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Lawsuit over inmate's death dismissed

Thursday, February 21, 2013 - Updated: 5:09 PM

By HEATHER NELLIS

Recorder News Staff

A federal court on Tuesday dismissed a lawsuit against Montgomery County that alleged wrongful death of former jail inmate James Vandermark.

U.S. District Court of Northern New York documents say the case was dismissed because Vandermark's mother, Theresa Vandermark, neither responded to the court nor retained a new attorney after her first one dropped the case last year.

In late May 2012, Amsterdam Attorney Elmer Robert Keach III applied to withdraw as Vandermark's counsel, according to court documents. His motion detailing that request was sealed, and is listed as unavailable on the court's website. The court approved his request last July.

Keach did not return a message seeking comment Wednesday.

Keach filed the suit on behalf of Theresa Vandermark on Jan. 25, 2011, seeking $20 million in damages after the October 2009 death of James Vandermark. It was filed against Montgomery County, Sheriff Michael Amato, Undersheriff Jeffery T. Smith, jail Administrator Michael Franko, and the jail's medical staff.

It was alleged jail staff was negligent in treating James Vandermark's sinus issues that caused his death, and that the sheriff's department responded to his pleas for help by placing him in solitary confinement.

District Court did not weigh the allegations in its decision to dismiss the case, rather Magistrate Judge David E. Peebles' report and recommendation centered on Vandermark's lack of legal representation and her failure to respond to court summons.

The state Commission of Corrections, however, did clear the sheriff's department of any wrongdoing in its investigation into Vandermark's death.

After Keach's withdrawal, Peebles said Theresa Vandermark was advised multiple times she'd have to retain new counsel, because she was acting as an administrator of her son's estate, and could not represent him in the court of law.

"It is well-established that a person who has not been admitted to the practice of law may not represent anybody other than himself," Peebles wrote, citing case law.

Peebles said he advised Theresa Vandermark of the "limited exception" to that law so long as she was the sole beneficiary of her son's estate, and was told she could submit an affidavit to state she could meet its requirements.

"However, she failed to do so," Peebles wrote.

Peebles said Theresa Vandermark additionally failed to answer the court's order to show cause, and participate in a telephone conference, which provided an independent ground for dismissal.

Peebles wrote that he considered "less drastic" sanctions, but found them unsuitable.

"[They] appear futile in light of the fact that plaintiff failed to oppose her former attorney's motion to withdraw, failed to participate in a [subsequent] telephone conference, failed to update the court with changes in addresses and phone numbers on multiple occasions, and failed to respond to the court's order to show cause."

"I have carefully evaluated these factors, and find that they weigh decidedly in favor of dismissal," wrote Peebles. "This action has been pending for nearly two years. In that time, little, if any, discovery has occurred, and the case is not trial ready."

"During that time has passed since commencement of the action in January 2011, it is likely that memories of relevant events have faded, pertinent documents may have been discarded, and potential witnesses may have retired or left the employ of the county for reasons unrelated to this action," Peebles continued.

The court dismissed the suit with prejudice, so it cannot be filed again.

Amato said Wednesday he was happy with the outcome, and maintains his staff followed proper protocol.

"I wish the things said about myself and my staff could be retracted by the individual who made the statements," Amato said about Keach. "I wish we could have said something about the statements at the time, but we couldn't.

"[Vandermark] was very sick, and we were taking care of him," Amato continued. "We did everything we were supposed to do. He didn't die in the jail, we released him because of his health."

In June 2011, Corrections Commissioner Dr. Phyllis Harrison Ross recommended the case be closed as a "natural death."

James Vandermark, 27, was remanded to the county jail on June 23, 2009, after violating parole. The report says Vandermark had a "significant medical history," including a rare kidney disorder that required him to receive dialysis three times a week.

A physical examination upon his intake indicated he was suffering from a sinus infection and other symptoms, the report said, and was transported to St. Mary's Hospital for stabilization before he was released the next day.

On July 21, James Vandermark was prescribed an antibiotic and nasal medicine for his continued complaints of sinus infection, and was referred to a specialist, whom he saw on Aug. 11, 2009, the report says.

During an Aug. 5, 2009 trip for his regular dialysis treatment, Vandermark was charged with attempting to smuggle tobacco, and reportedly admitted to it to his escorting corrections officers when they found it in the center's rest room. He was placed in solitary until his disciplinary hearing on Aug. 20, 2009.

During his visit with an ear, nose and throat specialist Aug. 11, 2009, the doctor found Vandermark had a growths filling his nasal passage, and was ordered to receive a CAT scan and further testing, which took place on Oct. 6, 2009.

Throughout September and October, Vandermark reportedly refused to take his nasal medication, and signed a form of refusal, and refused to take other medications on multiple days.

On Oct. 19, 2009, Vandermark complained of a headache, muscle twitching and dizziness, and two days later, voluntarily ended his dialysis treatment 44 minutes early, the report says.

Vandermark was transported to St. Mary's Hospital in Amsterdam the next day, after jail staff observed him acting erratically, and ordered an ambulance. He later had a seizure at the emergency room, and went into cardiac arrest, says the report. He was resuscitated, but was unresponsive.

A CAT scan was subsequently conducted of Vandermark's head, and lesions were reported that were "probably metastasis," or secondary malignant growths from a primary site of cancer.

A week before his death, Vandermark, was transferred to Ellis Hospital in Schenectady for a biopsy on the mass in his nasal passage, and for "intensive neurological monitoring," where he remained until passing on Oct. 27, 2009.

     

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