Can an elected coroner be held liable for the destruction of key evidence -- a piece of a dead man's aorta -- needed in a medical malpractice lawsuit? That's the six-figure question at the heart of a federal claim against Adams County and James Hibbard, its former coroner. Hibbard hasn't held office since 2010, but left a string of costly lawsuits and allegations of misconduct in his wake that's already cost taxpayers and the county's insurance carrier more than $1.6 million in cash settlements.
It's a strange case. But then, the bizarre was commonplace during the eight years Hibbard ran the coroner's office. My 2009 feature, "The Body Shop," looked into a number of complaints about the operation, which was plagued by staff turnover, allegations of sexual harassment, strained relationships with law enforcement agencies, instances of missing evidence and blunders in death investigations. Under Colorado law, elected coroners aren't required to have a medical background -- and Hibbard, a former sheriff's deputy who lacked even a bachelor's degree, clashed repeatedly with Dr. Michael Arnall, the forensic pathologist who performed autopsies for his office.
When several female employees complained to Arnall about "neck rubs" and other unwanted attentions from then-chief deputy coroner Mark Chavez, Arnall went to Hibbard and urged him to put a stop to it. An investigation ensued, and Chavez resigned. But several employees say Hibbard then began retaliating against Arnall and the women who'd complained of harassment. Hibbard prohibited his death investigators from speaking directly to Arnall and eventually fired him after a confrontation over whether Hibbard was using the autopsy suite cameras to spy on female employees and study their cleavage.
In 2011 county officials agreed to resolve lawsuits filed by Arnall and several terminated female employees, shelling out more than $1.6 million in settlements ($550,000 of the total was paid by the county's insurance company). But that wasn't the end of the legal bills stemming from Hibbard's tenure.
The current court wrangle has to do with missing heart tissue from a dentist named Michael Lynn Harner, who went to Boulder Community Hospital in 2007 complaining of chest pain. He was given a routine angiogram, during which a doctor allegedly perforated his aorta with the cardiac catheterization equipment, causing a slow bleed. Harner died a few hours later; Arnall conducted the autopsy and concluded that the perforation of his aorta was the cause of death.
Attorneys for Harner's widow asked that the specimen showing the hole in the aorta be preserved for future court action. As is standard in such cases, the specimen was kept on a special "hold" shelf in a locked room. It was still there two years later, when pathology lab supervisor Monica Broncucia-Jordan was fired by Hibbard. (Broncucia-Jordan later received a $275,000 settlement for wrongful termination, ran against Arnall for the coroner's job and won -- and hired Arnall back as her pathologist.)
But when representatives of Harner's family went to examine the tissue specimens in the fall of 2009, Hibbard told them the aorta tissue had been destroyed. Over the next several months, while the trial against the cardiac doctor was delayed, the family received conflicting reports from the coroner's office about whether the tissue existed or not. But shortly before leaving office at the end of 2010, Hibbard again informed the Harner attorneys that the specimen couldn't be found.
Harner's widow lost her case against the doctor. How crucial was the missing piece of heart? Harner attorney Baine Kerr says the defense attorneys told him they would have settled the case before trial if it could have been produced. "That would have been the end of the case," he says. "It was the smoking gun."
After Hibbard left office, Kerr asked his successor, Broncucia-Jordan, for permission to examine the computer records regarding the specimen. The records indicated it had been destroyed on November 29, 2010, five days after Hibbard assured Kerr that it didn't exist. "It's clear to me that Hibbard didn't tell the truth -- and then ordered his staff to destroy it," Kerr says.
At a hearing earlier this week, Adams County acting county attorney Heidi Miller contended that the specimen in question had been unintentionally mislaid or destroyed and that routine destruction of specimens "doesn't rise to a constitutional violation." U.S. Senior District Judge Richard Matsch decided to send most of the Harner claims against Adams County back to state court for review -- but delayed ruling on whether Kerr could proceed in federal court with a claim against Hibbard individually that he violated the family's constitutional right of access to the courts.
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Although elected officials are protected from most negligence claims by governmental immunity laws, "I don't think there's qualified immunity there," Kerr says. "There is established precedent that intentional destruction of evidence by a public official does violate the constitutional right of access to the courts."
At the hearing, though, the poker-faced Matsch didn't give much indication of whether he would let the claim against Hibbard proceed. "I guess I have some skepticism that this piece of evidence would make a difference," he said. "But one has to wonder what was going on."
More from our News archive circa November 2011: "James Hibbard: $1.6 million in settlements reached in coroner sex harassment fiasco."