Attorney's temper stalls case about baby's death in jail

By Margo Kirchner

An attorney’s angry gesture with a pen resulted in two more months of delay for a woman’s claim that neglect by Milwaukee County jailers led to the death of her newborn child.

Attorney James J. Gende II, who represents plaintiff Shadé Swayzer, lunged toward a correctional officer during a deposition and slammed the end of a pen into a flow chart just inches from the county’s lawyer’s hand. (See video below.)
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The county’s lawyer, Douglas S. Knott, accused Gende of “assault” and ended the deposition. 

Swayzer’s suit against the county and its medical contractor, Armor Correctional Health Services Inc., alleges, among other things, they were negligent in providing medical care and violated the constitutional rights of both Swayzer and her deceased infant daughter, Laliah.

Knott and attorneys for Armor later filed motions for protective orders to prohibit Gende from conducting future depositions in the case. If granted, Swayzer’s representation in those depositions would shift to other lawyers on the team.

Gende apologized for losing his patience and said it had nothing to do with the witness, Correctional Officer Terina Cunningham, but did have something to do with Knott.

“I believe counsel has made it as difficult as possible over the last several examinations for me to complete my deposition of his clients,” he said.

Depositions of two Armor employees were scheduled for Oct. 20 and Nov. 2, but their lawyers, citing Gende’s conduct, refused to proceed with those depositions. 

Michael Russart, an attorney for Armor, told Gende in a letter he was canceling his clients’ depositions to “protect [them] from harassment, embarrassment and potential injury.” 

Russart said he would call the police if Gende appeared at Russart’s office for any depositions.
In a quickly scheduled Oct. 17 hearing, U.S. District Judge Pamela Pepper agreed that full briefing of the motions for protective orders and a further hearing were warranted. She prohibited the taking of any depositions in the meantime, noting her concern over Gende’s loss of composure at the Cunningham deposition.

Now all depositions are stayed until the Nov. 29 hearing.

Other discovery disputes also appear to be delaying progress in the case. Swayzer’s attorneys are seeking orders compelling Armor and former Sheriff David Clarke to provide responses to written questions and to produce requested documents. 

Armor says it answered many of the requests and is working to supplement its responses. It said its responses were delayed by Hurricane Irma in Florida and the need for additional time to produce electronic discovery and suggested that the motion to compel its responses was actually meant to divert the court’s attention from Gende’s conduct.  

Clarke says he responded to several of the discovery requests on Oct. 27, but refuses to provide additional information regarding his personal calendar and whereabouts from July 6 to 14, 2016.  Clarke contends that such information is confidential and irrelevant to the case.

Pepper referred the disputes about Armor’s and Clarke’s responses to U.S. Magistrate Judge William E. Duffin for resolution. But she retained the motions about Gende’s conduct at the deposition.

Pepper recently held that Armor must turn over its internal investigation reports regarding Swayzer’s and Laliah’s medical care at the jail. Armor argued that if such information is disclosed it has no incentive to perform investigations in the future. 

Pepper found that Armor’s professional obligations and economic interest in keeping its contract with the county provide incentive enough and that the need for truth about the defendants’ policies and practices at the jail outweighs confidentiality concerns.

Swayzer alleges in her suit that she was eight months pregnant when she was taken into custody in July 2016 for an alleged probation violation and placed into a maximum-security cell at the County Jail run by the Milwaukee County Sheriff’s Department and then-Sheriff Clarke. 

Swayzer was more than eight months pregnant at the time, and a hospital exam just prior to her arrival at the jail showed the pregnancy to be healthy and on track. Days later, alone in her cell, Swayzer gave birth to daughter Laliah. Laliah survived just a few hours, dying in the cell in which she was born.

Swayzer and Laliah’s estate sued Clarke, Milwaukee County, several jail employees, Armor, and some of Armor’s doctors and nurses. Swayzer asserts that when she arrived at the jail on July 6, 2016, a doctor and nurse documented her mental and physical health needs and directed that Swayzer be housed in the special needs unit.

Nevertheless, though Swayzer initially resided in the special needs unit for two days, a lieutenant at the jail moved her to maximum security because she had been involved in various incidents while incarcerated on previous occasions, according to the suit. No jail or medical personnel took action to keep Swayzer in the special needs unit, the suit alleges.

Swayzer claims that from July 8 through July 13 she remained in maximum security and received no medical care. A doctor was scheduled to see Swayzer on July 13, but failed to do so.

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Pepper recently held that Armor must turn over its internal investigation reports regarding Swayzer’s and Laliah’s medical care at the jail. Armor argued that if such information is disclosed it has no incentive to perform investigations at the jail in the future. ​

According to the suit, a guard doing rounds the evening of July 13 saw Swayzer in an unusual position, but failed to investigate. The next morning Swayzer informed that guard that she was in labor, her water had broken, and she was experiencing contractions. The guard did nothing about Swayzer’s reports. Another inmate heard Swayzer crying for help in the early morning hours of July 14, the suit says.

Swayzer delivered Laliah at about 5 a.m. without medical assistance.  Swayzer wrapped Laliah in a blanket with her face exposed. The two remained in the cell alone without medical help for over an hour.

Just before 6 a.m., the same guard saw Swayzer lying in an odd manner, blood on the mattress, and bunched-up blankets, according to the suit. Despite those observations, the guard continued her rounds and then conferred with another guard about Swayzer. Neither guard called in a medical emergency until one of them returned to the control room, the suit says.

When medical staff responded to the emergency call, a guard initially denied them access to Swayzer’s cell because he was waiting for backup. When medical staff finally got to Laliah and removed her from the cell she did not appear to be breathing. Resuscitation attempts began around 6:20 a.m., but failed, and Laliah was declared dead at 6:55 a.m.

Meanwhile, guards awaited the arrival of additional jail staff before allowing Swayzer to be transported to the hospital, according to the suit.

Swayzer and Laliah’s estate allege that all defendants were deliberately indifferent to Swayzer’s and Laliah’s serious medical needs in violation of the U.S. Constitution. They claim that Milwaukee County, Clarke, and other supervisory personnel at the jail failed to train and adequately supervise staff and maintained policies that resulted in the injuries to Swayzer and Laliah. And they claim that Clarke and the jail defendants are liable under Wisconsin law for negligence and Laliah’s wrongful death.
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In response to Swayzer’s discovery requests, the County admits that Clarke issued no corrective action or discipline regarding the circumstances of Swayzer’s delivery and Laliah’s death.