Rogers v. Cook County et al
Filing
178
MEMORANDUM Opinion and Order signed by the Honorable Edmond E. Chang. For the reasons stated in the Opinion, the Plaintiffs' motion 153 for class certification is granted as to the Fourteenth and Eighth Amendment claims and denied as to the Am ericans with Disabilities Act and Rehabilitation Act claims. On the constitutional claims, the class definition is modified from the proposed classes as discussed in the Opinion. The parties shall confer on the class notice and class-notice plan; sha ll confer on the litigation plan going forward, moving on to the merits of the liability questions; and shall initiate settlement negotiations. The tracking status hearing of 12/11/2020, is reset to 01/15/2021, at 8:30 a.m., but to track the case onl y (no appearance is required, the case will not be called). Instead, the parties shall file a joint status report by 01/07/2021, proposing the next steps of the litigation. Emailed notice (mw, ) (Main Document 178 replaced on 11/30/2020, First page was missing) (mw, ).
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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KEITH ROGERS, et al.,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
SHERIFF OF COOK COUNTY and
COOK COUNTY, ILLINOIS,
Defendants.
No. 1:15-CV-11632
Judge Edmond E. Chang
MEMORANDUM OPINION AND ORDER
Keith Rogers, James Hill, and Wanda Hollins each had been on a methadonemaintenance program to treat their heroin addiction before being detained in the
Cook County Jail. Under the Jail’s mandatory methadone-taper policy, the methadone dosage was reduced until zeroed out. Now, they have filed a lawsuit challenging
that policy and moved for class certification on behalf of former Jail detainees who
were subject to the policy. For the reasons that follow, the certification is granted in
part, but the proposed class definition is modified. See In re Motorola Sec. Litig., 644
F.3d 511, 518 (7th Cir. 2011) (discussing a district court’s authority to modify the
class definition).
I. Background
The Plaintiffs challenge the methadone-taper policy that was in place at the
Cook County Jail until at least July 2017 (and perhaps even through October 2019).
Under the policy, the Jail imposed a linear taper on all non-pregnant detainees taking
methadone, eventually tapering down to a complete stop of methadone altogether. R.
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153, Pls.’ Mot. to Certify Class, at 2–4. Methadone is a medication commonly used to
treat opioid use disorder. See Exh. 18 to R. 153, National Academies of Sciences, Engineering, and Medicine, Medications for Opioid Use Disorder Save Lives, at 20. In a
linear taper, the dosage is decreased at regular intervals by a predetermined amount
(for example, by 7 milligrams per day). Exh. 15 to R. 153, Cermak Health Services
Policy G-06.1, ¶ 5(h).
The question at the heart of this case is whether opioid use disorder is best
treated by a stable maintenance dose of methadone (or other similar medications), or
by tapering medication over time with the goal of taking the patient off medication
entirely. Both approaches are advocated under various circumstances by experts in
addiction treatment. See Exh. 17 to R. 153, Amato, et al., Methadone at Tapered Doses
for the Management of Opioid Withdrawal, 2013 Cochrane Database of Systematic
Reviews (2013). The Plaintiffs challenge the Jail’s “linear taper to zero” policy as a
violation of the Fourteenth Amendment (for pretrial detainees) and the Eighth
Amendment (for post-sentencing prisoners), as well as a violation of the Americans
with Disabilities Act and the Rehabilitation Act. R. 153 at 2. Detainees with opioid
use disorder, they contend, suffer from a chronic medical condition that requires ongoing medication as the treatment. Id. The Plaintiffs assert that, during the taper
period, patients suffer from painful and difficult symptoms, including “anxiety, chills,
muscle pain (myalgia) and weakness, tremor, lethargy and drowsiness, restlessness
and irritability, nausea and vomiting and diarrhea.” Exh. 17 to R. 153, at 2. Plaintiff
Rogers, for example, alleges that he experienced severe pain, day-long bouts of
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diarrhea, sweats, and nausea while tapering. R. 153 at 5 (citing Exh. 4, Rogers Dep.,
at 29, 30, 36–37). Plaintiff Hill alleges that he had nausea, vomiting, diarrhea, and
trouble sleeping while tapering. R. 153 at 5–6 (citing Exh. 9, Hill Dep., at 15–16, 23).
And Plaintiff Hollins alleges that she had nausea, stomach cramps, and body aches,
and also felt cold while tapering. R. 153 at 6 (citing Exh. 13, Hollins. Dep., at 44, 45).
Beyond the immediate suffering caused by tapering, the Plaintiffs also allege
that the Jail’s taper-to-zero policy is harmful in the long run. R. 153 at 4. They cite
medical studies suggesting that tapering causes high rates of relapse, and that medication maintenance is the standard of care for opioid use disorder, especially for patients whose brain chemistry may have been permanently altered by prolonged opioid
use. Id. at 2. Therefore, the Plaintiffs argue, the Jail’s policy causes not only the shortterm harms of withdrawal, but serious longer-term risks including relapse and fatal
overdose. Id.
The Jail applied this policy to all non-pregnant detainees who had been in a
lawful methadone or opioid antagonist program before entering the Jail. Exh. 15 to
R. 153. (Pregnant detainees were allowed to maintain a consistent methadone dosage.
Id.) The linear-taper-to-zero policy was in place at the time Hill entered the Jail on
December 23, 2013, which is the proposed start date for the class. R. 153 at 5, 15. The
proper end date for any potential class is a matter of dispute. Cook County says that
“there was a significant change in policy in July 2017,” when it abandoned the universal linear-taper policy in favor of an individualized approach to each detainee’s
treatment. R. 157, Def.’s Resp. at 1. Cook County supports this contention with the
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declaration and deposition testimony of Dr. Stamatia Richardson, the medical director of the Jail’s opioid treatment program. See Exh. A to R. 157, Decl. of Stamatia
Richardson; Exh. B to R. 157, Dep. of Stamatia Richardson. But Dr. Richardson expressly testified that the Jail did not keep any records of this change in practice.
Richardson Dep. at 43. In contrast, the Plaintiffs argue that the class should extend
to October 7, 2019, when the Jail formally adopted a new written policy for opioid
treatment. R. 167, Pls.’ Reply, at 3. Under the Jail’s current policy, detainees lawfully
taking an opioid antagonist when they enter the Jail may take the same medication
dosage while in custody. Exh. 23 to R. 167, Cermak Policy G-07.1.
Other than the linear-taper policy’s end date, the basic facts are not in dispute.
Both sides agree that the Jail applied a linear-taper-to-zero policy to all non-pregnant
detainees who had been lawfully taking an opioid antagonist before their detention.
(Cook County, though, argues that each patient’s taper plan was individualized to
some extent; the plan was based on the detainee’s prior dosage and other considerations, such as individual health issues and whether the particular detainee was
likely, after leaving the Jail, to be incarcerated or instead to return to the community.
See, e.g., R. 157 at 3.) In their class-certification briefing, the Plaintiffs and the Jail
dispute the medical propriety of that policy—a merits question—and, of course,
whether the Plaintiffs’ challenges are suitable for class certification, or best brought
as individual suits.
II. Legal Standard
Courts usually should decide the question of class certification before turning
to the merits of a given action. See Wiesmueller v. Kosobucki, 513 F.3d 784, 787 (7th
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Cir. 2008). To be entitled to class certification, a plaintiff must satisfy each requirement of Federal Rule of Civil Procedure 23(a)—numerosity, commonality, typicality,
and adequacy of representation—as well as one of the subsections of Rule 23(b). Messner v. Northshore Univ. Health Sys., 669 F.3d 802, 811 (7th Cir. 2012) (citation omitted). “Failure to meet any of the Rule’s requirements precludes class certification.”
Harper v. Sheriff of Cook Cnty., 581 F.3d 511, 513 (7th Cir. 2009) (quoting Arreola v.
Godinez, 546 F.3d 788, 794 (7th Cir. 2008)) (internal quotation marks omitted).
“A class may be certified only if ‘the trial court is satisfied, after a rigorous
analysis, that the prerequisites of Rule 23(a) have been satisfied.’” Creative Montessori Learning Ctrs. v. Ashford Gear LLC, 662 F.3d 913, 916 (7th Cir. 2011) (emphasis
in original) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350–351 (2011)).
The named plaintiff bears the burden of showing by a preponderance of the evidence
that all of Rule 23’s requirements are satisfied. See Comcast Corp. v. Behrend, 133 S.
Ct. 1426, 1432 (2013); Messner, 669 F.3d at 811. The Court “must make whatever
factual and legal inquiries are necessary to ensure that requirements for class certification are satisfied before deciding whether a class should be certified, even if those
considerations overlap the merits of the case.” Am. Honda Motor Co. v. Allen, 600
F.3d 813, 815 (7th Cir. 2010) (citing Szabo v. Bridgeport Machs., Inc., 249 F.3d 672,
676 (7th Cir. 2001)); see also Dukes, 131 S. Ct. at 2551 (recognizing that class-certification analysis “[f]requently … will entail some overlap with the merits of the plaintiff’s underlying claim”). In the end, the Court has “broad discretion to determine
whether certification of a class-action lawsuit is appropriate.” Ervin v. OS Restaurant
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Servs., Inc., 632 F.3d 971, 976 (7th Cir. 2011) (internal quotation marks and citation
omitted).
Because plaintiffs have sought to certify this class under Federal Rule of Civil
Procedure 23(b)(3), the Court will first analyze the prerequisites of Rule 23(a), and
then make findings as to whether, as Rule 23(b)(3) requires, “the questions of law or
fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for
fairly and efficiently adjudicating the controversy.”
III. Analysis
A. Rule 23(a)
Federal Rule of Civil Procedure 23(a) contains four “prerequisites” to class certification: (1) “the class is so numerous that joinder of all members is impracticable”;
(2) “there are questions of law or fact common to the class”; (3) “the claims or defenses
of the representative parties are typical of the claims or defenses of the class”; and (4)
“the representative parties will fairly and adequately protect the interests of the
class.” Fed. R. Civ. P. 23(a)(1)–(4).
For Rule 23(b)(3) proposed classes, “courts have long recognized an implicit
requirement under Rule 23 that a class must be defined clearly and that membership
be defined by objective criteria rather than by, for example, a class member’s state of
mind.” Mullins v. Direct Digital, LLC, 795 F.3d 654, 657 (7th Cir. 2015). Though the
term “ascertainability” is sometimes used to describe this implicit requirement, the
Seventh Circuit has declined to impose the heightened “ascertainability” standard
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that some other circuits have required. Id. at 658. Essentially, “there is a ‘definiteness’ requirement implied in Rule 23(a).” Alliance to End Repression v. Rochford, 565
F.2d 975, 977 (7th Cir. 1977) (citations omitted); see also Simer v. Rios, 661 F.2d 655,
669 (7th Cir. 1981) (“It is axiomatic that for a class action to be certified a ‘class’ must
exist.” (citations omitted)). Beyond being required to evaluate the Rule 23(a) prerequisites, the definiteness requirement serves two more purposes. First, it alerts the
parties and the Court to the burdens that identification of the class might entail,
which is relevant to whether the proposed class action is manageable. Simer, 661
F.2d at 670. Second, ascertaining a definite class ensures that the parties actually
harmed by the defendants’ conduct will be the recipients of any relief eventually
awarded. Id.
The Plaintiffs have proposed the following class definition, see R. 153 at 9,
though now with an end date (that is, October 7, 2019):
All persons who (a) entered the Cook County Jail on and after December
23, 2013 or (b) opted out of, or are otherwise excluded from, participation
in Parish v. Sheriff, 07-cv-4369, and were, at the time of entry into the
Jail, lawfully taking an opioid antagonist, as defined in 42 C.F.R.
8.12(h)(2), who were not then on parole or held on a warrant from another jurisdiction, and who were not pregnant.
1. Numerosity
On the Rule 32(a) prerequisites, Cook County does not contest the numerosity
of the proposed class. Indeed, the Plaintiffs have shown that at least 1,090 detainees
were subject to the Jail’s methadone-taper policy during the relevant time period,
even if the end-date is July 2017 (when Cook County says the Jail discontinued the
mandatory taper policy); only around 137 detainees of the 1,090 are from the disputed
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time period. R. 153 at 10–11 (citing Exh. 19, List of Fully Tapered Detainees, Sept.
2013–Mar. 2019). This group is “large enough to make joinder impracticable and thus
justify a class action suit.” Arnold Chapman & Paldo Sign & Display Co. v. Wagener
Equities Inc., 747 F.3d 489, 492 (7th Cir. 2014). So numerosity is readily satisfied.
2. Commonality
On commonality, Rule 23(a)(2) requires that “there are questions of law or fact
common to the class.” To establish commonality, generally speaking the class representative must demonstrate that members of the class “have suffered the same injury.” Dukes, 131 S. Ct. at 2551. Put another ways, commonality requires that all of
the class members’ claims “depend upon a common contention” that is “of such a nature that it is capable of classwide resolution—which means that determination of its
truth or falsity will resolve an issue that is central to the validity of each one of the
claims in one stroke.” Id. In Dukes, the Supreme Court concluded that what is most
relevant to class certification “is not the raising of common ‘questions’—even in
droves—but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed
class are what have the potential to impede the generation of common answers.” Id.
(cleaned up).1
The Plaintiffs here argue that liability turns on one set of dispositive legal
questions, with no factual variation among them: whether the Jail’s tapering policy
opinion uses (cleaned up) to indicate that internal quotation marks, alterations,
and citations have been omitted from quotations. See Jack Metzler, Cleaning Up Quotations,
18 Journal of Appellate Practice and Process 143 (2017).
1This
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violates the Eighth Amendment, the Fourteenth Amendment, the Americans with
Disabilities Act, and the Rehabilitation Act. R. 153 at 11–12. Cook County argues
that this is not enough—that, even if the legal questions are common, the answers
they generate would not be, in large part because the class members’ injuries are
different. R. 157 at 8. Cook County makes the important point that the linear-taper
policy did not impose the same taper on all patients (rather, tapers were individually
calculated), and that patients’ symptoms during the taper period would have varied.
R. 157 at 8, 9.
Although the County’s concerns have some force, they are not enough to outweigh the other considerations that justify a finding of commonality. Indeed, the concerns are not all that unusual: a similar problem often arises in products-liability
cases, where each end user might have suffered a somewhat different injury. Yet
those cases are often certified as class actions; individual variability in injury is taken
into account at the damages, rather than the liability, phase of a case. See, e.g., In re
IKO Roofing Shingle Products Liability Litigation, 757 F.3d 599, 601–03 (7th Cir.
2014). The same goes for the concern that each taper was individually calculated.
Yes, the particular milligram-decrease reduction might have differed from detainee
to detainee. But the fact that every class-member detainee was subject to tapering—
and whether across-the-board tapering was lawful—presents a liability question that
can be answered with a common liability decision. Dukes requires a common injury
and a common answer only in the sense that class members’ injuries are all allegedly
caused by the same conduct of the defendant and can be answered with the same
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liability decision; the injuries need not be exactly the same, so long as the Court can
answer the liability question in one common stroke. Id. at 602. That is the case here:
the plaintiffs have argued that imposing a uniform linear-taper-to-zero policy is unlawful. Although patients’ withdrawal symptoms may vary, they are all caused by
common conduct—the same linear-taper-to-zero policy, applied without exception to
non-pregnant detainees.
Having said that, the governing legal standards will require, for the constitutional claims, that the class be split in two; and for the statutory claims, the applicable legal standard undermines the propriety of certification for the statute-based
claims. In other words, the Plaintiffs’ proposal sweeps too broadly in lumping together
the varying legal questions that arise under the Fourteenth Amendment, Eighth
Amendment, Americans with Disabilities Act, and the Rehabilitation Act.
First, the Court’s revised class definition separates pretrial detainees from
post-sentencing prisoners. Pretrial detainees’ rights are governed by the Due Process
Clause of the Fourteenth Amendment. Bell v. Wolfish, 441 U.S. 520, 535–36 (1979).
On the merits, pretrial detainees “can prevail by providing only objective evidence
that the challenged governmental action [here, the linear-taper-to-zero policy] is not
rationally related to a legitimate governmental objective or that it is excessive in relation to that purpose.” Kingsley v. Hendrickson, 576 U.S. 389, 398 (2015). It is true
that, before Kingsley, the Seventh Circuit generally applied the Eighth Amendment
deliberate-indifference standard to the medical-care claims of pretrial detainees. But
in the wake of Kingsley, the Seventh Circuit has since explicitly changed course on
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the claims of pretrial detainees. See Miranda v. County of Lake, 900 F.3d 335, 352
(7th Cir. 2018). Thus, “medical-care claims brought by pretrial detainees under the
Fourteenth Amendment are subject only to the objective unreasonableness inquiry
identified in Kingsley.” Id. Liability still requires that the defendant acted “purposefully, knowingly, or perhaps even recklessly,” but that action is then measured
against objective reasonableness. Id. at 353–54.
In contrast, post-sentencing prisoners’ claims are governed by the Eighth
Amendment, see Farmer v. Brennan, 511 U.S. 825, 834 (1994), which requires that
prisoners show “deliberate indifference,” that is, “a showing that the defendant had
a ‘sufficiently culpable state of mind’ and asks whether the official actually believed
there was a significant risk of harm.” Miranda, 900 F.3d at 350. So, at a minimum,
the Fourteenth and Eighth Amendment claims differ in the required state of mind in
devising the taper-to-zero policy. Therefore, Class 1 shall comprise pretrial detainees
and Class 2 shall comprise post-sentencing prisoners.
Moving on to the statutory claims, the Americans with Disabilities Act (ADA)
and Rehabilitation Act claims are not suitable for class-action treatment at all. To
prove those claims (which are generally governed by the same legal standard), plaintiffs would need to show (1) that they were qualified persons (2) with a disability and
(3) that the Jail “denied [them] access to a program or activity because of” the disability. Jaros v. Illinois Dept. of Corrections, 684 F.3d 667, 672 (7th Cir. 2012). “Refusing to make reasonable accommodations is tantamount to denying access.” Id. Even
assuming for argument’s sake that all class members would be qualified persons with
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a disability (their opioid use disorder), the commonality of the class founders on the
reasonable-accommodation requirement. The question of what medication regimen
constituted a reasonable accommodation—and thus, whether an accommodation was
denied—varies by patient.
In response, the Plaintiffs do not really develop the statutory claims beyond
bare assertions. Even fashioning an argument for the Plaintiffs does not help. Their
best foot forward would to argue that the linear-taper policy is per se unreasonable
under the ADA and the Rehabilitation Act, because the detainees did not receive an
individualized interactive process to arrive at an accommodation. But that position
does not survive Rule 23(a)(2)’s commonality requirement. Although the ADA contemplates an interactive process to determine reasonable accommodations, that process “is not an end in itself.” Rehling v. City of Chicago, 207 F.3d 1009, 1015 (7th Cir.
2000). The Plaintiffs still must show that that failure of the process resulted in the
failure to provide a reasonable accommodation. There would not necessarily be a common answer on liability; the class’s claims would not rise or fall together, and instead
would require an individualized factual inquiry even on liability. See id. Plaintiffs
Rogers, Hill, and Hollins remain free to pursue their ADA and Rehabilitation Act
claims on an individual basis, but not as representatives of a certified class.
3. Typicality & Adequacy
Next, Cook County argues that the proposed class cannot satisfy the typicality
requirement, Fed. R. Civ. P. 23(a)(3), nor the adequacy requirement, Fed. R. Civ. P.
23(a)(4). But the defense largely restates its arguments against commonality. First,
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Cook County argues that because the Jail’s linear-taper-to-zero policy was changed
in July 2017, the Plaintiffs, who were detained before that time, are too different from
detainees who were held in custody after July 2017. R. 157 at 12–13. But this is a
matter of setting the class closing date appropriately, rather than rejecting certification altogether. Both sides agree that Cook County Jail instituted a new written policy on October 7, 2019. See Exh. 22 to R. 167, Email from Cook County Attaching New
Policy. As discussed earlier, Cook County says that it stopped the across-the-board
taper policy in July 2017, despite the absence of a written change in policy. The Plaintiffs dispute this, not least of which based on the absence of records to demonstrate
that the change happened before the issuance of the October 2019 written policy. As
the litigation proceeds, the parties will have the opportunity to fully litigate this enddate question. At the appropriate time, the Court will decide whether the end-date
should stay as-is (October 7, 2019) or instead must be modified and truncated. It
might very well be that an evidentiary hearing will be needed—neither side has asked
for that yet—because the end date might turn on credibility decisions as to witnesses.
Indeed, if one side (or both) believes that sufficient discovery has been taken on this
issue and wishes the Court to convene an evidentiary hearing, then the party may
file a motion at any time.
Second, Cook County restates its argument that because each patient was
given an individualized taper-to-zero regimen and might have experienced different
(or no) withdrawal symptoms, no one of the Plaintiffs can be said to be typical or
representative of the proposed class. R. 157 at 12. Again, for the reasons already
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discussed, this is a damages question, rather than a liability question (at least as to
the Fourteenth and Eighth Amendment claims). So if the case moves on to the damages phase, then the parties and the Court will discuss how best to manage that phase
of the litigation.
Third, Cook County argues that “many of the putative class members have
suffered no injury,” whether because the taper on which they were placed was medically appropriate, or because they did not experience withdrawal symptoms or relapse. R. 157 at 12. Similarly, Cook County argues that because the named Plaintiffs
themselves have not relapsed into opioid use, they cannot challenge the linear-taper
policy on the grounds that it increases risk for relapse. Indeed, the defense argues
that the Plaintiffs’ failure to relapse is a fatal causation problem that prevents the
Plaintiffs from even being able to claim that the policy subjected them to this risk.
But these arguments confuse success on the merits with suitability for class-action
adjudication. “[A] class will often include persons who have not been injured by the
defendant’s conduct; indeed this is almost inevitable, given that a class can be certified yet fail to prove its case on the merits.” Lacy v. Cook County, Illinois, 897 F.3d
847, 864 (7th Cir. 2018) (citation and quotation omitted). As explained earlier, the
Plaintiffs have raised common liability questions on the constitutional claims. They
may or may not succeed in proving on the merits that the linear-taper-to-zero policy
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was inappropriate for any, let alone all, of the class members. But those are questions
for the merits stage.2
In conclusion, the Court finds that plaintiffs’ Fourteenth and Eighth Amendment claims, if broken out by subclasses of pre- and post-trial detainees, satisfy Rule
23(a)’s four prerequisites for class certification.
B. Rule 23(b)(3)
Even if a proposed class satisfies Rule 23(a), it still must also satisfy the requirements of one of the three subtypes of class actions under Rule 23(b). Here, the
Plaintiffs seek to certify the class under Rule 23(b)(3). R. 153 at 8. That rule permits
the certification of a class if “the court finds that the questions of law or fact common
to class members predominate over any questions affecting only individual members,
and that a class action is superior to other available methods for fairly and efficiently
adjudicating the controversy.” It also identifies four “matters pertinent to these findings”: (A) “the class members’ interests in individually controlling the prosecution or
defense of separate actions”; (B) “the extent and nature of any litigation concerning
the controversy already begun by or against class members”; (C) “the desirability or
undesirability of concentrating the litigation of claims in the particular forum”; and
(D) “the likely difficulties in managing a class action.”
Although similar to commonality, “the predominance criterion is far more demanding.” Messner, 669 F.3d at 814 (quoting Amchem Prods., Inc. v. Windsor, 521
County also raised arguments against typicality and adequacy elements on the
ADA and Rehabilitation Act claims. Because the Court has already held that those statutory
claims fail for lack of commonality, there is no need to address those arguments.
2Cook
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U.S. 591, 623–24 (1997)). Under Rule 23(b)(3), the plaintiff must show that “questions
of law or fact common to class members predominate over any questions affecting
only individual members.” The Court thus must compare the role of common issues
of law and fact with the role of individual issues, including whether the Court must
examine individual transactions in deciding the claim. See Messner, 669 F.3d at 815;
see also Lady Di’s, Inc. v. Enhanced Servs. Billing, Inc., 654 F.3d 728, 738 (7th Cir.
2011).
Here, on the Fourteenth and Eighth Amendment claims that survived the Rule
23(a) prerequisites, the Court finds that common questions predominate over individual issues, and that the class mechanism is the superior means of adjudication.
First, the Plaintiffs challenge the across-the-board taper policy. As discussed earlier,
the Fourteenth and Eighth Amendment factual and legal inquiries revolve entirely
around the conduct and state of mind of Cook County Jail officials in devising the
policy across-the-board—questions that are necessarily common to all class members.
Factual variations among class members, such as withdrawal symptoms they may
have experienced, will arise only as to damages and not as to liability. It is true that,
in some cases, the damages questions are so difficult to manage that they overwhelm
the commonality in the liability question. For example, it would be one thing if the
record evidence showed that tapering caused vastly different reactions that medical
experts would not be able to predict or that class members would not be able to readily
describe. But the variability in damages is not likely to be so extreme amongst the
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class members that it would be better to have hundreds of separate cases instead of
a single class action.
Second and relatedly, the class device is vastly more efficient than adjudicating
the same question repeatedly across the 1,000 or so separate lawsuits that could, in
theory, be brought by the class members as individual lawsuits. At the liability stage,
managing the class action will be relatively straightforward, relying primarily on evidence arising from the records governing the policy, testimony of certain Jail officials, and expert evidence. R. 153 at 15. The parties likely will present cross-motions
for summary judgment on liability, and either one side will win outright on liability
via summary judgment or a jury will decide the class-liability issue. If liability is
found, then a damages-setting mechanism can be developed with input from the parties. For example, medical records might describe the withdrawal symptoms, or under-oath surveys can be taken from the class. Also, different categories of symptoms
might result in damages amounts that are fixed according to a certain schedule, including the number of days that the class member suffered the symptom. The bottom
line is that getting the common liability answer across the class in one fell swoop is
much more important than the separate damages questions.
IV. Conclusion
The Plaintiffs’ motion for class certification is granted as to the Fourteenth and
Eighth Amendment claims and denied as to the Americans with Disabilities Act and
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Rehabilitation Act claims. On the constitutional claims, the class definition is modified as follows:
Class 1 (Pre-trial Detainees) comprises all pre-trial detainees who (1)
entered the Cook County Jail between December 23, 2013 and October
7, 2019, inclusive and3 (2) opted out of, or are otherwise excluded from,
participation in Parish v. Sheriff, 07-cv-4369; and were, at the time of
entry into the Jail, lawfully taking an opioid antagonist, as defined in
42 C.F.R. 8.12(h)(2), who were not then on parole or held on a warrant
from another jurisdiction, who were not pregnant, and who received
more than one dose of methadone while detained;
Class 2 (Post-sentence Prisoners) comprises all post-sentencing prisoners who (1) entered the Cook County Jail between December 23, 2013
and October 7, 2019, inclusive and (2) opted out of, or are otherwise excluded from, participation in Parish v. Sheriff, 07-cv-4369; and were, at
the time of entry into the Jail, lawfully taking an opioid antagonist, as
defined in 42 C.F.R. 8.12(h)(2), who were not then on parole or held on
a warrant from another jurisdiction, who were not pregnant, and who
received more than one dose of methadone while detained.
The parties shall confer on the class notice and class-notice plan; shall confer on the
litigation plan going forward, moving on to the merits of the liability questions; and
shall initiate settlement negotiations. The tracking status hearing of December 11,
2020, is reset to January 15, 2021, at 8:30 a.m., but to track the case only (no
the Court is missing something, the conjunction here should be “and” rather
than what the Plaintiffs propose, which is “or.” If the resolution of Parish does not include
the challenge to the tapering policy, then the parties may seek a change to the class definitions here.
3Unless
18
Case: 1:15-cv-11632 Document #: 178 Filed: 11/29/20 Page 19 of 19 PageID #:1783
appearance is required, the case will not be called). Instead, the parties shall file a
joint status report by January 7, 2021, proposing the next steps of the litigation.
ENTERED:
s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge
DATE: November 29, 2020
19
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