*1 The Court has instructed the undersigned to determine what sanctions should issue against Defendant Brownsville Independent School District (“BISD”) as a result of its failure to take reasonable steps to preserve certain evidence in this civil action. Dkt. No. 57 at 11-12. Specifically, the undersigned has been instructed to determine what sanctions are appropriate under Rule 37(e)(1) of the Federal Rules of Civil Procedure, as a result of BISD's failure to preserve corrupted video footage of the incident giving rise to this lawsuit. Id. For the reasons provided below, it is recommended that the Court: (1) instruct the jury that BISD failed to take reasonable steps to preserve the video footage; (2) instruct the jury that BISD's failure was not the result of bad faith, as there is no evidence that BISD intentionally failed to preserve the footage; (3) instruct the jury that the loss of the footage may have prevented Plaintiffs from producing evidence of BISD's liability; and (4) allow the parties to present evidence concerning the lost footage to the jury, including any communications or evidence that might otherwise be protected by the attorney-client privilege.[1] Should Plaintiffs prevail at trial, it is additionally recommended that BISD be required to pay an additional amount, to be determined by the Court upon the trial's completion, to compensate Plaintiffs for the expenses incurred as a result of the lost video footage, including the expenses Plaintiffs have incurred in pursuing sanctions related to the lost footage.

The Court has federal question subject matter jurisdiction pursuant to 28 U.S.C. § 1331.

This lawsuit was initiated on February 19, 2016, when Gregoria Alvarado and the Estate of Isis Lucero Esquivel filed “Plaintiffs’ Original Complaint and Jury Demand” (hereinafter, “Plaintiffs’ Complaint”). Dkt. No. 1. Gregoria Alvarado is the mother of Isis Lucero Esquivel, and the personal representative of her estate. Id. at 4. Tragically, Isis Lucero Esquivel (hereinafter, “Ms. Esquivel”) passed away at Valley Baptist Medical Center in Brownsville, Texas on May 30, 2015. Dkt. No. 1 at 2; Dkt. No. 44-6 at 2-3.[2] Ms. Esquivel was originally hospitalized two weeks earlier as a result of an incident that took place at the Margaret Clark Aquatic/Adaptive Center (hereinafter, the “Aquatic Center”), a facility owned and operated by BISD. Dkt. No. 38 at 2-3. The incident took place on May 13, 2015, while Ms. Esquivel was in a therapy pool at the Aquatic Center participating in an Adaptive Physical Education Program (hereinafter, the “Aquatics Program”) for students with special needs. Id. at 3-4; Dkt. No. 39 at 12.

*2 Ms. Esquivel was 20 years old at the time of her death. Dkt. No. 1 at 1. She had cerebral palsy, intellectual disabilities, developmental delays, and hypertonicity in her limbs which caused her to suffer decreased mobility, muscle rigidity, and uncontrollable muscle spasms. Dkt. No. 39 at 6. She weighed less than 100 pounds, could not walk, and was non-verbal. Dkt. No. 1 at 1, 5; Dkt. No. 38-2 at 57. Ms. Esquivel was able to crawl short distances, use her arms to roll her wheelchair, and communicate through gazing, smiling, making sounds, and utilizing assistive technology. Dkt. No. 1 at 5. Ms. Esquivel “loved the water” and loved to “kick her arms and legs” in the water. Dkt. No. 38-3 at 51. She had participated in the Aquatics Program since grade school. Dkt. No. 38 at 3.

So that her daughter could participate in the Aquatics Program in 2015, Gregoria Alvarado submitted a form to BISD called the “Physician's Form, Adaptive Aquatics Swimming Program” (hereinafter, the “Physician's Form”). Dkt. No. 1 at 6. The form was completed on February 12, 2015, by Yogesh Trakru, M.D. of ABC Pediatrics of Brownsville, Texas. Id. The Physician's Form stated that Ms. Esquivel could participate in the Aquatics Program provided that:

Id; see also Dkt. No. 39-7 at 1 (containing a copy of the Physician's Form).

On May 13, 2015, Ms. Esquivel visited the Aquatic Center with her Lopez High School class. Dkt. No. 1 at 6. At approximately 1:40 to 1:46 p.m., while in the pool, Ms. Esquivel began to vomit. Id. at 7. Dkt. No. 45-3 at 6.[3] Ms. Esquivel had seizure-like symptoms, turned blue around her mouth, and had problems breathing. Id. Ms. Esquivel was brought to the pool's edge, where the on-duty life guard cleared the vomit from her throat and helped her to resume breathing. Dkt. No. 38-5 at 13, 35-37, 66-67.

According to the records provided by the Brownsville Emergency Medical Service (“EMS”), EMS received a call from the Aquatic Center at 1:49 p.m. Dkt. No. 38-10 at 3. The EMS crew transported Ms. Esquivel to the Valley Baptist Medical Center and she arrived there at 2:29. Id. EMS records reveal that Ms. Esquivel's breathing was labored at 2:00 p.m., and that she was alert. Id. at 4. The “primary impression” for Ms. Esquivel was listed as “Aspiration Pneumonitis.”[4]

According to Plaintiffs, Ms. Esquivel was transferred out of the intensive care unit on May 22, 2015. Dkt. No. 39-5 at 11-12. “Her lungs were clear” and she was “awake, alert and in no acute distress.” Id. at 11. She was assessed as having “post-acute respiratory distress secondary to aspiration.” Id. at 12. On May 29, 2015, Ms. Esquivel underwent a procedure involving the placement of a “PEG (percutaneous endoscopic gastrostomy) flexible feeding tube,” so that she “could be fed food, liquids and medications directly to her stomach bypassing her mouth and esophagus.” Id. at 12.[5] During the procedure, Ms. Esquivel's vital signs became unstable and she went into respiratory and/or cardiopulmonary arrest. Id. Sadly, attempts to resuscitate Ms. Esquivel failed. Id. She was declared dead on May 30, 2015, pursuant to a do-not-resuscitate order. Id; Dkt. No. 39-5 at 12.

*3 A. Factual Allegations. The parties disagree about what occurred on May 13, 2015, the day Ms. Esquivel began to vomit while in BISD's pool (hereinafter referred to as the “incident”). Specifically, the parties disagree about what caused Ms. Esquivel to vomit. Plaintiffs contend that, due to the fault of BISD, Ms. Esquivel vomited as a result of aspirating water. Dkt. No. 1 at 2. Plaintiffs indicate that this occurred after Laura Avitia, the BISD employee who was assisting Ms. Esquivel that day, left Ms. Esquivel near the pool unassisted while she went to go change her clothes. Dkt. No. 45 at 8. They state that when Avitia returned from changing, Ms. Esquivel was already in the pool. Id.

Plaintiffs assert that no BISD employee has admitted to: (1) bringing Ms. Esquivel into the pool; (2) supervising her while Avitia was changing clothes; or (3) handing her back to Avitia once Avitia entered the pool. Dkt. No. 1 at 7; Dkt. No. 39 at 12; Dkt. No. 45 at 8. Plaintiffs add that Avitia, who was holding Ms. Esquivel when she began to vomit, has testified that she cannot recall who transferred Ms. Esquivel into her care, even though Ms. Esquivel began to vomit seconds later. Dkt. No. 45 at 8; see also Dkt. No. 38-3 at 13-14 (containing Laura Avitia's testimony). Thus, although uncertain of exactly how it occurred, Plaintiffs contend that BISD allowed Ms. Esquivel's face to contact the water, either when bringing her into the pool, or during her class time in the pool, or by allowing her to fall into the pool. Dkt. No. 1 at pgs. 2-3, ¶ 6, and p. 7 note 3 (citing Dkt. No. 45-3 at 14); Dkt. No. 39 at 12-15.

BISD states that Ms. Esquivel was never submerged and denies that she aspirated water. Dkt. No. 38 at 4-6; No 48 at 2-3. Instead, BISD claims that Ms. Esquivel was brought into the pool with a special pool wheelchair and provided with one-to-one supervision by a paraprofessional. Id.[6] Once in the pool, BISD asserts that Ms. Esquivel began to throw up, choke, and aspirate the vomit. Id. BISD's submissions indicate that Ms. Esquivel's vomit contained big chunks of ham and cheese sandwich, suggesting that her vomiting episode was potentially due to digestive issues. Id; Dkt. No. 38-4 at 65 (“You could tell what she ate. It was ham and cheese. The ham was, like, this big, yeah and the cheese -- there were big bulks of cheese.”); Dkt. No. 38-5 at 65, 88 (“she was throwing up a lot of vomit, which was ... a ham sandwich.... I actually saw chunks of ham and cheese and bread coming out. Her face was dry.... I didn't see any water.... It was mostly chunky.”); Id. at 88-89 (“And that's when I started noticing the vomit was actually coming out of her nose. Then that's when I noticed that Ms. Isis was turning kind of blue. That's when I noticed she stopped breathing, so I gave a good abdominal thrust. A chunk came out.”); Dkt. No. 38-6 at 3 (“It is probable that Ms. Esquivel had malfunction of the mouth, throat and swallowing mechanism .... This would have greatly contributed to the tendency toward reflux or emesis .... Food particles were confirmed in material removed from the lungs during bronchoscopy on 5-20-15.”) (errors in original). BISD contends that, far from being at fault for the incident, BISD employees administered life-saving procedures to clear the vomit from Ms. Esquivel's throat and restore her breathing. Dkt. No. 38 at 6.

B. Plaintiffs’ Request for Sanctions. Plaintiffs state that BISD maintained video cameras in the Aquatic Center, and that one particular camera was programed to monitor the pool where the incident took place. Dkt. No. 1 at 9; Dkt. No. 45 at 11. Plaintiffs assert that, despite timely requesting video footage of the incident, BISD failed to produce it, claiming that the video was corrupted. Id. Plaintiffs note that BISD's Procedure Manual for the Aquatic Center contains a Crisis Management Plan which requires Aquatic Center staff to “get a copy of the pool security video system” after a crisis has occurred. Dkt. No. 1 at 6. Plaintiffs contend that they notified BISD of its duty to preserve the video footage in a letter dated June 4, 2015, and that BISD otherwise knew it had a legal duty to preserve the footage in anticipation of litigation. Dkt. No. 45 at 10-14.

*4 Plaintiffs argue that BISD was grossly negligent in failing to preserve the footage. Dkt. No. 45 at 14.[7] As a sanction for this conduct, Plaintiffs ask the Court to: (1) award them the reasonable attorneys’ fees they incurred in seeking sanctions; (2) prevent BISD from presenting the jury with evidence or argument that Ms. Esquivel's vomiting episode was caused by something other than the aspiration of pool water; (3) allow Plaintiffs to present the jury with evidence regarding BISD's loss of the video footage, including any communications or evidence that might otherwise be protected by the attorney-client privilege. Dkt. No. 62 at 2-4. Additionally, Plaintiffs argue that they should be compensated for the reasonable attorneys’ fees and litigation expenses that they have incurred pursuing their claims without the benefit of the video footage. Id. at 2-3. More specifically, Plaintiffs state:

Id. (footnotes omitted, errors in original).

Under Rule 37(e)(1), if a court finds that a party's loss of information causes another party prejudice, then the court may “order measures no greater than necessary to cure the prejudice[.]” FED. R. CIV. P. 37(e)(1). In determining whether to order curative measures, the Court should consider the importance of the lost information, and the prejudice caused by the loss, at a minimum.

Handbk. Fed. Civ. Disc. & Disclosure § 12:16 (4th ed., Aug. 2017) (citations to Advisory Notes and case law omitted).

As noted in the undersigned's Report and Recommendation (“R&R”), the relevance and importance of the lost footage is undisputed. Dkt. No. 52 at 57.

Id.[8] Further, although the undersigned found that the record evidence did not support a finding that Plaintiffs, rather than Defendant, had suffered prejudice as a result of the lost footage,[9] the Court declined to adopt this conclusion. Dkt. No. 57 at 11 (“Clearly, Plaintiffs have been prejudiced by the loss of the video; thus, the remaining issue is to determine measures ‘no greater than necessary’ to cure said prejudice.”). In declining to adopt the undersigned's conclusion, the Court found that Ms. Esquivel had aspirated water, and that the lost video footage “would have unequivocally aided the jury” in deciding whether her aspiration of water was due to BISD's deliberate indifference versus its negligence. Id.

Id. (emphasis added).[10]

The Court additionally suggested that, as a sanction, it might be appropriate to prevent BISD from presenting the jury with evidence that Ms. Esquivel aspirated on her own vomit, rather than water. Dkt. No. 57 at 11, n. 22.

Id. The Court then “REMAND[ED] the issue back to the Magistrate Court for a hearing to determine the appropriate sanctions under FED. R. CIV. P. 37(e)(1) as a result of the lost video.” Id.

Upon receipt of the Court's Order, the undersigned ordered the parties to “submit briefing, along with any relevant evidence, regarding the spoliation sanctions issue addressed in the Court's Order of September 11, 2018.” Dkt. No. 59 at 1. The undersigned additionally set an evidentiary hearing for October 26, 2018. Dkt. No. 60 at 1. The parties submitted briefing and appeared for the evidentiary hearing. See Dkt. Nos. 61-62, and Minute Entry dated October 26, 2018. With the exception of a declaration concerning fees and costs filed by Plaintiffs’ counsel (Dkt. No. 62-1), neither side submitted evidence that was not already in the record. Compare Dkt. Nos. 61-1, 61-2, and 61-3, with Dkt. Nos. 38-5, 38-6, and 38-8.

In its briefing, BISD argues that the sanction suggested by the Court constitutes a death penalty sanction. Dkt. No. 61 at 7.

Id. (errors in original). At the hearing, BISD stated that depriving it of its central defense in this lawsuit would constitute reversible error. BISD's briefing also urges the Court to reconsider its finding that Plaintiffs were necessarily prejudiced by the loss of the video. Id. at 6. Because the record contains evidence that Ms. Esquivel aspirated on her vomit, rather than the pool water, BISD asserts that it has been prejudiced by the corruption and subsequent loss of the original video footage. Id. at 7-8; see also Dkt. No. 38-1 at 133 (containing Aquatic Center Administrator Monica Rosales's testimony that she asked the BISD IT Specialist, Heriberto Castillo, to save the footage of the incident because she wanted to cover herself and use the footage to show her staff “how they did a good job.”).

Plaintiffs have not provided any authority requiring the Court to exclude BISD's alleged central defense as a sanction in this case. Further, although the Court's Order of September 11, 2018 suggested that BISD's defense could be excluded as a sanction, it did not state that BISD's defense must be excluded as a sanction. Dkt. No. 57 at 11, n. 22. Therefore, although the undersigned may not revisit the Court's ruling that Plaintiffs have suffered prejudice as a result of the lost footage, the undersigned recommends that the Court decline Plaintiffs’ invitation to exclude evidence in this case.

Support for this recommendation is found in the Advisory Committee's notes attendant to the 2015 amendment of FED. R. CIV. P. 37(e)(1). In relevant part, that notes provide as follows:

*7 FED. R. CIV. P. 37(e), 2015 Amendment Advisory Committee Notes. As these notes indicate, curative measures under subdivision (e)(1) should not have the effect of measures that are permitted under subdivision (e)(2) when a finding of bad faith has been made. Here, excluding BISD's alternative causation evidence would be “[a]n example of an inappropriate (e)(1) measure” because it would eliminate a central defense to Plaintiffs’ claims. See id.

That said, BISD should not be allowed to hide its spoliation of evidence from the jury, however unintentional that spoliation may have been. Although some spoliation cannot be completely cured, the jury should be allowed the choice to infer that the loss of the footage may have prevented Plaintiffs from producing evidence of BISD's liability. Further, should Plaintiffs prevail at trial, BISD should be required to pay an additional amount, to be determined by the Court upon the trial's completion, to compensate Plaintiffs for the expenses they have incurred as a result of the lost footage. This amount should necessarily include monies to compensate Plaintiffs for the fees and costs they have incurred in pursuing sanctions related to the spoliation of the footage.

For the foregoing reasons, it is recommended that the Court: (1) instruct the jury that BISD failed to take reasonable steps to preserve the video footage; (2) instruct the jury that BISD's failure was not the result of bad faith, as there is no evidence that BISD intentionally failed to preserve the footage; (3) instruct the jury that the loss of the footage may have prevented Plaintiffs from producing evidence of BISD's liability; and (4) allow the parties to present evidence concerning the lost footage to the jury, including any communications or evidence that might otherwise be protected by the attorney-client privilege.[11]

Should Plaintiffs prevail at trial, it is additionally recommended that BISD be required to pay an additional amount, to be determined by the Court upon the trial's completion, to compensate Plaintiffs for the expense incurred as a result of the lost video footage, including the expense Plaintiffs have incurred in pursuing sanctions related to the lost footage.

A party's failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge's report and recommendation within fourteen days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996).