Lawyers for inmates and former guards at a state prison urged a federal judge in New Haven Monday not to dismiss a class-action lawsuit alleging that Connecticut was “deliberately indifferent” about protecting its inmates from unreasonable exposure to radon.
Retired and reassigned corrections officers and medical staff who worked at the prison prior to 2014 and current inmates at Garner Correctional Institution are suing the state Commissioner of Corrections Scott Semple and the five commissioners before him for not informing them about their exposure to radon, a radioactive gas and known carcinogen that can cause lung cancer.
A federal lawsuit on behalf of 13 inmates was filed in August 2017. Two of those named inmates have been diagnosed with lung cancer. One of those two inmates has a terminal cancer diagnosis. (Read the complaint here.)
A separate class action suit is being filed in state Superior Court on behalf of 16 retired and reassigned corrections officers and medical staff including a former Garner warden. The majority of the plaintiffs in that suit have some type of cancer or pulmonary diagnosis.
The inmates’ suit alleges that their Eighth Amendment rights are being violated as they continue to be exposed to radon at the prison.
On Monday Assistant Attorney General Stephen Finucane argued before U.S. District Judge Janet Bond Arterton at the federal courthouse on Church Street that the case should be thrown out because Commissioner Semple has qualified immunity and the state sovereign immunity from such suits.
Finucane told the judge that the state is taking no position on the toxicity of radon or that the inmates had been exposed to radon in its request for a dismissal.
The state agrees that there is an Eighth Amendment obligation to protect inmates, Finucane said. He went on to argue that no case law or specific court ruling requires the state to test for and mitigate exposure specifically to radon. He did note that the state does now regularly conduct the very testing that the class action suit is demanding.
“They’re saying, ‘We didn’t have to tell them. We’re not responsible for them if they develop damages after being exposed to these high levels of radon,’” one of the plaintiffs’ attorneys, Lori Welch-Rubin, said after the hearing.
Attorney Proloy K. Das argued in court that the plaintiffs have more than met the test of showing “deliberate indifference” on the part of the Department of Corrections. When Garner was opened in Newtown in 1992, he said, the state knew it was located on land that the federal Environmental Protection Agency had determined to have radon levels higher than the agency’s recommended levels for remedial action. Radon exposure is the leading environmental cause of lung cancer.
Das is representing the plaintiffs along with attorneys Welch-Rubin, Joseph Tramuta, Martin Minnella, Michael Stratton and Michael Skiber. The case began when Minnella heard from a correction officer he happens to know; the team subsequently heard from lawyers for inmates, leading to the second class-action suit.
The prison, which opened with a no-smoking policy, is located on the former waste site for a state mental health facility at Fairfield Hills Hospital in Newtown. Das argued that the state also had to know that radon had been added to a federal list of toxic substances in 1988.
When the Department of Corrections later learned that the indoor levels of radon were in some cases more than five times the EPA’s action level in 2014 it told employees to get baseline chest X-rays and allowed them to file a worker’s compensation claim in the event that they developed lung cancer. But it didn’t do that for employees who had retired or were reassigned prior to 2014.
Welch-Rubin noted in a conversation after the court hearing that one former corrections officer developed Stage IV lung cancer but didn’t find out until he broke his leg, by which time it had metastasized.
“Had he gotten [notice] two years earlier, he might have had a different level of cancer, and he might have survived,” Welch-Rubin said.
And despite the testing, the suit alleges, the state has done nothing to mitigate the exposure for inmates or even informed them that they might be at risk for lung cancer because of the exposure.
Das also pointed out that relevant case law involving inmate exposure to second-hand tobacco smoke and asbestos has set a precedent for how the court should see the case.
Arterton (who presided over the sentencing of disgraced ex-Gov. John G. Rowland) made no ruling Monday on the motion to dismiss.
“This is very interesting,” she said. “You both were very well prepared. But you didn’t make the court’s job any easier.”