Lowthert Lawsuit from 2015 Close to Settlement; BOE, BOS and BOF to Discuss Details Tonight

A lawsuit filed by a Wilton family against the Wilton Board of Education, Wilton Public SchoolsTown of Wilton, and several former town officials dating back to 2015 is possibly close to being settled. Town officials on the three main Boards — Selectmen, Education and Finance — are meeting together tonight, Wednesday, Nov. 17 at 7 p.m., in an executive session to discuss the details.

Agendas for all three boards have been posted to the town and school websites listing the same two items: the first, an “expected Executive Session” to discuss the lawsuit, followed by the second item, “Discussion and possible action on proposed settlement in the case of Marissa Lowthert et al. v. Wilton Board of Education et al., docket number FST-CV-15-6026938S.”

[Editor’s note: Members of the public can watch the open portion of the meeting live on Zoom.] 

The case has attracted considerable public attention since it was first filed, and there have been hundreds of motions and objections filed during the six years that it’s been in front of the court. Lowthert v. Board of Education has even spawned multiple filings and complaints to the state Freedom of Information Commission. It was, as Stamford Superior Judge Robert Genuario described it, a “significant” and “actively litigated case.”

It’s not the first time the case has come close to a settlement:  The town’s three primary boards (Board of Finance, as well as BOS and BOE) discussed a settlement to the lawsuit back in late January 2020, just before the COVID 19 outbreak. The trial part of the case had already started in front of Stamford Superior Court Judge Edward Krumeich in early December, with one day of jury selection and three scheduled days for a preliminary “Porter Hearing.” The parties had been due back in court for the trial to start on Jan. 7, 2020, but, according to a memo of decision from Genuario, lawyers for the parties confirmed they had “agreed upon and approved” a settlement. Based on that affirmation, the jurors were dismissed.

The three Boards scheduled another executive session in July 2020 with the same agenda items listed at the time. But an apparent rift between the plaintiffs and their attorneys halted progress. Michael Harrington, of FordHarrison LLP, wrote in a motion to withdraw the firm as the attorney representing the plaintiffs “because Counsel and one or more of the Plaintiffs have insurmountable disagreements regarding the proposed settlement agreement in this case…”  He underscored the split, writing that it was “due to irreconcilable breakdown in the attorney/client relationship.”

This time, in an order Genuario issued in August 2021, he noted that all parties needed to select dates between Nov. 16 and Dec. 10 in order to be available for hearings on motions that had been filed “to enforce a settlement agreement.”

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 to $25,000 for awards in incidents involving environmental claims. Town officials would need to determine how any settlement amount above that cap would be handled by the town.

First Selectwoman Lynne Vanderslice told GOOD Morning Wilton that while she does not comment on ongoing lawsuits against the town, “The agenda speaks for itself.” She did confirm the information on insurance coverage limits.

GMW reached out to Marissa Lowthert for comment but has not received a response by press time.

Case Background

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

The Lowthert family — both parents and the 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 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.

Court documents filed in the case indicate that school officials or their representatives had made prior settlement negotiations or offers to the Lowtherts “at some point in 2014.”

Two years after the Lowthert children were pulled out of the district by their parents, Miller-Driscoll School underwent an extensive renovation project, from late 2015 until Sept. 2017. The project involved the replacement and repair of significant structural elements, including new roof sections, windows, flooring, ceilings, and more, as well as new construction of a portion of the building. At the time, town officials readily admitted that structural problems — including roof leaks and aging mechanical systems such as HVAC — were a major impetus for the renovation project, which eventually cost the town approximately $35 million at its conclusion.

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.

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