THIS CASE IS NOT A FINAL ORDER OF THE REVIEW COMMISSION AS IT IS PENDING COMMISSION REVIEW

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457

Appearances:

Kate O’Scannilain, Solicitor of Labor

Tremelle I. Howard, Acting Regional Solicitor

Karen E. Mock, Counsel for Occupational Safety and Health

Lydia J. Chastain, Senior Trial Attorney

Shelly C. Anand, Trial Attorney

U.S. Department of Labor, Office of the Solicitor, Atlanta, GA

    For the Complainant

Carla J. Gunnin, Esq.

Raymond Perez, II, Esq.

Jackson Lewis P.C., Atlanta GA

For UHS of Delaware, Inc. and Premier Behavioral Health Solutions of Florida, Inc., d/b/a Suncoast Behavioral Health Center

Before: Dennis L. Phillips, Administrative Law Judge

DECISION AND ORDER

After receiving a complaint about workplace violence at an inpatient psychiatric hospital in Bradenton, Florida, the Occupational Safety and Health Administration (“OSHA”) sought additional information from Suncoast Behavioral Health Center (“Suncoast”).1 (Ex. 4; Tr. 99-100, 315, 346, 353, 517-20.) In its October 25, 2017 (“NOI”), OSHA advised Suncoast about alleged employee exposure to the hazard of workplace violence and its possible failure to ensure the adequate protection of employees in possible violation of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (the “OSH Act”). Id.

Adam Curl, Suncoast’s Director of Risk Management and Director of Performance Improvement, responded to the NOI via email on November 1, 2017, the deadline indicated in the NOI.2 (Tr. 2539, 2606-07; Exs. 4-6.) OSHA evaluated the response and determined that Compliance Officer (“CO”) Lizbeth Trouche3 should conduct an on-site inspection to gather additional information. (Tr. 91, 102-4; Exs. 5-6.) The CO visited the facility, located at 4480 51st Street West in Bradenton, Florida, several times between November 2017 and April 2018.4 (Tr. 91, 104, 128-29; Ex. 9; Stip. 2.)

At the close of OSHA’s investigation, on April 24, 2018, a Citation was issued to Suncoast and UHS of Delaware Inc. (“UHS-DE”) (collectively with Suncoast, “Respondents”). (Ex. 1.) The Citation alleges a repeat violation of 29 U.S.C. § 654(a)(1), the provision commonly referred to as the general duty clause, for failing to furnish a place of employment free from the recognized hazard of workplace violence. Id.

Respondents timely contested the Citation bringing the matter before the Occupational Safety and Health Review Commission (“Commission”).5 (Stip. 6.) The Secretary timely filed his initial Complaint and then filed an Amended Complaint on March 21, 2019. A twelve-day trial was held. It commenced on April 23, 2019 and continued through May 2, 2019. There was an approximately three-month continuance, with the trial resuming on August 20, 2019, and concluding on August 23, 2019. The trial transcript is 3,617 pages long. Both parties submitted post trial briefs and reply briefs.6

In addition to Respondents’ challenge to the Citation, the Secretary’s March 29, 2019 Motion for Sanctions for Respondents’ Destruction of Relevant Video Surveillance Evidence (“Sanctions Motion”), renewed by the Secretary in his post trial brief, is also pending before the Court. (Sec’y Br. 197-201.) In its Order Denying without Prejudice Complainant’s Motion for Sanctions dated April 18, 2019 (“Sanctions Order”), the Court granted in part and denied without prejudice in part the Sanctions Motion.

For the reasons discussed, the Sanctions Motion is now GRANTED to the extent indicated herein. Further, the Citation is AFFIRMED as a serious violation, and a $12,934 penalty is assessed.

Respondents filed a timely Notice of Contest bringing this matter before the Commission. (Stip. 6.) Suncoast and UHS-DE are both employers affecting interstate commerce within the meaning of 29 U.S.C. § 659(c).7 (Stip. 1.) Both are employers under the Act. Id. Based upon the record, including the parties’ admission to jurisdiction, the Court concludes the Commission has jurisdiction over the parties and the subject matter of this case.8 (Stips. 1, 4.)

Suncoast is a wholly-owned subsidiary of Premier.9 (Stips. 2, 10.) Premier, in turn, is wholly owned by Universal Health Services, Inc. (“UHS”), a publicly traded company. (Stip. 10; Meloni Dep. 17, 22, 24-25; Ex. 2.) UHS is a holding company without any employees. UHS-DE Vice President and Chief Compliance Officer Mia Meloni testified at her March 26, 2019 deposition that “[i]t does not have health care operations of its own.” (Ex. 92 at 10; Meloni Dep. 20-21, Ex. 41.) UHS is one of the nation’s largest hospital management companies. It has more than 350 acute care hospitals, behavioral health facilities, and ambulatory centers across the United States. (Ex. 9.) It operates through its wholly-owned management company, UHS-DE, and other subsidiaries.10 (Stip. 9; Ex. 9 at 309; Ex. 92 at 19; Meloni Dep. 19-20, 25; Ex. 41.) UHS-DE performs management services for Suncoast and many other subsidiaries UHS wholly owns.11 (Stip. 13; Tr. 128, 1691-92; Ex. 9 at 309; Meloni Dep. 25.) Revenue from UHS subsidiaries is reported to the SEC on a consolidated basis. (Meloni Dep. 24.)

Suncoast and UHS-DE began operating an in-patient facility for psychiatric care in Bradenton, Florida, late in September 2014.12 (Tr. 91, 329; Ex. 9 at 323.) The facility consists of a one-level building with three separate units. Two of the units, Ocean Point and Cora Key, have adult patients,13 and the third unit, Turtle Cove, cares for children (ages 5-17). (Tr. 92-93, 193, 1345-46, 2303-4; Ex. 9 at 310, 323.) The facility is licensed for sixty beds but, during the inspection, had an average number of thirty-five to thirty-seven patients in its daily census.14 But, employees described caring for up to 20 patients at a time in a single unit that had a maximum capacity of twenty. (Stip. 3; Tr. 92, 192-93, 219, 1078, 1444, 1497, 2304-05; Ex. 9 at 323, Ex. 81.) Suncoast admits between 200 and 250 patients each month. (Tr. 2234.) Chief Executive Officer (“CEO”) Brandy Hamilton testified that the average length of stay is about five days.15 (Tr. 2310, 2324, 3547).

The CEO, along with other administrators, conducts routine audits and “rounds” to ensure that Suncoast followed safety policy. (Tr. 1613, 3113; Ex. 251 at 3942.) These audits include observing employee behavior in the units and reviewing documentation. (Tr. 1613-14; Ex. 251 at 3942.) Employees raised safety issues, including those related to the hazard of workplace violence with the CEO. (Tr. 1382-83.) In addition, after the Citation’s issuance, the CEO worked to improve safety issues such as how law enforcement brings patients to the facility. (Ex. 35.)

Additional UHS-DE employees participate in risk management and oversight activities. (Tr. 370, 1612; Ex. 251; Meloni Dep. 42.) At least four UHS-DE employees have significant oversight responsibilities for Suncoast and do periodic site visits to ensure compliance with UHS-DE policies and requirements. (Tr. 128-29, 370, 1417, 2294; Hamilton Dep. 20-21, 25-27; Haider Dep. 12, 23-24; Curl Dep. 22-23, 27; Meloni Dep. 42-43.) UHS-DE employees participate in the monthly UHS Patient Safety Council (“UHS-PSC”) meetings and are part of the Environment of Care (“EOC”) committee, both of which have safety responsibilities.16 (Tr. 1612, 2150-51, 2337, 2527-28, 2530-31, 2671-72; Exs. 35, 243 at 4303, 251 at 3936-37, 3999-4000, 4023, 262.) The UHS-DE Corporate Clinical Director visits the site for a few days at least annually to assess the facility and provide a report on operations. (Tr. 1417-18; Curl Dep. 22-23; Meloni Dep. 42-43, 94.) Mr. Curl and others are required to explain to the UHS-DE Clinical Director how they will address her report. Id.

Other UHS-DE managed facilities were previously cited for workplace violence hazards.17 (Stips. 12-13; Tr. 217, 372.) Lowell was cited for a violation of section 5(a)(1) of the OSH Act. (Stip. 12.) That citation was affirmed as a final order on May 27, 2016, before OSHA commenced its investigation of Respondents. (Tr. 217-18; Ex. 1.)

During discovery, the Secretary filed a Motion to Compel seeking all videos relevant to a particular document request, which was granted on December 4, 2018. (First Produc. Order 4, 10, 11.) When Respondents indicated they could not comply with the Production Order because the videos were not available, the Secretary moved for sanctions alleging that Respondents destroyed relevant video surveillance evidence. (Sanctions Mot. 1-2.) In ruling on the Sanctions Motion, the Court found that the Secretary established Respondents had an obligation to preserve certain evidence and that such evidence was relevant to and would support the Secretary’s claims. (Sanctions Order 12-13.) In other words, Respondents should have preserved videos related to workplace violence incidents, and the failure to do so was prejudicial to the Secretary. Id.

However, because the record at that time was insufficiently developed on Respondents’ state of mind, the Court withheld its ruling on the type of sanctions, if any, to be imposed for Respondents’ destruction of evidence. Id. Instead, the Court permitted the parties to elicit further evidence regarding whether Respondents intended to deprive the Secretary of the evidence at trial. Id. After the parties adduced further evidence during the trial, the Secretary renewed his Sanctions Motion, arguing the record establishes that sanctions are appropriate for Respondents’ destruction of evidence. (Sec’y Br. 197-201.)

The Facts and Discussion from the Sanctions Order are incorporated. CO Troche first inspected Suncoast in response to a complaint of workplace violence on about October 8, 2015. As part of that inspection, she met with Suncoast’s Director of Performance Improvement Cheryl Pearson, Director of Plant Operations Joseph Altuchoff, and CEO Brandy Hamilton. She also interviewed a number of employees, including MHTs18 and management employees. Although no subpoenas were issued, she received a copy of the “Handle With Care” program, its Workplace Violence Prevention Program (“WVPP”), and other documents. CO Trouche recalled speaking with Ms. Pearson about a video and what a video would show of an incident. She said she thought that she was aware that Suncoast had security footage. A handwritten note by CO Trouche made during her 2015 inspection states Ms. Pearson told her that, “One of the incidents; video review/accident did not appeared (sic) to be as serious’…” She testified that she did not ask Suncoast to personally see any video footage during her 2015/2016 inspection because “[i]t was not something that I considered doing during that inspection.” (Tr. 455.) CO Trouche testified that she could not recall whether she asked Suncoast to preserve any video footage of workplace violence incidents during her 2015 inspection. (Tr. 96, 316-26, 332-346, 2542-43; Exs. 3, 268.)

On February 3, 2016, OSHA’s Tampa, Florida office’s Area Director (“AD”), Leslie L. Grove III, issued a 5(a)(1) Hazard Alert Letter to Suncoast as a result of CO Troche’s initial inspection that notified it “that employees were exposed to hazardous conditions associated with workplace violence” finding “four employees over the past year were injured and experienced serious fractures caused by interactions with patients admitted to the hospital.”19 (Ex. 3 (emphasis in original)). Although the Hazard Alert Letter stated “[n]o citation(s) will be issued at this time for the presence of this workplace violence hazard,” AD Grove recommended ways to eliminate or reduce the hazard, including: (1) creating a stand-alone WVPP, (2) direct care staff in all aspects of its WVPP, including having a safety committee, (3) communicating the behavioral history of patients to staff and training staff on the flagging system, (4) enclosing nursing stations, (5) implementing a communication system to request assistance in case of a workplace violence incident, including use of panic buttons, hand-held alarms and radios, and (6) establishing debriefings of employees who were victims and/or witnesses of any assaults on staff.20 (Tr. 97-98, 340-43, 455; Exs. 3, 20.)

CEO Hamilton did not initially believe a response to OSHA’s February 3, 2016 Hazard Alert Letter was required. (Tr. 2540, 2759-60.) However, Mr. Curl emailed a written response to the Hazard Alert Letter on December 27, 2017 to CO Trouche with a copy to CEO Hamilton.21 (Tr. 2540-41, 2759-60, 2871; Ex. 20 at 183-193, Ex. 239.) CEO Hamilton testified that Respondents were doing “most everything” in the Hazard Alert Letter and that they provided OSHA with the policies that showed the processes in place to meet the recommendations included within OSHA’s letter. (Tr. 2544-58.)

Mr. Curl testified that he received about 8 reports of patient on staff workplace violence per month at Suncoast. (Tr. 2831.) Examples occurring after OSHA’s February 3, 2016 Hazard Alert Letter include an incident on about March 20, 2016, where a patient aggressively approached MHT RF. MHT RF sustained injuries, including scrapes on his left arm, a cut on his right arm, and red marks on his lower jaw. (Tr. 1495-97; Ex. 7 at 416.) On April 29, 2016, a patient, who was throwing furniture and punching walls, injured MHT JF’s left wrist when she restrained the patient on the floor. (Ex. 36.) On May 18, 2016, a patient injured MHT JJ’s and MHT JF’s backs when they were preventing one patient from injuring another patient. (Ex. 37.) At 2:40 p.m. on June 6, 2016, a patient “violently attacked” two staff members while being processed at the intake department. (Ex. 38.) While sitting at a desk at the intake nurses’ station, a patient came up from behind and punched Registered Nurse (“RN”) SM in the back right side of her head, causing a strain there, and at her right shoulder and lower back.22 Id. At the same date, time, and place, Intake Specialist JM was struck 4-5 times with a closed fist on the left side of his head. He sustained two small abrasions on top of his left cheek. (Tr. 3244-45; Ex. 38.) At 2:30 a.m. on July 12, 2016, a patient attempted to ‘elope’ through a door. When unsuccessful, he threatened other patients with physical aggression. He then “physically aggressed on staff attempting to hit, kick and scratch.”23 (Tr. 2873-75; Ex. 39 at 462-68, 501-04, 529.) At noon on July 12, 2016, MHT TJ strained his back and chest on his left side when placing a patient in a settled position.24 (Tr. 2872-75; Ex. 39 at 4110.) At about 2:50 p.m. on August 17, 2016, a patient in the day area punched MHT AR in the lower left ribs and spit in his face twice. He sustained a contusion at his lower left ribs. (Tr. 2472-73; Exs. 40 at 419, 92 at 30.) On September 8, 2016, a patient trying to touch another staff member struck MHT MM #1 in the head, cutting his lip, and gouging his eye. (Ex. 7 at 420-21.) On September 22, 2016, an “out of control”25 patient assaulted MHT MM #1 with his fist and fingers in the hallway of the Coral Key unit. MHT MM #1 sustained “cuts around both eyes, bruises and knots on right side of head.” He missed three days of work. (Tr. 2876-77; Ex. 7 at 400, Ex. 42.) On September 23, 2016, a patient punched MHT AK in the left eye in the hallway of the Coral Key unit. His eye was swollen as a result and he missed three days of work. (Tr. 2876-77; Ex. 7 at 400, Ex. 43.) On September 27, 2016, an “out of control” patient kicked and bit MHT NA on the back of his right arm during a restraint at the Coral Key unit.26 (Tr. 2878-79; Ex. 44.) On October 21, 2016, a patient hit RN MH in the face causing a fat lip while passing out medications at the Nurses’ station. (Tr. 2188; Ex. 45, Ex. 92 at 31.) Respondents also reported that on November 4, 2016 a patient in the intake area injured RN SM.27 (Exs. 46, 92 at 32.)

On about November 8, 2016, Psychiatric RN VG, age 72, was slapped in the face by a patient, not assigned to her, while she held an injection in each hand. Her supervisor witnessed the slapping. RN VG testified that “[s]he [the patient] aggressed on staff. … She sent one of my techs to the ER all the time. She hit him in the head. She hit them in the face. She slapped people all the time.”28 (Tr. 881.) RN VG was referring to an assault by this same patient on MHT DR that occurred on November 9, 2016. According to RN VG, the patient hit MHT DR “in the temple so hard that it broke his glasses. I know he ended up in the ER because of a head injury.” (Tr. 882.) She said MHT DR “got hit several times by her [the patient] in the head, injured wrist due to physical hold of violent patient.” (Tr. 881-82, 913-14, 928-30, 2475-76; Ex. 47.) Dr. Lipscomb testified that this aggressive patient’s chart should have been flagged, and the patient should have been “on Q5s or one-on-ones, or something” as abatement measures to prevent the assault upon MHT DR. (Tr. 1894-95.)

Later that month, on November 22, 2016, at about 5:15 p.m., the same patient that slapped RN VG on November 8, 2016 was lying face down in her bed being restrained by two MHTs and a social worker, in the presence of RN supervisor Zarak Haider, to receive two injections from RN VG.29 After receiving the injections, the patient intentionally kicked RN VG so hard in the right side of her chest that she “flew five feet in the air,” striking the corner of the wall that was “five to six feet away from the bed.” (Tr. 890.) She could not breathe, stand, or sit in a wheelchair. The social worker who had let go of the patient’s legs said, “My bad Ginny. I’m sorry” to RN VG while she laid on the floor.30 (Tr. 902.) After “quite a while” and not “done immediately,” Mr. Haider called 911, and an ambulance took RN VG to the hospital. (Tr. 907.) The patient’s kick caused three breaks in RN VG’s right hip and four broken ribs. She was hospitalized, had surgery, and was sedated for eight days before being transferred to a rehabilitation facility. She was returned to “light duty” on February 14, 2017. She missed 91 days of work and was on transferred or restricted work for 21 days. (Tr. 884-907, 933-46; Ex. 7 at 400, Ex. 49.) No one in management discussed the incident with RN VG in any meaningful way.31 (Tr. 894-95, 909-11.)

The EAR dated November 22, 2016 signed by RN supervisor Haider stated that RN VG “was walking backwards after giving injection” and the patient “ ‘barely’ ” kicked staff.”32 (Ex. 49.) To the EAR’s question, “Object or Substance that injured employee,” Mr. Haider answered, “Employee [RN VG] appeared to have lost balance.” (Tr. 884-907; Ex. 49 at 1.) The Risk Management Worksheet stated:

Nurse started walking backwards after giving injection and patient kicked her foot out in a reflex motion, “barely” touching nurse with her toes, who then lost her balance and fell into the wall. … The nurse was unsteady on her feet as she was walking backwards and the patient accidentally knocked her off balance. Staff members are not to walk backwards and should walk with steady gait.

(Ex. 49 at 2.) The Court finds both the EAR and the Risk Management Worksheet’s description of the November 22, 2016 incident to be false and misleading.33 (Tr. 1929; Ex. 49 at 2; Sec. Br. 58-59.)

On December 1, 2016, a patient trying to get keys attacked MHT NP in the hallway. The patient “dug her nails into [the MHT’s] arm” cutting MHT NP’s right arm. (Tr. 2902-03; Ex. 50.) At 8:15 p.m. on February 2, 2107, an “out of control,” belligerent patient threatened and slapped at a staff member at the Coral Key unit.34 (Tr. 2833-34; Ex. 51 at 1143-49.) At 11:00 a.m., on February 3, 2017, MHT AR strained his shoulder when an “out of control” patient hit him in his right shoulder while he and a nurse administered medicine.35 (Tr. 2616-19, 2683-89, 2833-34; Ex. 51 at 4102, 1206.)

On February 27, 2017, MHT JJ strained his right knee when restraining an aggressive patient who began to break a chair. He was on job transfer or restriction for 17 days. (Ex. 7 at 373, 380.) On March 9, 2017, a patient hit, kicked, and spit on staff, including into Therapist PY’s right eye, in the Turtle Cove unit. (Tr. 2904-06; Ex. 54.) On March 30, 2017, MHT MM #1 was scratched and bruised, with his left elbow swollen, when he stopped a patient from trying to escape with his badge. (Ex. 55.)

On May 23, 2017, a patient pushed MHT BA in the chest with both hands and hit RN RO,36 a 65-year old, in the neck, head, and chest several times.37 The patient also head-butted RN RO in the right temple and eye. RN RO’s neck and right eye became swollen. RN RO was transported by stretcher to Blake Hospital where he was found to have a concussion. RN RO testified that his “neck swelled up like the size of a grapefruit right in that area, and I had deep muscular damage, and it took actually about three months for it to completely heal….” (Tr. 472-89; Ex. 4 at 301-303, Ex. 56.) RN RO testified that the Risk Management Worksheet inaccurately stated the incident’s location and that a code was called when it had not been.38 (Tr. 472, 481; Ex. 56 at 1464.) Police took the patient who assaulted RN RO and MHT BA to jail “for battery/assault on staff.” (Tr. 641, 673-74, 1264, 1320; Ex. 56 at 1491.)

On May 25, 2017, while administering medications, a patient used both hands to pull RN ET’s right arm and injured her shoulder. X-Rays showed her shoulder to be strained, and she was placed on light duty while she completed about two to three months of physical therapy. (Tr. 1348-1356; Ex. 57.) She missed 3 days of work and was on transferred or restricted work for 72 days. (Ex. 7 at 373.) The incident occurred at the nurses’ station and cameras should have been able to record the incident. RN ET was not shown any video of the incident. (Tr. 1362.)

On May 30, 2017, Therapist PY suffered a torn rotator cuff and strained right lower back due to a workplace violence incident at the nurses’ station. He missed 18 days of work and was on restricted or transferred work for 162 days. (Ex. 7 at 373, 386, Exs. 58, 92 at 36.)

On July 26, 2017, a patient attacked staff at the day area of Turtle Cove. Using her fingernails, a patient scratched both forearms of MHT NA, causing a small cut. (Tr. 2906-08; Ex. 59.)

On August 9, 2017, Supervisor “SL” telephoned RN RO and told him that a patient in the Coral Key and Turtle Cove combined unit was “threatening them” and would he “come over to protect the nurses.”39 (Tr. 489-92.) While at the combined unit’s nurses’ station, RN RO saw a 16-year-old male patient weighing about 286 pounds starting to slam his fist on a door about 170 feet away at the end of the hallway. RN RO repeatedly told Supervisor SL “to call 911 now, and she refused.” She repeatedly told RN RO she was “not allowed to call 911.” The patient then headed toward the nurses’ station and SL finally called 911 and RN RO told her to say they needed emergency help now. The patient “started slamming on the door right by our nurses station.” The patient then “walked back about 20 feet from the nursing station and ran full blast and dove on top of the exposed nursing station.” RN RO grabbed the patient and tried to put him in a hold. The patient “pounded” RN RO and, with a pen in one hand and scissors40 in his other hand that the patient grabbed from within the nurses’ station, the patient hit RN RO several times, knocking him unconscious for a moment.41 RN DL testified the patient had “pinned [RN RO] on the floor with scissors on his throat.” When RN RO regained consciousness, he was “bleeding profusely” and laying on top of the patient. He said,

I couldn’t see because I was blinking trying to see, but I had so much blood coming down in my eyes, I couldn’t even see. I was choking on blood too because I was stabbed through the mouth there on top of my head and behind the left ear. Plus my face was all beaten up and I was all bruised up from other blows ….

RN RO testified that it “took about ten minutes for 911 to arrive.” (Tr. 502.) In shock, he was taken to the hospital by ambulance on a stretcher. (Tr. 503-05; Ex. 27.) His injuries included “a severe concussion,” “neck injuries,” an arm injury, multiple bruises throughout the body, “terrible tinnitus,” and headaches. (Tr. 170, 502; Ex. 4.) He received “facial stitches to lower lip and upper right forehead.” (Ex. 60.) RN RO also lost consciousness multiple times. (Tr. 170; Ex. 4.) He missed 27 days of work and was on restricted or transferred work for 127 days. (Ex. 4 at 305, Ex. 7 at 373.) This incident is referred to herein as the “RN RO Attack”. (Tr. 100, 464-65, 489-507, 563, 1045, 1064; Exs. 4, 28, 60.) MHT BG testified that during the melee, the patient also stabbed Supervisor SL in the leg with a pen and she was also bleeding. (Tr. 644, 677, 1064.)

Suncoast’s video camera system recorded the August 9, 2017 RN RO Attack. (Tr. 1806-7, 2557-58; Ex. 28.) Suncoast has over 80 video cameras that continuously film the activity occurring in most of the facility’s common areas as well as the seclusion area.42 (Tr. 755, 949-50, 2302, 2730, 2917-19, 3044-45, 3224.) All video is stored on a hard drive. (Tr. 2938.) Mr. Curl was tasked with reviewing the video of the RN RO Attack, and other incidents. (Tr. 2682, 2701, 2704, 2942-43, 2999.) Mr. Curl reviewed videos to “get additional information” that may cause him to change information previously reported in MIDAS, the facility’s incident reporting system.43 He said that the information contained in videos “might be more factual.” When investigating an incident, Mr. Curl said he “would watch camera, if the camera was available. So I could watch camera before I look at medical record, or vice versa, or I could watch camera, read medical record, watch camera, read medical record again, really just until I feel satisfied with my investigation.” (Tr. 2682-83, 2700-01.) Mr. Curl said that he likes to show the video of an incident during debriefings and ask viewers what could have been done better. (Tr. 2765-66.)

Mr. Curl said he “pulled [the] camera, [and] “reviewed [the] camera” of the RN RO Attack on the day it occurred. (Tr. 2703-05.) As part of his investigation, Mr. Curl learned from the Risk Management Worksheet that the patient “had been agitated all day, and that he had self-harmed earlier in the shift.”44 Mr. Curl said he “really wanted to know why we didn’t intervene earlier with this client because the client had exhibited behaviors that are, you now, troublesome, and they needed to be dealt with earlier, as in self-harming.” He concluded that the evening shift staff members left the patient “in an acute state. And they [Staff] should have stayed to help stabilize the milieu before they left. And that right there is one thing that could have prevented this incident from happening because they would have had additional staff members present, as many as they needed really. Any they could have done anything that they needed to.” (Tr. 2713-14.)

Local law enforcement also investigated the RN RO Attack and requested the video as part of its review. (Tr. 2934.) Suncoast consulted legal counsel about the request. (Tr. 2558, 2934-37.) Though he could not recall when he copied the video footage onto a DVD or turned the DVD containing the video footage over to local law enforcement, there is no dispute that Mr. Curl preserved the available video of the RN RO Attack. Mr. Curl said that he did not keep a copy of the DVD he gave the sheriff’s department. (Tr. 2934, 2999-3002; Ex. 28.)

On September 13, 2017, Night Supervisor RN CC was hit and swung at twice in the hallway by a verbally aggressive, very intoxicated patient reinjuring a lower back injury when she twisted her body trying to avoid the second hit. Her back “really started to hurt” near the end of her shift. As a result, she was put on light duty for about 28 days. The Risk Management Worksheet for the incident states that “DRM [Director of Risk Management] reviewed incident on camera.” (Tr. 1427-31, 1461-63, 1470-71, 1827; Ex. 7 at 373, Ex. 61). On September 26, 2017, MHT AS suffered a strained right shoulder injury breaking up a fight involving three patients in the Day Area. (Ex. 7 at 392, Ex. 62.)

At least three more workplace violence incidents occurred in October 2017. (Tr. 2880, 3042; Exs. 63-64, 78.) On October 2, 2017, MHT MM #1 was injured by a patient who was hitting staff and grabbing their clothes in the Day Area. The Risk Management Worksheet stated: “Staff members intervened preventing patient access to the RN station. DRM reviewed incident on camera.” (Ex. 63.) The patient injured MHT MM #1’s left thigh and right arm. Id. At 9:00 p.m. on October 3, 2017, MHT RS was punched in the mouth and eye when he attempted to break up a fight between two patients at “Nursing.” (Tr. 2880-81; Ex. 64.) At the same date and time, MHT MG was kicked and placed in a chokehold at the Coral Key social quiet room while trying to break up the fight. (Tr. 2880-81; Ex. 64.) All three incidents occurred in areas surveilled by video. (Ex. 63-64.) Unlike the RN RO Attack, local law enforcement did not seek video of these incidents.45

Later that same month, on October 25, 2017, OSHA notified Suncoast by letter and telephone that it had received notice of alleged workplace hazards at its facility.46 (Tr. 101-02, 347-51; Exs. 5, 9.) Specifically, OSHA informed Suncoast about an allegation that employees were exposed to workplace violence and that the employer failed to ensure that employees had adequate protection from patients in possible violation of section 5(a)(1) of the OSH Act. (Tr. 102, 348, 2757; Ex. 5.) OSHA requested an immediate investigation into the alleged hazard and a response by November 1, 2017.47 (Ex. 5.) As part of this response, OSHA asked to be provided with any helpful “photographs.” (Tr. 351; Ex. 5 at 290.) Respondents acknowledge that OSHA’s NOI “open[ed] the second [OSHA] investigation of Suncoast.” (Resp’t Br. 51.) The NOI did not specifically request the production of any video surveillance footage. (Tr. 352.) Nonetheless, the Court finds that Respondents were on notice of their duty to preserve the video footage following their receipt of OSHA’s NOI. They were obligated at that time to preserve all available photographs, including videos, relating to incidents of workplace violence that occurred at Suncoast. See Magdaluyo v. MGM Grand Hotel, LLC, No. 2:14-cv-01806-RFB-GWF, 2016 WL 614397, at *4 (D. Nev. Feb. 16, 2016) (“Although Plaintiff did not specifically request that surveillance video of the incident be preserved, Defendant reasonably had a duty to investigate Plaintiff’s allegation and to preserve any available video as part of that investigation.”), aff’d, 757 F. App’x 599 (9th Cir. 2019); Cretacci v. Hare, No. 4:19-CV-55-SKL, 2021 WL 201778, at *2 (E.D. Tenn. Jan. 20, 2021) (“Court further finds that a duty to preserve the video did arise once officials received the letter from Plaintiff’s counsel indicating he was investigating potential causes of action arising from the alleged assault.”).

On November 1, 2017, Suncoast responded to OSHA’s inquiry by email to Assistant Area Director (“AAD”) Maveline Perez, with a copy addressed to “groves.leslie@dol.gov.” (Tr. 102, 2757; Ex. 6.) The response consisted of a written discussion, including confirmation that the facility had posted a notice of alleged hazards. (Ex. 6.) The response cites the video camera system as part of the facility’s abatement. Id. at 264-65. It explains how video is randomly reviewed, as well as after certain types of events, stating, in part, “Video Surveillance: Video surveillance cameras monitor the facility at all times.… [Mr. Curl] reviews all incidents of restraint48 and seclusion on camera to identify opportunities for improvement and will either meet with the staff involved to provide education and direction, share the findings with the supervisor for follow up education or/and communicate findings to the safety committee.” Id. at 264. It further stated, Employee Injury Response [emphasis in original]: If a staff member is involved in an accident that results in a recordable work-related injury, an accident analysis is performed, the Risk Manager reviews the videotape, and all is reported to corporate risk as well as hospital committee.” Id. at 264-65. The response neither addressed any review of videotape of any particular incidents of workplace violence by patients on staff nor included any photographs, videos, or other documentation related thereto. Id. Nor did Respondents take any steps to preserve any video related to worker health and safety hazards in general or workplace violence specifically available when it received the NOI. AAD Perez did not consider Mr. Curl’s response to be adequate and the matter was assigned to CO Trouche for investigation. (Tr. 102-03; Ex. 9.)

On about November 8, 2017, CO Trouche began an on-site inspection of the Suncoast facility. (Tr. 91, 99-101, 104, 346, 353; Exs. 4, 9.) She conducted an opening conference with CEO Hamilton and Risk Manager Curl. At that time, Respondents did not allow the CO to walk through the facility. (Tr. 129; Ex. 9.) In her first document request, CO Trouche requested to be provided with OSHA 300 logs (Log of Work-Related Injuries and Illnesses) for 2015 through 2017, OSHA 300A summaries (Summary of Work-Related Injuries and Illnesses) for 2014 through 2016, OSHA 301 reports (Injury and Illness Incident Report), EARs pertaining to workplace violence, any workplace violence risk assessment, any documents pertaining to workplace violence policy, programs, training, and educational material, and any plans for emergency action, infectious controls, disease, ergonomics, and slips, trips, and falls. (Tr. 104-06, 112, 353-55.) She was given OSHA 300 logs, OSHA 300A summaries, OSHA 301 reports, and EARs on November 8, 2017. She gave Respondents seven days to collect other documents. (Tr. 106-07, 110, 355; Ex. 7.)

CO Trouche returned to Suncoast on November 30, 2017 to conduct additional interviews, walk through the facility, and gather additional information. She took photographs during her walk around. (Tr. 129-30, 432; Ex. 8.) During this visit, she requested copies of any recordings of incidents and had the opportunity to view video of the RN RO Attack from a DVD Mr. Curl had made.49 She “asked to view this footage because it is useful to see the actual acts of violence to understand what employees are doing in the moment to address the hazard, and to assess whether Suncoast’s employees are prepared to respond to such hazards.” She testified that the video “will provide a more live image to the testimony that I already have received and the review of the records that I was provided.” (Tr. 127-29, 433, 449-50; Ex. 267 at 2, ¶¶ 3-5.) CO Trouche testified that she “felt that it was sufficient” to observe the video since it showed what she already knew about the August 9, 2017 incident. (Tr. 129, 433-35, 3002-04; Exs. 28, 267 at 2, ¶ 6; Hamilton Dep. 59, ¶ F.) She was not shown video of the three October 2017 incidents or of other incidents of patient on staff violence that occurred in November 2017.50 (Tr. 129, 434; Exs. 65-66, 92 at 37-38.) CO Trouche also testified that she did not recall being told that the videos she requested were destroyed, although she had an understanding that after about 30 days the videotape system recorded over them. She acknowledged that she did not ask any questions or develop any information about Respondents’ video retention policy during her investigation. But she said she knew that the videotape system “even though it’s on a loop, allows Suncoast to record from that video feed and preserve videos that pertain to workplace violence,” evidenced by the fact that on November 30, 2017 Respondents showed her a video of the August 9, 2017 RN RO Attack. (Tr. 172, 436-40.)

Respondents’ witnesses’ recollections differ somewhat as to why the CO could view the video footage of the RN RO Attack during her November 30, 2017 visit. Mr. Curl claimed he only made a copy of the footage at the local sheriffs’ department's request and had just not yet turned it over at the time of the CO’s second visit in November. (Tr. 3000, 3003.) He indicated it was just a happenstance of “good timing.” (Tr. 3003-04.) However, he also stated that the sheriffs’ department had “immediately” requested the footage pursuant to a subpoena.51 (Tr. 2934, 2999-3000.) Mr. Curl was unsure why he had not yet turned it over months later when he showed it to the CO. (Tr. 2934, 3000.) Although he consulted UHS-DE employees and counsel about the request, Mr. Curl denied that anyone at UHS-DE decided to retain the video. (Tr. 2558, 2934, 2950, 3000.) He said the video system erased its recording by September 8, 2017. (Tr. 3002.)

In contrast, CEO Hamilton testified a copy was retained because an employee injured in the RN RO Attack filed a workers’ compensation claim.52 (Tr. 2558, 2595-96.) RN RO confirmed that he sought workers’ compensation for the injuries he sustained during the RN RO Attack. (Tr. 894.) CEO Hamilton’s view is also consistent with the video retention policy, which required videos related to litigation to be kept. (Tr. 2934; Opp’n to Sanctions Mot. 4; Mot. to Compel Ex. G.)

After viewing the RN RO Attack video,53 the CO requested a copy of what she had been shown. (Tr. 129, 146, 433, 449, 458.) CEO Hamilton told the CO a written request would be necessary before OSHA could receive a copy of any video.54 (Tr. 146, 433, 458, 2559.) OSHA did not immediately make a formal written request. Instead, its investigation continued over several months. During this time, there were additional workplace violence incidents. Respondents did not retain any videos related to these incidents, including the one on February 19, 2018 discussed further below where a patient injured MHT GS’s left foot and ankle at intake. (Tr. 1095-1103; Ex. 67.)

On December 19, 2017, CO Trouche requested a written response as to what efforts Respondents had implemented after receiving OSHA’s February 3, 2016 Hazard Alert Letter.55 She also requested an explanation of procedures and evidence of debriefings that occurred after incidents and materials related to intake procedures and communication in between staff shifts.56 CO Trouche said she did not receive any documentary evidence in response to her December 19, 2017 request. (Tr. 175; Ex. 20.)

In January 2018, CO Trouche returned to Suncoast to conduct further interviews. She made another document request in early January 2018, but did not include another request for video. (Tr. 436-37.)

As OSHA’s investigation continued, additional workplace violence incidents occurred. On February 19, 2018, MHT GS prevented a “belligerent” patient who did not want to be held at Suncoast from forcefully entering the intake nurses’ station. The patient wedged his foot and arm in a partially opened door. RN CMC testified that she saw the patient on the floor in the hall lying on top of the MHT who had a one arm hold on the patient. Two other staff members helped restrain the patient by holding his legs while the patient was on the floor. MHT GS’s left foot and ankle were injured in the melee. He could not walk on his foot and it was very painful. The Risk Management Worksheet recharacterized the physical scuffle by stating, “when the staff member went to back up the patient accidentally stepped on the staff’s shoe causing them both to fall to the ground resulting in the staff member injuring his ankle.”57 (Tr. 1095-1103, 1133; Ex. 67 at 208-09, 2159, 2161.) RN CMC testified that the same patient later threw a telephone within the intake nurse’s station at her. (Tr. 1136, 1146.)

On April 18, 2018 OSHA AD Grove issued an OSHA Subpoena Duces Tecum addressed to “UHS of Delaware, Inc. and Premier Behavioral Health Solutions of Florida, Inc., dba Suncoast Behavioral Health Center” (“OSHA Subpoena”) for the maintenance and production of video recordings. (Tr. 435-36, 439; Exs. 79, 267 at 2, ¶ 7.) Specifically, the OSHA Subpoena sought the production of “copies of any and all video of acts of violence by patients against employees during the period January 1, 2017 to the present [April 18, 2018], including but not limited to the November 2, 2017 incident at Coral Key Unit, in which a patient snatched the hair and pulled the neck of a mental health technician that resulted in the employee having a strained shoulder.”58 (Tr. 171-72, 437, 2266, 2559; Exs. 79, 267 at 2, ¶ 7.)

As a result of the OSHA Subpoena, and after consultation with UHS-DE employees and counsel, Mr. Curl took steps to preserve six videos from April 8 through April 11, 2018, related to workplace violence incidents.59 (Tr. 172, 2559-60, 2950.) Respondents did not provide these videos to OSHA in response to the OSHA Subpoena.60 Further, Respondents took no action to prevent the destruction of video related to any incidents that occurred after receiving the OSHA Subpoena, including after litigation in this matter formally commenced.61 (Tr. 2938-39, 2942.) CO Trouche testified that Respondents failed to respond to the OSHA Subpoena. (Tr. 172; Ex. 267 at 2, ¶ 7.)

Approximately one week after issuing the OSHA Subpoena, on April 24, 2018, OSHA cited Respondents for exposing employees to acts of workplace violence in violation of section 5(a)(1) of the OSH Act.62 (Ex. 1 at 6; Stip. 5.) The Citation explains that the incidents of workplace violence include, but are not limited to, physical assaults by patients against employees “in the form of punches, kicks, bites, scratches, pulling and the use of objects as weapons … .”63 (Ex. 1 at 6.) Respondents timely filed a Notice of Contest to the Citation on April 30, 2018, bringing the matter before the Commission. (Stip. 6.)

The Secretary filed and served his Complaint, which largely mirrored the allegations set out in the Citation, on May 21, 2018. On June 2, 2018, Respondents filed their Answer to the Secretary’s Complaint. The Answer includes several affirmative defenses. These stated defenses make clear Respondents’ view that their response to workplace violence incidents was adequate.

On August 9, 2018, the Secretary served his First Request for the Production of Documents (First Produc. Request), seeking video of incidents related to the cited hazard from February 3, 2016, through the date of the request (August 9, 2018). Respondents initially provided no videos in its October 11, 2018 response to the Secretary’s First Produc. Request. (Ex. 92 at 8.) In particular, they did not produce: (1) video of the RN RO Attack, (2) video of incidents in their possession when they received the October 25, 2017 NOI, (3) video of incidents in their possession when they received the OSHA Subpoena, including the six videos of the incidents that occurred between April 9 and April 11, 2018, or (4) any video of incidents that occurred after they filed their April 30, 2018 Notice of Contest. Id. Instead, Respondents indicated that they only keep videos for thirty days and represented that they had nothing responsive to the request. (Ex. 92 at 8, Hamilton Dep. Ex. 14.) The response does not indicate why there was no video of the July 12, 2018 incident, which was less than thirty days before the First Produc. Request or explain whether it could obtain the video of the RN RO Attack from Manatee County. Id. Nor does it discuss any attempts to search to confirm whether any relevant video remained preserved on its hard drive despite the passage of time. Id.

Videos of incidents of workplace violence are relevant and discoverable. Mr. Curl told OSHA in writing that the facility’s video surveillance system was part of its program for preventing workplace violence. (Tr. 2943; Ex. 6 at 5.) Suncoast’s Medical Director, Dr. Randolph Hemsath, testified that Suncoast had “videos of stuff that happens in real time. And there are people that review those videos and look and see what’s going on and whether or not events were handled appropriately. So we have a process for going through that.” (Tr. 2073-75.) Likewise, in their post trial brief, Respondents argue that the videos in existence support their claims of adequate abatement. (Resp’t Br. 48-50.) See Apple Inc. v. Samsung Elecs. Co., Ltd., 888 F. Supp. 2d 976, 993 (N.D. Ca. 2012) (inferring that the destroyed evidence went to the case's merits).

As a result of the lack of production from either the OSHA Subpoena or the Secretary’s First Produc. Request, the Secretary filed a Motion to Compel Production of Videos on November 13, 2018. After review, on December 4, 2018, the Court ordered Respondents to produce all videos from February 3, 2016, through April 24, 2018. (First Produc. Order 9-11.) A few days later, on December 14, 2018, the Court clarified the ruling and ordered Respondents to produce all videos from February 3, 2016 through the date of the First Produc. Request, August 9, 2018. (Second Produc. Order 11-12.) On about the same day, Respondents produced six videos related to incidents between April 8, 2018 and April 11, 2018. Five of these six videos were introduced into evidence. (Exs. 29-33, 92 at 24-25.) Respondents did not produce the video of the RN RO Attack at that time, saying a copy of the video was at the State Attorney’s office in Manatee County. (Exs. 28, 92 at 25.) Respondent stated that “all other video” was “lost after fifteen to thirty days” because it was “written over,” including any video relating to workplace violence incidents that occurred on September 26, 2017, October 2, 2017, October 3, 2017 (MHTs RS and MG), February 19, 2018, March 18, 2018, and possibly April 8, and April 9, 2018 (RN ED).64 (Ex. 92 at 24-25, 57-59; Resp’t Br. 50.) Respondents failed to institute a hold on their practice of allowing videos showing incidents of workplace violence to be overwritten after receipt of the NOI, OSHA’s Subpoena on April 19, 2018, the April 24, 2018 Citation, or the Secretary’s May 21, 2018 complaint. (Tr. 2938-42.)

After this limited production of six videos, on December 27, 2018, the Secretary moved for an Order to Show Cause Why Sanctions Should Not Issue (“Show Cause Motion”), based on Respondents’ apparent spoliation of evidence. On January 16, 2019, Respondents indicated in writing that there were no other videos responsive to the December 14, 2018 Order.65

On February 13, 2019, the Secretary deposed Mr. Curl and learned additional information about the video system and the preservation of videos after incidents. After Mr. Curl’s deposition, Respondents obtained video of the RN RO Attack from local law enforcement, who had preserved it after Respondents provided it to them when requested for their law enforcement investigation. Respondents made the video available to the Secretary on March 15, 2019.66 (Tr. 2596, 2990.)

After discovery for this matter closed, on March 29, 2019, the Secretary filed his Sanctions Motion, which sets out seven incidents of workplace violence occurring between October 2, 2017 and July 12, 2018, for which videos from the facility’s surveillance system were destroyed and sought appropriate sanctions for the destruction of this evidence. (Sanctions Mot. 11-12.)

As noted, on April 18, 2019, the Court found that the Respondents had an obligation to preserve video evidence of the: (1) May 28, 2018 incident of patient aggression against MHT DY; (2) June 2, 2018 incident of patient aggression against staff members; (3) June 23, 2018 incident of patient aggression against Intake Specialist CS; and (4) July 12, 2018 incident of patient aggression against MHT SJ. (Sanctions Order 5, 9.) The Sanctions Order also found that such evidence was relevant to and would support the Secretary’s case.67 Id. at 12-13. These four incidents all occurred after Respondents commenced litigation and are relevant to the issue of the sufficiency of any abatement measures related to workplace violence, and/or whether the Secretary’s proposed abatement measures would have prevented or lessened the severity of the injuries to employees. Id. at 8. Despite concluding that Respondents should have preserved the evidence and that the destruction prejudiced the Secretary, the Sanctions Order found that there was insufficient evidence, at the time, to conclude Respondents’ state of mind warranted the harshest sanctions. Id. at 13. The Sanctions Motion was denied without prejudice, permitting the Secretary to elicit further testimony at trial on the issue of whether Respondents acted with an intent to deprive. Id.

On December 2, 2019, the Secretary renewed his Sanctions Motion, seeking an “adverse inference” that destroyed video footage of four incidents of workplace violence “would have shown that Respondents’ response to the hazard was insufficient and/or that the abatement measures described by the Secretary would have prevented or lessened the severity of the injuries to that employee.” (Sec’y Br. 197-201.) He also requested “any other relief” the Court finds appropriate, “up to an including dismissal of Respondents’ contest of the Citation and Notification of Penalty.”68 Id. at 200-1. Respondents argue that they did not intentionally destroy video footage in bad faith and that there should be no sanctions for the destroyed video. (Resp’t Br. 50-54.)

“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense …. Information within this scope of discovery need not be admissible in evidence to be discoverable.”69 Fed. R. Civ. Proc. 26(b)(1); 29 C.F.R. § 2200.52(b) (Commission rule permitting discovering of relevant nonprivileged information). When a party does not preserve relevant, discoverable electronically stored information (“ESI”), before imposing sanctions, courts consider whether: (1) the ESI “should have been preserved in the anticipation or conduct of the litigation,” (2) the ESI was “lost because a party failed to take reasonable steps to preserve it,” and (3) the ESI “cannot be restored or replaced through additional discovery.” Fed. R. Civ. Proc. 37(e).

Rule 37(e) does not place the burden of proving or disproving prejudice on any particular party. Fed. R. Civ. P. 37(e)(1) advisory committee’s note to 2015 amendment. However, where the content of the lost information may be fairly evident, the information may appear to be unimportant, or the abundance of preserved information is sufficient, it may be reasonable to require the party seeking curative measures to prove it has suffered prejudice as a result. Id. In the circumstances of this matter, it is appropriate to place the burden of proving prejudice on the Secretary. See Eli Lilly & Co. v. Air Exp. Intern. USA, Inc., 615 F.3d 1305, 1318 (11th Cir. 2010) (finding, in case not involving ESI, “a party moving for sanctions must establish, among other things, that the destroyed evidence was relevant to a claim or defense such that the destruction of that evidence resulted in prejudice”).

Prior Orders make it plain that the destroyed video evidence was relevant, discoverable, and Respondents should have preserved it. (First Produc. Order 5-9; Sanctions Order 12-13.) Nonetheless, Respondents renew their argument that they had “no legal duty to preserve the video footage.” (Resp’t Reply Br. 14.) Not surprisingly, they cite no relevant precedent for this proposition.

The duty to preserve evidence arises “not only during litigation but extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation.” Silvestri v. Gen. Motors Corp., 271 F.3d 583, 591 (4th Cir. 2001) (citing Kronisch v. United States, 150 F.3d 112, 126 (2nd Cir. 1998); Jones v. Hawley, 255 F.R.D. 51, 52-53 (D.D.C. 2009) (“[i]t is settled beyond all question that at common law the destruction, alteration, or failure to preserve evidence in pending or reasonably foreseeable litigation warrants the finder of fact inferring that the destroyed evidence would have been favorable to the opposing party”); Oil Equip. Co., Inc. v. Modern Welding Co., Inc., 661 F. App’x. 646, 652 (11th Cir. 2016) (obligation to preserve attaches when ligation was pending or reasonably foreseeable) (unpublished); Fed. R. Civ. Proc. 37(e). Once a party reasonably anticipates litigation, it must suspend its routine destruction policy and act to preserve relevant ESI.70 See Ala. Aircraft Indus, Inc. v. Boeing Co., 319 F.R.D. 730, 741 (N.D. Ala. 2017) (duty to preserve commences before litigation is pending and deliberate deletion of ESI warranted sanctions under Fed. R. Civ. Proc. 37(e)), mot. to certify appeal denied, No. 2:11-CV-03577-RDP, 2017 WL 4572484 (N.D. Ala. Apr. 3, 2017); Stevens & Sons, Inc. v. JELD-WEN, Inc., 327 F.R.D. 96, 108 (E.D. Va. 2018) (finding that reasonableness requires a party to “suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents”); First Fin. Sec. Inc. v. Freedom Equity Grp., LLC, No. 15-CV-1893-HRL, 2016 WL 5870218, at *3-4 (N.D. Ca. 2016) (declining to infer that the deletion of text messages after litigation commenced was simply “routine”).

Respondents’ suggestion that this matter's commencement before the Commission suspended their obligation to preserve relevant ESI is baseless. See Graff v. Baja Marine Corp., 310 F. App’x. 298, 301 (11th Cir. 2009) (unpublished) (“Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation”). This claim is at odds with other claims and defenses Respondents themselves raise as well as Commission precedent. Evidence of post-citation actions, particularly those related to a hazard's abatement, are relevant and admissible. See, e.g., SeaWorld of Fla., LLC v. Perez, 748 F.3d 1202, 1215 (D.C. Cir. 2014) (finding that evidence of post-citation actions supports finding that the proposed means of abatement were feasible); CSA Equip. Co. LLC, No. 12-1287, 2019 WL 1375918, at *6, 8 (O.S.H.R.C., Mar. 19, 2019) (reviewing post-accident procedures when assessing the feasibility of abatement); FMC Corp., 12 BNA OSHC 2008, 2012 n.5 (No. 83-488, 1986) (consolidated) (“Under ... Fed. R. of Evid. 407, evidence of post-accident measures [is] admissible to establish feasibility.”). Once Respondents reasonably anticipated litigation, i.e., by October 25, 2017, they had an obligation to preserve relevant evidence in their possession or under their control, and this obligation lasted at least until the Secretary served his First Produc. Request. Rather than suspending Respondents’ obligation to preserve evidence, the Notice of Contest and the filing of the Secretary’s complaint removed any credible claim that Respondents might have had that video evidence of workplace violence (the cited hazard) would not be relevant to these proceedings.71 See Storey v. Effingham Cty., CV415-140, 2017 WL 2623775, *4 (S.D. Ga. Jun. 16, 2017) (preservation duty includes what is reasonably likely to be requested during discovery and/or is the subject of a pending discovery request). The Secretary is not alleging that Respondents should have preserved all evidence related to workplace violence incidents.72 Respondents should have “reasonably anticipated” litigation upon receipt of the NOI. And they should have preserved evidence from that point through, at least, the First Produc. Request. (Sanctions Order 12-13.)

Respondents’ view that the Secretary needed to enforce OSHA’s Subpoena in federal district court does not undermine this basic principle. (Resp’t Reply Br. 15-16.) At best, Respondents’ arguments relate to whether the materials had to be turned over immediately upon the issuance of the OSHA Subpoena, not whether the evidence could be destroyed. A subpoena is not even necessary to trigger the responsibility to preserve relevant evidence. Fed. R. Civ. Proc. 37(e) (establishing that the “anticipation or conduct of litigation” triggers the responsibility to preserve evidence).

Respondents’ argument that the Hazard Alert Letter OSHA issued to Suncoast after it first inspected the facility in 2016 did not provide notice of the need to preserve videos is equally unpersuasive. (Resp’t Br. 51.) The February 3, 2016 Hazard Alert Letter did not put Respondents on notice of the present litigation.73 (Ex. 3.) OSHA’s NOI triggered Respondents’ obligation to preserve videos.

The assessment of the appropriateness of sanctions is based on Respondents’ conduct after it reasonably anticipated, or should have reasonably anticipated, the present litigation; in this case by October 25, 2017. Respondents’ argument that they did not need to retain any videos because the NOI referred to photographs but not videos, also does not persuade. (Resp’t Br. 51-52.) In this decision, the Court has found that Respondents had a duty to preserve any video relating to workplace violence incidents that it had in their possession on October 25, 2017,74 including that of incidents on February 19, 2018, March 18, 2018, and possibly April 8, and April 9, 2018 (RN ED); as well as any video of incidents relating to abatement that occurred on May 28, 2018 (MHT DY), June 2, 2018 (RN CS), June 23, 2018 (Intake Specialist CS), and July 12, 2018 (MHT JS).75 (Exs. 78 at 3; Ex. 92 at 24-25, 57-59; Sec’y Br. 199; Resp’t Br. 50.)

OSHA’s Subpoena also separately and explicitly put Respondents on notice of the need to retain video of workplace violence and that litigation was likely. Thus, Respondents’ position that it had no duty to preserve the April 8 through April 11, 2018 videos is rejected, and the prior Court ruling that these videos needed to be preserved, as they were, stands.

Having found no reason to set aside the ruling in the Sanctions Order that the identified videos were relevant, discoverable, and should have been preserved, the next issue is whether Respondents took reasonable steps to prevent the destruction of videos that ought to have been preserved. Fed. R. Civ. P. 37(e); Paisley Park Enters., Inc. v. Boxill, 330 F.R.D. 226, 233 (D. Minn. 2019) (finding that party failed to take reasonable steps to preserve text messages).

As discussed, Mr. Curl only preserved a few videos of incidents that occurred about one week before the OSHA Subpoena was served. (Tr. 2938-39, 2942.) CEO Hamilton and counsel were consulted about the OSHA Subpoena. (Tr. 2559, 2941-42.) And yet, there is no evidence that the NOI, CO’s visits, OSHA Subpoena, Citation, or Notice of Contest triggered any type of litigation hold for relevant discoverable evidence related to the cited hazard. (Tr. 2938-39, 2942.) While not in and of itself determinative, the absence of a litigation hold is relevant to assessing whether there was spoliation. See, e.g., Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 162 (2d Cir. 2012).

Respondents had a process in place to view videos of incidents where patients or staff were injured. (Tr. 2926-27, 3223-24; Resp’t Br. 50.) The video retention policy called for the preservation of videos related to physical altercations and liability claims: “Video footage … should be maintained and copied … (i) If such footage is related to Probable Claim Report (PCR) matter and/or for liability claims as warranted; … (iv) For any allegations of rape, assault or other physical altercations involving patients or residents … .”76 (Tr. 2924-26, 2937-38; Hamilton Dep. Ex. 14 at 59; Sec. Br. 23, ¶ 43.) Respondents did not always adhere to this policy, particularly when videos related to assaults by patients against staff in which the patient suffered no injury. (Tr. 2938.) They took no steps to preserve most of the videos of staff assaults that occurred during OSHA’s investigation77 and preserved none of the video of incidents that occurred after litigation commenced.78 (Tr. 2938-39, 2942.) Even the video of the RN RO Attack was not intentionally preserved by Respondents.79 Instead, an employee gave a copy of the video to local law enforcement and that entity preserved it. (Tr. 2595-96, 2934, 3002.)

The deletion of the videos was not accidental or the result of circumstances beyond Respondents’ control. Respondents have the capability to preserve video. (Tr. 2926-27.) They can, and do record, from their video feed, incidents pertaining to workplace violence and preserve such evidence. (Tr. 439.) UHS-DE and Suncoast have an incident evaluation process and routinely preserve videos related to violence between patients and staff. (Tr. 2924, 2926-27; Mot. to Compel at Ex. G.) For example, if UHS-DE believes that an incident may lead to legal action brought by a patient or his or her representative, then Mr. Curl preserves any relevant video. (Tr. 2926-27; Mot. to Compel at Ex. G.)

Respondents claim that the video system automatically overwrites any video in thirty or fewer days unless someone actively intervenes. (Tr. 172, 436, 2927, 3000, 3002.) Although CEO Hamilton suggested that the system could overwrite video in as few as fifteen days, Respondents’ Response to the First Produc. Request and the written video retention policy, Compliance 9.1 Facility Surveillance Video Camera Recording [Revised 10-4-2017], indicate that the system typically preserved videos for thirty days.80 (Tr. 2927, 3000; Ex. 92, Hamilton Dep. Ex. 14 at ¶¶ A, F; Mot. to Compel at Ex. G.) Respondents’ procedures for camera footage specifies that “within” thirty days of an incident involving a physical altercation with a patient or a liability claim, video of the incident should be forwarded from Suncoast to UHS-DE.81 (Mot. to Compel, Ex. G.)

Respondents do not allege that at any point after receiving the: (1) OSHA’s NOI, (2) CO’s November 30, 2017 request for video, (3) April 24, 2018 Citation, (4) May 21, 2018 Complaint, or (5) August 9, 2018 First Produc. Request, they took or attempted to take any steps to preserve video surveillance. They make no claim that they looked for video but found it destroyed in less than thirty days. Their claim is limited to contending that after receiving the OSHA Subpoena on April 19, 2018, employees looked for video of workplace incidents that occurred in the four weeks before the receipt of the OSHA Subpoena, and then later, after Mr. Curl’s deposition, he sought a copy of the video of the RN RO Attack from law enforcement.82 Respondents do not claim that they made any attempt to preserve any video responsive to the OSHA Subpoena for workplace violence events that occurred after January 1, 2017 (beginning date of scope of OSHA Subpoena) through March 19, 2018, or that they attempted to preserve any video relevant to abatement after the April 24, 2018 Citation through August 9, 2018. (Exs. 79, 92.) Other than the April 2018 videos, there is no evidence that Respondents took any steps to preserve any subsequent videos related to workplace violence incidents or instructed anyone to do so. (Tr. 2942.) Nor do they claim that they were unaware of the incidents and the availability of video of them.

Mr. Curl was fully capable of preserving videos of workplace violence incidents and did so when UHS-DE requested. (Tr. 2927.) He acknowledged conferring with Respondents’ counsel and UHS-DE’s corporate counsel about OSHA’s Subpoena.83 (Tr. 2942, 2949-50.) Consistent with Respondents’ programs and policies, Mr. Curl continued to review video after workplace violence incidents. (Tr. 2924-27, 2942-43; Ex. 6 at 264.) And yet, despite the NOI, OSHA Subpoena, and on-going litigation, Respondents continued their routine practice of having surveillance video overwritten.84 (Tr. 2942.)

UHS-DE is a large, sophisticated entity that manages healthcare facilities throughout the country. (Tr. 2331; Ex. 9; Stips. 12-14; King Dep. 14-17, Meloni Dep. 58-61, Phillips Dep. 24.) Mr. Curl was supported by and able to consult with UHS-DE employees regarding incidents, including a risk manager and counsel. (Tr. 128-29, 2925-26, 2939-42; Curl Dep. 25, 28-29; Meloni Dep. 41-42; Stip. 14.) Also, Mr. Curl confirmed that he consulted UHS-DE employees and counsel after receiving the OSHA Subpoena. (Tr. 2925-26, 2940, 2942.) He knew how to and could preserve video. (Tr. 2925-26, 2939-40.) He and CEO Hamilton (a UHS-DE employee) were aware of and participated in OSHA’s investigation from its inception. (Tr. 128-29; Ex. 20.)

Respondents, relying on precedent dealing with non-electronic evidence, point to the lack of affirmative action to destroy the evidence.85 (Resp’t Br. 53; Resp’t Reply Br. 13-17.) However, although this matter does not involve tossing something into the trash, there still was an affirmative act. Respondents let the videos get overwritten rather than saving them data on another disk. See In re Krause, 367 B.R. 740, 766 (Bankr. D. Kan. 2007) (sanctioning debtor who continued routine deletion of emails and failed to deactivate “wiping” software which routinely removed information), aff’d, 637 F.3d 1160 (10th Cir. 2011); Philips Elecs. N. Am. Corp. v. BC Tech., 773 F. Supp.2d 1149, 1197 (D. Utah 2011) (sanctioning defendant who had a duty to preserve ESI by preventing it from getting lost, inadvertently overwritten, or wiped out). There is no allegation that the loss of relevant ESI resulted from anything outside of Respondents’ control.86

Thus, Respondents claim that it followed a “routine standard policy for the retention of security video footage” is rejected. (Resp’t Br. 50.) Unlike ESI lost due to a routine, good-faith operation of an information system, Respondents were already under a legal duty to preserve information when they allowed the videos' destruction. See Domanus v. Lewicki, 284 F.R.D. 379, 389 (N.D. Ill. 2012), objections sustained, No. 08-C-4922, 2012 WL 3307364 (N.D. Ill. Aug. 13, 2012) (concluding destruction was bad faith). Likewise, their contention that the obligation to preserve relevant, discoverable ESI evidence ended with the Citation’s issuance is also rejected. As Respondents took no steps to preserve video related to the cited hazard, there is no basis for finding that “reasonable steps to preserve” occurred.87

Federal Rule of Civil Procedure 37(e) makes plain that when a party fails to take reasonable steps to preserve ESI a court may take action to cure the prejudice (if any) that results. A court may remedy the prejudice caused by a failure to act; no affirmative act of destruction is required:

(e) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:

(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or

(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment.

Fed. R. Civ. P. 37(e). See ML Healthcare, 881 F.3d at 1309 (explaining that Fed. R. Civ. Proc. 37(e) was amended “to address the spoliation of electronically stored information like the video at issue here”); Sosa v. Carnival Corp., No.18-20957, 2018 WL 6335178, at *8-10 (S.D. Fla. Dec. 4, 2018) (discussing cases and concluding that video from a closed-circuit system was ESI and Fed. R. Civ. Proc. 37(e) governed sanctions for its spoliation), reconsideration denied, No.18-20957, 2019 WL 330865 (S.D. Fla. Jan. 25, 2019).

Rule 37(e)(1) allows for curative measures when lost ESI causes prejudice to another party. In contrast, Rule 37(e)(2) provides for more severe sanctions when the loss of ESI occurred with “intent to deprive another party of the information’s use in litigation.” Fed. R. Civ. P. 37(e). See also advisory committee’s notes to 2015 amendment (“The better rule for the negligent or grossly negligent loss of [ESI] is to preserve a broad range of measures to cure prejudice caused by its loss, but to limit the most severe measures to instances of intentional loss or destruction.”).

Litigation was reasonably anticipated in this matter as early as October 25, 2017. (Stip. 5; Sanctions Order 12.) See Zubake v. UBS Warburg LLC, 220 F.R.D. 212, 216 (S.D.N.Y. 2003) (duty to preserve evidence arose “at the latest” when an employee filed a charge with a governmental agency); Reed v. Royal Caribbean Cruises, Ltd., No. 19-24668-CIV-Lenard/O’Sullivan, 2020 WL 5878814 (S.D. Fla. Oct. 2, 2020) (finding that defendant had an obligation to preserve video available at the time its employee completed an incident report); Peskoff v. Faber, 251 F.R.D. 59, 62 (D.D.C. 2008) (threat of litigation should have prompted defendant to “deactivate network maintenance tools that automatically delete electronically stored information”).

Briefly, the duty to preserve is broader than the duty to produce in discovery. Food Lion, Inc. v. United Food and Commercial Workers Int’l Union, 103 F.3d 1007, 1012 (D.C. Cir.1997); Point Blank Solutions, Inc. v. Toyobo Am. Inc., No. 09-61166-CIV, 2011 WL 1456029, *12 (S.D. Fla. Apr. 5, 2011) (noting that relevance for purposes of discovery “is an extremely broad topic”). For example, a party may have a duty to preserve information that turns out to be protected by privilege or is not admissible. In Bistrian v. Levi, 448 F. Supp. 3d 454 (E.D. Pa. 2020), the government had a video recording system which, like Suncoast’s, overwrote videos every three to four weeks. Id. at 469. The court found that the government “reasonably should have anticipated the litigation” soon after one inmate attacked another and taken steps to preserve relevant video. Id. It did not matter that the plaintiff failed to file his claim within the time before the video was overwritten. Id.

The Sanctions Order explains that, at a minimum, Respondents should have preserved video related to the four incidents of workplace violence that occurred on May 28, June 2, June 23, and July 12, 2018, all of which occurred after the filing of the Notices of Contest and the Complaint.88 (Sanctions Order 5, 12.) As explained in the Sanctions Order, Respondents failed to take reasonable steps to preserve these four videos, and again as to the videos of incidents in their possession as of October 25, 2017 or that occurred during OSHA’s investigation. The information that could have obtained from the destroyed evidence could not be replaced through other discovery. See Jenkins v. Woody, No. 3:15-cv-355, 2017 WL 362475, at *16-17 (E.D. Va. Jan. 21, 2017) (imposing sanctions where video was deleted and the ESI could not be restored or replaced). This lost ESI prejudiced the Secretary. (Sanctions Order 12-13.) So, Rule 37(e)(1)’s threshold requirements are met. The Secretary is entitled, at least, to the relief necessary to cure the prejudice resulting from Respondents’ actions.

“An evaluation of prejudice from the loss of information necessarily includes an evaluation of the information's importance in the litigation.” Fed. R. Civ. P. 37(e)(1) advisory committee’s notes to 2015 amendment. The rule leaves judges with discretion to determine how best to assess prejudice and what curative measures are necessary. Id. See also Barbera v. Pearson Educ., Inc., 906 F.3d 621, 628 (7th Cir. 2018) (upholding magistrate judge’s sanction for destroyed email chain). The Court is tasked with determining the weight to give to the parties’ evidence and to evaluate its credibility. See DVComm, LLC v. Hotwire Comm., LLC, et al., Civ. A. No. 14-5543, 2016 WL 6246824, at *1 (E.D. Pa. Feb. 3, 2016) (imposing sanctions after evaluating the credibility of alleged spoliators).

The destroyed videos relate to multiple issues, particularly: (1) the existence of a hazard in the workplace; (2) employee exposure to that hazard; (3) whether the hazard was capable of causing serious injury or death; (4) Respondents’ knowledge of the hazard; (5) abatement of the hazard, and (6) the gravity element of the penalty calculation.

Respondents mitigated some of the prejudice resulting from the spoliation by stipulating, prior to trial, to these first two issues: the existence of hazard and employee exposure to it.89 (Stip. 7-8.) As to the seriousness of the hazard, the RN RO Attack video and the litany of workplace violence incidents described above establishes that the hazard was both capable of causing, and caused, serious injury that could have resulted in death.90 (Tr. 3193; Exs. 28-29, 32-33, 36-40, 42-52, 54-61, 63-71.) Similarly, on the issue of knowledge, the preserved videos and other evidence remove any doubt as to Respondents’ knowledge of the existence of the hazard. 91 Id. So, the availability of other evidence somewhat mitigates the prejudice on this issue as well.

This leaves the issues of abatement, and if a violation is established, its gravity. Looking first at abatement, the parties did not reach any stipulations directly regarding abatement. Respondents argue that there was no prejudice because they maintained written records related to several workplace violence incidents, and witnesses were available to provide some information about incidents for which it failed to preserve the videos. (Resp’t Br. 50, 52-53.)

The written records and availability of certain witnesses are not an adequate remedy for the ESI’s destruction in this matter. See Woodward v. Wal-Mart Stores E., LP, 801 F. Supp. 2d 1363, 1373 (M.D. Ga. 2011) (finding that employee testimony about an event “hardly works” to address the loss of video); Storey, 2017 WL 2623775, at *5 (discussing the “unique and irreplaceable nature” of video evidence); Moody v. CSX Transp., Inc., 271 F. Supp. 3d 410, 429-30 (W.D.N.Y. 2017). In CSX, the railroad failed to preserve ESI from the train’s event recorder. 271 F. Supp. 3d at 429-30. The ESI would have conclusively established whether a bell rang before the train began to move. Id. The court found that the plaintiff was prejudiced by the destruction even though there was other evidence as to whether there was a sound was emitted, and the event recorder might not have supported the plaintiff’s claim. Id. Prejudice under Rule 37(e) may be found when the destruction causes a party to “piece together information from other sources.” In re: Ethicon, Inc., No. 2:12-cv-00497, 2016 WL 5869448, at *4 (S.D.W. Va. Oct. 6, 2016); Abdulahi v. Wal-Mart Stores E., L.P., 76 F. Supp. 3d 1393, 1396-97 (N.D. Ga. 2014) (other evidence consisting of emails and testimony did not remove prejudice caused by the employer’s destruction of video footage).

The other evidence's inadequacy as a replacement for the destroyed videos is made apparent by examining the video from the few incidents for which it was available. For the RN RO Attack, the EAR’s mild language bears little resemblance to the severity of the incident seen in the video. (Tr. 152-166; Exs. 4, 28.) Among other things, Respondents’ claim about the swiftness with which endangered employees are assisted rings hollow as one watches the employee sustain blow after blow. It took five staff members, including four women, to eventually physically restrain the attacker. (Tr. 380-82; Ex. 28.)

The record establishes other instances where the information in the written records conflicted with images in the few preserved videos. At about noon on April 8, 2018, a patient was banging a telephone on his head and the wall before physically assaulting RN CG by “biting and hitting” in the hallway. (Tr. 2910-11; Ex. 69.) The Risk Management Worksheet describes some agitation and then indicates that the patient “was able to calm and continue programming.” (Ex. 69 at 2329.) A four-minute video showing RN CG and another nurse bringing the patient down the hallway starting at 1206:50 [12:06 p.m.] was played at the trial.92 The video does not support the characterization in the Risk Management Worksheet. It shows staff struggling to contain the patient, a stark contrast from the benign written description. (Tr. 2912-17; Exs. 29, 69; Sec. Br. 61-62.) For these events, the videos offered definitive proof of the incident’s nature, the significance of the harm suffered, and the adequacy of Respondents’ abatement. The documents suggest that the abatement was adequate. In contrast, the videos support the Secretary’s claim of inadequacy. Quoting the Supreme Court, the First Produc. Order explains that “illustrations are an extremely important form of expression for which there is no genuine substitute.”93 (First Produc. Order 8-9, quoting Regan v. Time, Inc., 468 U.S. 641, 678 (1984).)

The destroyed ESI would have been favorable to the Secretary’s claims that Respondents’ abatement was inadequate and that certain of the proposed abatement measures could have reduced the hazard. See Storey, 2017 WL 2623775, at *5 (issuing sanctions for spoliation of videos, including precluding evidence or argument that the contents of the videos corroborated the defendants' version of events); Jenkins, 2017 WL 362475, at *18 (ordering similar sanctions for an automatically overwritten video); Coward v. Forestar Realty, Inc., No. 4:15-CV-0245-HLM, 2017 WL 8948347, at *9 (N.D. Ga. Nov. 30, 2017) (allowing arguments to the jury concerning the effect of the loss of the videos).

Finally, the Court concludes that the destroyed videos would have provided support for the Secretary’s claims about the appropriateness of the gravity-based penalty he proposes. The CO explained that she viewed this violation as being of “high. Greater” severity and gravity. (Tr. 220.) To address the prejudice caused by the destruction, the Secretary is entitled to a finding that the destroyed evidence would have supported OSHA’s conclusions about the appropriate penalty amount.94

Beyond addressing prejudice caused by the destruction of evidence, courts may also impose sanctions if a party acted with the intent to deprive the opposing party of the information’s use in the litigation. Fed. R. Civ. Proc. 37(e)(2). The Secretary requested definitive rulings that the destroyed videos would have shown that Respondents’ response to the cited hazard was insufficient and that the abatement measures the Secretary proposes would have prevented or lessened the severity of the injuries to employees. (Sanctions Mot. 4; Sec’y Br. 199-200.) The Secretary also requested dismissal of Respondents’ contest of the Citation as a sanction. Id. The Sanctions Order left unresolved whether Respondents had the requisite state of mind required to take actions beyond those necessary to cure the prejudice caused by the lost ESI. (Sanctions Order 11-12.)

The Secretary asks for an inference that Respondents acted with the intent to deprive because Respondents failed to prevent the destruction of relevant, discoverable ESI after litigation was not only anticipated but had commenced. (Sec’y Br. 199.) The Secretary argues that Respondents engaged in a pattern of discovery abuses by refusing to comply with the OSHA Subpoena and then denying that they had any videos before finally turning certain ones over after being ordered to do so by the Court. See Marrocco v. Gen. Motors, Corp., et al., 966 F.2d 220, 224 (7th Cir. 1992) (in a non-ESI matter, giving particular weight to the fact that the offending party waited months before it attempted to investigate the lost evidence, and delayed even longer before informing their opponents that key evidence was missing); Ala. Aircraft, 319 F.R.D. at 741 (finding sufficient circumstantial evidence to conclude party acted with an intent to destroy ESI). Respondents offer no explanation for why they departed from their own written video retention policy. See Brown v. Chertoff, 563 F. Supp. 2d 1372, 1381 (S.D. Ga. 2008) (awarding sanction for spoliation when Government was culpable for violating its own policies and for failing to take notice that litigation was likely). Nor do Respondents explain any steps they took to preserve videos of the hazard taken after receiving the NOI or after litigation commenced through August 9, 2018. See Ottoson v. SMBC Leasing & Fin., Inc., 268 F. Supp. 3d 570, 582 (S.D.N.Y. 2017) (finding sanctions appropriate when it could be inferred that party either took no steps to preserve emails or simply failed to produce them); Ala. Aircraft, 319 F.R.D. at 739-42 (finding duty to preserve triggered before a letter attempting to terminate a contract was sent and even though party with the control of the ESI may not have anticipated the exact nature of the future litigation).

Respondents provide no reasonable explanation for destroying videos. Their only explanation is that Mr. Curl had not previously been involved in litigation related to the OSH Act and that they lacked sufficient notice of the need to preserve the videos. (Resp’t Br. 50-54.) Their claims do not hold up to even modest scrutiny. Although they claim that this case was Mr. Curl’s first time he “ever had to deal with such a situation,” the record establishes otherwise. Id. at 51. He explained that one of his responsibilities “is to respond to regulatory or any type of litigation.” (Curl Dep. 18.) His primary duties include investigating adverse incidents at the facility, including injuries. (Tr. 2612-13, 2923-34; Curl Dep. 18, Ex. 58.) He routinely reviewed surveillance video of patients assaulting staff. Id. After such reviews, he would discuss incidents with UHS-DE employees and together they would assess whether to preserve videos. (Tr. 2924-26.) He recognized the need to preserve video if there was potential for litigation.95 (Tr. 2924, 2927.) In addition, probable legal claims were an agenda item for the monthly UHS-PSC meetings Mr. Curl attended.96 (Ex. 251.) Even if the Court rejected Mr. Curl’s own testimony about his experience with preserving videos, any lack of sophistication on his part was addressed by his access to, and actual conferral with others, including an experienced UHS-DE risk manager and counsel.97 (Tr. 2925-26, 2941-42, 2948-50; Meloni Dep. 42.)

Suncoast and UHS-DE employees were aware of the utility of reviewing videos to assess safety hazards. Indeed, they claimed it was part of their WVPP. CEO Hamilton, a UHS-DE employee, explained how senior staff, including herself, would conduct weekly “rounds” of the units by reviewing video from the recording system to look for safety concerns. (Tr. 2362-67.)

As for Respondents “notice” of the need to preserve relevant evidence, any credible claim of confusion about the relevancy of the videos to this matter ended with the receipt of OSHA’s October 25, 2017 NOI and the OSHA Subpoena, which explicitly called for the production of relevant videos of workplace video. (Ex. 79.) As the Sanctions Order sets forth, “by any measure,” as of the date of the OSHA Subpoena, Respondents should not have permitted the destruction of relevant evidence. (Sanctions Order 12.) The Citation itself re-iterated that workplace violence was at the heart of this matter.98 (Ex. 1.) Respondents conduct never changed—they permitted the destruction of videos after OSHA’s 2017 investigation started and continued this practice, with the limited exception of preserving 6 videos between April 8 through April 11, 2018, even after filing a Notice of Contest, being served with the Complaint, filing their Answer, and receiving a discovery request.

Respondents’ discussion of other litigation concerning violations of the general duty clause where video surveillance was not offered for inclusion into the record is unpersuasive. (Resp’t Br. 53-54.) In one breath, Respondents argue that Suncoast had nothing to do with other facilities managed by UHS-DE, but on the other hand claim that litigation involving those facilities should determine what evidence is relevant in this matter. Id. at 53-54, 73-76. The Court rejects this argument. Here, the Secretary established that Respondents were on notice of the need to preserve the videos and showed how Respondents’ inaccurate paper records made the videos' destruction particularly detrimental. That the Secretary may not have relied on video evidence in some other trial does not justify Respondents’ failure to preserve relevant ESI in this matter after receipt of the written notice of OSHA’s investigation on October 25, 2017 and the OSHA Subpoena.99

Intent is rarely proved by direct evidence. See e.g., Paisley Park, 330 F.R.D. at 236-37 (evaluating defendants' conduct throughout the litigation before deciding to issue sanctions); BankDirect Capital Fin., LLC v. Capital Premium Fin., Inc., No. 15 C 10340, 2018 WL 1616725, at *2 (N.D. Ill. Apr. 4, 2018) (“[A] combination of events, each of which seems mundane when viewed in isolation, may present a very different picture when considered together.”); CSX, 271 F. Supp. at 431–32 (finding intent based on defendants' actions in the litigation that allowed evidence to be overwritten and destroyed); Ottoson, 268 F. Supp. 3d at 581–82 (considering plaintiff's conduct throughout the litigation and during discovery disputes); Ala. Aircraft, 319 F.R.D. at 746–47 (imposing sanctions pursuant to Fed. R. Civ. Proc. 37(e)(2) where “unexplained, blatantly irresponsible behavior” led to the destruction of ESI).100 There is sufficient circumstantial evidence here to infer an intent to deprive the Secretary of the best evidence of the hazard and how Respondents’ abatement program addressed the hazard. Respondents knew OSHA was investigating the hazard of workplace violence, they knew they had video evidence of the hazard, they knew the Secretary sought this ESI, and they knew that they were contesting the allegations in the Citation. They offer no sound explanation for why companies with access to counsel and risk managers failed to preserve relevant information after receipt of written notice of an OSHA investigation, as well as after an OSHA Subpoena, and the commencement of litigation.

Although Respondents had the requisite state of mind to permit the imposition of any of the remedies available under Fed. R. Civ. P. 37(e)(2), the harshest of sanctions this rule permits are not appropriate here. The “remedy should fit the wrong.” Advisory committee’s notes to 2015 amendment. Here, the most biting sanctions are unnecessary. The Secretary is not entitled to a dismissal of Respondents’ contest of the Citation based on the spoliation. Instead, the Court will: (1) reject Respondents’ argument that the destroyed video would have been favorable to their defenses; (2) find that the destroyed videos would have supported the Secretary’s claims regarding the insufficiency of Respondents’ existing abatement; (3) find that the destroyed videos would have supported the Secretary’s claims regarding the effectiveness of certain of his proposed abatement; and (4) find that the destroyed videos support the Secretary’s conclusion regarding the gravity of the violation. See Envision Waste Servs., LLC, No. 12-1600, 2018 WL 1735661, at *10 (O.S.H.R.C., Apr. 4, 2018) (concluding that the failure to produce authentic documents corroborated evidence of employer’s non-compliance).

Further, the Court will consider awarding the costs of the Secretary pursuing his Sanctions Motion. See Fed. R. Civ. Proc. 16(f)(2); Fed. R. Civ. Proc. 37; NL Indus., Inc., 11 BNA OSHC 2156, 2168 (No. 78-5204, 1984). If the Secretary wishes to pursue reimbursement for the costs incurred in connection with his Sanctions Motions, he shall file with the Court and present an accounting of those costs to Respondents within four days of the issuance of this decision. He may include any relevant authority supporting the awarding of costs. Respondents, if they wish, may, within four days of receiving the accounting, file with the Court any objections to the Secretary’s accounting or the authority relied on for awarding such costs.

Respondents also contend that UHS-DE should not be held responsible for destroying any evidence because Suncoast, not it, owned the video system. (Resp’t Reply Br. 13.) UHS-DE and Suncoast work together to discuss workplace violence incidents. (Tr. 2924-27, 2950; Balsamo Dep. 14-15.) Together they reached decisions regarding the preservation of videos taken on Suncoast’s premises. (Tr. 2924, 2931.) Mr. Curl reported incidents to two UHS-DE employees, CEO Hamilton and Ms. Pearson. (Tr. 2924, 2934, 2948; Curl Dep. 40.) These employees would then evaluate incidents with him. (Tr. 2925-26, 2931, 2950; Curl Dep. 40; Meloni Dep. 41-42.)

Employees sent incident reports related to employee injuries, including those sustained due to patient violence, to an email address ending with “@UHSinc.com.” (Ex. 25; Tr. 1417; Meloni Dep. 69-72.) Although Mr. Curl, a Suncoast employee, could preserve video, he did so only when directed by a UHS-DE employee in its insurance department, when requested by law enforcement in a subpoena, or when requested by a subpoena received from a court or other agency, after conferral with UHS-DE.101 (Tr. 2926-28; Exs. 79, 92 at 2; Curl Dep. 29, 40; Meloni Dep. 42.) UHS-DE’s insurance department would make the “final determination” about preserving video. (Tr. 2926-27.) If UHS-DE determined that a video would be retained, Suncoast was to send the video to UHS-DE’s insurance department.102 (Tr. 2924-27; Hamilton Dep. 67.) Mr. Curl said he believed that he produced videos from the week of April 8, 2018 in response to OSHA’s Subpoena issued on April 18, 2018. (Tr. 2927-30; Ex. 79.) Although receipt of the OSHA Subpoena may account for the preservation of the six videos of workplace violence incidents occurring between April 8 through April 11, 2018,103 Respondents did not produce these six videos to the Secretary until December 14, 2018, after the Court issued an Order directing them to do so.

Suncoast alone did not decide to allow the system to overwrite the recordings. As Mr. Curl succinctly put it, “I’m not making those calls on my own.” (Tr. 2936, 2948.) It was at UHS-DE employees' direction that he either preserved or permitted the destruction of video surveillance of workplace violence events. (Tr. 2926-27.)

Respondents point to no evidence suggesting that UHS-DE independently could not control whether videos were preserved or destroyed. See Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 334 (3d Cir. 1995) (stating that the evidence must “be within the party's control”); Watson v. Edelen, 76 F. Supp. 3d 1332, 1343 (N.D. Fla. 2015) (finding, in a matter decided before the 2015 amendments to Rule 37(e), “it is essential that the evidence in question be within the party's control, that is, the party actually destroyed or was privy to the destruction of the evidence.”). EARs and Sedgwick reports were sent to UHS-DE, and at least one of its on-site employees was routinely involved in reviewing workplace violence incidents, including the assessment of whether to preserve video of such incidents. (Tr. 2934.)

The NOI giving notice of the start of OSHA’s investigation was addressed to “Suncoast Behavioral Health Center Attn: Janet Sweeny.” (Ex. 5.) While the record does not conclusively establish that DON Sweeny was a UHS-DE employee, there is no confusion about whether a UHS-DE employee participated in the meetings with CO Trouche, including when she requested video evidence. (Tr. 129.) In addition, the OSHA Subpoena addressed both UHS-DE and Suncoast. (Tr. 172; Ex. 79.) UHS-DE’s employee, CEO Hamilton, accepted service of the OSHA Subpoena. (Tr. 2929; Ex. 79.) The OSHA Subpoena was discussed with UHS-DE employees and counsel for that entity. (Tr. 2950.) Likewise, both entities were cited for the violation at issue. (Ex. 79.) And, both entities commenced this litigation by filing Notices of Contest. (Stip. 6.) UHS-DE’s own employees were aware of incidents of workplace violence, whether there was video of such incidents, and could control whether the video was preserved or overwritten. Its own employees routinely reviewed video to assess the safety of the units. (Tr. 2363-65.) Respondents share culpability in the destruction of relevant ESI that should have been preserved in anticipation of litigation.

During the trial, both sides offered expert testimony. Janet Lipscomb, RN Ph.D., and Howard Forman, MD, testified on behalf of the Secretary. (Sec. Br. 123-28, 134-36.) Monica Cooke, RN, testified for the Respondents. A written report by each expert was admitted into the record. (Exs. 81, 83, 264.) Although each person satisfied the threshold requirements to be qualified to offer expert testimony, their respective opinions are not entitled to equal weight. RN Cooke was found qualified as an expert regarding: (1) the feasibility of the recommended abatement measures, (2) Respondents’ use of many of the recommended feasible abatement measures, and (3) industry standard practices in behavioral health hospitals. (Tr. 3060-65; Am. Joint Pre-Hr’g Statement at 15.)

RN Cooke does not have a doctorate, and she had not published any peer-reviewed papers or book chapters on workplace violence.104 (Tr. 3026; Ex. 263.) Although she stated that OSHA had contacted her at some point about workplace violence, she could not provide the name of who contacted her or the location of where the person worked.105 (Tr. 3027.) Her report mentions one piece of literature, but she does not provide the author or publication date.106 (Tr. 3029; Ex. 264.) Her testimony and expert report are deficient in many respects because she fails to provide context as to the timing of when abatement measures were in actual effect. Abatement measures introduced after OSHA issued its Citation on April 24, 2018 show the feasibility of abatement measures. They do not excuse Respondents’ responsibility for failing to furnish a place of employment free from recognized hazards likely to cause serious harm where employees are exposed to acts of workplace violence caused by patients prior to April 24, 2018. In short, RN Cooke’s review of Respondents’ program was limited. (Tr. 3035; Ex. 264.) She visited Suncoast once during the day shift, spoke with select direct care workers, and reviewed certain documents.107 She testified that she looked at whether Suncoast was implementing the abatement OSHA recommended. (Tr. 3036-37, 3066; Ex. 264.) She did not review all the patient records that are exhibits in this matter. Id. She did not interview anyone working in the high-risk intake department. (Tr. 3053-54.) Her meetings with direct care employees were brief. She asked about patient aggression but did not ask if the employees witnessed co-workers being injured by patients. (Tr. 3040.) She assumed debriefings occurred, even when written records indicated that a key employee was not part of a debriefing, and despite Respondents’ acknowledgment that debriefings did not happen after all types of workplace violence incidents. (Tr. 1101, 2555, 3041-42, 3212-13.) She did not ask the staff whether they believed there was a need for security at the facility. (Tr. 3053.)

When questioned about why she did not ask employees about key matters, she explained there was “no way [she] could get into all that information and detail” in the short amount of time Respondents gave her to talk with her interviewees. (Tr. 3043-44, 3049-50.) Similarly, although she indicated that she reviewed various documents that are part of Respondents’ alleged abatement program, she did not check records for accuracy or consistency. (Tr. 3042-47, 3051, 3053, 3055.) For example, she claimed that workplace violence events were communicated in Situation, Background, Assessment, Recommendation (“SBAR”) reports but did not review any such reports. (Tr. 1613, 3049, 3153-54; Ex. 224.) Nor are any completed SBAR reports part of the trial record. (Tr. 3049.)

RN Cooke did not conduct the depth of review she typically does when retained as a consultant assessing workplace violence programs at behavioral health facilities. (Tr. 3044.) She did not perform a risk assessment or prepare a report with findings and recommendations for abating the hazard. (Tr. 3037.) In her own opinion, a risk assessment would have required, among other things, additional time and validating the information leadership told her. (Tr. 3038-39.) She was not asked by Respondents to “identify risks” at the facility. (Tr. 3037-38.) Nor did she assess whether Respondents were doing everything possible to reduce workplace violence. Id. She did not provide any opinions on whether there were feasible means of abatement that Respondent could have implemented. And she was “not in a position to evaluate” whether there was anything Respondents could be doing to reduce instances of workplace violence. (Tr. 3038; Sec. Br. 128-34.)

Two other experts testified on behalf of the Secretary, Dr. Forman and Dr. Lipscomb. The Court found Dr. Lipscomb qualified and accepted her without objection as an expert in: (1) workplace violence prevention for health and human service workers in the healthcare setting, including the behavioral healthcare setting, (2) adequacy and deficiencies of WVPPs, (3) incidents of workplace violence, and (4) review of proposed abatement measures.108 (Tr. 1633-34; Ex. 80.) Her work, which began over thirty years ago, focuses on patient attacks on healthcare workers. (Tr. 1526, 1536-38; Ex. 80.) She worked for OSHA as a consultant on compliance assistance to identify practices to prevent workplace violence in healthcare facilities. (Tr. 1541-42.) This project included visiting approximately 30 healthcare facilities to examine what they were doing to prevent employees from being injured by patient violence. (Tr. 1542-43; Ex. 80.) Other projects she led include designing training programs on workplace violence for healthcare workers. (Tr. 1540.) She has many publications, including twenty-five peer-reviewed publications about workplace violence. (Tr. 1546; Ex. 80.) She frequently lectures about workplace violence in healthcare. (Tr. 1545, 1547-49.) She has been trained in research methodologies and taught epidemiology for several years. (Tr. 1766.) Dr. Lipscomb has long studied the cited hazard and how to implement effective abatement methods. (Ex. 80.)

At trial, Dr. Lipscomb offered her opinions on a variety of subjects, including abatement measures Respondents could have implemented to materially reduce the hazard of workplace violence. She testified:

Q. Briefly, can you just tell us quickly what opinions you have reached about this matter?

A. I reached the opinion that employees at Suncoast Behavioral Health were exposed to the hazard of workplace violence, that it is – they are at risk of incurring serious harm, injury from workplace violence, that workplace violence is well-recognized as a hazard in healthcare, especially in behavioral health, that the employer recognized workplace violence as a hazard, and there are feasible abatement measures, specifically the ones that were included in the OSHA citation and in my report, that would materially reduce the hazard.

(Tr. 1525-26, 1658. 1676-78; Ex. 81; Sec. Br. 128, 142-75.)

She based her review on the OSHA investigative file, Respondents’ responses to the Secretary’s Discovery Requests, deposition transcripts, witness testimony at trial, scientific literature on workplace violence prevention, and her experiences at conferences. She scanned in about 15,000 pages of documents that were produced. (Tr. 1629-30, 1636, 1650, 1801; Exs. 81, 84-85.) She concluded that the abatement measures set out in the Amended Complaint were available and could be implemented feasibly by Respondents and would materially reduce the hazard of workplace violence. (Tr. 1658-59, 1664, 1676-78; Exs. 3, 81; Sec. Br. 128, 142-75.)

Dr. Forman testified as a rebuttal witness for the Secretary, and his testimony and expert report were admitted into the trial record.109 He currently works as a psychiatrist and teacher in a forensic behavioral health facility. He is the Director of the Addiction Consultation Service, where he treats about 2,000 psychiatrically ill patients annually. (Tr. 3269-80; Exs. 82-83.) He has published a book, book chapters, peer-reviewed articles, and non-peer-reviewed articles. (Exs. 82, 83 at 1-5.) He has given presentations at numerous meetings, including on risk assessments. (Ex. 83 at 2.) He assessed Respondents’ management of patient violence and the effectiveness of the Secretary's proposed abatement measures. Id. at 6. In preparing his opinion, he reviewed: OSHA’s investigative file, documents produced by Respondents, Dr. Hemsath’s deposition transcript, CEO Hamilton’s deposition transcript, and the trial testimony. (Tr. 3267; Ex. 83 at 6.) He attended the trial and listened to the witnesses. (Tr. 3267.) The Court found Dr. Forman to be qualified as an expert to: (1) testify regarding the causes and prevention of patient-on-staff violence in a psychiatric hospital setting, (2) render opinions regarding feasible means of abatement on the issue of workplace violence, and (3) testify whether Respondents’ workplace violence policies and procedures were adequate to address patient-to-staff aggression, including what clinical treatment is appropriate to address aggression and whether Suncoast provided such appropriate clinical treatment. (Tr. 3266, 3347-48; Ex. 83).

Like Dr. Lipscomb, he concluded that Respondents’ approach to managing patient aggression was inadequate and that the abatement measures proposed by the Secretary would “lead to a far safer work environment for the staff.” (Ex. 83 at 6, 11; Sec. Br. 159-60, 164-65, 169.)

While RN Cooke’s testimony and report met the minimum admissibility requirements, it is not entitled to the same weight as the testimony and reports of Drs. Lipscomb and Forman. Her opinions were not well supported by research. Her speculation about Respondents’ implementation of policies and procedures was not borne out by employee testimony or other record documents.

In contrast, Dr. Lipscomb’s own research and the research she relied on to help form her opinions has been subject to the rigorous peer-review process. (Tr. 1546-47, 1754-56, 1765; Exs. 84-85.) Dr. Forman advised about how the Secretary’s proposed abatement is in place at other facilities and how Respondents’ approach fell appallingly short. (Ex. 83.) RN Cooke did not examine whether the proposed measures were feasible or if there any steps Respondents could take to materially reduce the hazard, a critical issue before this Court.110 See BHC, 951 F.3d at 564 (discussing the relative weight given to two experts assessing workplace violence at psychiatric facilities and upholding the ALJ’s decision not to afford both opinions equal weight).

The general duty clause requires every employer to provide its employees with a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” 29 U.S.C. § 654(a)(1). As interpreted by the Commission, to establish a violation of this clause, the Secretary must show: (1) there was an activity or condition in the employer’s workplace that constituted a hazard to employees; (2) either the cited employer or its industry recognized that the condition or activity was hazardous; (3) the hazard was causing or was likely to cause death or serious physical harm; and (4) there were feasible means to eliminate the hazard or materially reduce it. Waldon Health Care Ctr., 16 BNA OSHC 1052, 1058 (No. 89-3097, 1993). The evidence must also show the employer knew, or with the exercise of reasonable diligence, could have known of the hazardous condition. Otis Elevator Co., 21 BNA OSHC 2204, 2207 (No. 03-1344, 2007).

Under Waldon’s four-part framework, the first element the Secretary must prove is that “a condition or activity in the workplace presented a hazard.” 16 BNA OSHC at 1058. The parties stipulated to the presence of the hazard of workplace violence and that employees were exposed to it. (Stip. 7.)

As noted, this stipulation addresses some of the prejudice caused by the unavailability of the videos of certain workplace violence incidents. Further, even without stipulation, the record contains ample evidence of the hazard of workplace violence and employee exposure to it. (Tr. 111-12, 193, 195-96; Exs. 9, 28-29, 32-33, 36-40, 42-52, 54-61, 63-71.) The CO reviewed annual records of injuries for the two years before the Citation’s issuance.111 In 2017, Respondents documented on its OSHA-300 form eleven different employees injured in workplace violence incidents. (Ex. 9 at 317-18.) Further, Mr. Curl was aware of approximately eight to ten workplace violence incidents per month.112 (Tr. 2831.) Employees themselves also described at trial multiple assaults they experienced during OSHA’s investigation. MHT CCM described being pinned against a sink by a patient on November 11, 2017. (Tr. 1164.) The patient hit her, bit her, and shoved her fingers in the MHT’s mouth. Id. The attack continued for a couple of minutes. (Tr. 1167.) During the incident, the patient “ripped open” the employee’s index finger and bit off one of her fingernails. (Tr. 1168.) MHT MM #2 discussed two separate injuries resulting from patient violence she experienced in April 2018. (Tr. 220, 232-35; Exs. 70-71.) On April 9, 2018, she was kicked and bitten by a patient.113 (Ex. 70.) A few days later, a patient elbowed her in the throat, and she received multiple scratches. (Ex. 71.) This injury left MHT MM #2 with difficulty swallowing.114 Id. at 236. MHT VN testified that patient attacks on staff at Suncoast “happened so often.” (Tr. 985.)

In addition to actual injuries, employees also described workplace violence events that could have injured them. For example, Intake RN CMC said patients attempted to slap, spit at, and kick her weekly, and threatened her too many times to count.115 (Tr. 1088-89, 1093, 1127, 1130.) MHT SS testified that he had been “Spit at plenty of times.” (Tr. 2177.) Dr. Hemsath acknowledged that doctors at Suncoast were also exposed to the hazard of physical aggression from patients. (Tr. 2027, 2490). Dr. Lipscomb agreed, providing her expert opinion that the hazard of workplace violence was present at the facility, and employees were exposed to it. (Ex. 81 at 5; Tr. 1526, 1761.)

Respondents do not allege that UHS-DE employees were not exposed to the hazard. The CEO and the COO in training, both of whom worked for UHS-DE, were in the units regularly.116 (Stip. 11; Tr. 2574.) Other UHS-DE employees routinely visited the facility. (Tr. 1417-18; Exs. 250-51.) The Secretary established the hazard was present, and employees were exposed to the hazard of violence and/or assault by patients against staff.

The Waldon test's second element examines whether the employer or its industry recognized the condition as a hazard. Again, there is no dispute that Respondents recognized the hazard of workplace violence in the context of patient on staff violence: “The hazard of workplace violence, specifically defined in this case as violence and/or assault by patients against staff, was recognized by Respondents Suncoast and UHS of Delaware, Inc.” (Tr. 194; Stip. 8; Ex. 11 at 666.) The record also establishes that the behavioral health industry recognized the hazard.117 (Tr. 93, 1654-55; Ex. 81.) Dr. Lipscomb explained that the hazard of workplace violence has “long been recognized in the health care industry.” (Tr. 1654; Ex. 81 at 6-10.)

Besides hazard recognition, the Secretary must also show the employer’s knowledge of the hazardous condition. Burford’s Tree, 22 BNA OSHC 1948, 1950 (No. 07-1899, 2010), aff’d, 413 F. App’x 222 (11th Cir. 2011) (unpublished). Establishing knowledge does not require showing that the employer was actually aware it was violating the Act. See e.g., Peterson Bros. Steel Erection Co., 16 BNA OSHC 1196, 1199 (No. 90-2304, 1993), aff’d, 26 F.3d 573 (5th Cir. 1994). Knowledge is established if the record shows the employer knew or should have known of the conditions constituting a violation. Peacock Eng’g Inc., 26 BNA OSHC 1588, 1592 (No. 11-2780, 2017).

As explained, Respondents permitted the destruction of evidence related to their knowledge and recognition of the hazard. If necessary, to cure the prejudice caused by the destruction, the Secretary would be entitled to a finding that this element was met. Such a finding is unnecessary as the record includes extensive evidence of Respondents’ recognition of the hazard and its presence at the worksite.

Respondents knew employees were exposed to both actual and potential incidents of workplace violence. Management employees experienced workplace violence directly.118 (Tr. 644; Exs. 7 at 373; 70 at 225.) Employees also reported actual occurrences of workplace violence as well as some threats of workplace violence to their supervisors. (Tr. 646, 649, 653; Exs. 24-26, 36-78.) Patients routinely injured staff before and during OSHA’s investigation. (Exs. 28, 36-40, 42-52, 54-61, 63-71.) Injuries to employees from workplace violence included stab wounds, facial bruises (black eyes), sore and bruised backs, sore muscles, bites, permanent scars, cuts requiring stitches, concussions, and a fractured hip.119 (Tr. 100, 170, 233-34, 890, 963, 974, 985, 1049, 1168, 1191, 1222, 1472; Exs. 28, 36-40, 42-52, 54-61, 63-71.) The facility’s video surveillance system, which Respondents indicate is “monitored by the Clinician and Senior management staff,” recorded many of these incidents. (Tr. 391-92, Ex. 6 at 264.) In addition, many staff injuries were documented in written EARs shared with management or through patient-specific incident reports.120 (Exs. 9, 36-77.) Both Suncoast and UHS-DE employees reviewed EARs and other incident reports. (Tr. 2576-77, 2934; Balsamo Dep. 14-15, 17-18.) Incidents of physical confrontation and staff injuries were discussed at the monthly UHS-PSC meetings, which Suncoast and UHS-DE employees attended. (Ex. 251 at 3602, 3935, 3937, 3943, 3962-63, 3980, 3995-97, 4033, 4035-37, 4039, 4050, 4052-55, 4065-67, 4082, 4084-85.) The EOC committee, which, like the UHS-PSC, had members that included both UHS-DE and Suncoast employees, discussed employee injuries from patient aggression and making both Suncoast and UHS-DE aware of the hazard.121 (Tr. 2337; Exs. 35, 262.)

Written training materials and policies also acknowledge the hazard of patient on staff violence. (Tr. 195; Exs. 9-11, 13 at 748, 19.) The Workplace Violence policy indicates it provides guidelines for supervisors regarding their role and responsibility for identifying, reporting, and prohibiting threats or acts of violence. (Tr. 111-12; Ex. 10 at 1.) It tasks supervisors with the responsibility of observing and reporting individuals who pose a potential threat.122 Id. Suncoast, using materials prepared by UHS-DE, trained employees about workplace violence. (Ex. 11; Stips. 14, 21.) The materials explain that patients cause most of the aggressive or violent events. (Ex. 9 at 324; Ex. 11 at 666.) UHS-DE understood the hazard, was aware of its presence at the worksite, and provided training materials about the hazard. (Stips. 14-15, 21; King Dep. 13, 15.) The facility also had a Behavioral Management policy. (Ex. 9.) This policy explains that “All employees working in the facility are potentially at risk for assault.” Id. at 324.

Further, on February 3, 2016, not long after the facility opened, OSHA specifically wrote to Suncoast about the hazard of workplace violence at the facility. (Ex. 3.) OSHA addressed the letter to Ms. Pearson, who at the time was Suncoast’s Director of Performance. Id. Ms. Pearson subsequently changed positions from Suncoast to the UHS-DE risk management department. (Tr. 316, 2594.) The change in position did not erase her knowledge of the hazard.123 See MJP Constr. Co., 19 BNA OSHC 1638, 1648 (No. 98-0502, 2001) (supervisor chargeable with knowledge of the requirement “based on their prior work experience, wherever that experience originates”), aff’d, 56 F. App’x 1 (D.C. Cir. 2003) (unpublished). The Secretary showed Respondents’ recognition and knowledge of the hazard’s presence at the worksite.124

The Secretary also met the Walden test’s third element: the cited hazard was causing or was likely to cause death or serious physical harm. A hazard is likely to cause death or serious physical harm if the likely consequence of employee exposure to the hazard would be serious physical harm. Morrison-Knudsen Co./Yonkers Contracting Co., 16 BNA OSHC 1105, 1122 (No. 88-572, 1993). As discussed, Respondents’ destruction of ESI showing injuries suffered by employees could have entitled the Secretary to a finding that the hazard was capable of causing serious injury or death. However, as Respondents eventually produced the videos of the RN RO Attack and some other incidents, such a finding as a matter of law is not necessary. The evidence in the record leaves no question that the hazard was capable of causing serious physical or death. On the first day of trial, the Secretary played the video of the RN RO Attack in its entirety. CO Trouche narrated while the video of the RN RO attack was played. (Tr. 146-67; Ex. 28.) She said it was helpful to view the video as “it provided more of a visual of what I had been reading in the OSHA 301, the employee accident report, and my interviews. And also, you know, it helped to have a visual of what Mr. Curl and CEO Hamilton had spoken to me during the initial portion of the investigation.” (Tr. 170-71.) The RN RO Attack video shows the Turtle Cove and Coral Key units combined nurses’ station from a stationary perspective, looking toward the nurses’ station in the direction toward the Turtle Cove unit. (Ex. 28.) It shows the open areas above both counters (Ex. 8 at 524, 527, Ex. 28) and the Dutch door (Ex. 8 at 524 at “C,” Ex. 28). The RN RO Attack video shows the action occurring between about 0023:53 [military time] [12:23 a.m.] through about 0032:59 [12:32 a.m.], August 9, 2017.125 (Tr. 146-167; Exs. 3, 8 at 524 [bottom], 28.) The RN RO Attack video shows the 16-year-old patient126 gaining access to the nurses’ station at about 0024:28 [12:24 a.m.] by diving over the opening above the counter separating the nurses’ station from the Turtle Cove unit and physically attacking RN RO within the nurses’ station.127 (Tr. 156; Exs. 8, at 524 [bottom] at “B,” at 525, 527 [top photo at “A” and bottom photo], Ex. 28.) A struggle ensues as RN RO and primarily two other staff members try to physically restrain the youth patient behind the counter inside of the nurses’ station.128 The video shows the youth patient stabbing RN RO using either scissors or a pen from the counter of the nurses’ station. (Tr. 159-67; Ex. 28.) At 0026:46 [12:26 a.m.], the video shows an RN going into the “med room” to get a chemical restraint to be administered to the youth patient by a needle to sedate him. (Tr. 160-66; Ex. 28.) At about 0026:55 [12:26 a.m.], the video shows a MHT using her cell phone to call local law enforcement. The chemical restraint medication was given to the youth patient while he was on the ground behind the counter by about 0030:40 [12:30 a.m.]. The video shows three uniformed police officers arriving at the nurses’ station at 0031:10 [12:31 a.m.] and thereafter subduing the patient. (Tr. 162-66; Ex. 28.) The RN RO Attack video ends at 0032:59 [12:32 a.m.], August 9, 2017. (Tr. 166-67; Ex. 28.) The law enforcement officers took the youth patient into custody. (Tr. 165-66; Ex. 28.) The Incident/Investigation Report stated: “At the request of Suncoast staff,” the officers removed the patient from Suncoast and “transported [him] to Centerstone due to lack of man power to deal with [him].” (Tr. 2516, 2705; Exs. 4 at 300, 60 at 1675; Sec. Br. 13-14.)

Many employees described the serious injuries they received while working at the facility.129 Employee injuries constitute at least prima facie evidence that the hazard was likely to cause death or serious injury. See e.g., Usery v. Marquette Cement Mfg. Co., 568 F.2d 902, 910 (2d Cir. 1977); Pepperidge Farm, Inc., 17 BNA OSHC 1993, 2003 (No. 89-0265, 1997) (considering injuries to employees when assessing whether the hazard was recognized and capable of causing serious physical harm). RN RO worked at the facility as a RN from its opening in 2014 and left four years later. (Tr. 464-65.) He was violently attacked in separate incidents occurring on May 23, 2017 and in the RN RO Attack. (Tr. 167, 467, 1260-61; Exs. 4, 27-28, 56, 60.) In one of the attacks, a patient punched him in the neck and face, then headbutted him in the right temple.130 (Tr. 1270; Ex. 56.) He described the incident as “a long, grueling, bleeding, wrestling match on the floor.” (Tr. 501.) He was “really dazed” and “out of it” when the police arrived, and there was finally enough help to restrain the patient. (Tr. 1261, 1265.) RN RO was evacuated to the hospital, where he was diagnosed with a concussion and neck injuries. (Tr. 478, 481, 1260-61, 1264-65; Ex. 56.) His injuries took months to heal. (Tr. 478-79, 514-15.)

That attack was not RN RO’s only experience with workplace violence at Suncoast that caused him serious physical harm. Two months later, as discussed above, another patient leaped over the nurses’ station and stabbed him in the neck and face with a pair of scissors. (Tr. 499-500; Ex. 28.) He was wounded and suffered another concussion. (Tr. 511-12.) He required stitches and suffered multiple bruises “through the body.” (Tr. 170; Exs. 4, 60.) Besides stabbing RN RO, the patient also stabbed a supervisor in the leg during this incident. (Tr. 644.)

A second RN described similar experiences with workplace violence at Suncoast, including being attacked by a patient twice in a single month. (Tr. 878.) During the second incident that occurred on November 22, 2016, RN VG was kicked with sufficient force that she fell over backwards. (Tr. 878, 893-94.) The incident left her with a broken hip and multiple broken ribs. (Tr. 889-91.) As discussed, RN VG was hospitalized, had surgery, and was sedated for eight days before being transferred to a rehabilitation facility. She returned to “light duty” on February 14, 2017 after missing 91 days of work. She was on transferred or restricted work for 21 days. (Tr. 884-907, 933-46; Ex. 7 at 400, Ex. 49.)

On March 18, 2018, an aggressive, combative, and defiant patient tried to instigate fights with other patients while pacing up and down the hallway. Staff escorted the patient to her room, where she spit on staff and kicked RN NH in the middle of her back while she was “attempting to secure the patient’s legs in the restraint.” RN NH suffered “Back swelling, bruise or pain from direct blow to the back.” (Tr. 2210-13, 2226-36; Ex. 68.)

Risk Management Worksheets and RSOs describe multiple injuries related to the cited hazard that occurred on the same date. At 1:45 p.m., April 9, 2018, a patient bit RN ED’s lower right forearm in the Turtle Cove unit. The bite wound was “2cm long and broke skin.” At 2:33 p.m., April 9, 2018, an irritated and physically aggressive patient attacked staff and hit a staff member in the eye. (Ex. 70 at 2415-22, 2467-69.) At 6:00 p.m., on April 9, 2018, a patient kicked staff member LB in her left knee at the Turtle Cove unit. At the same date, time, and location, a patient bit MHT MG’s left hand. (Tr. 2725; Ex. 70.) Later, at 8:55 p.m., a patient kicked, hit, and bit staff in his room and continued to try to do so after being placed in a seclusion room. (Tr. 2724-25; Ex. 70 at 2407-14, 2470-73, 2500-01.)

MHT MM #2 described at trial three other separate attacks that occurred on April 9 and April 11, 2018, shortly before the Citation’s issuance. (Tr. 232.) A patient’s violent actions led to MHT MM #2’s serious injuries. (Tr. 232-41; Exs. 32-33, 70-71.) As discussed in Section III.C, on April 9, 2018, at about 6:15 p.m., MHT MM #2 was kicked in the right shin and bitten on the right forearm. (Tr. 233-36; Ex. 70 at 231.) Later that evening, the same patient kicked supervisor LB in her left knee and slapped her on the arm. (Tr. 238-39; Ex. 70 at 223). On April 11, 2018, at 6:58 p.m., a 13-year-old female patient elbowed MHT MM #2 in the throat and scratched her right forearm.131 (Tr. 2725; Exs. 32, 71.) At trial, MHT MM #2 narrated two videos taken from two cameras on April 11, 2018. The videos show a patient elbowing MHT MM #2’s throat and scratching her right forearm at 6:58 p.m. and minutes later at about 7:10 p.m. kicking while three staff members held the patient down. (Tr. 250-58; Exs. 32-33.)

More witnesses described punches, kicks, bites, shoves, and violent threats.132 (Tr. 233-34, 625-27, 632-33, 702-4, 848-49, 1047-48, 2145-48.) Some of these attacks left employees with bruises, concussions, and in need of hospital care. (Tr. 1047-48.) Respondents’ records also refer to injuries to vulnerable areas of the body, such as the eyes. (Exs. 9, 35, 54, 70.) See Vanco Constr. Co., 11 BNA OSHC 1058, 1059-61 (No. 97-4945, 1982) (discussing the significant vulnerability of eyes). The CO explained how many of the injuries employees suffered because of workplace violence required days off, restricted work, or job transfers. (Tr. 180-84, 187-88; Ex. 7.) In other words, the injuries were severe enough that the employees were unable to fulfill their typical duties. (Tr. 180-84, 187-88; Ex. 7.)

In addition to this evidence about the serious physical harm the hazard caused and was capable of causing, the Secretary also offered expert testimony supporting his claim. (Tr. 1526, 1657-58; Ex. 81.) Dr. Lipscomb noted that concussions, broken bones, a dislocated shoulder, torn knee muscles, a broken pelvis, and other injuries were serious physical harm. (Tr. 1657-58.) She concluded that the cited hazard was causing serious physical harm.133 (Ex. 81 at 1; Exs. 36-78.) In her report, RN Cooke characterized workplace violence events at Suncoast as resulting in “minor” injuries. (Ex. 254 at 3.) At trial, however, she clarified that many of the injuries suffered were not minor. (Tr. 3193.) She agreed that broken bones, punches to the neck, stabbings with pen or scissors, and bites that leave permanent marks were not minor injuries. Id. The Secretary showed that the hazard caused and was capable of causing serious physical harm.

Having shown that the worksite had a recognized hazard capable of causing serious physical harm to employees, the Secretary must then establish that the employer failed to render its workplace free of the hazard. There is no dispute that the hazard remained in the workplace throughout OSHA’s investigation and beyond. However, the requirement to have a workplace free of recognized hazards is limited to preventable hazards. Nat’l Realty & Constr. Co., Inc. v. OSHRC, 489 F.2d 1257, 1265-66 (D.C. Cir. 1973). When an employer has already undertaken methods to address a hazard, the Secretary must show that those methods were inadequate. U.S. Postal Serv., Nat’l Ass’n of Letter Carriers, 21 BNA OSHC 1767, 1773 (2006).

Respondents argue that it took several actions to address the hazard and that their measures were adequate to address it. (Resp’t Br. 43.) Respondents had a WVPP, which included written policies and training. (Exs. 10-11; Resp’t Br. 44-48, 60-63.) According to Respondents, its WVPP was not a standalone policy “but encompassed a number of different policies and procedures.” (Tr. 3108-21; Resp’t Br. 44-45; Ex. 264 at 4-5.)

The Secretary counters that Respondents’ abatement was inadequate both as conceived and as implemented. See Integra Health Mgmt., Inc., 27 BNA OSHC 1838, 1849 n.14 (No. 13-1124, 2019) (indicating that the threshold question is whether the employer’s abatement was inadequate). As addressed below, the Secretary showed the significant gap between how Respondents said they mitigated the hazard and what occurred at the facility. Respondents relied heavily on the testimony of two senior employees, CEO Hamilton and Risk Manager Curl. Frequently, documents or employees’ experiences at the facility did not support Respondents’ claims. See Kaspar Wire Works, Inc., 18 BNA OSHC 2178, 2182, n.12 (No. 90-2775, 2000) (finding that while witness claimed her recordkeeping practices remained unchanged the claim was belied by data), aff’d, 268 F.3d 1123 (D.C. Cir. 2001); BHC, 951 F.3d at 565 (discussing the disconnect between stated policies and actual practices before upholding a citation for violating the general duty clause).  Overall, the Court found the front-line workers' testimony more credible than that of CEO Hamilton or Mr. Curl. Both CEO Hamilton and Mr. Curl gave evasive or incomplete responses, and this, coupled with their demeanor during their testimony, undercut their credibility. In addition to evidence about the inadequacy of Respondents’ abatement put forth at trial, as a sanction, the Secretary is entitled to a finding that the destroyed videos would have supported his claims about the abatement’s inadequacy.134

The number of injuries at the worksite far exceeds the industry average for other similar facilities. (Exs. 7, 36-40, 42-52, 54-61, 63-71, 78.) The CO reviewed records of injuries from workplace violence incidents. (Tr. 180-84, 187-88; Ex. 7.) Suncoast had more injuries from workplace violence alone than other similar facilities had for all causes of injuries.135 (Tr. 187; Exs. 7, 9, 35-40, 42-52, 54-61, 63-71, 78.) Further, the data Respondents provided to the CO to make this calculation undercounted the total number of injuries. According to the OSHA-300A and EARs, there were ten injuries from patient aggression in all of 2017.136 (Ex. 9 at 318.) For the first six months of the following year, 2018, minutes from the EOC committee indicate fifteen injuries from patient aggression. (Ex. 35.) Further, multiple employees discussed how only significant injuries were recorded. Being hit, slapped, or having something thrown at you were considered “small incidents,” which routinely went undocumented. (Tr. 846, 1041.)

Higher than average injury rate is a relevant measure of the sufficiency of Respondents’ program. SeaWorld, 748 F.3d at 1215 (existing safety procedures held inadequate where evidence showed employer’s training and protocols did not prevent continued injuries). Injuries and incidents are not dispositive, but they do support the Secretary’s claim that the abatement methods as implemented were inadequate.

Respondents, in their brief, allege that their abatement included: (a) written policies; (b) management commitment to those policies and employee participation in patient care; (c) worksite analysis, hazard identification, prevention, and control; (d) post-incident debriefings; (e) program evaluation; (f) training; (g) staffing, and (h) relationship with local law enforcement. (Resp’t Br. 45-48.) No single document described these things as comprising the WVPP. Nor did any witness list the elements of this program in a single explanation of the facility’s response to the hazard.

Instead, after being led by counsel, Respondents cited bits of various documents and policies in an attempt to claim that the cobbled-together collection was a comprehensive and effective approach to abating the cited hazard. The record reveals the Respondents’ WVPP to be an after-the-fact scattershot attempt to claim they had adequate policies and procedures for a known serious hazard. The program was not implemented as written, not backed by a commitment to the policies or employee participation in addressing the hazard, and not guided by sufficient analysis. (Ex. 81 at 18.) The clinical policies and procedures Respondents claim show adequate abatement focus on individual patient aggression without sufficiently addressing employee injuries, risk factors, and post-incident corrective measures. Id. At bottom, Respondents did not have the workplace violence prevention program they claimed they did. See BHC, 951 F.3d at 567 (emphasizing policy implementation when assessing whether a facility effectively abated the hazard of patient on staff violence). Instead, the incomplete implementation and insufficient staffing rendered the WVPP ineffective and led to additional actual and potential injuries. (Tr. 1945-46; Ex. 81 at 18.)

The written program directly concerning workplace violence included a short generic Workplace Violence policy and a collection of PowerPoint slides from a training program titled “Preventing Workplace Violence” (“UHS PowerPoint”).137 (Exs. 10-11; Stip. 14; Ex. 92 at 17, Response to Interrogatory (Resp. to Int.) No. 5.)

The Workplace Violence policy’s stated purpose is to guide “supervisors.” (Ex. 10 at 654.) In the event of an act of violence, the policy directs employees to “call the Security department and/or 911.” Id. at 656. The document does account for the fact that there was no such security department at Suncoast to call. (Tr. 1807.) Further, employees received conflicting information about whether utilizing 911 was appropriate and repeatedly delayed doing so. (Tr. 423, 891, 900, 907.) The RN RO Attack illustrates this confusion. In the midst of trying to protect himself and his co-workers from a violent patient, RN RO asked his supervisor to call 911 early on in the incident. She initially refused to do so. As the situation developed, she eventually called 911. The delay wasted critical time. (Tr. 100, 424, 464-65, 478-79, 489-507, 512, 563, 641-43, 1045, 1064; Exs. 4, 28, 60.)

RN VG described a separate incident where a different RN supervisor, Mr. Haider,138 neglected to timely contact 911 following a serious workplace violence incident. (Tr. 891, 900, 907.) RN VG described how, after being badly injured by a patient, Mr. Haider and others were just “standing over me” in the hallway. (Tr. 891, 900.) She continued, “Nobody was helping me. I knew I was hurt badly.” Id. She indicated remaining on the floor for “a good 30 to 40 minutes.” After “quite a while” and not “done immediately,” Mr. Haider eventually called 911. (Tr. 907.) It then took ten minutes before law enforcement arrived. Id. Cf. Dukane Precast, Inc. v. Perez, 785 F.3d 252 (7th Cir. 2015) (citing the failure to timely call 911 to assist an injured employee as support for willful characterization).

The Workplace Violence policy also called for reporting acts of violence engaged in by employees or non-employees “to the proper authorities and prosecuted to the fullest extent of the law.” (Ex. 10 at 654, 657.) Respondents did not adhere to this policy.139 Critically, the Workplace Violence policy fails to directly address patient-on-staff violence, which is by far the most prevalent type of workplace violence at Suncoast. (Ex. 10; Tr. 111-12, 193-94, 1668, 1817.)

Respondents argue that the UHS PowerPoint supplemented the Workplace Violence policy. (Resp’t Br. 3-4.) The UHS PowerPoint cites violence by patients as a form of workplace violence and refers to elements of the facility’s Workplace Violence policy. It states, “Most aggressive or violent events are caused by patients.” (emphasis in original) (Ex. 11 at 660, 666.) Like the Workplace Violence policy, the UHS PowerPoint states that the facility has “zero tolerance for violence of any kind” and applied to both employees and patients. (Exs. 10, 11 at 662-63, 672.) Employees explained that these claims of a “zero tolerance” policy were “a joke because patients are … acting out in a violent way towards staff. … it’s tolerated.” (Tr. 1668.) Respondents do not have an effective zero-tolerance policy for patient on staff violence. (Tr. 197, 624-25.)

The UHS PowerPoint also proclaims that a “key” component of the facility’s Workplace Violence policy is reporting threats of violence and investigating and addressing threats of violence. (Ex. 11 at 662.) It says supervisors are to report “individuals whose behaviors may pose a potential threat” and relay “reports of fear from employees.” Id. at 664. Despite this clear language, the obligation to report threats was neither sufficiently conveyed to employees nor practiced. (Tr. 1708-09, 1716-17.) As an illustration, Respondents identified another training document as part of their WVPP, the UHS Behavioral Health Risk Management All Staff Orientation for Remote Data Entry (RDE) Facilities (Risk Management All Staff Orientation) PowerPoint. The document lists out fourteen situations when employees should complete an incident report, but none refer to threats of violence.140 (Ex. 243 at 4283.) As one employee explained about threats, “if I was supposed to document it, I wasn’t made aware.” (Tr. 2218.) Threats of violence by patients against employees occurred “all the time,” both verbally and in writing. (Tr. 704-5, 833, 1674-75, 2176-77, 2216-18.) Employees testified about being threatened more times than they could count. (Tr. 1093-94.) When MHT BG reported receiving two separate threatening notes from a patient in June 2017 during the same shift written in blood, her nursing supervisor, “VL,” was dismissive and told her to “hang it on the wall next to their artwork.”141 (Tr. 627-33; Ex. 26.) BG explained that she stopped reporting threats because the DON would blame the employee or suggest she was not right for the job.142 (Tr. 634-36, 967, 1815.) Another employee confirmed that MHT BG had been threatened “multiple times on the unit.” (Tr. 715.) After another employee reported threats in writing to the CEO, no one ever came to discuss the incident with her. (Tr. 758.) Some threats included a male patient touching a female MHT working alone on the Ocean Unit, including a patient grabbing an employee’s thigh and making a sexually suggestive comment.143 She thought the patient was going to rape her. (Tr. 637-38, 653-54, 846-47; Ex. 25 at 1095.) Another employee explained that even though Respondents did not direct her to report threats, recognizing the importance, she would note threats in a patient’s paper medical chart if she had time. (Tr. 1094-95, 1815.) However, the Risk Manager neither tracked nor assessed threats documented in medical charts. Other employees did not even note threats or threatening behavior in the medical charts. (Tr. 882, 931, 1815, 2217-18.)

Threats of violence routinely went unreported. (Tr. 1674-75, 1815; Ex. 9.) The UHS PowerPoint recognized that reporting threats is a “key component” of the prevention program, but Respondents did not treat it as such. (Ex. 11 at 662.) The document proclaims: “all reports of violence will be treated seriously” and “will be investigated promptly and fully.”144 (Ex. 230 at 665.) The record bore neither statement out. Respondents dismissed reports of threatening behavior. (Tr. 227, 632-33, 2010-11.) Further, as evaluated in the section on incident investigation below, Respondents reviewed many violent events only briefly, and frequently the reviews did not include the injured employee.

By neglecting to discuss the type of workplace violence that occurred multiple times per month, the Workplace Violence policy was insufficient. While UHS PowerPoint supplemented this policy, significant employee confusion remained. Dr. Lipscomb particularly faulted how the written information was communicated to employees and Respondents’ failure to follow the policies. (Tr. 1731-33, 1740-42.) It did not appear as though employees were aware there was a WVPP. (Tr. 1668.) When the CO showed the written materials to employees, “they barely recognized those documents, and they were not familiar with the content.”145 (Tr. 199.) This lack of clarity on the WVPP led to, among other things, a practice of not reporting threatening behavior and a belief that employees should view enduring patient aggression as part of the job. The Secretary showed that the Workplace Violence policy and the UHS PowerPoint were not effective at abating the hazard.

In addition to the Workplace Violence policy and UHS PowerPoint, Respondents offered several generic policies, each of which they allege is part of their abatement.146 (Exs. 200-211, 238, 244-45; Stip. 14.) None of the referenced policies use the term “workplace violence.”147 Some of the documents included stated purposes that neither refer to employee safety nor workplace violence.148 (Ex. 206, 211, 244.) The documents are brief, with most including less than three pages of bulleted content. (Exs. 202-4, 207-8, 210-11.) They are directed at the clinical management of patients, not employee health and safety.149 (Exs. 81 at 14; Tr. 205-7, 210-19, 223-24, 405.) The policies only tangentially touch on the risks to employees and how to mitigate them. (Ex. 81 at 14-18; Ex. 83 at 10-11.)

Collectively the documents do not set out a comprehensive, coordinated, or site-specific approach to patient on staff violence. Id. They concern “how to deal with the different behavioral issues of the patients,” not worker safety. (Tr. 403-5.) Further, when shown the documents that allegedly made up the WVPP, employees did not recognize them or “were not even aware that those documents existed.” (Tr. 404-5, 1688.)

The Secretary argues that management was not committed to implementing their WVPP and failed to engage employees on mitigating the hazard. Dr. Lipscomb described management commitment as a “foundational element” for an effective WVPP. (Tr. 1666.) Respondents did not adequately solicit information from direct care staff about the hazard or act on the information received. (Tr. 1665-66.) Employees described times when they reached out to the CEO, the DON, or the Director of Risk Management with concerns about how Respondents addressed the hazard. (Tr. 649, 765-69, 1666; Exs. 24-25.) The requests to better address the hazard were, at best, ignored, and regardless of the response given to the concerns, the Respondents did not implement any meaningful changes to mitigate the hazard better. (Tr. 273, 299-300, 522, 569-70, 880, 1947, 1665-69.)

Whenever one RN raised staffing concerns with the DON or the CEO, she was either told that staffing was adequate or that they were hiring more.150 (Tr. 1382-83.) The promises about more staffing went unfilled. RN ET testified that the staffing situation only worsened. Id. RN BF said Suncoast actually “cut staffing” by combining units putting depressed, anxious patients in with psychotic patients so that Suncoast could cut both a nurse and MHT position.151 (Tr. 1283-84.) MHTs asked for more staff during bi-monthly MHT meetings with management following the RN RO Attack, but “nothing ever changed;” except extra staff was added for shifts that worked when the Joint Commission was visiting Suncoast. (Tr. 268, 273-74, 293-95, 299.) MHT MM #2 testified that she left Suncoast partly because she “didn’t feel there was enough staff and it made me feel unsafe.”152 (Tr. 299-300.) MHT VN testified that “there’s too much safety issues that there’s not enough staff.” (Tr. 998.) RN BF said she was concerned about both safety and staffing at Suncoast, and that they were “absolutely” related. (Tr. 1284.) Night Supervisor RN CC153 testified:

Q. Why is there so much turnover, do you think?

A. A lot of people feel the place is unsafe. They have worked psych before, and they just are appalled by our numbers and how we don’t act until somebody has been hurt. And just really the numbers, that there is 1 tech per 20 on each unit at night.154 And they just get scared. Something happens, and they just don’t want to be in that environment. (emphasis added)

(Tr. 1497.) When asked during cross examination immediately following whether she felt safe at Suncoast, Night Supervisor RN CC stated, “There are nights I feel very unsafe there.” (emphasis added) (Tr. 1498.)

In late 2018, RN VL wrote the CEO repeatedly about being threatened while alone in the intake area where new patients typically first enter the facility.155 (Tr. 753-62, 2589-90; Ex. 24.) A patient dropped off by the police threatened to kill a “human being” and was making a fist at her. (Tr. 764-65, 2589; Ex. 24.) She had no “back up” and could not get assistance from the staff on the units even after multiple requests. (Tr. 756, 2589, Ex. 24.) The CEO only responded by saying she should make the supervisor “aware” and never followed up in person. (Tr. 765; Ex. 24.) RN VL also attempted to follow up with Mr. Curl, but no changes were made. (Tr. 765.) RN RO also suggested improving the limited staffing to management multiple times until he was “severely scolded” by the DON for raising the issue. (Tr. 522.)

Similarly, on March 12, 2017, MHT BG wrote to Mr. Curl explaining how she did not feel safe at work because, among other reasons, she had been alone for at least part of every shift since she started.156 (Tr. 649-50, 678; Ex. 25.) This practice contradicted her training, during which she was told she would never be alone on a unit.157 (Tr. 637, 649-50; Ex. 25.) She described an incident when, while she was alone on the unit, a male patient grabbed her thigh, and she feared sexual violence. (Tr. 652-53; Ex. 25.) She indicated that staffing was insufficient at night and requested a different work shift with a higher staff to patient ratio. Id. She stated that the staffing issue “needs to be resolved because it’s unacceptable to feel like our safety is not a priority. I know this issue probably comes down to money but it’s unethical to have your staff at risk.” (Ex. 25 at 1094.)

Rather than address any of her concerns, in a response dated March 13, 2017, Mr. Curl told her that sharing “grievances with peers and co-workers accomplish[es] nothing other than spreading insecurities and frustration.” (Tr. 678-79; Ex. 25 at 1093.) Neither he nor any other supervisor addressed the concerns she raised in writing. (Tr. 655.) Instead, Mr. Curl informed her that she could either continue working the same shift with the same limited staffing or notify the company she was quitting. (Tr. 653, 686; Ex. 25.) When DON Sweeney discussed MHT BG’s March 13, 2017 email to Mr. Curl with RN BF about insufficient staffing and workplace violence, the DON was also unresponsive, wondering “where do these girls get off” and stating that “they need to know their place.” DON Sweeney told RN BF that the patients “aren’t serious about hurting you. They’re not going to hurt anyone.” (Tr. 1279; Ex. 25.) Rather than take her safety concerns seriously, CEO Hamilton counseled MHT BG to find other work, telling her, “You don’t have to be here if you don’t want to be here.”158 (Tr. 646, 686, 1278-79; Ex. 25.)

Respondents argue that employees could attend UHS-PSC and EOC committee meetings. (Tr. 2573, 2761.) They claim that employees did not attend such meetings because they did not want to do so. However, eight different employees testified they were unaware these committees existed and were not invited to attend.159 (Tr. 274-75, 764, 866, 915, 996, 1057, 1147, 1185-86.) The UHS Risk Management All Staff Orientation discusses the UHS-PSC. (Ex. 243 at 4302-5.) It does not discuss its meetings being open, or that staff can attend. Id. Nor was the information from these meetings shared. Indeed, members of the UHS-PSC “must sign a confidentiality agreement.” Id. at 4305.

Mr. Curl attempted to dispute this well-corroborated testimony about employees being unaware of their ability to purportedly attend the UHS-PSC and EOC meetings, arguing that the CEO sent memos to encourage employees to attend the UHS-PSC meetings. (Tr. 2761.) His testimony is rejected as the CEO herself explicitly acknowledged there were no memos or written invitations. (Tr. 2572-73.) She also testified that no direct care employees generally attend either the UHS-PSC or monthly performance improvement meetings.160 (Tr. 2531, 2571-72.)

Mr. Smith, a former MHT and trainer at Suncoast, indicated he created a staff resolutions committee with about four staff members, but it met only three times over four years with either DON Sweeney or Charlotte Klear as host.161 (Tr. 1504, 2094, 2198-2200, 2206-07.) He also claimed that minutes were created for these meetings, but Respondents did not produce any in response to the Secretary’s relevant discovery requests. (Tr. 2205-6; Ex. 92.) There is no documentary evidence that this committee engaged employees about how to address workplace violence.162

Multiple people described management’s lack of commitment to addressing the hazard or engaging direct care workers to reduce it. (Tr. 227-28, 513-14, 649, 764-65, 863-66, 1279, 1348-52, 1382-83.) Workers told the CO that sometimes they were not asked how they were doing after experiencing workplace violence. (Tr. 217.) Employees sought assistance from management on addressing the hazard both verbally and in writing. (Tr. 514; Exs. 24-25.) Their safety requests were dismissed or ignored. (Tr. 522, 996-97, 1665-69.) Occasionally employee concerns about the hazard were at least acknowledged, but Respondents took no meaningful actions.163 (Tr. 569-70, 1382-83.) RN RO described how people were “constantly” quitting “because of the excessive danger of working” at Suncoast. (Tr. 513-14.) He noted multiple occasions where two MHTs had to handle safety for all three different facility wings due to short staffing. (Tr. 514.) He suggested ways to address the chronic shortage but, as he explained, “So no one cared. No one did anything to try to improve the situation. I had begged several administrators to hire … some large … techs to keep us safe, because everybody around me is quitting. My other supervisor, he quit and left. He said it was too dangerous to work there. And no one seemed to care about the risk involved.”164 (Tr. 513-14, 556.)

Dr. Lipscomb found that despite Respondents’ claims that they sought employee input on addressing the hazard, “there was no strategy” for engagement. (Tr. 1670, 1947.) Even if employees were aware of the meetings, employees “didn’t see any point” in attending because their prior efforts to engage with management on the hazard had not been successful.165 Id. “The various committee structures do not assure direct worker participation.” (Tr. 1669-72; Ex. 81 at 18; Sec. Br. 93-97.) The failure to engage employees rendered Respondents’ abatement ineffective because employee participation is an “essential” element to an effective WVPP. (Tr. 1670-72.) Reducing patient on staff assaults requires direct care staff involvement because they are the ones constantly with the patients. (Tr. 1670-71.)

Respondents allege that throughout a patient’s stay, “there is attention paid to analyzing and identifying risk factors.” (Resp’t Br. 46.) They indicate the use of multiple methods to address patient aggression, starting with the intake procedures, continuing with developing and updating treatment plans, and the routine observation of patient behavior. Id.

The Secretary showed severe flaws in the intake procedures and the efficacy of the observation rounds as conducted. In addition, although nurses’ workstations were the location of many staff injuries, Respondents failed to make safety changes facility-wide to mitigate the hazard.

Respondents allege that the intake assessment procedures were designed to identify patients more likely to engage in aggression. Id. They claim these procedures analyze and identify “risk factors related to individual patients” and that they use the procedures to develop patient treatment plans. Id. Where Respondents’ approach significantly falters is in conveying information about aggression to employees. For instance, there are no medical files available in the intake department and no system to promptly see a patient’s history of violence. (Tr. 720, 1112-13; Sec. Br. 65.) Employees could only access insurance information, date of birth, and the number of prior admissions. (Tr. 1112-14, 1600, 2357.) When asked how a person working in intake would know if an incoming patient had a violent history, the intake RN bluntly explained, “You don’t.” (Tr. 720.) Although information about past episodes of aggression might be available in paper files located elsewhere in the facility or off-site, frequently, only one person was working in the intake department, and the individual could not leave the area to go to the medical records storage area.166 (Tr. 1108-10, 1113, 1660-61, 2061.)

In intake, one employee was typically alone with patients for extended periods, with no way of knowing whether the individual was “one of the most assaultive patients” in the facility’s history. (Tr. 719, 754, 1107, 1115-16; Ex. 24.) For example, it was not until she was relieved for a bathroom break that an employee learned that one of the patients she had been handling was previously extremely assaultive. (Tr. 1116-17.) During the RN’s initial assessment, the patient did not explain her violent history. Id. The RN had no way of knowing this history until the supervisor happened to recognize the patient’s name.167 (Tr. 1117-18.)

After intake, staff brought patients into the units. When a patient’s violent history was not identified in intake, direct care employees would not have this information, even if the patient had previously assaulted staff. (Tr. 229-30, 722, 1360.) This was not a theoretical risk. Two MHTs were injured by patients who had previously assaulted other employees. (Tr. 234-35, 971-72; Ex. 70.) A patient threatened the MHT early in the shift and then later injured her. (Tr. 971-72.) The MHT explained that if she had been promptly informed of the patient’s violent history, which included breaking a caregiver’s jaw, she would have insisted on additional precautions after the first time the patient threatened her. (Tr. 972.)

Rather than going through intake, some patients were direct admissions, meaning that the facility had already agreed to accept them into the hospital upon arrival. (Tr. 229-30, 722, 1360.) Staff brought such patients directly to the units. (Tr. 722, 1360.) Employees working in the units would have no information on the history of violence until after assessments were completed. (Tr. 231-32, 722-23, 829, 1360; Sec. Br. 66.) The patient could be in the unit for many hours before medical staff completed the assessments. (Tr. 829-30, 1112; Ex. 83 at 7-8.)

For example, it may take up to twenty-four hours before a patient is assessed by a psychiatrist, and other parts of the initial assessment can take up to 72 hours after admission. (Tr. 2319, 2743; Ex. 212.) The direct care staff is left to manage emergencies without the guidance of the more highly trained medical professionals. (Ex. 83 at 8.) Dr. Forman found this “particularly troubling” because intake and the initial part of hospitalization is when patient behavior is the most “unpredictable.” Id. In his view, the likelihood of a patient harming a staff member is highest during intake, and the first day at the facility. Id. at 6, 8. The delays in these assessments rendered them less effective at abating the hazard than Respondents claim. Id.

Respondents’ Workplace Violence policy and the UHS PowerPoint recognized the role of patient history in preventing workplace violence incidents. (Ex. 10 at 655; Ex. 230.) The Workplace Violence policy cites a “history of violent, intimidating or destructive behavior” as a characteristic that might be “indicative of posing a potential threat.” (Ex. 10 at 654-55.) The UHS PowerPoint explained that employees should know a “patient’s potential for violence and how to manage aggressive behaviors.” (Ex. 230 at 670.) Despite this recognition, information about patients’ past aggression, even if it occurred at Suncoast, was not consistently conveyed to employees directly caring for the patients. Employees in the intake department or coming from other units to assist would not see the precaution forms before having to interact with violent patients. (Tr. 522, 2945-46.) The Secretary showed that Respondents’ intake procedures, as implemented, did not adequately abate the hazard. (Tr. 1696-99; Ex. 83 at 7-8.)

Respondents indicate that their observation program of patients on the units is part of the WVPP. (Tr. 386, 2871; Exs. 5-6, 221, 233; Hamilton Dep. 60-61.) Under the program, patients can be assigned different observation levels. (Tr. 115, 2062-63; Ex. 6 at 264, 14, 208, 221.) The program calls for an employee to check patient behavior at least every fifteen minutes. (Tr. 2063, 2871-72; Exs. 6 at 264, 221.) This is referred to as “Q15 checks.” (Tr. 2062-63, 2871-72; Ex. 6 at 264.) Some patients are observed every five minutes, “Q5 checks,” if their condition warrants it. (Tr. 2063; Ex. 6 at 264.) Staff conducting the Q15 or Q5 checks follow a checklist that sets out particular “risk factors” to look for when observing the patients. (Tr. 529, 548, 2062; Ex. 221.) However, the checklist does not specify whether the patient has aggressed against staff during his or her current or previous hospitalizations. (Exs. 14, 56 at 1493, 1507-8.)

In addition to this deficiency, the Secretary also showed that aggressive or violent behavior often was not documented on the Q5 or Q15 checklists. The Secretary identified numerous instances related to the cited hazard where patient behavior recorded on the checklist was inconsistent with the discussion in the Risk Management Worksheet or EAR for the same time.168 (Tr. 911-14, 1100, 2841-42, 2852-53, 2872-83, 2887-89, 2898-2899; Exs. 36-77.) For instance, at practically the same time as an employee needed to restrain a patient for violent behavior, the Q15 checklist describes the patient as “cooperative.” (Tr. 2841-42, 2853, 2872-73; Ex. 39.)

Respondents audit the Q5 and Q15 checklists. During OSHA’s investigation, their audit records indicate that staff were not sufficiently observing sleeping patients. (Ex. 251 at 3719, 3758, 3779, 3806.) The audits also looked at whether the checklists appropriately noted patient precautions and whether the unit nurse signed the checklists. Id. The audits did not focus on overall accuracy or completeness. (Tr. 2006; Ex. 251.) The review focused on the creation of records, not their accuracy. (Tr. 2958-59, 3401.) Still, even with this limited review, Respondents found that only half of the checklists reviewed as part of the February 2018 audit (during OSHA’s investigation) identified the correct precautions, and only 38% were signed as their policy required.169 (Ex. 251 at 3791.)

Two of the checklists Respondents produced occurred after the issuance of the OSHA Subpoena for videos. (Tr. 2887-89; 2898-2899; Exs. 72-73.) As addressed in the Sanctions Motion discussion, had Respondents preserved video of these incidents, such evidence could have answered which document was correct, the checklist or the EAR. Considering the video destruction, Mr. Curl’s twisted hypotheses about how the checklists and the EARs could both be accurate is rejected. The Court credits the evidence that observation rounds, as conducted, did not sufficiently abate the hazard.

Dr. Forman also explained that Respondents near sole reliance on observation checks rather than the use of 1:1 assignments substantially reduced the effectiveness of patient observation as an abatement method. (Tr. 3391-95.) Respondents’ “Level of Observation/Patient Safety Rounds” policy set out three observation levels, fifteen-minute checks (Q15), five-minute checks (Q5), and 1:1 continuous observation. (Ex. 208; Tr. 2711.) Typically, when patients are identified as being particularly aggressive, a behavioral health facility will assign a single individual to remain within arm’s reach of that one patient so that they can monitor the patient closely and quickly intervene in the event of an escalation. (Tr. 1002, 1250, 1599, 2062; Ex. 83 at 10, Ex. 208.) Respondents rarely used such 1:1 assignments to manage patients.170 (Tr. 983, 1250, 3391-92; Ex. 83 at 10-11.) MHT VN indicated that “maybe once” she had such an assignment in her years at Suncoast. (Tr. 983.) In her recollection, even the patient identified as the most assaultive in the facility’s history was not assigned a 1:1. Id. According to Dr. Forman, this was yet another example of where “on paper” the policy was appropriate, but not as implemented. (Ex. 83 at 10.) He could find no clear examples of it being used. Id. In Dr. Forman’s view, given the acuity of the patient population and frequency of violent incidents, 1:1 assignments should be used much more frequently for the patient observation program to be an effective abatement. Id. Dr. Forman opined that more 1:1 assignments for high-risk patients “would materially reduce violence.” (Tr. 3402-04; Ex. 83 at 10-11.)

Dr. Forman concluded that while the record suggests patient checks were documented, this had little utility for abating the hazard because of how the policy was implemented. (Tr. 3395-96, 3399-3401.) He cited an MHT being punched despite the check form repeatedly indicating the calmest rating. (Tr. 3399-3401.) In Dr. Forman’s view, the form was false for that patient. (Tr. 3401.) Even when accurate, because Respondents relied solely on employees from the different units to respond to emergencies, an employee would often have to address an emergency without reviewing the Patient Observation information. (Tr. 529.)

RN Cooke also questioned the utility of Respondents’ patient observation rounds as abatement, albeit for different reasons than Dr. Forman. In her view, the purpose of the checks was to know that the patient was on the unit. (Tr. 3078.) She considered the round’s purpose to be “not even so much what they’re doing” but understanding that “we haven’t lost them.” Id. In her view, given the number of patients a single staff person is checking on, “there’s not a whole lot they can do, except make sure the patient is where they need to be.” (Tr. 3079.) There is no time “for a lot of interaction.” Id.

The Secretary showed that, as implemented, the Patient Observation Rounds were not effective at abating the hazard.

Respondents also suggest that the inability to access medical records and the deficiencies in the patient observation rounds checklists did not matter because staff communicated verbally with each other as they ended one shift and started another.171 (Tr. 1481, 1491.) The Secretary does not dispute that employees communicated during shift changes. (Sec’y Br. 162.) His contention is that this communication was inadequate because it only included patients on a single unit when direct care employees were tasked with responding to calls for assistance anywhere at the facility. (Sec’y Br. 162; Tr. 997-98.) They lacked critical information on patients in other units despite being tasked with providing security or other support when workplace violence incidents occurred. (Tr. 244, 474, 485, 493, 507, 566, 643, 831, 852, 882-83, 2225-26; Ex. 14 at 20.)

There was no flagging system to readily identify patients with a history of violence or those who presented a greater likelihood for violence. (Tr. 209-10, 244, 529, 643, 832.) Staff was often not informed that a patient had injured employees in the past, even if the prior incident had occurred at Suncoast itself. (Tr. 234, 474, 643, 832, 882-83, 971-72.) While violent histories might be in a patient’s medical file, employees explained that they had no time to review all patient files, which could be hundreds of pages for a single patient.172 (Tr. 244, 474, 493, 529, 831-32, 852, 2226.) Staff was responsible for all the patients in their unit as well as assisting other units when staff went on breaks or in the event of a violent incident.173 (Tr. 566, 860, 882-83, 885, 1567, 1689, 2307.) Even if the staff occasionally had time to obtain and review the file, it would not necessarily contain information about past incidents of violence. (Tr. 474, 644.)

CEO Hamilton testified that RNs used a “SBAR form” to inform the oncoming shift of a patient’s precaution level and status.174 (Tr. 2381.) However, completed forms were not provided in discovery to OSHA or offered at trial for inclusion into the record. It is also not clear when the SBAR forms started to be used.175 The Court finds that SBAR Forms were not in use at Suncoast on or before March 31, 2017. (Tr. 876, 926-27; Ex. 224.) Further, as one of the MHTs explained, RNs would exchange information outside of the unit. (Tr. 245-46, 364, 545.) MHTs, and other direct care staff, did not receive the same information as the nurses because they did not have the time at shift change to receive the information. Id. Information about whether a patient needed a higher level of precaution was not consistently conveyed accurately to the MHTs. (Tr. 288-91.) When shown the SBAR form, an MHT did not know what SBAR stood for and said that they were not trained on using or reviewing it. (Tr. 284-85; Ex. 224.) While this particular MHT, MM #2, “would try” to access this information, doing so was “not required,” and she would review the information only if she had a “chance.”176 (Tr. 245.) The SBAR forms were not particularly useful as a quick way to determine a patient’s status. (Tr. 1410, 1416.) This seriously undercuts CEO Hamilton’s claim that such forms were a significant part of Respondents’ WVPP.

Dr. Lipscomb also concluded that Respondents’ claims that a patient’s risk for violence was conveyed to direct staff were unsupported. Employees reported that they did not know anything about a patients’ history of violence before being assigned to care for him or her. (Tr. 1700-1.) She explained that orally conveying the information was not enough; it needed to be written down so it would not “somehow slip through the cracks.”177 (Tr. 1701.) When such information was conveyed in writing, employees who were not part of the oral briefing or who missed it would still be informed of the greater potential for violence. Id.

This failure to consistently and accurately convey violent histories reduced the effectiveness of Respondents’ abatement efforts. Dr. Lipscomb explained that “one of the most well-recognized risk factors for violence is a history of violence.” (Tr. 1699.) Respondents' failure to communicate this information to the frontline workers directly involved in patient care significantly undermined the abatement’s utility. Dr. Forman agreed, explaining that Respondents’ approach was insufficient to protect staff members from violent patients. (Ex. 83 at 10.)

“Leadership” or Administrator on Call (“AOC”) rounds were conducted on each of the three shifts, for a total of three rounds per week. (Tr. 1456-57, 1614, 2363.) They involved checking to ensure the patient observation checklists and assignment sheets were filed out and looking for issues. (Tr. 1989-90.) The night shift AOC rounds were “usually” done by video as opposed to in-person walkthroughs. (Tr. 2363.) Respondents assert that this was effective despite also arguing that several areas of the facility could not be seen on the videos and arguing that videos of incidents were not helpful. CEO Hamilton also claimed that staff conduct patient safety rounds on the units every day. (Tr. 2360-61.) No documentation regarding findings from these rounds was provided and no one tasked with conducting these rounds testified about them.

Respondents’ post trial brief also refers to “EOC rounds” as part of their abatement. (Resp’t Br. 20.) At trial, CEO Hamilton could not recall whether the frequency of these rounds was monthly or quarterly. (Tr. 2363.) Only one page of the meeting minutes from a single post-Citation meeting of the EOC committee is included in the record. (Ex. 35.) This document discusses the implementation of Supervisor Senior Leadership Observation rounds. Id. There are no documents in the record related to findings from these rounds during or before OSHA’s investigation. The record does not establish that the leadership and any other rounds, as conducted, sufficiently abated the hazard.

Respondents’ program directed employees to call a “code gray” when a patient was escalating and appeared at risk of injuring themselves or property. (Tr. 1977-79, 2402; Ex. 251 at 3780-81, 3787.) In actuality, the code gray procedures were rarely used or practiced.178 A code was not called on May 23, 2017 in an incident that occurred around 3:00 a.m. to 4:00 a.m. where RN RO’s supervisor, RN Lovett, telephoned him and asked to help medicate a patient that was yelling and acting out of control in his room.179 RN RO was not told anything about the patient’s medications. He “was just told to help try to get him to take some medicine that [RN RO] knew wouldn’t work.” RN RO told RN Lovett that the patient was “a very violent and dangerous guy” and “there’s a good chance someone’s going to be injured….” RN RO entered the patient’s room along with four or five other staff members.180 The patient immediately went “into a rage, yelling and cussing and threatening.” RN BF testified that the patient threatened her by saying “You know I could snap your neck right now, and I wouldn’t even care because I know there’s not a person in there.” (Tr. 1260.) RN RO moved over towards RN BF to protect her, and then the patient slammed RN RO on the head with his fist three times. Unable to medicate the patient, Supervisory RN Lovett told the staff to exit the room. The patient “came running out of the room at a full speed run” and “stated wailing on [RN RO], and he head butted [RN RO] and gave [RN RO] a concussion with his fist.” (Tr. 476.) RN RO said, “And one fist landed in my neck and my neck, the base of my neck area there, swelled up really huge and was very painful for about six weeks.” (Tr. 267, 471-80, 484-86, 530, 638-41, 851, 1044, 1259-62, 1268-71, 1309-13; Exs. 56, 81 at 22-24.) The patient on staff brutality continued in the hallway where the patient “locked his teeth into [RN RO’s] right forearm. So I’m bleeding all over the floor, ….” RN RO testified that the patient “was kicking and growling and slamming us with his head, so it was a violent wrestling going on for about 10 minutes, until the police came and handcuffed him and took him out.” RN RO said several staff members, including MHT BA, quit after this incident “saying it was far too dangerous a place to work.” (Tr. 476-82, 1260, 1268-70; Ex. 56 at 4277-78.) RN DL testified that the same patient that attacked RN RO on May 23, 2017 later told her that “he was going to kill me and do bad things to me.” (Tr. 1043-44.)