by Mark Wilson

On April 1, 2022, the federal court for the District of Oregon granted class-action certification to a suit brought by state prisoners accusing Gov. Kate Brown (D) and officials with the state Department of Corrections (DOC) of inadequate response to the COVID-19 pandemic.

The Court created two sub-classes of prisoners, those who tested positive and those who died after February 1, 2020. The “Damages Class” consists of all 5,319 prisoners who have tested positive for the disease so far. The “Wrongful Death Class” includes the estates of 46 prisoners who have died. Acknowledging Defendants’ argument “that potential wrongful death damages could range from ‘the low six figures to more than $20 million,’” the Court nevertheless agreed with Plaintiffs that a bifurcated trial is appropriate.

“This really is quite a groundbreaking order, and decision,” said Corene Kendrick, Deputy Director of the American Civil Liberties Union’s National Prison Project, who added that it could serve as “a model for advocates in other parts of the country where they are having similar problems.”

On April 6, 2020, attorneys with the Oregon Justice Resource Center filed the suit on behalf of Oregon prisoners, alleging that Gov. Brown and DOC officials were inadequately protecting them from COVID-19, in violation of their Eighth Amendment guarantee to freedom from cruel and unusual punishment. The suit was later amended to include negligence and wrongful death claims, as well.

On May 12, 2020, Plaintiffs moved for a temporary restraining order and preliminary injunction. The court denied that motion on June 1, 2020, but it warned: “There can be no reasonable dispute that Plaintiffs are at an increased risk of COVID-19 infection in prison, especially in light of their underlying medical conditions and age,” meaning it could well be that they also risk suffering “irreparable harm.” See: Maney v. Brown, 464 F. Supp. 3d 1191 (D. Or. 2020).

On August 3, 2020, Defendants moved for summary judgment, arguing they were entitled to qualified immunity. They also sought discretionary immunity on the state law claims. The Court rejected their motion on December 15, 2020. [See: PLN, Aug. 2021, p.50.]

On February 2, 2021, soon after Emergency Use Authorization was granted for COVID-19 vaccines, Judge Stacie F. Beckerman provisionally certified all state prisoners as part of a “Vaccine Class” and granted an injunction requiring DOC to offer them inoculation. [See: PLN, May 2021, p.30.]

Plaintiffs later moved to certify their two classes on May 3, 2021, a motion Defendants opposed. Following oral argument on February 14, 2022, Judge Beckerman issued her ruling.

Class Requirements Satisfied

Defendants did not dispute that the “numerosity” requirement of Federal Rules of Civil Procedure (FRCP) 23(a)(l) was satisfied by the 5,319 prisoners so far within the Damages Class. But they said the number of estates in the Wrongful Death Class was insufficient, an argument the Court rejected. The number of prisoners killed by the disease at the time—45—“supports a reasonable inference that the Wrongful Death Class will exceed forty members,” the Court said.

In fact, DOC now reports 46 prisoner deaths related to COVID-19.

The Court then found that Plaintiffs satisfied the “commonality” requirement of FRCP 23(a)(2) for both classes because “common questions of law and fact predominate in this litigation.” It also said FRCP 23(a)(3)’s “typicality” requirement was satisfied by the fact that “class representatives’ claims are ‘reasonably co-extensive’ with the claims of the putative class members.”

Next, the Court found that Plaintiffs’ choices of class representatives satisfy the adequacy of representation requirement of FRCP 23(a)(4), specifically rejecting Defendants’ argument to say that the “proposed representatives have demonstrated adequate knowledge and engagement in this case.”

Representing the Wrongful Death Class is Felishia Ramirez, the niece and personal representative of the estate of Juan Tristan, 58, who was rushed to a hospital emergency room with COVID-19, pneumonia and sepsis on December 26, 2020, though prison officials refused to tell his family “for security reasons.” It took a fellow prisoner reaching out to the family on January 18, 2021, plus calls to several hospitals, before they finally learned of his condition. He died four days later on January 22, 2021. [See: PLN, Mar. 7, 2021, online.]

Judge Beckerman then turned to FRCP 23(b)(3), rejecting Defendants’ argument that common questions can’t predominate because the COVID-19 response varied at each of Oregon’s 14 prisons. “Plaintiffs’ claims are based on Defendants’ centralized decision-making regarding COVID-19 policies, procedures, and decisions,” she noted, rather than on “facility-specific failures” for which “individual facility superintendents” were notably not named as defendants.

“Defendants’ arguments that Plaintiffs must prove which specific policy at a specific institution caused each class member to become infected with COVID-19 at a particular point in time misconstrues Plaintiffs’ theory of liability,” the Court concluded, noting the Ninth Circuit had recently affirmed class certification for similar alleged systemic civil rights violations related to Arizona prison healthcare decisions. See: Parsons v. Ryan, 754 F3d 657 (9th Cir. 2014).

The Court also found that Defendants’ reliance on product liability cases—Georgine v. Amchem Prod. Inc., 83 F3d 610 (3d Cir. 1996) and In re N. Dist. of Cal., Dalkon Shield IUD Prods. Liab. Litig., 693 F2d 847 (9th Cir. 1982)—was a misplaced attempt to defeat a predominance finding on the wrongful death claims, holding that “the disparities among class members and claims in the IUD and asbestos cases are not present here.”

“This case is not a ‘mass tort event’ that is ‘incapable of resolution on a class-wide basis,” the Court said.

Individual Damages No Bar
to Class Certification

Finally, the Court rejected Defendants’ attempt to defeat a predominance finding by focusing on the individual damage inquiries that will be necessary because “individual questions related to the extent of injury and amount of damages is not a proper ground for this Court to deny class certification.”

“There are now more than 5,000 potential Damage Class members, a number that may continue to increase leading up to trial,” the Court noted. “The vast majority of these individuals have not yet filed a claim, and many remain in custody. A significant percentage of the class members have only suffered mild symptoms, or no symptoms at all. The purpose of a Rule 23(b)(3) class action is to ‘overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights’ .. [and] … [t]hat purpose is satisfied here where individual litigation would be inadequate to satisfy each class members’ claims.”

The Court also agreed with Plaintiffs “that trial bifurcation will likely be appropriate here.” So in Phase One, the Court “will determine the common issues of liability, causation, the availability of punitive damages, common defenses, and the named class members’ compensatory damages,” while in Phase Two, if that is then necessary, the Court “will determine individualized damages for class members, but-for causation for the wrongful death claims, and whether individualized defenses apply to each class members.”

“[W]hether Plaintiffs and class members are entitled to punitive damages and the total amount of that award is a common question that can be adjudicated in Phase One,” the Court added.

Plaintiffs’ lead attorney, Juan Chavez, applauded Beckerman’s decision, noting that in response to the pandemic, the state “clung to mass incarceration when all of the health science pointed to decarceration as the answer for protecting lives.” He was assisted by Portland attorney Mark L. McAlpine of Alexander Meggitt, along with David F. Sugarman and Brittney Plesser of the Oregon Innocence Project and Franz H. Bruggemeier of Oregon Justice Resource Center. See: Maney v. Oregon, 2022 U.S. Dist. LEXIS 61930 (D. Or.). 

Additional source: Statesman Journal

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