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Oct 21, 2023

Boy, 7, died after exposure to mold in San Antonio apartment, wrongful

A 7-year-old boy with severe disabilities died after exposure to black mold and

A 7-year-old boy with severe disabilities died after exposure to black mold and mold spores in the San Antonio apartment where he lived, a lawsuit filed last week alleges.

The family of Ivan A. Gonzalez sued the current and former owners of the Axio Apartments at 8722 Cinnamon Creek Drive in the South Texas Medical Center area. They seek more than $1 million in damages.

"By failing to maintain the property in a clean and mold-free manner, and by failing and refusing to remediate the toxic mold contamination and mold spores when put on notice… by plaintiffs, the defendants have caused the wrongful death of Ivan Gonzalez," the suit says.

Jennifer Clyburn cradles the urn holding her son Ivan A. Gonzalez's ashes as she sits in her extended stay efficiency apartment in San Antonio, Texas, Tuesday evening, Jan. 11, 2022. Seven-year-old Gonzalez died in Jan. 2020 and Clyburn alleges black mold and mold spores in their old rental unit caused his death.

Ivan's mother, Jennifer Clyburn, 41, took him to University Hospital after he had trouble breathing in January 2020. He was diagnosed with pneumonia and fluid in the lungs, she said.

Medical staff ultimately decided to put Ivan on an extracorporeal membrane oxygenation , or ECMO, machine — a type of life support that bypasses the lungs by pumping oxygen directly into the blood and filtering out carbon dioxide.

During the procedure, Clyburn said, a tube inserted in the vein in Ivan's groin caused the vein to split. That led to internal bleeding. Doctors unsuccessfully tried to stop the bleeding in surgery.

Ivan died Jan. 7, 2020, after five days in the hospital.

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The bleeding was the "obvious direct cause of death," said San Antonio attorney Paul Barkhurst, who is representing Ivan's family pro bono, or without compensation. "But there's underlying causes, which is what took him to the hospital in the first place."

Jennifer Clyburn cradles the urn holding her son Ivan A. Gonzalez's ashes as she sits in her extended stay efficiency apartment in San Antonio, Texas, Tuesday evening, Jan. 11, 2022. Chunks was Gonzalez's family nickname. He died in Jan. 2020 and Clyburn alleges black mold and mold spores in their old rental unit caused his death.

Barkhurst said he elected not to sue University Health, which operates Bexar County-owned University Hospital, for medical malpractice after conducting research and talking to experts in the field.

The suit names Axio Apartments and current owner Austin-based 1901 Equity DE and Shippy Property Management as defendants. David Shippy, 1901 Equity's manager, did not respond to a request for comment.

Axio's previous owner, Cronus Cinnamon Holding of Dallas, also was sued. Sean Bukowski, a lawyer for Cronus, said the company had no comment because it had not seen the suit.

Cronus sold the property to 1901 Equity in July 2019 during the family's one-year lease.

Two-year-old Iylian motions to his mother Jennifer Clyburn inside their extended stay efficiency apartment in San Antonio, Texas, Tuesday evening, Jan. 11, 2022, after taking a closer look at the keepsake photos of his older brother Ivan Gonzales, who died in Jan. 2020. Iylian was born at University Hospital on Dec. 28, 2019, 10 days before his 7-year-old brother Ivan died at the same facility.

Clyburn chose Axio Apartments because it was close to Ivan's school for children with special needs and the hospitals where he had regular appointments.

Ivan was born with 47 chromosomes, one more than the typical person. The extra chromosome resulted in problems with Ivan's development.

Ivan had a tracheostomy, or trach, tube to assist with his breathing. He also had a gastronomy tube in his stomach because he could not eat by mouth.

"He didn't walk or talk," Clyburn said. "He barely sat up by himself. He really couldn't do very much."

Ivan enjoyed watching cartoons, she said.

The current and former owners of the Axio Apartments, located at 8722 Cinnamon Creek Drive in the South Texas Medical Center area, have been served with a lawsuit seeking more than $1 million in damages. The family of Ivan A. Gonzalez, who died in Jan. 2020, allege that his health issues and death were caused by mold in their apartment.

The family moved into Axio Apartments in February 2019.

It didn't take Clyburn long after moving in to discover the mold, she said.

"After the first week, I had started to notice there were areas of mold and it smelled like mildew," she said.

Clyburn said she informed the property managers numerous times about the problem but they ignored her pleas.

"I told them, I have my son. He's on a ventilator. He can't have the mold in the apartment. It will make him sick. It will put him in the hospital," she recalled. "They said, ‘OK, we’re going to ahead and we’re going to send somebody to come and fix it.’ Nobody came out."

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Clyburn decided to withhold rent around August 2019 in an effort to get management's attention. A manager came out and Clyburn showed her the mold.

"She could smell it as soon as she walked in," Clyburn said. "She was upset. She said this is not acceptable."

Management sent someone to the unit to clean out the air ducts so the apartment wouldn't smell like mildew, Clyburn said. But they didn't address the problem causing the mold.

The family came back to the unit after being away for a weekend to discover that water leaked into their apartment and ruined a mattress. The apartment unit above the family's had a leaky toilet, she said.

Another manager asked why the family didn't use the rent money they hadn't paid to find another apartment, Clyburn said. The family lived on a fixed income and it was hard for her to keep a steady job because of all her son's doctors’ appointments, she explained. She worked in the medical field while Ivan was alive but now performs home staging, preparing houses for sale.

Ivan became sick sick several times while living at Axio, Clyburn said.

The current and former owners of the Axio Apartments, located at 8722 Cinnamon Creek Drive in the South Texas Medical Center area, have been served with a lawsuit seeking more than $1 million in damages. The family of Ivan A. Gonzalez, who died in Jan. 2020, allege that his health issues and death were caused by mold in their apartment.

Before Ivan's final trip to the hospital, Clyburn was at University Hospital where she delivered her third son, Iylian, on Dec. 28, 2019. She recalled being able to "barely walk" after having a C-section.

Just five days later, she returned to the hospital with Ivan.

Clyburn, her husband and Ivan's stepfather, Efrain Morales, 44, and her oldest son Isaac Jimenez, 19, say in their lawsuit that Ivan's breathing issues were "exacerbated" by the mold contamination.

Besides the wrongful-death claim, they allege Axio Apartments and the other defendants were negligent in allowing the mold to contaminate their unit — in violation of the Texas Clean Air Art.

Their injuries resulted from the defendants’ "gross negligence and/or malice," so they seek unspecified punitive damages. They also are suing for intentional inflection of emotional distress.

"It's frustrating for these folks to have a child in this condition and they’re making complaints." Barkhurst said. "And for it not to be remediated is just disappointing. "It's bad management, it's bad ownership, and it could have been prevented."

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