$800K deal reached over student who stopped breathing on bus (video)

Dennis Herrera, 37, gets upset as his wife, Lisa Herrera, 35, describes the relationship between their deceased daughter Isabella and her 5-year-old sister.
Dennis Herrera, 37, gets upset as his wife, Lisa Herrera, 35, describes the relationship between their deceased daughter Isabella and her 5-year-old sister.
Published Mar. 27, 2014

TAMPA — The Hillsborough County school district will pay $800,000 to settle the federal civil rights case of Isabella Herrera, a 7-year-old disabled student who died in 2012 after suffering respiratory failure aboard a school bus.

The deal marks the second time in four months that the district has agreed to pay hundreds of thousands of dollars to resolve claims over the death of a special-needs student, bringing the total to at least $1.3 million.

The School Board is scheduled to vote on the Herrera settlement at its meeting Tuesday. The agreement also must be approved by Hillsborough County Probate Court.

There was no comment from the district Wednesday. Dan Cotter, one of the attorneys for the family, said Lisa Herrera, Isabella's mother, will speak at the 3 p.m. board meeting. "She will answer any questions at that time," he said.

The settlement caps more than a year of litigation, in which attorneys for the family sought to prove the district's exceptional student education program was so lacking that it amounted to "deliberate indifference" and a denial of students' civil rights. The settlement means those questions will go unanswered.

A neuromuscular condition made it hard for Isabella to sit properly. Her parents allege that on Jan. 25, 2012, she was not positioned correctly in her wheelchair as she rode home from Sessums Elementary School in Riverview.

A video from onboard the bus shows the driver and aide did not call 911 as Isabella struggled to breathe. Instead, they tried to contact their supervisor, as was protocol, over a radio. When those efforts failed they called Lisa Herrera on a cell phone. She arrived and called 911, more than eight minutes after the incident began.

Isabella was unresponsive when she arrived at a hospital and died the next day. The family sued nine months later, shocking most members of the School Board, who did not know a child had died.

About a week earlier, on Oct. 22, 2012, Jennifer Caballero, an 11-year-old with Down syndrome, drowned in a pond behind Rodgers Middle School after she wandered unnoticed from a crowded gym class. Her family did not sue, but negotiated a settlement estimated at more than $500,000.

That the Herrera suit would survive as long as it did seemed doubtful at first. The district argued it was a negligence case. Such suits are tried in state court, where the award would have been limited under sovereign immunity to $200,000.

The Herreras' attorneys, however, sought to prove the case belonged in federal court because what happened to Isabella went far beyond negligence and was part of a larger pattern. Judge James S. Moody, Jr. rejected the suit at first, but gave the Herreras an opportunity to re-file it.

In their second suit, the attorneys cited incidents dating to 1999, when 10-year-old Eric Martin, who had attention deficit disorder, was dropped off at the wrong bus stop and killed by a passing car.

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They also cited the district's promotion in 2008 of Joyce Wieland to ESE general director despite her lack of specialized training and other cases of ESE students who were injured, some before Isabella died and some after.

In recent months, after four bus driver trainers complained publicly about lingering safety issues on the ESE buses, the lawyers tried to re-open discovery to depose them as well.

That issue had not yet been resolved when the two sides reached an agreement, the outcome making it impossible to know how a jury would have ruled.

After the two deaths in 2012, the district took steps to improve safety for special-needs students, both on the buses and in school. At a board workshop Tuesday, official described changes they have made in staff training and in the records they maintain on bus riders with special needs.

Nearly 500 medically fragile children ride school buses every day in Hillsborough, a number that has risen sharply in the last six years.