There might be light at the end of the tunnel in the lawsuit filed more than four years ago against the town, Wilton Schools and town officials by Marissa and Christopher Lowthert on behalf of their children. Casting that glimmer of light are interesting entries on the agendas for the three main town boards–Board of Selectmen, Board of Finance and Board of Education–all for the same meeting tonight, Tuesday, Jan. 21 in Town Hall Room B.

All three agendas list almost identical action items that the boards will take while in executive session:  Discuss pending litigation of Marissa Lowthert et al. v. Wilton Board of Education et al, and “possible action” in the case.

All three agendas were filed and posted online just before 5 p.m. on Friday, Jan. 17, in compliance with Freedom of Information laws that mandate making agendas for municipal meetings available to the public and filed at least 24 hours before the meeting. While not required to literally post agendas on a wall at Town Hall, the regular practice of Wilton officials is to post them in the town clerk’s office and on the town website.

The trial part of the case has already started, with attorneys and their clients appearing in Stamford Superior Court in front of Judge Edward Krumeich in early December. There was one day of jury selection on Dec. 4 and then three scheduled days–Dec. 10, 11 and 18–for a preliminary “Porter Hearing,” during which the judge decides on the admissibility of some scientific evidence or testimony.

The parties were due back in court for the trial to start after the New Year, on Jan. 7, 2020. However, the trial didn’t proceed as originally scheduled. Superior Court case-flow coordinator Catherine Cannizzaro told GOOD Morning Wilton that the trial was “marked off at the request of the parties.”

“We’re waiting to hear from them, that’s all I know about it now,” she said last week, adding, “They are supposed to report back to me on Friday [Jan. 17] with rescheduling or whatever comes next.”

The Lowtherts filed their lawsuit on behalf of their children in November 2015 against a long list of town officials and entities:  the Wilton Board of Education; Wilton Public Schools; the Town of Wilton; former schools’ superintendent Dr. Gary Richards; Cheryl Jensen-Gerner, the former principal of Miller-Driscoll School; Ken Post, the former finance director for the Board of Education; former BOE chairman Bruce Likly; and former first selectman Bill Brennan.

The Lowthert family–parents Marissa and Christopher and two children are listed as plaintiffs–asserts that the two children suffered as a result of being subjected to poor indoor air quality as students at Miller-Driscoll Elementary School between 2011 and 2013. They argue that for years, even before the Lowthert children were students at Miller-Driscoll, multiple Wilton officials knew about leaks, wet building conditions, mold and other environmental hazards in the building yet did nothing to protect students from conditions that led to the Lowthert children’s exposure and resulting illnesses.

Motions filed by the Lowtherts detail injuries they say their children sustained as a result of the environmental hazards at Miller-Driscoll:  respiratory symptoms including chronic congestion; cognitive symptoms; asthma; building related illness; mold allergy; allergic symptoms; nosebleeds; headaches; sore throat; nausea; behavioral changes; insomnia; fatigue and loss of appetite, among them.

The lawsuit also alleges that “due to their exposure in the building, both children now suffer from asthma.”

Court documents show that the Lowtherts’ son began kindergarten at Miller-Driscoll in Aug. 2011 and attended through Nov. 22, 2013; their daughter began attending preschool there in May 2012 and eventually attended kindergarten beginning in Aug. 2013 until Nov. 22, 2013. After that date, the Lowtherts withdrew the children from district schools.

Prior Settlement Offer

According to court documents filed in the case, attorneys for the town made a motion to preclude the Lowtherts from testifying or introducing evidence during the trial about any prior settlement negotiations or offers made by school officials.

In a motion filed on Nov. 22, 2019, it states:  “It is anticipated that the plaintiffs may seek to offer into evidence a settlement offer made by the WPS District at some point in 2014. Said settlement offer did not pertain to the claims that are the subject of the instant lawsuit. Nevertheless, any testimony and/or other evidence offered by the plaintiffs concerning same would be to serve the improper purpose of proving the validity of plaintiffs’ claim and/or the value of the claim.”

That motion was answered by the Lowtherts’ attorneys on Dec. 3, 2019, in a response stating that, “…the plaintiffs have no intention of offering any evidence of the settlement offer Defendants made to Plaintiffs in 2014.”

Costs to the Town

Attorneys representing the town and individual defendants in the lawsuit have been actively working on the lawsuit since 2015; the first legal team for the town was part of Litchfield Cavo LLP; the current firm, Howd & Ludorf, took over the case in 2017. With more than 300 motions, preliminary court orders and decisions, filings and thousands of pages of evidence, the case has already been a costly one.

The plaintiffs have asked for thousands of pages of records (e.g. emails, reports, etc.) and at times have filed contempt motions and complaints asserting that the school district has not turned over all the requested existing documents. In addition, multiple depositions of current and former town officials as well as other witnesses have been taken not just in Connecticut but all around the country.

It’s likely that legal fees racked up by both sides since the case began amounts to multiple hundreds of thousands of dollars.

As town officials have discussed before, the town’s legal costs are covered by insurance. Any potential amount awarded in a lawsuit against the town typically also would be handled first by the town’s insurance policy. However, Wilton’s policy dating back to the time in question limits coverage for for awards in incidents involving environmental claims to $25,000. Town officials would need to determine how any settlement amount above that cap would be handled by the town.

GOOD Morning Wilton reached out to attorneys representing the Lowtherts and the town for comment, but has not heard back by deadline. First Selectwoman Lynne Vanderslice declined to comment.