In the realm of civil litigation over jail deaths in Utah, expert witnesses and an experienced cadre of private defense attorneys paid by a government indemnity pool usually play dominant and often decisive roles.
Two cases underway in Davis County illustrate how this preponderance of legal firepower helps the government side prevail, or at least make it difficult for family members of deceased inmates to win their claims of alleged negligence or wrongdoing inside jails.
Dr. Kennon Tubbs is the contract medical director for 11 county jails in Utah and Wyoming and earlier practiced medicine at the Utah State Prison for 13 years. He is also the chief expert witness for Davis County in its defense of ongoing suits filed over the deaths of Heather Miller and Gregory Hayes in the Davis lockup.
In his expert reports filed with the court, Tubbs concluded that the Davis County Jail’s policies governing inmate medical care were constitutionally adequate and that the jail nurses involved performed adequately in those two cases.
According to his rate sheet, Tubbs charges $500 per hour or $3,500 per day for document review, phone consultation, written summary, deposition and testimony. Expense reimbursements include air fare, rental car, four-star hotel and $140 per day meal per diem.
Another expert witness in the Hayes case, Donald Leach II of Lexington, Kentucky, absolved the Davis jail of any constitutional or policy violations or personnel failures. He meanwhile pointed to alleged shortcomings of law enforcement officers from two outside agencies, saying their inaction may have contributed to Hayes’ death.
Leach, a longtime corrections official, bills $250 an hour for research and reports and $2,500 per day for depositions and trial testimony.
WHO PAYS FOR THE EXPERTS?
Expert witness payments are covered by the Utah Counties Indemnity Pool, a creation of the state government that allows counties to combine resources to shoulder legal and other losses.
The pool has paid $236,872 so far to cover losses arising from Davis County jail deaths in 2016, said Johnnie Miller, the pool’s CEO.
“In several of those claims, we are years away from any resolution of the cases,” Miller said.
Six Davis jail inmates died in 2016, Utah’s highest total in the record year of 27 deaths statewide.
A breakdown of how much money is paid to expert witnesses in each case is not available, Miller said, because sometimes witnesses bill the pool directly and other times they invoice the hiring law firm, which then submits overall bills to the pool.
However, annual payouts to law firms hired by the pool are available.
According to data uploaded by the pool to Transparent Utah, a repository of local government financial information, the pool paid out more than $2.5 million to cover losses, including settlements to litigants and reimbursements to its law firms, in 2019.
Suitter Axland law firm, which hired Tubbs in the Miller and Hayes cases, received $476,088 from the pool last year. Suitter attorney Jesse Trentadue is the lead attorney representing Davis County in both cases.
Pool payouts also went to several other law firms that often represent counties in defense against jail death suits and cases of alleged police misconduct.
They include $612,378 to Mylar Law, whose principal, Frank Mylar, represents Weber County in a suit over the 2016 death of jail inmate Ashley Jessop and a 2014 fatal police shooting in Roy, among others.
Other firms include Durham Jones & Pinegar, $361,815, and Gridley Ward and Hamilton, $674,000.
COUNTY INDEMNITY COSTS
County governments pay for the coverage with what the indemnity pool describes as law enforcement liability contributions.
The assessments are based on the total number of law enforcement personnel employed by each county, Miller said. Weber County’s payment to the pool for 2020 is $396,746, followed by Davis ($325,065), Box Elder ($125,025) and Morgan ($16,670).
If a county has a run of losses, such as those resulting from a spate of jail deaths, the affected county’s annual assessments by the pool are not raised, Miller said, because the nature of the pool is to spread losses statewide.
However, when the pool has a year of lower losses, counties receive dividends. In that case, a county that has suffered a high level of losses might not receive a dividend, Miller said.
Tad Draper, one of the attorneys representing relatives of Miller and Hayes in their lawsuits, said hiring expert witnesses can be more challenging for plaintiffs.
“I make it a point to get people from the field who are professionals, just to do their job (as a witness in a particular case), and not to make money as experts,” Draper said.
He said he’s “not offended” if he needs to pay such an expert witness $200 to $500 an hour, because it compensates them for time away from their practice.
Draper said plaintiffs’ attorneys often front the expense of expert witnesses, knowing they will “eat” that expense if they lose.
“In most cases worth pursuing, a lawyer takes the risk,” he said.
On the other hand, he criticized Tubbs’ role as an expert witness for county jails.
“I do not like witnesses that testify professionally,” Draper said. “Tubbs has a real agenda. He makes a living with the counties” from his medical contracting, “and garners favor with them by testifying. It makes him a very suspicious witness.”
Tubbs is not Davis County’s medical contractor. His Utah clients include the jails of Utah, Juab, Duchesne, Wasatch, Summit and Tooele counties.
Expert witnesses or not, Draper said, “ultimately the case has to be compelling enough when you talk to a jury with a questioning eye.”
Tubbs declined to comment.
“I’m not interested in having my name in the paper,” he said when contacted Wednesday.
Karen Russo of the Kansas City-based Wrongful Death and Injury Institute said to meet the high legal bar justifying a claim that a jail has been deliberately indifferent to inmate medical care, multiple expert witnesses may be required on “every little nuance that surrounds that death.”
But, she said, “Not everybody is an expert witness just because they say they’re an expert witness.”