Lexington Mayor Jim Gray will have to give a limited deposition in a wrongful death lawsuit involving a jail inmate, U.S. Magistrate Judge Robert Wier has ruled.
The lawsuit was filed in late 2012 by the family of Jeffrey McKinney, a Fayette County jail inmate with epilepsy. It contends that McKinney died after being assaulted, restrained and pepper-sprayed by corrections officers when he had a seizure.
During the past several weeks, there has been a flurry of activity in the lawsuit, which names the Lexington-Fayette Urban County Government, the Division of Community Corrections, and Corizon Inc., the contractor for medical services at the jail.
The latest twist is a dispute regarding whether Gray should be deposed.
Gray was named as a defendant because, the lawsuit contends, he was responsible for policies, procedures and training at the Fayette County Detention Center and might have "personal knowledge" about related problems and issues there.
But attorneys representing Gray and the city have filed a document disputing that, saying the mayor "had no personal or other involvement in any of the circumstances leading to" McKinney's death.
But Wier decided Thursday that a deposition limited in scope and duration could be taken from Gray.
Bill Rambicure, an attorney representing Gray, the Urban County Government, the detention center and other individual defendants in the case, said he had no comment beyond what was in the court record.
Susan Straub, a spokeswoman for the Urban County Government, has said she could not comment on the pending case.
Kevin Fox, an attorney for Jeffrey McKinney's father, Robert McKinney, said his client has been unable to reach a settlement with the defendants. He said many of the court motions filed recently have been an attempt to keep the case on track for a July 2015 trial.
"That's long enough for the family to have to deal with this to get a chance to have a resolution. It's very important for us to keep it on track and not have any postponements or delays," Fox said.
At the time of his death, McKinney was serving a 12-day sentence in the Fayette County Detention Center for his second conviction for driving under the influence of alcohol. In addition to epilepsy, he had suffered a traumatic brain injury in an ATV accident and had various other conditions for which he took medication.
According to court records, shortly after McKinney arrived at the jail May 17, 2012, to serve the DUI sentence, a member of the medical staff determined that he would not be allowed to have Ativan, a prescribed medication he had been taking daily for several years to treat his seizure disorder. The medical staff member ordered that McKinney undergo a withdrawal protocol from the Ativan. Five days later, at about 6 p.m. May 22, McKinney had a seizure. He died about an hour later.
"During the one-hour period between Mr. McKinney's seizure and his death, at least nine guards ... subjected Mr. McKinney to physical assault and restraint, handcuffs, leg shackles, pepper spray, placement of a hood over his head, placement in a restraint chair and then being placed face-down on a plastic mat while still handcuffed and shackled," according to court documents filed on behalf of the family.
A death certificate attached to the lawsuit said McKinney died of asphyxia due to aspiration of gastric contents, the result of a seizure disorder. The manner of death was determined to be an accident that occurred while he was subdued by "prison personnel for combative behavior," the death certificate said. Lexington police did not file criminal charges in the case.
A court document filed Jan. 24 said attorneys for McKinney's family have taken the depositions of at least 16 detention center employees and 10 medical staff members. Fox said those depositions show jail staff knew or should have known McKinney was having a seizure and was not being combative on purpose.
But corrections officers who were summoned to calm McKinney said in court documents they thought his behavior was intentional.
According to the preliminary opinion of a doctor identified as an expert witness for the McKinney family, Jeffrey McKinney probably was in the post-acute phase of a seizure, when a person typically will experience confusion, disorientation, agitation, fear, drowsiness, nausea, inability to communicate and a risk of aspiration. That phase can last several minutes to several hours. McKinney also might have been having another seizure during that time, the expert said.
Court documents in the case say that after having a seizure in the shower mid-day May 22, McKinney, 37, was taken to the jail's medical unit. About 6 p.m., he was observed lying halfway off his bunk, convulsing in a way that was consistent with seizure activity.
He was placed on his side and began to drool blood, a result of having bitten his tongue. After McKinney spit blood in the direction of a nurse, corrections officers put him in a spit hood. The mesh hood is placed over the head of an inmate to deter spitting.
Not long after, when medical staff were trying to assess McKinney's condition, nurses and corrections officers decided that McKinney was combative — and no longer having a seizure — when he began swinging his arms, throwing his elbows and thrusting his body while in a restraint chair. According to a jail incident report attached to the lawsuit and other court documents, McKinney was pepper-sprayed, handcuffed, shackled and given an injection to calm him down. Corrections officers also used physical force, including applying pressure to nerves in McKinney's leg and just below the ear to cause pain.
When corrections officers saw that McKinney no longer was resisting, they removed the leg shackles. He had been lying face down on a mat with his hands cuffed behind his back and his legs shackled for nearly 41/2 minutes. Corrections officers then noticed he was in respiratory distress, a court document filed on behalf of McKinney's family said.
Jail staff began performing cardiopulmonary resuscitation before emergency medical technicians arrived and took McKinney to University of Kentucky Chandler Hospital, where he was pronounced dead.