By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
By Anna Merlan
By Lee Escobedo
In 2004, James Mims, a mentally ill inmate at the Lew Sterrett Justice Center, suffered renal failure nearly two weeks after guards turned off the water in his cell. An internal affairs investigation found both the jail and its outside medical provider at fault. After lawyers for Mims and two other mentally ill inmates who died at the jail filed a lawsuit, the county enlisted Figari & Davenport to defend the case. That decision has yet to pay dividends, at least for the county.
An open records request for the firm's billing records show that it has charged the county $923,000 for its services, a sum that most inmate attorneys would quickly agree to as part of a settlement for even the most egregious case. The firm's senior partner, Ernest Figari, has billed $450 an hour.
But so far, the firm, which brags of its "outstanding results" on its Web site, has a rather unimpressive track record: In 2005, after The Dallas Morning News obtained an outside consultant's damning report of health care at the jail, which concluded that inmates were likely dying as a result of a neglectful medical program, the law firm sent a letter to the paper demanding that it return the report. The News refused, choosing instead to publish the report on its Web site. Undeterred, Figari then asked a state district judge to order the paper to remove the report from its Web site, but the firm lost that one too. Figari then tried to convince a federal magistrate and subsequently a federal judge that attorneys for Mims couldn't use or refer to the report as evidence in their case, claiming it was privileged attorney-client communication. Both times, the firm's motions were rejected. That was a major victory to the plaintiffs' attorneys since the independent study of the jail provided outside corroboration of the facility's dismal record of medical care.
"We think the report itself is the best evidence," said Fort Worth attorney Jeff Kobs, who represents the inmates' families, shortly after a federal magistrate ruled that the study of the jail was not considered privileged.
Figari lost again last month, this time before the 5th U.S. Circuit Court of Appeals, in its effort to include the jail's former medical provider, the University of Texas Medical Branch at Galveston, as a responsible party in the litigation. Now Figari is in the unenviable position of having to argue the facts in the case. Figari & Davenport's Dennis Lynch, who has argued unsuccessfully for the county in federal court, declined any comment on the ongoing litigation. Meanwhile, the opposing counsel, which is seeking not just damages but an overhaul of the jail's medical care program, is critical of how the county is choosing to defend the case.
"No money should be spent by the county defending past practices at the jail," Kobs says. "The county should admit what everyone already knows—that the system for delivering medical care to jail inmates is broken, that it needs to be fixed and that fixing it will cost money. The sooner county commissioners realize this, the sooner real reforms can take place."
Shortly after Mims' plight made the news, internal affairs investigators for the jail sought to find out what happened. Investigators interviewed nearly 50 jailers, supervisors and medical personnel, exposing epic failings throughout the jail health system. First, even though Mims had been found to be mentally incompetent to stand trial over a period of 25 years, having been transferred between Terrell State Hospital and the county jail during that time, UTMB's psychiatric staff failed to follow through on three separate referrals from medical personnel to evaluate him. They also failed to provide his prescribed medication.
Meanwhile, the investigators found that the guards and their supervisors failed to keep track of Mims when they turned off the water in his cell. They did that as a temporary measure after he flooded his space, only nobody kept a record that Mims was going without water. Left without his medication, Mims was unable to speak for himself. In their report, the investigators concluded that Mims simply "fell through the cracks." Remarkably, then Sheriff Jim Bowles did not discipline any of the guards responsible for Mims.
After the investigation, the county expected UTMB to pay for at least some of the costs stemming from Mims' lawsuit. In its 2002 contract with the county, the medical school agreed to "indemnify" the county in the event of any lawsuit stemming from their own mistakes. Allen Clemson, the administrator for the county and its top non-elected official, negotiated the contract and in a subsequent affidavit said that he thought UTMB agreed to be on the hook in the event of a case such as Mims'. But UTMB would later claim "sovereign immunity," which means that as a governmental entity, it is protected from most lawsuits. In other words, the indemnity clause to which UTMB agreed might as well have been worthless. Both Clemson and the District Attorney's Office, which also reviewed the contract, basically got duped by a medical school into thinking that they had some protection in such a case as Mims'.