Saturday, December 2, 2017

County Swaps Attorneys, Challenges $2.5 Million Wrongful Death Verdict

Posted By on Sat, Dec 2, 2017 at 2:45 PM

click to enlarge Daren Borges and his mother, Stephany Borges. - SUBMITTED
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  • Daren Borges and his mother, Stephany Borges.
The County of Humboldt is asking for a new trial in the civil case that in August resulted in a jury verdict finding the county and its correctional officers liable in the 2014 jail death of Daren Borges and awarding $2.5 million in damages to his family.

In addition to filing motions last week asking a court to throw out the jury’s verdicts in the case and grant a new trial, the defendants in the case — the county of Humboldt, former Sheriff Mike Downey and correctional officers Tim Hershberger, David Swim, Terri Bittner and Tim Hammer — also filed papers seeking to have local attorney Nancy Delaney replaced with John Whitefleet of Sacramento’s Porter Scott law firm as lead attorney in the case.

On Aug. 28, a federal jury found correctional officers failed to follow policy and were indifferent to Borges’ obvious medical needs when they opted not to have him medically screened while booking him into the Humboldt County jail about two hours before he was found dead of a methamphetamine overdose in a jail sobering cell. The jury, which deliberated for about 10 hours before returning its unanimous verdicts, also found that Humboldt County had failed to adequately train its correctional officers.

Borges, 42, was homeless, schizophrenic and living in Eureka at the time of his June 13, 2014 arrest on suspicion of public intoxication. Eureka police officers arrested him at about 2:15 p.m. near the corner of Seventh and D streets, and booked him into the jail at about 2:40 p.m. Correctional officers placed Borges alone in a sobering cell, where he was found unresponsive about an hour and 20 minutes later.

Brought on behalf of Broges’ mother, Stephany Borges, and filed by Southern California attorneys Dale Galipo and John Fattahi, the federal civil rights lawsuit alleged that the county and its officers had deprived Borges and his family of constitutionally protected rights. Borges was in a state of medical emergency when he was booked, the attorneys argued, and his life could have been saved had he received adequate medical attention. The jury agreed.

At trial, Delaney argued that the officers are good people who saw no reason to be alarmed by Borges’ behavior. Calling Borges’ death tragic and sad, Delaney argued that it was unpreventable after Borges ingested a potentially lethal dose of methamphetamine.

Now, in papers filed last week, county is arguing that the trial court erred in instructing the jury on “deliberate indifference,” that the correctional officers are entitled to qualified immunity because they were acting within the scope of their duties, that the court erred in allowing the jury to hear evidence of a prior in-custody death at the jail and that facts in the case simply don’t support the jury’s verdicts.

“There is no evidence that any of the defendant deputies recognized that the decedent was in medical distress, and even the nurse who observed him could not discern any medical distress, so the defendant deputies cannot be deemed to have acted with deliberate indifference to the decedent’s condition,” one of the motion states. “If the deputies do not actually recognize the condition as requiring immediate action, they can not be deemed to be deliberately indifferent to it.”

The motions cite California Government Code Section 845.6, which states that a public employee can’t be found liable for failing to obtain medical care for a jail inmate unless he or she “knows or has reason to know that the prisoner is in need of immediate medical care and fails to take reasonable action to summon such care.”

“Here, the exception does not apply because the defendant deputies did not know, and had no reason to know, that decedent required immediate medical care,” one of the motions states. “Decedent was a schizophrenic who merely appeared, as in his dozens of previous arrests, intoxicated on drugs.”

After watching about two hours of video showing Borges’ behavior from the time he was arrested by EPD to the moment he stopped moving in his cell, the federal jury disagreed and found the deputies should have known immediate medical care was necessary.

Shortly after the verdict, Delaney indicated the county would be filing motions challenging the verdicts but the trial judge — Yvonne Gonzalez Rogers — warned that while she would consider any such motions, she felt plaintiffs presented a strong case.

“Let’s just be clear,” she said at the time, “the evidence was pretty substantial in a variety of ways — as I’ve said before — so the likelihood I’m going to overturn a verdict is pretty low.”

In addition to the $2.5 million verdict, Gallipo and Fattahi indicated to the court that they will be moving to have the county pay their fees and costs, as they are entitled to do in a civil rights lawsuit, with a motion expected to come before the court in the near future. While it’s unclear what the attorneys will request, such fees and costs typically run high for a wrongful death case that’s now been in litigation for more than 30 months. Gallipo has only said the request will be for a “substantial number.” It’s also a number that will increase substantially — so long as the verdicts aren’t overturned — as the case goes through the post-trial motions and appeals process, raising the stakes significantly as the county challenges the initial trial’s outcome.

For more on Borges’ life and death, and the host of changes the Humboldt County jail has made since he died in a sobering cell, see our Sept. 7 cover story here. And check back for updates as the case moves forward.

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Thadeus Greenson

Thadeus Greenson is the news editor of the North Coast Journal.

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