MIAMI, Okla. – Lawyers for Ottawa County have filed an appeal of a multi-million dollar judgment in a wrongful death civil lawsuit involving a Miami man.
Terral Ellis, Jr., 26, of Miami, died of sepsis and pneumonia on Oct. 22, 2015, while incarcerated in the Ottawa County Jail. After an eight-day federal trial, the jury found former Ottawa County Sheriff Terry Durburow, in his official capacity, at fault and awarded the Ellis family $33 million in compensatory damages. The judgment is against an elected position not Durburow the person.
Attorneys for the county filed two motions on Oct. 5 in U.S. Federal Court in Tulsa. One motion is filed solely to address the issue of excessiveness of the jury verdict and the second motion is for a new trial.
Ellis’s attorneys have not filed a response to the county’s motion for a new trial, online records show.
Ellis died a slow, agonizing death over several days. You can hear him calling for help and moaning in pain a surveillance video. At the center of the video is retired nurse Theresa Jo Horn. She is seen and heard on the video cursing, mocking and berating Ellis as he laid in his cell dying. He complained of seizures, convulsions, and numbness in his legs.
Horn was dismissed from the lawsuit and the statute of limitations against her expired in Oct. 2018.
The county’s attorneys alleged in their motion, “Although punitive damages were not available in this case, during closing arguments Plaintiff’s counsel requested the jury award $50 million in damages as a deterrent to prevent similar occurrences from happening in the future.”
Compensatory damages are comprised entirely of noneconomic damages. Ellis’s attorneys only sought non-economic damages; and did not introduce any evidence regarding Ellis’s burial costs or future earning capacity, the motion states.
The verdict “appears to be punitive in nature rather than compensatory,” the motion states. A governmental entity can only be sued for compensatory damages, not punitive damages, the motion states.
The 33-page motion for a new trial claims it is warranted for several reasons citing “the jury verdict was against the weight of the evidence.”
The testimony did not establish that jail staff was actually aware that Ellis was at substantial risk of serious harm between the time he was examined by EMS on October 21 and when another ambulance was called for him the next day, the motion states.
“Even if testimony did actually support that jail staff was deliberately indifferent to Ellis’s medical needs, the evidence did not establish that jail policies and procedures caused any deliberate indifference,” the motion states.
The motion for a new trial also cited “improper actions and remarks by Plaintiff’s counsel” and jury instruction errors and allowing Ellis’s expert witness to testify, court documents show.