by David M. Reutter

On September 30, 2024, the federal court for the District of Oregon sanctioned private prison and jail medical contractor Wellpath, LLC for destroying evidence in a suit filed over a detainee death at the Josephine County Jail (JCJ). It was the second time in just over a year that the firm was hit with sanctions in an Oregon jail death case. More sanctions were issued for discovery violations in earlier suits—three in 2020 in Washington, Michigan and Arkansas plus another in 2022 in California, as PLN reported. [See: PLN, Aug. 2023, p.69.]

The two suits filed in the U.S. District Court for the District of Oregon claimed that Wellpath was deliberately indifferent to the needs of pretrial detainees, resulting in their deaths. Rocky Stewart was found dead in his Coos County Jail cell on December 2, 2017, only one day after booking. Janelle Marie Butterfield committed suicide at JCJ on July 27, 2018, after 40 days of incarceration.

In both cases, attorneys representing Plaintiffs notified Wellpath shortly after the deaths to “preserve all evidence and information” related to the cases. The district court eventually found that Wellpath’s retention policy for electronically stored information (ESI), which it began developing in 2015, included several key components announced on March 8, 2019: that email “Inbox” and “Sent Items” were retained for one year and “Deleted Items” for 180 days—after which any emails exceeding those durations were permanently deleted. The policy made exceptions for emails placed on “legal hold.” Starting in February 2019, Wellpath also deleted email accounts of terminated employees unless there was a legal hold.

Coos County Case Sanctions Lead to Settlement

In the case filed for Stewart’s estate by representative Derek Johnson, Wellpath Nurse Patricia Sauerbry was accused of skipping his required medical screening, thereby missing severe atherosclerotic coronary artery disease that killed the 42-­year-­old the next day. Plaintiff’s attorneys sent a tort claims notice and evidence preservation letter to Wellpath in March 2018. Yet the firm then “purged millions of emails in May 2019, including the emails to and from named individual defendants that otherwise would have been discoverable,” the district court later found.

Wellpath made another purge on April 6, 2020; that included Sauerbry’s emails. On July 30, 2020, when Plaintiff’s attorneys submitted a request for production of documents and communications by Wellpath medical staff, they didn’t yet know about the purge. But Wellpath knew. Nonetheless, the district court noted, it wasn’t until July 29, 2022—“[n]early two years later” and “after multiple status conferences and many communications”—that Wellpath notified Plaintiff “for the first time” that “relevant emails had been purged.”

“After learning of the purged ESI,” the district court continued, “Plaintiff filed a motion for the imposition of sanctions.” On June 14, 2023, the Court granted the motion, entered a default judgment and setting the matter for a damages trial. See: Johnson v. Coos Cty., 2023 U.S. Dist. LEXIS 103305 (D. Or.). A motion for reconsideration by Wellpath was denied on September 26, 2023, though a concurrent motion by Sauerbry was granted; default judgment against her was reversed because she did not work for Wellpath at the time of the ESI purge and had no knowledge of the policy or ability to preserve the evidence.

Sauerbry was dismissed from the suit on February 5, 2024. Plaintiff then announced he had reached an undisclosed settlement with Wellpath, and the case was dismissed on May 21, 2024. Johnson was represented by attorneys with Davis Galm Law Firm in Beaverton, Devlin Law PC in Portland and the Law Office of Josh Lamborn PC, also in Portland. See: Johnson v. Coos Cty., USDC (D. Or.), Case No. 6:19-­cv-­01883.

More Sanctions in Josephine County Case

A similar pattern of evidence destruction and delayed evidence production by Wellpath was found in litigation over Butterfield’s death. The 34-­year-­old had a history of mental illness that was documented on numerous incarcerations at JCJ in the years before her death—including one stay when her family notified jailers that she had been diagnosed with paranoid schizophrenia.

Butterfield was booked into the jail for the last time on July 27, 2018, for failure to appear on misdemeanor charges. She committed suicide alone in a segregation cell 40 days later. In the interim, she “did not see a doctor, a nurse practitioner, a physician assistant, or a nurse employed by the medical and mental health providers,” according to the suit filed for her estate by representative Connie Dence. Butterfield’s antipsychotic medication was also “discontinued without explanation after 16 days in custody,” the suit noted.

The estate’s attorneys advised Wellpath to retain all relevant ESI on March 19, 2019—two months before the company’s email purge. In July 2019, Dence’s attorneys announced that the estate intended to sue, filing a complaint in April 2020. Their first discovery request for emails was sent to Wellpath in September 2020, followed by additional requests through January 2023. “In February 2023, roughly three years into discovery, Wellpath responded to Plaintiff’s email-­related discovery requests and produced responsive documents,” the district court later recalled. Only then did Plaintiff learned that “Wellpath never placed a litigation hold in connection with Ms. Butterfield’s death” on its employees’ emails.

In fact, “emails of the six named Defendants” had been deleted “after July 2019,” the district court continued. “Wellpath knew of these facts while [its] counsel was conferring with Plaintiff’s counsel about … discovery since November 2020,” the district court found. Yet the firm failed to share that information with Plaintiff for almost three years. As a result, a magistrate judge recommended granting Plaintiff’s motion for sanctions on January 29, 2024, and the district court ultimately agreed. SeeDence v. Wellpath, LLC, 2024 U.S. Dist. LEXIS 178953 (D. Or.); and 2024 U.S. Dist. LEXIS 177086 (D. Or.).

The case remains pending, and PLN will update developments as they are available. Plaintiff is represented by attorneys with Devlin Law PC and attorney William C. Stavely, all in Portland. See: Dence v. Wellpath, USDC (D. Or.), Case No. 1:20-­cv-­00671.  

Additional source: Oregon Public Broadcasting

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