CHARLESTON – The state Intermediate Court of Appeals has affirmed in part, vacated in part and remanded a 2022 Kanawha County jury ruling of more than $700,000 to the family of a 32-year-old inmate who died from septic shock his estate says was ignored by guards for days.
The ICA said Kanawha Circuit Judge Tera Salango was correct in trial rulings that the West Virginia Division of Corrections and Rehabilitation had appealed, but it did say some issues regarding interest rates on the verdict needed to be corrected.
In November 2022, the jury handed down the verdict of $711,237 to the family of Rocco “Rocky” Iacovone. The WVDCR was the lone defendant to stand trial after not making a settlement offer before the case. Wexford Medical Sources, the contractor for healthcare services with the WVDCR, settled with the family a week before the trial for an undisclosed amount.
Forbes
| File photo
Because of the septic shock caused by a bacterial infection, Iacovone became more and more ill and disoriented in his cell at Huttonsville Correctional Facility. He died August 28, 2018. The jury found the guards were deliberately indifferent to the emergency medical condition, a heightened legal standard required in cases involving constitutional violations in inmate cases. The estate accused the WVDCR of deliberate indifference of jail staff, and an expert physician testified that a simple course of antibiotics administered even hours earlier could have saved Iacovone’s life but the jail staff refused to get medical care for him.
In December 2022, the WVDCR requested a new trial based on the circuit court’s erroneous trial rulings and jury instructions. It also requested the judgment be amended regarding the calculation of pre- and post-judgment interest rates. The parties reached an agreement on the interest rates in February 2023, which was approved by the court the following month.
But the court also entered an order denying the motion for a new trial. The WVDCR appealed that order to the ICA, presenting seven assignments of error that basically fall into three categories: the court’s ruling on witness testimony prevented the WVDCR from mounting a meaningful defense at trial, the error in instructing jurors regarding mitigation of damages and the elements of deliberate indifference as well as the error in the calculations of interests.
In its July 15 order, the ICA concluded the circuit court did not abuse its discretion in limiting trial testimony to minimize confusion to the jury. It also said the lower court did properly instruct jurors as to the need to consider whether a “serious medical need” existed. And finally, the ICA said the circuit court erred in on some of the interest rate issues.
In short, the ICA affirmed the circuit court on its trial rulings. But it vacated the ruling on the award of pre-judgment interest for lost wages and lost household services as well as the ruling setting the post-judgment interest rate at the 2023 rate instead of the 2022 rate. That matter is remanded to the circuit court to handle.
“This was one of the most horrific displays of indifference to medical needs in the history of West Virginia’s prison system. It never should have happened to a 32-year-old man in our state’s custody and was easily preventable," attorney Jesse Forbes told The West Virginia Record. "The evidence showed that Rocco was in desperate need of medical care and was ignored for days despite only needing a simple course of antibiotics to save his life.
"No amount of money can make up for the loss of a son and brother, but the family is extremely thankful that the appellate court agreed with the trial rulings and upheld the verdict acknowledging what caused Rocco’s death. This is precisely what appellate courts are for – to examine the record and ensure that the trial court got the law right.”
Forbes said Iacovone was ignored for days by jail staff, calling the situation "tragic."
"The DOC has rules in place for a reason," he said. "Our society cannot simply lock people away without access to healthcare. ... The problems in our state’s overcrowded and understaffed jails and prisons are well known, but this case should be Exhibit A as to why they need to be fixed.”
Attorney L. Dante diTrapano also represented the family.
“This is a tremendous result for basic fairness and decency in our prison system," he told The Record. "The jury acknowledged the wrong suffered by this close-knit family and hopefully by their willingness to pursue justice through the civil system something will change to help others as well.
"No one should be ignored when they are having a medical emergency, especially by the people they rely upon for every basic need such as those in State’s custody. We hope this decision brings a sense of justice to the family and society as a whole."
The verdict included $400,000 for Iacovone’s lost earning capacity, $275,000 for lost household services, $20,000 for his suffering before his death and $16,237 for funeral expenses.
Iacovone was serving sentences for escaping from a Pennsylvania county jail in 2017 and for a high-speed chase earlier that year that started in Fairmont and ended in Pennsylvania following an armed robbery of a gas station.
The estate was represented by diTrapano and Amanda Davis of Calwell Luce diTrapano in Charleston and by Forbes and Jennifer N. Taylor of Forbes Law Offices in Charleston. The WVDCR was represented by William E. Murray.
West Virginia Intermediate Court of Appeals case number 23-ICA-148 (Kanawha Circuit Court case number 20-C-602)
