Kenneth R. v. Hassan
293 F.R.D. 254
D.N.H.2013Background
- Plaintiffs (individuals institutionalized at New Hampshire Hospital or Glencliff or at serious risk of institutionalization) allege the State violated the ADA Title II and the Rehabilitation Act by maintaining a system-wide deficiency in community-based mental health services that causes unnecessary institutionalization.
- Plaintiffs seek certification of a Rule 23(b)(2) injunctive class to require development of an adequate array of community services (mobile crisis, ACT, supported housing, supported employment).
- The United States intervened and supports class certification; defendants oppose certification arguing Rule 23(a) and 23(b)(2) prerequisites are unmet and that the U.S. involvement makes class treatment unnecessary.
- The court conducted limited discovery, received state reports, expert reviews, and DOJ findings indicating systemic deficiencies and risk of needless institutionalization; plaintiffs’ expert client review found high rates of avoidable or reducible institutionalization.
- The court granted certification in part: the ADA and RA system-wide class was certified with a specific, revised class definition (including an objective two-year "at risk" formulation); the PASARR-based claim was denied for lack of numerosity support.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Class definition / definiteness | Class limited to those "unnecessarily institutionalized" or "at serious risk" and further defined by objective two-year criteria | Definition is vague, especially "at risk," and may be a "fail-safe" class | Court approved modified definition with two-year objective at-risk criteria; sufficiently definite for (b)(2) class |
| Numerosity | Hundreds affected—joinder impracticable for ADA/RA claims | PASARR class membership not shown large enough | Numerosity satisfied for ADA/RA class; PASARR claim denied for insufficient showing |
| Commonality (Wal‑Mart issue) | State policies/practices produced a systemic deficiency in a discrete set of community services; common questions will yield common answers | Individual differences in needs/preferences and multiple discrete practices defeat commonality under Wal‑Mart | Commonality satisfied: plaintiffs showed significant proof of a system-wide policy/practice producing common injury apt for classwide resolution |
| Typicality & adequacy | Named plaintiffs share the same injury (unnecessary institutionalization or serious risk) and will fairly protect class interests | Named plaintiffs differ from class members in preferences and future needs; conflict with class interests | Typicality and adequacy satisfied; named plaintiffs and counsel adequate representatives |
| Rule 23(b)(2) cohesiveness & relief scope | State acted/failed to act on grounds generally applicable to class; systemic injunctive relief appropriate | Class is not cohesive; intra-class conflicts over resource allocation and preferences; potential fundamental-alteration problems | (b)(2) satisfied for ADA/RA systemic injunctive claims; class cohesive enough; fundamental‑alteration and allocation defenses are merits issues for trial |
Key Cases Cited
- Olmstead v. L.C., 527 U.S. 581 (1999) (ADA integration mandate prohibits unnecessary institutionalization)
- Wal‑Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) (commonality requires that class members suffer the same injury and that a common contention produce classwide answers)
- Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) (trial court gatekeeping standard for expert evidence)
- Voss v. Rolland, 592 F.3d 242 (1st Cir. 2010) (PASARR statutory framework and review)
- Pashby v. Delia, 709 F.3d 307 (4th Cir. 2013) (Olmstead claims may include persons at serious risk of institutionalization)
- M.D. v. Perry, 675 F.3d 832 (5th Cir. 2012) (systemic agency action/inaction can satisfy Rule 23(b)(2) for injunctive relief)