Erie County could have settled a lawsuit over the death of inmate Richard A. Metcalf Jr. for $17 million, but instead took the case to a trial that ended with a jury’s $95 million judgment against the county on Monday – the largest known civil verdict ever against the county.
County Attorney Jeremy Toth said Tuesday that was the best decision to make at the time, and he thought agreeing to the plaintiff’s settlement demands would have been “foolish.” He called the jury’s decision “inexplicable” and said the county intends to appeal the verdict and seek a new trial.
“I don’t regret not settling this case for $17 million,” he said. “We’re only at the end of the beginning.”
Metcalf died days after being restrained by deputies in the county Holding Center in November 2012. The trial resulted in jurors awarding $95 million in damages, with decisions regarding further damages left to come.
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The verdict represents a blow to the reputation of the Erie County Sheriff’s Office, and a financial hit to taxpayers.
The jury delivered a verdict following a civil trial that found the county and five current and former deputies liable for excessive force and depriving Richard A. Metcalf Jr. of medical care.
Since the appeal may take years, there is no immediate financial impact beyond the millions of dollars being spent to defend and appeal the case.
Whenever the time comes to pay up, County Comptroller Kevin Hardwick said the county would probably need to borrow the money to cover some, or all, of the cost.
“We’re looking at all our options,” Hardwick said.
The 2012 death of Erie County Holding Center inmate Richard Metcalf Jr. is the subject of a civil trial that began with opening statements Feb…
Before the lawsuit filed by Metcalf’s father went to trial, the county had already spent $900,000 on legal bills related to the case. Toth said he expects legal costs for defending the county through the trial to total around $2 million.
A hearing to determine how much in punitive damages the deputies will have to pay will be held April 30. However, Toth said those damages would be the responsibility of individual Sheriff’s Office employees to pay, not Erie County.
Brown Chiari, the law firm representing the Metcalf family, disputed the assertion that the county is not liable for damages and accused the county of failing to negotiate in good faith.
“There are laws and agreements that obligate the County to pay such damages,” Metcalf’s legal team said.
Five current or former Erie County jail deputies were found responsible Monday for allowing Metcalf to suffocate while they restrained him and let him remain face down on a stretcher with a spit mask tied around his neck and a pillowcase over his head. Metcalf, 35, was taken to Erie County Medical Center and removed from life support after two days.
Why the county didn’t settle
Toth said there was no way to predict how the trial would end, but he said the county would have taken heat for agreeing to a $17 million settlement offer beforehand.
“I don’t think I would have been doing my job if I had done that,” he said.
Brown Chiari called Toth’s comments inaccurate and false.
“The fact of the matter is that for the past 12 years, the County has never even attempted to negotiate in good faith,” the firm stated.
Toth said he was looking at the settlement offer within the context of what the county has previously paid to settle other lawsuits. The most the county had paid to settle a case in recent years was $1.5 million in a foster care case, Toth said.
Last month, the county settled for $1.2 million the case of David Glenn, an inmate who attempted to hang himself in the Erie County Holding Center in 2012. Glenn was not under suicide watch. His representatives said he had repeatedly asked for medication and treatment but was denied.
In the negligence claim, representatives said Glenn suffered “severe permanent and painful injuries” as a result of the suicide attempt and his fall after being cut down. He now requires constant care.
Other cases, however, have cost the county more. In 2011, the county settled a lawsuit filed on behalf of a woman who suffered brain damage in a city pool staffed by county lifeguards. That case was settled for $7 million.
Toth said the county intends to argue for both a new trial in the Metcalf case and a reduction in the damage award. He also said there were “reversible errors” made during trial that the legal team will argue on appeal.
“Nobody anticipated a judgment of this size, and in the end, I don’t think this judgment will stand,” he said.
Jury verdict on fault
Jurors in the Metcalf case found that the county and five current and former deputies were liable for using excessive force and depriving Metcalf of proper mental and physical medical care.
Starting Friday morning, the jury will begin deliberations and decide who they believe.
The only part of the jury’s verdict that wasn’t unanimous was on a question about the actions of emergency medical technicians. The jury, which, unlike in a criminal trial, was not required to be unanimous, cleared the EMTs of violating medical standards in allowing Metcalf to be transported face down on a stretcher inside the jail. One juror disagreed with that conclusion.
The jury broke down its compensatory damages judgment Monday this way:
- $45 million for loss of life.
- $30 million for pain and suffering, including fear of impending death, while in the Holding Center.
- $10 million for pain and suffering from the time Metcalf entered the jail infirmary until his death.
- $10 million for fear of impending death.
The questions the jury has to answer include whether Metcalf's constitutional rights were violated, whether the accused deputies and Erie County were negligent – or worse – and, if they find wrongdoing, how much Metcalf's life was worth.
Among the jury’s findings:
- The current and former deputies – Robert Dee, Matthew Cross, Robert States, Edward Kawalek and Scott Emerling – used excessive force on Metcalf.
- Dee, Cross, States and Kawalek were “deliberately indifferent” to Metcalf’s medical needs – in addition to being negligent – in depriving Metcalf of care. Deliberate indifference is “akin to recklessness, but does not require proof of malicious or callous intent,” the judge told the jurors.
- The county deprived Metcalf of his right to adequate medical care or mental health care, in addition to being negligent in providing or failing to provide care.
- At the time of Metcalf’s death, the county showed a pattern or practice of depriving inmates of medical or mental health care at the Holding Center.
The civil trial over the death of Erie County Holding Center inmate Richard A. Metcalf Jr. in 2012 is expected to be the most expensive case the county has ever had to defend.
Dee was fired in 2022 by the Sheriff’s Office after a series of investigations into unrelated misconduct, including domestic violence charges and improper contact with a female inmate. Emerling and Kawalek still work for the Sheriff’s Office. Stakes and Cross now work for the Buffalo Police Department.
- During closing arguments last week, the plaintiff’s attorneys described the case as a relatively simple one that had been drawn out by the defendants’ attorneys, who argued that blame lay with other parties, such as the EMTs and Metcalf, himself.
“They blamed everybody under the sun except for themselves,” said attorney Donald Chiari of the Brown Chiari law firm, who represented Metcalf’s father, Richard A. Metcalf Sr.
The Sheriff’s Office issued a statement late Monday regarding the verdict, noting that Metcalf’s death occurred under former Sheriff Timothy Howard, before Sheriff John Garcia took office.
“This verdict stems from an event that occurred 12 years ago,” the statement said. “Since Sheriff Garcia took office in 2022, the Erie County Sheriff’s Office has become a far different organization. This administration has been proactive in seeking state and federal accreditations for all divisions in a robust effort to employ stringent practices for the safety and care of our personnel and our incarcerated population.”
Garcia declined to comment further.
County Legislator Howard Johnson, who chairs the Public Safety Committee, said while the incident happened under a prior administration, “it doesn’t do the Sherriff’s Office any favors.”
Toth said the county will appeal on multiple grounds, including the county’s belief that it was wrong to allow jurors to know the State Commission of Correction’s investigative findings, which placed blame on the county’s deputies.
“It’s our feeling that the fundamentals of this trial were so far out of the bounds of appropriate evidentiary standards,” Toth said.
Determining final cost
County officials said that it is too early to know what the impact of the Metcalf verdict will be on the county’s finances.
“Given that the county plans to appeal the decision and the uncertain timeline of that process, it would be WAY premature to even speculate on the final outcome,” said Peter Anderson, a spokesman for the County Executive’s Office.
The judgment could hurt the county’s creditworthiness, though Budget Director Mark Cornell said the county’s control board, auditors and credit rating agencies have known this to be an outstanding potential liability.
“It would be premature to speculate on the impact a judgment could have on county finances now or in the future,” he said, adding that he is confident that the county’s finances can weather whatever the final outcome is.
The county has several options for covering the judgment in the Metcalf case.
It has a “risk retention fund” used to cover settlements, judgments and legal costs arising from lawsuits against the county. A total of $5 million was budgeted for that fund for the current year. In addition, Cornell said the county expects to roll over $2.9 million in unspent funds from last year, and wants to allocate an additional $2 million in surplus money to the fund, which would require County Legislature approval.
That would still represent only a tiny fraction of what would be needed to cover the Metcalf judgment.
Erie County will pay $7 million to a Buffalo woman who suffered brain damage after she nearly drowned in a West Side pool in August 2009. The payment — one of the largest of its kind by the county in recent years — will settle a personal-injury lawsuit that blamed the county for not properly training or supervising lifeguards
That leaves mainly two vehicles for covering the bulk of any large multimillion-dollar judgment: the county’s savings and borrowing.
Borrowing at least some money to cover the judgment is a realistic outcome for the county, especially since the $95 million verdict would deplete more than half of the county’s unrestricted reserve funds.
The Sheriff’s Office would not be expected to pay for the judgment, which amounts to more than half of the Sheriff’s Office budget.
But any decision to borrow money or to pull money out of emergency savings or other sources beyond the county’s risk retention fund would require support from the County Legislature.
The county could also save up surplus money going forward to earmark toward the final Metcalf case award, similar to what was done for cash allocations toward the Buffalo Bills stadium.
Whatever happens, Cornell said, county finances won’t be crippled by this judgment.
“This is a long way from being over,” he said.