Price tag on Vaughn prison settlement to rise

James T. Vaughn Correctional Center near Smyrna. Special To The Delaware State News/Gary Emeigh

DOVER — Office of Management and Budget (OMB) director of policy and external affairs Bert Scoglietti confirmed Tuesday that the actual state payout to settle the Vaughn prison lawsuit will be larger than $7.55 million announced Friday.

An agreement to pay future salaries and medical bills for injuries arising from the Feb. 1 Vaughn prison uprising will drive the total amount up over time, according to the state’s “settlement agreement and release” document.

The lawsuit was filed in April by Wilmington lawyers Thomas Neuberger and Tom Crumplar on behalf of 10 defendants: the estate of Lt. Steven Floyd, the correction officer killed in the riot, his widow and three children, and five other officers who were held hostage during the incident.

Although she never filed an official federal complaint, Patricia May, the prison counselor also held hostage during the incident, is a claimant on the settlement as well.

Much of the complaint rested on the state’s alleged failure to provide a safe working environment for its employees and long ignored staffing issues within the DOC and how these failures led to the incident on Feb. 1.

The two correctional officers who were held hostage and beaten, Winslow Smith and Joshua Wilkinson, will continue to receive state employee health benefit coverage under the plans for up to one year or until they receive them from another employer. Two of the three correctional maintenance workers who were trapped during the incident but later rescued, Justin Tuxward and Owen Hammond, can retain their medical coverage for the same amount of time.

Lt. Floyd’s widow will continue to receive her health benefits, a survivor’s pension and a “line of duty death benefit.” According to state code, if Mrs. Floyd filed a claim on the death benefit before July 1, the benefit will be $150,000 paid in a maximum of $30,000 installments per year or $200,000 paid in $40,000 installments if filed afterward.

The state also agreed to grant Mr. Smith, Mr. Wilkinson, Mr. Tuxward and Mr. Hammond up to one year of leave with pay while it makes a “reasonable” search on their behalf for alternative state employment. Ms. May agree to voluntarily retire on or before Feb. 16 next year.

Associated medical costs can’t be estimated yet. Beyond recovering from any physical injuries stemming from the incident, Mr. Neuberger noted earlier this year that his clients were struggling to recover emotionally as well.

“They’re not recovering well: they’re subject to constant flashbacks, nightmares, terror, insomnia, PTSD,” he said at the time.

The total salaries Mr. Smith, Mr. Wilkinson, Mr. Tuxward, Mr. Hammond and Ms. May will continue to draw are also difficult to estimate. According to state payroll records, the five DOC staff members earned almost $500,000 collectively in 2016. However, Mr. Wilkison hadn’t worked a full year for the DOC in 2016 and Ms. May will only be able to collect her salary up until her voluntary retirement.

Mr. Scoglietti noted that these obligations the state agreed to aren’t part of the original $7.55 million settlement amount.

“I don’t have an estimate yet what the total cost to the state will be,” he said.

Largest in state history

While not confirmed beyond doubt, many believe the Vaughn prison settlement to be the largest state-paid settlement in Delaware’s 230 year history.

According to Mr. Scoglietti’s recollection, the OMB has never paid out a higher settlement. Mr. Scoglietti has been working at the OMB for 31 years.

Although his office doesn’t record such data, Thomas Wagner Jr. who’s served as state auditor for almost 30 years also believes it’s the largest state-paid settlement.

Dover attorney, Stephen Hampton, who is himself considering a class-action lawsuit against the state on behalf of inmates who have written to him about various abuses since the Feb. 1 incident, says it’s likely the largest.

“Some things get more quietly settled under the radar, so I can’t be certain,” he said. “But as for a personal injury or wrongful death type of settlement it’s probably the biggest. A lot of the certain government agencies — DART, for example — have caps so you could never have one this big, there isn’t that much money available for them.”

Mr. Hampton has practiced law in the state for nearly 30 years.

Register in Chancery office manager Kenneth Lagowski noted on Tuesday that the Court of Chancery has never issued a larger state-paid settlement.

After the settlement last Friday, Mr. Scoglietti said the funds for the settlement will be drawn from the legal contingency fund and “workers compensation fund.

“$5.1 million will come from the workers compensation fund for state employees,” he said. “The remaining $2.45 million and that will be paid from current and prior year funds which are in the OMB legal contingency and self insurance fund.”

When asked if the workers compensation fund had been used in the past to settle a civil suit in this manner, Mr. Scoglietti said: “To my knowledge, no.”

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