by Matt Clarke

On August 16, 2024, the United States Court of Appeals for the Sixth Circuit upheld the verdict and jury award of $6.4 million in compensatory damages against three nurses who worked for Corizon Health when it held the contract to provide healthcare at Michigan’s Kent County Correctional Facility (KCCF) in Grand Rapids

In April 2018, Wade Jones, 40, was caught trying to rob a store of $94.50 worth of merchandise that included golf balls, a whole chicken, bread, macaroni and cheese, plus four 1.75-liter bottles of alcohol. He was charged with third-degree misdemeanor retail theft.

Jones pleaded guilty at his arraignment. That’s also when the 59th Judicial District Court became aware of his drinking problem because Jones tested at .159 and .145 when given two breath tests by a probation officer during the proceedings. This concerned Judge Peter V. Versluis because Jones did not seem drunk, showing a high tolerance for alcohol. The judge then sentenced him to five days in the jail.

When booked into KCCF, Jones denied being drunk but admitted to drinking vodka “occasionally.” About five hours later, he reported experiencing symptoms consistent with Alcohol Withdrawal Syndrome (AWS), a serious and potentially fatal medical condition. Yet nothing was done for him, other than a nurse’s order that he needed a bottom bunk in his cell during withdrawal. Jones continued to experience severe AWS and delirium tremens, including hallucinations, confusion, pacing, stumbling, falling, picking up imaginary objects, picking at himself, kicking the walls and banging on the cell door. Still, he received no AWS treatment.

About 33 hours into his 120-hour sentence at the jail, an employee reporting to work walked by Jones’ cell and noticed the prisoner slumped over on the toilet. She reported this to Corizon Health nurses on duty, but they delayed responding to the cell for eight minutes. They found he was not breathing, yet they waited another three minutes to administer oxygen to Jones. He was eventually transferred to a hospital, where he was declared brain dead the next day. An autopsy found fatal brain damage due to the lack of oxygen and listed the cause of death as medical complications of chronic alcohol abuse.

Jones’ Estate filed a federal civil rights action against Corizon Health and seven of its employees, along with several other defendants who were no longer parties to the lawsuit by the time it went to trial. An expert testified for the Estate that the chances of survival diminish by 10% for each minute the brain goes without oxygen. Thus, 10 minutes is the outer limit for brain survival without oxygen—something known as the “Rule of Ten.”

The jury found against three nurses, Melissa Furnace, Chad Richard Goetterman and James August Mollo, awarding the estate $6.4 million in compensatory damages. The federal court for the Western District of Michigan awarded an additional $515,500 in fees and $22,000 in costs to the Estate’s attorneys, Jennifer G. Damico and Sarah K. Gorski of Buckfire Law in Southfield. Defendants appealed.

But the Sixth Circuit made short shrift of Defendants’ assigned errors. The Court held that it was not an error for a juror to fail to disclose his criminal history because he was not asked about it. Defendants also claimed that the verdict was inconsistent because the nurses were found deliberately indifferent to Jones’ serious medical need, while one of them— Mollo—was not found negligent in his treatment of the prisoner. But the Court dismissed that argument because Defendants failed to lodge the objection before the jury was dismissed; under Fed. Rule of Civ. Proc. 49(b), therefore, they failed to preserve the argument for appeal.

Defendants argued that they had done the same thing in their motion for a directed verdict. But the Court wasn’t buying that. Rather it said that they “waived their Rule 49(b) objection” when they failed to take “the opportunity to object before the jury was discharged,” quoting Innovation Ventures, LLC v. N2G Distrib., Inc., 763 F.3d 524 (6th Cir. 2014).

Defendants had preserved another argument for appeal—that no reasonable jury could have found that their deliberate indifference was the proximate cause of Jones’ death. But the Court said that this argument failed on its merits. Rather, pointing to the Rule of Ten, the Court said that the jury could have used that to determine that the nurse’s delay in responding to Jones’ obvious medical distress was the proximate cause of his death.

Finally, Defendants argued that the Estate’s attorney unfairly prejudiced the jury when she broke down in tears during cross-examination of Jones’ brother. As the Court noted, this was essentially asking for dismissal as a sanction for the allegedly egregious attorney conduct—for which she was reprimanded by the district court, though it refused a request by the Defense to instruct the jury to ignore her tears. The district court said that Defendants were seeking to take perhaps 15 minutes of reprimandable behavior out of a 12-day trial and call it “contumacious conduct”; but that means “stubbornly disobedient or persistent,” and the attorney’s behavior was more properly called “inappropriate.” The Sixth Circuit found no reason to refute this, noting that Defendants didn’t provide one either.

Accordingly, the district court’s judgment, verdict and award were affirmed. Before the Court, Jones was represented by Domico and a fellow attorney, Robert G. Kamenec, from the firm with which she was then associated, Feiger, Feiger, Kenny & Harrington P.C. in Sourthfield. See: Jones v. Kent Cnty., 115 F.4th 504 (6th Cir. 2024).  

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