Tuesday, November 17, 2009

Spotswood pays $50,000 to to arrestee who committed suicide in jail

On March 19, 2009, the family of a Monroe Township (Middlesex County) man accepted $50,000 from the Borough of Spotswood as partial settlement of his and his aunt's lawsuit arising from their January 20, 2003 arrests. The arrests preceded the man committing suicide in his cell at the Middlesex County Adult Correctional Center (MCACC) the following day.

The $50,000 settlement discharged only Spotswood and its police officers from the suit. After settling with Spotswood, the suit continued against both Middlesex County jail officials and CFG Health Systems, LLC, a private firm under contract with Middlesex County to provide medical and psychiatric services to inmates.

According to the lawsuit, Nestor Tosado (also referred to in court papers as "Nester Tosado"), then 24, was stopped by Spotswood Police on January 20, 2003. After reportedly being placed "in fear of his life" by the allegedly :abusive and threatening" conduct of the officers, Tosado fled on foot to the home of his aunt, Carmella Povlosky, who resided in an apartment at 289 Main Street.

Povlosky, who is also a plaintiff in the lawsuit, claimed that the police entered her apartment without a warrant, and "kicked, punched, used pepper mace and brutally beat" Tosado. When Povlosky "asked the officers why they were beating Nester," the officers allegedly arrested her. Ms. Povlosky alleges that the charges brought against her were later dismissed in court.

According to a July 15, 2005 article in the Home News Tribune, the police said that after they stopped Tosado, they discovered that he had two active warrants and "found syringes, some containing heroin, in his car."

The Spotswood officers who are named as defendants in the suit are: Chief Karl Martin, Capt. Michael Zarro, Sgts. Joseph Seylaz and Philip Corbisiero, detective Eugene Scheicher, and patrolmen William Desrosier, Les Genovese, and Scott Hoover. Chief Martin was quoted in the Home News Tribune article as having said, "It's another frivolous lawsuit wasting the resources of the Police Department."

A September 16, 2008 opinion written by District Court Judge Dickinson R. Debevoise summarized the lawsuit's allegations as follows. Upon his arrival at the MCACC, Tosado was given an intake exam by CFG. Despite knowing that Tosado "had a history of depression and was in severe withdraw from heroin and methadone," it did not put Tosado in a closely monitored "special needs unit" or in the hospital. Rather, "he was placed in a standard cell and left to fend for himself until the next examination at 6:25 the following morning."

At Tosado's examination the next morning, his blood pressure was highly elevated, he complained of nausea and prison staff reported to CFG that he was vomiting in his cell. "Despite these developments, CFG nurses refused to examine him. In fact, one CFG employee actually crossed [Tosado's] name off a list of inmates who were scheduled to receive psychiatric evaluations that day. Suffering from severe withdrawal and unable to get help, Mr. Tosado apparently decided to take his own life. At 4:33 that afternoon, corrections officers found him hanging from a bed sheet in his cell."

The $50,000 settlement was equally split between Tosado's estate. administered by his mother, Catherine Tosado, and Povlosky.

On May 29, 2009, Judge Debevoise dismissed the suit against the Corrections Center, Warden Michael Abode and other unnamed county officers. On September 29, 2009 the suit was reportedly settled with CFG Health Systems. Since CFG is not a public entity, the settlement agreement is not a public record subject to disclosure under the Open Public Records Act (OPRA). Thus, there is no way to learn the amount and terms of settlement.

However, an August 7, 2009 letter to the court from Maria D. Noto of Matawan--who represented the Tosado's estate and Povlosky in the lawsuit--she had demanded a $750,000 settlement from CFG and the firm responded with a counter-offer of $35,000. Accordingly, it stands to reason that the ultimate settlement amount fell somewhere between these two figures.

The case is captioned Catherine Tosado et al v. Middlesex County Department of Corrections, et al, Case No. 2:05-cv-05112-DRD-MAS. The lawsuit, settlement agreement and other relevant documents are on-line here.

None of Tosado family's allegations have been proven or disproven in court. The settlement agreement expressly states that the $50,000 payment does not constitute an admission of wrongdoing by the Borough or its officials. All that is known for sure is that Spotswood Borough, and perhaps its insurer, for whatever reason, decided that they would rather pay Tosado family and their lawyer $50,000 than take the matter to trial. Perhaps the Borough's decision to settle was done to save further legal expense and the costs of trying what were in fact exaggerated or meritless claims. Or, perhaps the claims were true and Spotswood Borough wanted to avoid being embarrassed at trial. This is the problem when cases settle before trial--it is impossible to know the truth of what really happened.