Archive for August, 2008
1Sheriff’s Office sued over 2004 prisoner death
31 August 2008
The Buncombe County Sheriff’s Office is the target of a wrongful-death suit concerning the July 2004 death of Marvis Gail Davidson in the Buncombe County Detention Facility. Bobby Medford, since convicted on federal corruption charges, was sheriff then.
April Nicole Welch, Davidson’s daughter and the administrator of her estate, filed the lawsuit Aug. 8. It alleges that after Davidson’s arrest, she was repeatedly denied medical care for conditions related to diabetes, which jail officials knew she had because it was noted in her records during a previous incarceration.
“As her condition deteriorated and the associated pain grew to intolerable levels—particularly in the days immediately preceding her death—Ms. Davidson and fellow inmates of her cell repeatedly beseeched detention officers monitoring Ms. Davidson,” the lawsuit alleges, adding that “detention officers ignored Ms. Davidson’s continuous cries for help even as she lay writhing and screaming on the floor in pain.” The lawsuit accuses the Sheriff’s Office of manifesting “a heedless indifference to, or reckless disregard of, Ms. Davidson’s safety and well-being.”
The autopsy report revealed that Davidson died of a condition known as “dead gut,” which is sometimes related to diabetes. In 2005, a jail employee filed complaints about Davidson’s treatment.
The lawsuit seeks a trial by jury and at least $30,000 in damages, plus attorney and court costs. It names current Sheriff Van Duncan—in his official capacity only—and the Sheriff’s Office. It also targets the South Dakota-based Western Surety Co., which insures both the Sheriff’s Office and the jail.
Lt. Ross Dillingham, the sheriff’s public-affairs officer, said he had no comment on how his office would respond to the lawsuit, emphasizing that the incident took place under the previous administration. “Sheriff Duncan in no way had any affiliation with the office then, or any control over what happened in the jail in 2004,” Dillingham told Xpress.
Davidson’s death was not the only controversy related to prisoner treatment during Medford’s tenure—or the only inmate death.
Xpress has previously reported on the September 2001 arrest of Joey Max Rogers for driving his lawnmower while drunk. After being taken into custody and placed in a locked room, he was found a half-hour later with his neck broken (see “High Pressure Zone,” May 18, 2005 Xpress).
2Lyons: Murder saga needs an ending
30 August 2008
The legal saga of the 2001 shooting death of Raul Briseño gets more convoluted each day.
The case continued to astound Wednesday with news that getaway driver Jennifer McMullan would not get the deal she was promised to cut her 27-year sentence for agreeing to testify against alleged shooter Kenneth Smith.
To say this case has caused two different McHenry County state’s attorney administrations some embarrassment during the past seven years is like calling Gary Gauger’s wrongful murder conviction a clerical error.
One overturned conviction for Smith and a plea deal that a judge refused to accept are just some of the highlights.
If the prosecution of Kenny Smith, Jennifer McMullan and Justin Houghtaling were made into a movie, it would be a dark comedy, probably written and directed by Joel and Ethan Cohen.
But it’s not a movie, and there’s nothing funny about a father and a business owner getting shot to death by punks trying to rob his McHenry restaurant.
In March 2001, McHenry police had little to go on. Eventually, a little bird told them that a Lake County woman knew something about the crime.
When police spoke with Jennifer McMullan, they soon learned that she knew a lot more than they expected.
Police videotaped their interview with McMullan, who, in her naiveté, placed herself and her co-defendants near the scene on the night of the crime. She also said that Smith had a gun and mentioned a robbery when she dropped them off and waited for them to return.
Police got a warrant for Houghtaling, who had fled to Nebraska. Houghtaling told police that McMullan drove; that he and Smith tried to commit the robbery; that Smith shot Briseño.
Prosecutors gave Houghtaling a 20-year deal in exchange for his testimony, which he provided at McMullan’s trial.
Then he changed his mind at Smith’s trial after prosecutors prematurely granted him his sentence.
That moved prosecutors to pound Houghtaling’s square peg testimony into a legal round hole at Smith’s trial, which led to an appellate court reversing Smith’s conviction.
Faced with the prospect of trying Smith again and the ever reliable, proven liar Houghtaling, prosecutors cut a deal with McMullan, who had the longest prison term of the three.
What’s puzzling is why prosecutors now are alarmed enough based on recent conversations with McMullan that they wouldn’t even call presumably their star witness against Smith.
And why are her statements surprising them now?
3Oklahoma E. coli Outbreak Linked to Locust Grove Restaurant
28 August 2008
One person in Oklahoma has died from what appears to be E. coli food poisoning. At least 11 others have been hospitalized with symptoms of E. coli. At least 10 of the people ate at a restaurant in Locust Grove, Oklahoma, according to the Oklahoma State Department of Health. One commenter on Tulsa World is saying that the restaurant in question is Country Cottage, a highly-rated, quaintly-decorated restaurant in Locust Grove.
This situation is tragic for everyone. The culprit in this case may be beef. Millions of pounds of beef products have been recalled recently, most if it by one processor, Nebraska Beef, Ltd., a company with a history of sanitation violations.
Although beef is the most common source of E. coli outbreaks, other foods can be the source of E. coli infections, including but not limited to leafy greens and unpasteurized apple cider and milk.
One of our recent E. coli wrongful death cases involved spinach. Another E. coli wrongful death case our law firm is handling involves a restaurant where a goat was slaughtered in the restaurant kitchen.
4Court upholds 42-year sentence
27 August 2008
An attorney for 19-year-old Zachariah Blanton had appealed the sentence as inappropriate, arguing that the shooting “was a more or less routine act of manslaughter, if such a thing is said to exist.”
But in an eight-page ruling, the court disagreed, noting that the shooting terrorized drivers who had done nothing to make Blanton angry, and the trial court was free to consider that as an aggravating factor in his sentence.
“The harm to the motoring public is inherent to this offense — randomly and intentionally shooting at cars with a rifle from a highway overpass creates a public fear beyond that of the ‘ordinary’ manslaughter in which the victim is at least associated with creating the sudden heat that results in the death,” the court wrote in its ruling Thursday.
5Clearlake wrongful death claim tossed
26 August 2008
The Clearlake City Council has rejected a $30 million wrongful death claim filed by the family of a man who was shot and killed by a city police officer.
The council decision lifts a barrier to the filing of a civil lawsuit stemming from the death of David Vestal, 63, on Aug. 14 at a mobile home park on Old Highway 53.
Police said they went to the home in response to call about a disturbance when Vestal appeared in the doorway and leveled a shotgun at officers.
The family says Vestal was unarmed.
“It is our understanding that when David Vestal came out of the residence, he was shot without warning. He did not have a shotgun or any other firearm,” said Lakeport attorney David Anderson, who is representing the family.
Clearlake Police Lt. Mike Hermann said an investigation by the Lake County District Attorney’s Office, which is pending, should clear up the issue.
A shotgun was found at Vestal’s side, he said.
“We don’t think there’s going to be any wrongdoing on the part of the officers,” Hermann said.
His department has refused to identify the officers involved in the shooting, though they apparently have returned to duty.
The claim also alleges civil rights violations, severe emotional distress, assault and battery, false imprisonment and physical injuries.
6Settlement reached in Amherst wrongful death suit
25 August 2008
A settlement has been reached in the $15 million wrongful death lawsuit involving a man who died in the custody of the Amherst County Sheriff’s Office in 2005.
A report signed Monday morning by federal magistrate judge Michael Urbanski and filed in U.S. District Court in Lynchburg states the parties reached a settlement on mutually agreeable terms during a mediation session Friday.
The terms were not disclosed.
Melva Taylor Davis, the mother of the dead man, released a statement through her lawyers Monday afternoon noting that she is under a confidentiality agreement.
“My family is grateful to all who helped with the resolution,” Davis wrote. “We look forward to the power of God’s love and healing not only of our grief, but for the deputies, too. We all remain in need of prayer.”
Amherst County Sheriff Jimmy Ayers and Carlene Johnson, who represented the deputies involved in the arrest, did not return calls seeking comment Monday.
The two sides have 45 days to finalize the settlement and file required paperwork with the court asking for the lawsuit to be dismissed, according to Urbanski’s report.
Sanchez Taylor, 28, of Lynchburg died on June 16, 2005, after a run-in with Amherst County deputies.
After Taylor’s car was found abandoned and locked in a northbound lane of U.S. 29, deputies responded to a call of a break-in at nearby Bethel Welding.
Deputies Debbie Tinnell and Darren Givens found Taylor at the back of the welding shop and tried to arrest him, according to sworn statements filed with the court.
The statements claimed Taylor refused to follow orders to get on the ground and that they had to handcuff him while he was lying on a ladder behind the shop. They tried to move him, they said, but could not get him any farther than a set of ornamental welded racks a few feet away.
It was then that two more deputies, Brian Drewry and Kelly Dodson arrived and helped pick up Taylor, still fighting.
A few feet later, still unable to get him under control, the officers put him on the ground. As a fifth deputy, Betty Wise, came on the scene, deputies noticed he was having trouble breathing and that he was having a seizure.
He never recovered and died within a few hours at Lynchburg General Hospital.
Davis, Taylor’s mother, contended in her lawsuit that deputies held her son down on the ladder and racks, suffocating and killing him.
7UIHC sued in death
24 August 2008
An Iowa family filed a lawsuit Monday, alleging staff members at the UI Hospitals and Clinics caused the death of their daughter, the third lawsuit of its kind this year.
Larry and Janice Kaberle of Rowley, Iowa, alleged in the suit that their daughter, Lisa Kaberle Zahina, died due to “complications of myocarditis” in 2005, only days after she was discharged from UIHC.
The family’s attorney, Larry Helvey of Cedar Rapids, wrote in the suit that Kaberle Zahina, 24 at the time, was admitted to UIHC on May 14, 2005, complaining of a headache, chest discomfort, a rapid heart beat, and shortness of breath. She was eventually diagnosed with myocarditis - the inflammation of a muscular substance of the heart.
On July 1, 2005, Kaberle Zahina was allegedly told at a follow-up appointment at UIHC that her myocarditis was resolved.
Three days later, she was admitted to Virginia Gay Hospital in Vinton, Iowa, the lawsuit read, complaining of dizziness, a headache, nausea, and vomiting. She died later that day.
An autopsy performed at UIHC the next day “listed her cause of death as complications of myocarditis,” according to the petition.
8Court to weigh right of parents to sue employer
23 August 2008
The Supreme Judicial Court is slated to decide whether the parents of a murdered high school senior have the right to file a wrongful-death lawsuit against the pharmacy where their son worked as a part-time clerk.
In Saab, et al. v. CVS Pharmacy (SJC No. 10193), the SJC will determine if a lower court judge properly held that the exclusivity provision of the Workers’ Compensation Act prevented the Superior Court from accepting subject matter jurisdiction.
Tamara L. Ricciardone, the author of “Workers’ Compensation in Massachusetts,” said a ruling against CVS would be “incredibly significant.”
“If the court decides in favor of the parents, it would mean that any family member who is not financially dependent on the employee can step in and sue,” said Ricciardone, who is not involved in the suit.
“This case will turn on the court’s interpretation of who is ‘an employee’ under the statute, and whether financial dependence is the distinguishing characteristic that prevents an employee’s family member from suing an employer outside of the workers’ compensation statute.”
While the law is not as clear with respect to financially independent parents, Ricciardone, a lawyer at Smith & Duggan in Lincoln, said an injured employee would certainly be barred from filing suit.
“The only way an employee can waive their right to benefits is if they to do it at the time they are hired,” she said. “If they don’t waive their right immediately, they can’t later turn around and say, ‘I don’t want them. I’m going to sue you.’”
But where the murder happened during the teen’s shift, William J. Dailey Jr. of Sloane & Walsh in Boston, who represents defendant CVS, wrote that the workers’ compensation statute precludes the family from bringing a wrongful-death action against the employer.
9Lawyers Defend Wrongful Death Suit Against City
22 August 2008
Philadelphia - Lawyers hired to represent Danieal Kelly’s estate rebutted criticisms yesterday they had been hired only to enrich her parents and take advantage of the tragic situation. They said the press and city officials have gotten the story all wrong.
Center City trial lawyer George Bochetto said, if monies were awarded in the wrongful death lawsuit brought against the city, the girls’ siblings could get a cut.
During a Center City news conference, the attorney attempted to clear the air about the lawsuit brought against the city’s Department of Human Services.
Mr. Bochetto demanded a public apology from the mayor, the district attorney and the local media for “their factually inaccurate and intentionally inflammatory reporting” of Ms. Kelly’s death case.
Last week, Mr. Mildenberg hired Mr. Bochetto to help him address claims about the media’s and the city’s depiction of his representation of the girl’s estate as well as her parents. Mr. Mildenberg claims to have received death threats, and his reputation has allegedly been smeared, even though he admitted the wrongful death suit could amount to monetary damages for Ms. Kelly’s parents.
Mr. Mildenberg and Eric Zajac, the two lawyers hired in the civil suit, acknowledged Andrea and Daniel Kelly could potentially benefit should they be exonerated from pending criminal neglect and homicide charges. The lawyers claim to have negotiated, with Ms. Kelly’s parents, a settlement of one-third of any judgment to a trust fund for her 11 siblings.
“The siblings of young Danieal Kelly are entitled to compensation,” Mr. Bochetto told the press. “I don’t think I have to tell anybody just how destitute and poor these siblings are.”
Any monetary decision for the children would be contingent on the parents’ receiving an award.
When news broke of the parents’ wrongful death suit last week, Mayor Michael A. Nutter called it “insane, obscene and disgusting.” When asked if he would issue a public apology yesterday, Douglas Oliver, the mayor’s press secretary, said the mayor stands by his comments.
“This sad, sickening legal circus deserves no further attention or comment,” the mayor said. District Attorney Lynne Abraham released a statement saying she would not comment on the civil suit, but she remains focused on the criminal charges brought forth in the grand-jury report.
News articles and Internet blogs call Mr. Mildenberg a “money-grubbing lawyer,” a “hearse chaser,” etc. Mr. Bochetto called the charges lies.
10Wrongful death lawsuit settled against Haythorn Ranch
21 August 2008
The lawsuit was filed in Lincoln County District Court by the estate of 5-year-old Dakota F. McKillip in November of 2004.
Dakota was killed after he fell underneath a horse being ridden by Harry Haythorn on Nov. 3, 2002.
The lawsuit was a wrongful death suit that was filed against the ranch and Harry Haythorn.
Attorneys representing the plaintiff and defendant declined to comment on the settlement but a source close to the case said the settlement amount was $50,000.
The incident in question occurred in the morning of Nov. 3, 2002, according to the suit.
Dakota was visiting his father, Franklin S. McKillip, who was a hand on the ranch and had a home there.
The ranch hands were moving cattle from the pasture to feed bunks on a cold November morning. Dakota was riding a small quarter horse owned by the ranch named Freckles.
Dakota got cold and wanted to return to his dad’s ranch house and warm up, according to the suit.
Harry Haythorn, also on horseback, noticed that no one was tending to Dakota so he volunteered to assist the boy back to the house.
Haythorn led Freckles, with Dakota riding him, to the front entrance of McKillip’s ranch house and positioned the horses to allow Dakota to dismount.
The horses were steady, according to the lawsuit, and Dakota got off of Freckles. But as Dakota walked away, he stumbled and fell underneath the hindquarters of the horse Haythorn was riding.
Dakota suffered massive injuries from the horse. He was taken to Great Plains Regional Medical Center by ambulance then taken to Denver Health Medical Center where he passed away four days later.