Families of prison heat stroke victims ask judge for favorable ruling after records destroyed

Douglas Hudson, left in white, with his son, Cade Hudson, who is a plaintiff in the wrongful death suit about his father’s heat death at the Gurney Unit in July 2011. Douglas Hudson, left in white, with his son, Cade Hudson, who is a plaintiff in the wrongful death suit about his father’s heat death at the Gurney Unit in July 2011. Photo: Hudson Family Photo: Hudson Family Image 1 of / 5 Caption Close Families of prison heat stroke victims ask judge for favorable ruling after records destroyed 1 / 5 Back to Gallery

Three families whose relatives died of heat strokes at a Texas prison are asking a federal judge to bypass a jury trial in a wrongful death suit against several top officials because the prison destroyed key documents related to the fatalities.

The federal court filing Wednesday in Houston claims prison officials shredded vital evidence at the Gurney Unit near Tyler, including inspection logs and inmate complaints from 2011 and 2012 that could have shed light on whether water was delivered, fans were working and officials were doing everything they could to prevent deaths amid brutal summer heat in the dormitories.

The shredding took place despite earlier court sanctions against TDCJ for negligence handling of records in a separate lawsuit involving a heat-related death at the Hutchins Unit in Dallas, attorneys say.

The lawyers also say the prison system held onto an email for years that showed a regional prison director had been advised by medical officials about how widespread the heat deaths were in un-airconditioned units.

An official at the Gurney unit testified under oath at a recent deposition that he had just been hired when he oversaw a routine record shredding at the facility and said no one had instructed him to preserve the case documents, according to Wednesday's motion. He also testified that the warden who knew about the litigation had approved the document destruction.

"At a minimum, it reflects absolute incompetence on the part of the agency and the fact that they failed to notify us upon learning about this abuse is particularly disturbing," Austin attorney Jeff Edwards told the Houston Chronicle in an interview. Edward's firm represents the three families in the Gurney Unit death cases, as well as hundreds of inmates moved from the geriatric Pack Unit to air-conditioned prisons after a federal judge issued an emergency injunction in a separate lawsuit.

The motion filed Wednesday in the Gurney Unit case outlines a pattern of willful foot-dragging and outright obstruction by top officials that the families say merits drastic action from U.S. District Judge Keith P. Ellison, who presides over the majority of the state's prison heat cases.

The families have asked Ellison to enter a ruling on the case since a jury can no longer evaluate possible evidence of misconduct by prison officials. But if the judge wants the case to proceed to trial, the families are asking Ellison to instruct jurors that any missing evidence destroyed by the prison would have favored the arguments of the inmates' family members.

"The department intends to vigorously defend itself against the allegations," said Jason Clark, spokesman for the Texas Department of Criminal Justice, who added he had not seen the motion filed in the case.

The joint wrongful death action involving the Gurney Unit was brought in 2013 by the families of Douglas Hudson, 62, and Kenneth Wayne James, 52, who died during heat waves in the summer of 2011. A third inmate, Rodney Adams, 45, died of heat exposure in August 2012, and all three deaths took place at the Gurney Unit in Tennessee Colony near Tyler. The families sued for monetary damages but also to prevent others from dying in the future from unmitigated heat inside the facility in the summertime.

The lawsuit claims that James died after officers ignored his pleas for help for seven hours because they have a policy that inmates cannot get medical care at night unless a lieutenant approves it.

Edwards' firm, along with the non-profit Texas Civil Rights Project, jointly filed the Gurney suit and a number of other lawsuits over heat deaths at other facilities, including the lawsuit brought by family members of Larry McCollum, a 58-year-old who died at the Hutchins Unit in Dallas in 2011.

The McCollum case is awaiting a ruling from an appeals court, but a federal judge in Dallas issued sanctions in January 2015 for the prison's failure to produce documents and investigate or interview key personnel about the events surrounding his death.

The Dallas judge ordered TDCJ and University of Texas Medical Branch to pay more than $200,000 in sanctions to McCollum's relatives for the extra work it will take to litigate after these breaches in the discovery process. Edwards said that failure by the prison amounted to "not playing fair," which had a devastating effect on the McCollum family.

"The lawyers didn't do their job," Edwards said in an interview. "Memories fade, documents get destroyed and we didn't have information at the time of depositions."

The motion filed in the Gurney lawsuit states that the prison had a duty to preserve the documents and officials knew it. In the wake of the McCollum sanctions, it says, it was egregious and "unfathomable" for officials to destroy evidence, since they cannot claim in good faith that they didn't know they needed to preserve it.

According to court documents, the destruction of evidence at the Gurney Unit occurred in October of 2014, four months after Tod Gillam, a new risk manager, was hired at the facility. A log at the Gurney Unit shows that documents from the time period of the men's deaths were destroyed on this officer's watch. Gillam testified at a deposition that he didn't know he was supposed to retain records related to the case, and the warden signed off on the disposal of six boxes of documents and forty floppy disks.

In addition, the motion says, the lawyers for the prison didn't talk to or interview this risk manager until May or June of 2017. The attorneys disclosed the information about the lost Gurney documents on July 25, 2017, days after Judge Ellison issued a historic ruling ordering air conditioning in the Pack Unit case.

The court filing Wednesday also highlights a 2011 email that a regional prison director received from a hospital in Palestine informing him that several inmate deaths had occurred the previous summer where inmates had body temperature of 105 or greater. The lawyers for the inmates' families say the high-ranking prison official who received this email subsequently denied knowing that the deaths were a widespread phenomenon.

They cite this email, which the family's lawyers didn't see for years, as an example why withholding documents is egregious and unfair conduct that makes it impossible for the families to prove what the prison knew about impact of the heat and their actions related to mitigating health problems.

Ashley Frantom, daughter of Rodney Adams, the third man to die of heat stroke at the Gurney Unit, was distressed to learn about the prison's conduct in the aftermath of her father's death.

"It's upsetting to know they're hiding the truth," she said.

Gabrielle Banks covers federal court for the Houston Chronicle. Send her news tips at gabrielle.banks@chron.com and follow her on Twitter.