Kiddie Kollege trial opens in Gloucester County

Lawyers sparred over whether the government can be held legally responsible whenever something goes wrong as the case of the toxic Kiddie Kollege Day Care center opened Tuesday in a Gloucester County courtroom packed with more than a dozen attorneys.

Nearly 100 babies and children breathed hazardous mercury vapors in the Franklinville day-care center before state inspectors abruptly closed it in July 2006. The children's attorneys responded with a class-action lawsuit that says the local and state governments responsible for protecting the public's health and safety failed so miserably that they must be held accountable.

The toxin, which can attack the neurological and immune systems, "stays in the brain a very long time," said James Pettit, a lawyer for the children.

He is asking government agencies, the building owners, the day-care operators, and other parties to pay for long-term medical monitoring.

But the lawyers defending the town, the county, and the state say holding government responsible for every harm would stifle its ability to function.

The day care, which opened inside a former thermometer factory, was one of 20,000 contaminated sites the state was monitoring, and the state does "the best it can with its resources," said Deputy Attorney General Randy Weaver.

After hearing four years of heated legal wrangling, Superior Court Judge James E. Rafferty Jr. cleared his calendar for a one- to two-month trial.

He will rule whether annual medical tests are necessary and, if so, who should pay for them.

Lawyers spent Tuesday morning trying to reach a settlement, but when negotiations failed, preparations were made for trial. Extra tables had to be assembled in the courtroom for the number of lawyers and their associates, while a technician with Court TV set up cameras for a live feed.

The case made national headlines. The day care facility later was deemed so contaminated it was demolished.

The trial initially will focus on who is to blame and then will shift to medical experts, who will testify about whether exposure to mercury vapors can lead to health problems and whether medical monitoring would serve a purpose.

Carl Poplar, who represents Jim Sullivan III, the former building owner, argued that the children have no symptoms and do not need constant probing to see whether they are all right.

The "testing will be deleterious," he said, contending it could cause unnecessary anxiety.

Mary K. Schwemmer, who represents the Gloucester County Health Department, said there is "no scientific proof" that exposure can cause latent effects.

Only one parent showed up for the trial, but he left after a few hours, as lawyers huddled to try resolve the case without a trial. Joe Fabrizio, whose son attended Kiddie Kollege, said he wanted to see what would happen at trial.

"When a problem surfaces, you have got to keep on top of it," he said, referring to his suspicions that his 5-year-old child's memory lapses and difficulties with school could have come from exposure to the vapors.

Though none of the children's parents has reported any serious neurological or kidney ailments that can be caused by the toxin, they have noticed various childhood ailments, such as attention deficit disorder, rashes, seizures, and other conditions that may or may not be related to what happened at Kiddie Kollege.

The day care opened in January 2004 inside the abandoned factory after a real estate broker who acquired it said he misread an environmental report and thought the building was no longer contaminated. The building, however, was on the state's contaminated-sites list.