For a third time, a federal judge has ruled that Wellpath — one of the nation’s largest for-profit providers of health care to people in prisons and jails — wrongfully deleted emails connected to in-custody deaths. Wellpath operates in at least 10 correctional facilities in Oregon and Washington, and has purged email evidence in at least three wrongful death cases in the Pacific Northwest. Criminal justice reporter Conrad Wilson joins us to discuss the cases.
Note: The following transcript was transcribed digitally and validated for accuracy, readability and formatting by an OPB volunteer.
Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. For a third time, a federal judge has ruled that the prison healthcare provider Wellpath wrongfully deleted emails connected to in-custody deaths. The company is one of the nation’s largest for-profit providers of healthcare for incarcerated people, and operates in at least 10 facilities in Oregon and Washington. Judges have now found that it purged email evidence in three different wrongful death cases in the Pacific Northwest. OPB’s criminal justice reporter Conrad Wilson joins us to talk about this story. Conrad, good to have you back.
Conrad Wilson: Hi, Dave.
Miller: What do we know about what happened to Janelle Butterfield in 2018?
Wilson: So, there’s a lot, and it’s a pretty terrible story. Janelle is just a really tragic story of someone who had a very full life. She was married, had a house, and what her family described to me as a really happy existence. And she also had a mental illness – paranoid schizophrenia – that really took control of her life before the end. Between 2016 and 2018, she was in and out of the Josephine County jail at least eight times.
Miller: Do we know if the jail, then, was aware of her mental illness?
Wilson: Yes, they were, and this is a company called Wellpath. It’s a national for-profit correctional healthcare company, that you mentioned at the top, that Josephine County contracted with to provide medical care to people in its jail. In late July of 2018, Butterfield was arrested after she failed to appear in court on misdemeanor charges stemming from an incident where records show she was in psychosis, and during that event resisted arrest, among other misdemeanor charges she got.
While Janelle was in the jail, her antipsychotic medication was eventually discontinued, for reasons that are not clear. And keep in mind that Wellpath was the medical provider. It’s not like you can choose your own healthcare provider when you’re in custody. So, after 40 days in the Josephine County jail, Janelle Butterfield died by suicide in a segregation cell. She was 34 years old.
Miller: What did a federal judge affirm last week?
Wilson: I just want to take a quick step back, with a little context … after Janelle Butterfield died, her family filed a wrongful death lawsuit saying that her civil rights were violated, and named Josephine County, Wellpath, and several employees for both the county and the healthcare provider. Earlier this year, a magistrate judge, a federal judge, Mark Clarke, wrote a series of findings and recommendations involving that case. Another judge reviewed those and then signed off on them last week, making them official and part of the record, and agreeing with them.
And what Clarke wrote, what these findings say on paper in about 20 pages or so, is absolutely scathing, and it’s really quite shocking. Clarke wrote that company executives at Wellpath “intentionally destroyed email evidence in order to prevent its use at trial.” It adopted this policy that company leaders internally referred to as “the purge,” and it did so while it was facing other wrongful death lawsuits.
So after the company deleted emails, it then spent years making misleading statements that intentionally omitted why it was unable to turn over emails. And in a deposition under oath, a company executive agreed that one of the motivating factors behind the decision to adopt the policy was to destroy bad emails that could be produced in discovery.
Now, here’s the thing: Judge Clarke isn’t the only judge to come to those conclusions. There are two other wrongful death cases, another in Oregon and a third out of Eastern Washington state, where federal judges basically agreed or said something similar – that Wellpath wrongfully destroyed this evidence that was supposed to be preserved for trial in several cases. And then after they deleted the messages, it took them years, in some cases, to come forward and acknowledge the mistake. And in the eyes of many of those judges, it just certainly appeared the company was hoping to not get caught.
And I just want to add, too, we did reach out to Wellpath several times, and they did not get back to us with a comment.
Miller: At a hearing from one of those cases in 2022, Federal Judge Ann Aiken said this: “I’m not happy. Wellpath has been standing in the way in terms of not being responsive in the basics. It’s Federal Court, you provide the discovery, you preserve the discovery when you’re on notice, you preserve it with your clients, you provide it.”
How much has come out about the company’s policy – about who put it forward, and why?
Wilson: The company’s policy was put forward by its executives. And I said a little bit of this earlier, but I should be more explicit … really, there’s this deposition that, at this point, I’ve read several times, and so have several attorneys, where the company’s chief information officer basically agrees that the motivating factor – or one of the motivating factors – behind the decision to adopt the policy was really to make sure these emails, good or bad emails, wouldn’t be produced in discovery. And it’s really a stunning thing.
Miller: What are the legal repercussions for all of this behavior on the part of Wellpath?
Wilson: At this point, three federal judges in three separate wrongful death cases have ruled against Wellpath and sanctioned the company. That’s what the outcome of this is. In those rulings from Judge Clarke and Judge Aiken, as you had mentioned, they basically conclude that the company’s conduct was so bad, they lost the case. And, had there been a trial, it would have been to determine the damages – basically how much money the company owes. And normally, a wrongful death in a civil case like this would start [with], is the company even responsible? Are they really culpable? And because of what Wellpath did, these judges all concluded separately, in their own cases – looking at their own facts, of a series of evidence – that there was no point of even having that part of the trial.
Miller: Where does Janelle Butterfield’s case stand right now?
Wilson: It actually settled in August. We don’t know for how much, and it’s a “settlement in principle.” So, it’s not something that we necessarily will ever know. And there may be more details that come out of that in the next year or so.
Miller: Where’s Wellpath operating these days?
Wilson: Wellpath is a massive, national, for-profit correctional health care company, and so it operates in dozens of states. It still operates in Oregon and Washington; operates in the Douglas County jail in Oregon; Lane County; operates in several municipal jails in Washington. So, it works in prisons and jails across the country.
Miller: Now that three different judges have all said the same thing, that Wellpath intentionally destroyed evidence, have Oregon or Washington officials said anything about why they still are letting the company operate in their facilities?
Wilson: Well, it’s kind of a two-part answer, in some ways, in that jails and prisons are required under the Federal Constitution, to provide adequate health care. But there really are no resources the federal government provides to help jails and prisons meet that obligation. In fact, federal programs like Medicare and Medicaid are actually cut off to people in custody. They’re not even able to access those or bill for those sorts of services.
So it’s a situation where you have a big expense for local communities, local counties – it’s a huge expense. But in many cases, there’s really not a lot of incentive, or really very little incentive, actually, to spend a lot of money on that healthcare or provide really great healthcare to people in custody.
Miller: What have you found, broadly – and we have about a minute left – how often jails in the Pacific Northwest do what is constitutionally required, [to] provide adequate health care for people in custody?
Wilson: My colleagues and I did an investigation looking at about a little more than 10 years of jail death data in Oregon and Washington, in a story that came out in 2019, and we found that jails are frequently not meeting that obligation. And in some cases it’s more egregious than others. But it is a situation where the federal government has this requirement, the Constitution has this requirement, and it’s not doing everything it could to support really vulnerable people who are unable to choose their healthcare provider when they are in a prison or in jail.
Miller: Conrad, thanks very much.
Wilson: You’re welcome, Dave.
Miller: That’s Conrad Wilson, an OPB reporter who focuses on criminal justice issues.
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