The city’s involvement in the claims made in the aftermath of the 2021 death of Jim Rogers appeared to be near an end, but new questions arose in recent weeks that have put on hold the record $8 million settlement the city agreed to pay to Rogers’ family.
In a wide-ranging media briefing on Wednesday, city solicitor Krysia Kubiak offered an update on two pieces connected to Rogers’ death: the wrongful death lawsuit filed by the Rogers family against Pittsburgh and the city’s defense of the discipline meted out to the officers involved in the October 2021 incident.
The former is not hinged upon the latter in any way other than the overlapping parties: the city and Jim Rogers and, now, to a lesser degree, renowned forensic pathologist Dr. Bennet Omalu.
Rogers, 54, died a day after he was hit repeatedly with a stun gun by a Pittsburgh police officer. Police had been called to the scene in Bloomfield after someone spotted Rogers riding a bike he’d taken from in front of a home on Harriet Street. Neighbors said the bike had been left out on purpose and was free for anyone to take.
Witnesses said Rogers was neither aggressive nor violent. The lawsuit accused one officer of using a Taser on Rogers up to nine or 10 times. He had fallen unconscious by the time police arrived at the Allegheny County Jail, and he was then driven to UPMC Mercy. He died the next day.
City officials hired no outside medical experts before they agreed to the $8 million settlement because they were confident that Rogers’ death was the result of actions taken by police. They did not need an outside opinion, they said.
Now, however, they have hired Dr. Omalu, a former Allegheny County coroner who came to fame after he linked a chronic traumatic brain disease to athletes involved in violent impact sports.
Officials acknowledged last week they’d hired the doctor for $10,000 but stressed his services are only for the arbitration involving the officers disciplined in the aftermath of Rogers’ death.
Ms. Kubiak stressed that the city remains confident in their own determination.
“The city was very confident … that Mr. Rogers died because of the actions of the officers,” she said, noting, though, that isn’t a criminal liability determination.
They’d remained confident throughout the proceedings, she said, and did not think Rogers’ cause of death would be an issue during arbitration.
In September, however, the union representing Pittsburgh police notified the city that they would present an expert during arbitration hearings who would say that Rogers’ died from a seizure disorder. Knowing that, Ms. Kubiak said, the city felt it needed to hire its own expert to refute the seizure allegation.
On Wednesday, Ms. Kubiak also acknowledged that officials knew Dr. Omalu had worked on the federal wrongful death lawsuit against the city. He’d been retained in that case by the plaintiffs — that is, Rogers’ estate.
According to Bob Swartzwelder, president of the union representing Pittsburgh police, several of the officers involved retired, some opted for lesser discipline than was meted out, and some are still in the process of appealing it.
All nine officers disciplined in the case appealed the outcome. Two ultimately retired, and four settled for lesser penalties and returned to work. Three cases are pending, including two in which officers could face termination.
Ms. Kubiak said the fact that Dr. Omalu was party to the federal lawsuit does not create any conflicts of interest.
“We had a very short window of turnaround in order to hire a medical expert,” she said. “The union had already hired theirs and we already had dates set. So it was actually a benefit to us that Mr. Omalu was involved in that prior case because we knew he was already familiar with any medical records.”
Now, she said, the city is waiting for a report from Dr. Omalu. She said the city cannot use the report the doctor generated for use in the federal lawsuit because that is privileged information retained by the attorney representing the family, Todd Hollis.
The wrongful death lawsuit, for the most part, was settled. The city in April agreed to pay $8 million. According to court records, a judge in late September approved the settlement distribution as follows: Todd Hollis, the attorney representing the estate in the wrongful death lawsuit, would receive around $2.74 million; Rogers’ only heir, Lanesha Kennedy, would receive $3.94 million; and Rogers’ estate would receive around $1.31 million.
City council approved the settlement agreement in October.
Ms. Kubiak said that in late November, questions arose about whether the executor of Rogers’ estate, James Frierson, had taken all the necessary steps in a state court called orphans court. Orphans court handles wills, guardianships, and other estate issues. There are certain steps that have to be completed.
In late November, Ms. Kubiak said, city officials “started to raise concerns” that the orphans court administration “was not being done properly.” She said her office became aware of those concerns when city council President Theresa Kail-Smith “brought up to me that she had been hearing rumors.”
“She did not have a lot of evidence that we could discuss but we, at that point, I reviewed the orphans court case … and then we hired outside counsel who could do a proper review,” Ms. Kubiak said.
One of the steps that must be completed is that a notice must be published in local newspapers to alert any potential creditors or beneficiaries of the death.
The city claimed in a filing in the orphans court case that the Rogers’ estate had not done that. “In addition,” it read, “the order names Lanesha Kennedy as the recipient of all $3,943,143.72 allocated in the wrongful death claim, but her relation to the decedent as sole heir is not certain.”
It continued: “Upon reasonable information and belief, there are other heirs entitled to share in the settlement.”
Ms. Kubiak, though, seemed to back away from those allegations Wednesday.
“I will say, that estate has been open for two years, and no one else, from my understanding, has ever entered in on that estate,” she said. “If you thought you were an heir, you’d go and file a motion in that estate case and say, ‘Hey, I’m one of the heirs.’”
She said she wasn’t aware if a paternity test was performed in regard to Rogers’ adult daughter and sole heir.
In a Dec. 4 filing in the federal case, Mr. Hollis laid out all the actions he and his clients had taken to satisfy the orphans court requirements. The filing sought a court order to force the city to pay the first settlement installment, $2 million.
“The city’s justification for not paying this settlement is without merit,” Mr. Hollis wrote. “All of the conditions that were raised to inspire payment have been satisfied.”
First Published: December 13, 2023, 9:10 p.m.
Updated: December 14, 2023, 8:36 p.m.