Even though he just garnered a career-best $11.5 million jury award, veteran personal injury lawyer Tom Weidner says he wasn’t in the mood to pop the champagne corks.
“Professionally, it was very satisfying and it was a great team effort,” said Weidner, a partner at Eckberg Lammers in Stillwater. “But it’s such a sad story, there was no celebration.”
Earlier this month, following a week-long trial before U.S. District Court Judge William Conley in Madison, Wisconsin, an eight-member jury unanimously agreed on the award for Weidner’s clients, two women who were sexually assaulted on scores of occasions by a Polk County Sheriff’s Department employee, Darryl Christensen, while they were incarcerated at the county jail.
In a special verdict form, the jury found the sheriff’s department negligent in its supervision and training of Christensen and awarded both women $2 million in compensatory damages. Jurors also said that Christensen should pay $3.75 million in punitive damages to each of the victims.
The latter award is “symbolic,” said Weidner, because Christensen doesn’t have any assets. The longtime jailer is currently serving a 30-year prison term for sexually assaulting five female inmates between 2011 and 2014, including Weidner’s clients.
According to both the lawsuit and the criminal complaint, Christensen engaged in a variety of sex acts with his victims after luring them into isolated areas of the jail that were outside the view of cameras and other staff.
At trial, Weidner said, the big challenge was meeting the standard for establishing the county’s liability – proving that county officials displayed deliberate indifference to the health and safety of his clients.
“We had to show that they [the Polk County Sheriff’s Department] knew of the substantial risk that was posed and that their training of their officers and their policies were inadequate,” said Weidner.
That task required that Weidner immerse himself in a subject that he had never dealt with in his 27 years of practice: prison rape.
“I was amazed at how widespread the problem. I was also amazed that Wisconsin has not adopted the PREA standards for their local jails,” Weidner said, referring to the federal Prison Rape Elimination Act, or PREA. Congress unanimously passed PREA in 2003 amid research findings that “at least” 13 percent of the inmates in the United States jails, prisons and other detention facilities suffer some form of sexual assault behind bars.
After a lengthy ruling making process that was finalized in 2012, PREA mandated that all federal prisons enact “zero tolerance” policies to prevent sexual assault. State prisons were incentivized to do the same with the threat of losing five percent of federal grants for non-compliance.
But PREA is not mandatory for county jails, said Weidner, who added that Judge Conley “made it abundantly clear” that Polk County’s failure to implement PREA standards was not sufficient on its own to establish liability.
In a key pretrial ruling last month, however, Conley also rejected the county’s summary judgment motion for dismissal, saying that there was sufficient evidence to suggest “jail administrators turned a blind eye, and perhaps even fostered, a culture where inappropriate sexual comments were accepted as the norm.”
The judge further noted that some red flags were evident as far back as 2004, when a jail administrator essentially brushed aside an inmate’s complaint that Christensen had made lewd comments to her while she was in the shower.
At trial, the sheriff, chief deputy and other jail officials took the stand.
“Nobody testified that they knew anything was wrong,” said Weidner, adding that Christensen also testified at the trial.
“He blamed the victims and said that they manipulated him,” said Weidner. “It was very hard for my clients to stomach. They were brave enough to get back on the stand and tell the jury that was not the case.”
Jeff Fuge, the Polk County Corporation Counsel, said he expects the county will appeal verdict but said that decision is ultimately up to the insurer and the outside counsel who represented the county at trial.
One of those attorneys — Paul Cranley of the Milwaukee firm Hush Blackwell – declined to comment on the plans going forward. The county still faces three other lawsuits from former inmates who were abused by Christensen.
Weidner, who is not representing the plaintiffs in the other suits, said he started working on the case two years ago on referral from a former colleague in Eckberg Lammers’s Wisconsin office, Jeffrey Kemp. Kemp, who later left the firm, was recently elected Polk County’s new district attorney.
Weidner credited the contributions of co-counsel Lida Bannink – “the smart one” – for her work in the motion practice.
The jury’s award appears to comport with verdicts in other successful lawsuits brought by inmates over sexual abuse at the hand of jailers, according to Chris Daley, the deputy executive director of Just Detention International, a non-profit that works to end prison rape.
“When people are able to adjudicate these claims, awards in the millions of dollars are not uncommon,” said Daley, noting that a few high profile cases have yielded even greater damages. In 2009, for instance, the state of Michigan settled a class-action lawsuit brought on behalf of about 500 female inmates for $100 million.
But Daley said another federal law – the 1997 Prison Litigation Reform Act – creates “a big barrier” for victims to have their day in court. Because it requires that plaintiffs first exhaust all administrative remedies before suing, Daley said, many otherwise valid claims wind up scuttled.