Judge's Death From Courthouse Mold
Ruled Not Worth More Than $1,000 Under Law

By John Pacenti
Daily Business Review
New York Lawyer
August 20, 2009

MIAMI - A federal judge has dismissed the lawsuit filed by the children of the late U.S. Magistrate Judge Theodore Klein against the U.S. government, claiming their father’s fatal lung ailment was due to moldy conditions at the David W. Dyer Courthouse in Miami.

Klein died in 2006 at 66 from a severe respiratory infection. His children blamed the courthouse’s condition on poor maintenance by the General Services Administration, which operates all federal courthouses. The Dyer courthouse was plagued for years with water leaks and mold that worsened after a spate of hurricanes hit South Florida in 2004 and 2005. It has since been shuttered.

U.S. District Court Judge Richard W. Story in Atlanta granted the government’s motion to dismiss July 17, ruling he had no jurisdiction because the lawsuit seeking damages from the federal government is barred by the Federal Employees’ Compensation Act. The law provides a maximum $1,000 compensation for the death of an employee resulting from an on-the-job injury.

Story was hearing the case because of conflicts of interest for judges and magistrates who served with Klein and who may have worked in the Dyer building. Other Southern District courthouses, such as the James Lawrence King building in Miami and the Paul G. Rogers building in West Palm Beach, also have developed mold problems.

In a footnote, Story said he "understands plaintiffs’ frustration with the limited compensation authorized by FECA under the circumstances of this case."

Alan Goldfarb, a Miami attorney representing the Klein family, tried to sue under the Federal Tort Claims Act and the Florida Wrongful Death Act based on a negligence claim. He could not be reached for comment by deadline. There is no indication in the court file that he plans to appeal the judge’s decision.

The government’s attorneys argued the Klein family’s position "stands the entire concept of sovereign immunity on its head."

Andrew and Jennifer Klein, children of the late judge, also have a lawsuit pending in Miami-Dade Circuit Court against the federal contractors and companies that did the maintenance work at the Dyer Courthouse.

After Klein’s death, the Wilkie D. Ferguson Jr. Courthouse opened across the street, and all federal magistrates were moved out of the Dyer building.

The GSA has a feasibility study under way to determine whether the Dyer building should be gutted or if mold in the building can be removed, and how much it would cost to renovate the building.

The limestone building was constructed in 1933 as Miami’s main post office and was added to the National Register of Historic Places in 1983.

A government-funded study of the courthouse detected fungal spores but said they were not likely to cause health problems unless someone was in an immuno-compromised state. An inspector hired by Klein’s children found unhealthy levels of pencillium fungus and aspergillus mold, which are known to infect lungs.

Story said he felt constrained to follow the law but was compelled to acknowledge Klein’s service. Story said his conclusion "in no way diminishes the exemplary service Judge Klein provided to this country."