09/14/2020 - U.S News: Who pays for Expert Witnesses Involved in Utah jail Death Civil Court Cases.?

In the territory of civil litigation over jail deaths in Utah, expert witnesses and an experienced selection of private defense attorneys paid by a government indemnity pool
usually play importannt and often decisive roles.

Two cases in the spotlight in Davis County illustrate how this hiring of legal firepower helps the government side gain victory, or makes 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 prison system.

In his expert reports, 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.

Another expert witness in the Hayes case, Donald Leach II of Lexington, Kentucky, absolved the Davis jail of any personnel failures, constitutional or violationsof policy.
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 half of Tubb's fee an hour for research and reports and $1000 less per day for depositions and trial testimony.

Expert witness payments are covered by the Utah Counties Indemnity Pool, an invention of the state government that allows counties to combine resources to take on board legal and other losses.

The Indemnity 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 Indemnity pool.

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.

County governments pay for the coverage with what the indemnity pool describes as law enforcement liability contributions.

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.

Other firms include Durham Jones & Pinegar, $361,815, and Gridley Ward and Hamilton, $674,000.