requested by the five law firms that represented the children. The town is liable for part of those fees, under Rafferty's order.

The judge ordered the children's lawyers to submit detailed bills. Her decision is pending.

Thomas T. Booth Jr., one of the lawyers, said the delay in implementing tests of the children had been "abnormally long."

"We wanted monitoring to commence as soon as possible," Booth said.

He laid most of the blame on Maley. "The township's lawyer has sought every opportunity to frustrate getting to the end of the matter," he said.

Last spring, Maley urged the judge to reject the $1.9 million settlement that the county Health Department and owners of the now-demolished Kiddie Kollege building offered to the plaintiffs before the verdict was handed down. The judge later approved the amounts and had the money put in escrow for the children's medical tests.

In September, that money was made available to the court-appointed master, James Gruccio, to set up the tests, Maley said.

Gruccio was unavailable for comment last week.

The legal fees remain in dispute. In December, Booth said, the children's lawyers reached a settlement with Maley for $1.1 million. The money would cover the town's share of the children's fund and part of the plaintiffs' legal bills.

But even that is back in court: Maley says no such agreement was reached. "It's simply not true," he said.

Booth and the other children's lawyers are asking the judge to uphold it. "I've never been involved in a situation where a party has attempted to undo a settlement," he said.

Maley is asking for a new trial, saying Rafferty erred in finding the township negligent.

Meanwhile, the families of the Kiddie Kollege children wait. "To allow these children's health to hang in the balance is just wrong," said AnnLynne Benson, Garrett's grandmother.