Appeals court: Orange Co. liable for inmate death

Robert Montano

The United States Court of Appeals Fifth Circuit has upheld a jury decision that awarded $2.5 million in damages against Orange County for the wrongful death of an inmate held in the county jail’s detention “bubble” for days on end as the mentally ill man died of renal failure in a pool of uneaten jail food and human waste.

According to the lawsuit filed following the death of Robert Montano, the deceased was held on suspicion of “bath salt” intoxication in an observation “bubble,” although no proof was ever produced to suggest Montano was ever under the influence of any drug.

In an opinion released Nov. 29, the appeals court found that the Orange County Jail had a de facto policy, even though unwritten, that established a “condition or practice” that allowed for the wrongful death of an inmate, and that the harmful policy had no usefulness to the government function the county is commissioned to perform. Since the policy was exacted outside the lawful scope of duties, the court determined, Orange County was liable for damages, although a governmental office is usually immune from such lawsuits. The court ruled immunity is only viable when a function is carried out in lawful public duty.

“Jail employees testified to familiarity with the Orange County Sheriff’s Office Correctional Facility Operations Plan, which prescribed a guideline range of 4-8 hours for detainee detoxification,” the court held. “In contravention, the jail’s explicit custom was to isolate seemingly intoxicated detainees in the bubble and to leave them there until either they became coherent and could be booked, or a contract position visited.”

Montano was held in the bubble for more than four days. In court filings, it was revealed that the initial warrant to hold Montano expired before his death.

“In evidence was the earlier described affidavit of probable cause, signed by the County Judge on 7 October 2011, nearly four-and-a-half days prior to Mr. Montano’s death, setting bond at $200 and ordering Mr. Montano be released after 72 hours if charges were not filed or bond posted,” the court held. “At the least, a reasonable juror could infer that the 72-business-hour limit should have put the county on notice that time limits were required and ‘as long as it takes’ was unacceptable. In other words, this prescribed time constraint could allow a reasonable juror to determine the county’s ‘four or five days’ or ‘as long as it takes’ de facto policy for holding seemingly detoxifying pretrial detainees was not reasonably related to a legitimate government interest.”

Not only was no evidence presented that Montano was under the influence of any drug, no charges were ever filed against him.

“There can be no denying Mr. Montano was punished,” the court held. “Despite knowing Mr. Montano hardly ate or drank for almost four-and-a-half days, the county did nothing more than continue depositing food in the bubble. The evidence shows that there was no mistaking Mr. Montano’s dehydration.

“In short, there was evidence that the policy was the moving force for Mr. Montano’s inadequate medical care. His death resulted from the state’s inaction, which was a direct result of the county’s de facto policy.”

According to the court, trial testimony adequately established that Montano’s experience was standard, general practice — not an isolated example, but was instead a “pervasive pattern of serious deficiencies.”

The court determined that the award of $1.5 million for pain was not excessive, and further ruled that a previously struck $915,000 award be added back to the total amount due Montano’s beneficiaries.

“The record reflects Mr. Montano’s moans, asking a nurse to come in the bubble, and most importantly, the ultimate cause of death – renal failure,” which the court considered damning evidence of pain. “Whether this evidence demonstrated that Mr. Montano suffered pain was a matter for jury determination, and considered in concert, a reasonable juror could find Mr. Montano consciously suffered pain.”

At closing in the original trial proceedings, the county attorney stated: “Mr. Montano died because of medical negligence. Robert Montano died while he was in the custody of the Orange County Jail. We stipulated that fact. The death is on our hands. … We know that Mr. Montano’s death was a tragic mistake, negligence, maybe even gross negligence.”

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