by David M. Reutter

On April 4, 2012, a Michigan federal district court imposed sanctions against Wayne County for committing fraud and misrepresentation upon the court and opposing counsel in a prisoner’s wrongful death suit.

The lawsuit was filed by the personal representative of John C. Fahner, who was murdered at the Wayne County Jail on June 27, 2006 by another prisoner. With the exception of Nurse Bernadine Tuitt-Hill (Tuitt), an ex-county employee against whom a default judgment was entered, the district court had granted summary judgment to all of the remaining defendants.

The whereabouts of Nurse Tuitt had become a “great mystery” since the court permitted the plaintiff to file an amended complaint on February 12, 2010, which added Tuitt as a defendant. On June 28, 2010, the court held a hearing on a motion to compel Wayne County to disclose whatever information it had to solve that mystery and locate Tuitt so she could be served.

The Magistrate Judge asked the county’s attorney, Karie H. Boylan, what she knew about Nurse Tuitt’s whereabouts. “I do not know. I have no idea where she is...,” Boylan responded. “I have heard she’s in Trinidad and Tobago. I’ve heard she’s out of state. I’ve heard she’s here. I’ve heard she’s in Canada.”

Following the hearing, the district court entered an order authorizing substitute service upon Tuitt’s sister’s residence in Brooklyn, New York, where Tuitt was thought to be living. Tuitt never responded to that service.

At a July 13, 2010 hearing convened at Boylan’s request, she informed the court that her supervisor, Robert Gazall, had spoken with Tuitt by phone subsequent to the hearing on the motion to compel.

Boylan explained to the Magistrate Judge that Tuitt had refused to disclose her location or address, but did provide her phone number “with explicit instructions that the number not be given to anyone.” According to Boylan, Gazall had informed Tuitt “in no uncertain terms” that she was a party in the case, that she was trying to be found to effect service and that she should contact Boylan. Boylan said she believed she had an ethical obligation not to disclose Tuitt’s phone number, even though she did not represent her because, pursuant to the county’s Collective Bargaining Agreement, Tuitt was first required to complete certain forms and request representation.

As part of the plaintiff’s continuing efforts to locate Tuitt, Wayne County Corporation’s lead litigation counsel, Robert S. Gazall, was deposed in November 2011. Gazall confirmed “that in fact he had been contacted by Nurse Tuitt in June, 2010, that he believed at the time that she was out of the country and that she left a Trinidad, Tobago phone number where she could be reached by return phone call.” The phone call was memorialized in a memo, but the memo was not disclosed to plaintiff’s counsel until just before Gazall’s deposition.

Although Boylan was aware that Tuitt had provided a “telephone number in Trinidad, Tobago just days earlier, Ms. Boylan continued to permit the Court and the parties to believe that Ms. Tuitt was just as likely in Brooklyn, New York as anywhere else” during the July 13, 2010 hearing, the district court noted.

Further, contrary to what Boylan had represented to the court, Gazall had told Tuitt that she was not a party to the lawsuit but if she became a defendant the county would represent her. Subsequently, Gazall “never called Ms. Tuitt back to tell her she was a party, never asked her to come in and cooperate and didn’t recall telling Karie Boylan to do so,” which the district court called “unconscionable.”

“Gazall’s deposition testimony illustrates that Boylan failed to present all relevant facts” to the Magistrate Judge with respect to Tuitt’s whereabouts at the July 13, 2010 hearing, the court stated, which was “obstructive of justice and outrageous.”

The district court castigated the county for misleading both the court and opposing counsel, which resulted in a lengthy and costly search for Tuitt plus the court granting the plaintiff’s motion to effect substitute service on Tuitt in New York.

In ruling on the plaintiff’s motion for sanctions against the county, the court wrote, “It seems clear that the information that the Wayne County legal department, and specifically Karie Boylan and her boss Robert Gazall, possessed in June and July, 2010, a year prior to this Court’s Opinion and Order on Summary Judgment, and failed to disclose to Plaintiff and the Court, prevented Plaintiff from presenting her case ‘fairly and fully.’”

Consequently, as a sanction, the district court set aside its prior order granting summary judgment to the county and the remaining defendants in the case, and directed Wayne County “to accept service ... on behalf of Nurse Tuitt and take whatever steps necessary to answer or otherwise respond to the Amended Complaint on her behalf.” While the court noted that this “may seem a harsh result, the County’s conduct in this case merits harsh treatment.”

The county moved for reconsideration, which was denied on June 8, 2012. The case remains ongoing with the county filing a renewed motion for summary judgment on July 5, 2013, which is currently pending. See: Fahner v. County of Wayne, U.S.D.C. (E.D. Mich.), Case No. 2:08-cv-14344-PDB-MKM.

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