Supplement to Defendant's Response in Opposition to Plaintiffs' Motion for Class Certification

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IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

LOIS THOMPSON on behalf of 
and as next friend to 

to TAYLOR KEONDRA DIXON, 
ZACHERY X. WILLIAMS, 

CALVIN A. THOMPSON and 

PRENTISS LAVELL MULLINS, 

Plaintiffs, 

CAUSE NO. 3-92-CV1539-R 

V. 

BURTON F. RAIFORD, in his 
capacity as Commissioner of 
the Texas Department of Human 
Services, 

and 

THE UNITED STATES OF AMERICA 
Defendants. wn

 
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SUPPLEMENT TO DEFENDANT RAIFORD’S RESPONSE IN OPPOSITION 
TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION 
  

  

TO THE HONORABLE JUDGE OF SAID COURT: 

COMES NOW Defendant, Burton F. Raiford, Commissioner of the Texas 

Department of Human Services, and files his Supplement to his Response in Opposition 

to Plaintiffs’ Motion for Class Certification showing the Court the following: 

Defendant Raiford filed his Response in Opposition to Plaintiffs’ Motion for Class 

Certification on November 23, 1992. Attached to Defendants’ response as "Exhibit A" was 

 



a facsimile of the Affidavit of Bridget Cook. Defendant Raiford now seeks to supplement 

  

his response with the attached original Affidavit of Bridget Cook. 

Respectfully submitted, 

DAN MORALES 
Attorney General of Texas 

WILL PRYOR 
First Assistant Attorney General 

MARY F. KELLER 
Deputy Assistant Attorney General 

for Litigation 

JORGE VEGA, Chief 
General Litigation Division 

WW 4 \i3 poe 
EDWIN N. HORNE 
Assistant Attorney General 
Texas Bar No. 1000820 

General Litigation Division 
P. O. Box 12548, Capitol Station 

Austin, Texas 78711-2548 

TELEPHONE (512) 440-4550 
FAX (512) 447-0511 

  

 



  

CERTIFICATE OF SERVICE 

| certify that a true and correct copy of the foregoing document has 
been sent via U.S. Mail, return receipt requested on this 10th day of 
December, 1992 to: 

Michael M. Daniel, P.C. 
Laura B. Beshara 

3301 Elm Street 
Dallas, Texas 75226-1637 

Edward B. Cloutman, Ili 

Law Office of Edward B. Cloutman, lil 
3301 Elm Street 

Dallas, Texas 75226 

(214) 939-9222 

Julius L. Chambers 
Alice Brown 

NAACP Legal Defense & Educational Fund, Inc. 
99 Hudson Street, Suite 1600 
New York, NY 10013 

Bill Lann Lee 

Kirsten D. Levingston 

NAACP Legal Defense & Educational Fund, Inc. 

315 West Ninth Street, Suite 208 

Los Angeles, CA 90015 

Jane Perkins 

National Health Law Program 
1815 H Street, N.W. 

Suite 705 

Washington, DC 20006 

Carlene McNulty 
North State Legal Services 
114 West Corbin Street 
Hillsborough, N.C. 27278 

Lucy Billings 
Marie-Elena Ruffo 

Bronx Legal Services 

579 Courtlandt Avenue 

Bronx, N.Y. 10451 

 



  

Alina S. Kofsky 
Department of Justice 

Federal Programs Branch 
Civil Division 

901 E. Street, NW. Room 1010 

Washington, D.C. 20530 

Ler 
  

EDWIN N. HORNE 

 



  

IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

LOIS THOMPSON on behalf of 

and as next friend to 
TAYLOR KEONDRA DIXON, 

ZACHERY X. WILLIAMS, 

CALVIN A. THOMPSON and 

PRENTISS LAVELL MULLINS 

Plaintiffs, 

CAUSE NO. 3-92-CV1539-R 

Ve. 

BURTON F. RAIFORD, in his 

capacity as Commissioner of 
the Texas Department of Human 
Services, and THE UNITED 
STATES OF AMERICA wn

 
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AFFIDAVIT OF BRIDGET COOK 

BEFORE ME, the undersigned authority, on this day personally 

appeared Bridget Cook, known to me to be the person whose name is 

subscribed below, and after being duly sworn by me, stated on oath 

as follows: 

"My name is Bridget Cook. I am over the age of 18; I have 

never been convicted of a felony, and I am fully competent to make 

this affidavit. I am employed by the Texas Department of Human 

Services as EPSDT Program Director and I am authorized to make this 

affidavit as its agent. 

"In December 1991, a letter was received from the Texas 

Department of Health (TDH), Bureau of Laboratories, (Contractor for 

EXHIBIT A 

 



  

EPSDT Medical Screening Program Laboratory Services) which 

discussed the recently released U.S. Centers for Disease Control 

(CDC) guidelines for blood lead levels and detecting the new lower 

limit of 10 ug/dL. The letter stated that the existing equipment 

used for EPSDT laboratory lead testing procedures was inadequate to 

meet the new CDC standards and that there was no way to upgrade the 

existing equipment to meet these new standards. 

"Following receipt of this information the Department 

authorized in a letter dated December 13, 1991, the purchase of 

three graphite furnace atomic absorption analyzers at a projected 

cost of $47,000 per unit to perform blood lead level testing 

procedures in accordance with the new CDC standards. This was in 

the absence of any ¥adqulation. guidelines, or directive from the 

Health Care Financing Administration mandating the adoption of 

CDC's new statement on blood level testing preocedures. 

"Due to a subsequent unprojected increase in laboratory 

expenditures/workload (number of overall EPSDT specimens received 

for testing) and TDH's simultaneous identification of the projected 

need for a fourth graphite furnace, the Department negotiated a 

contract amendment with TDH in March 1992 to assure the 

availability of funds for all four pieces of the new equipment. 

The total contract amount was increased from $461,000 to $752,697 

effective April 1, 1992. Workload trends continued to increase and 

 



  

3 

"TDH purchased one graphite furnace atomic absorption 

spectrometer with non-EPSDT/Medicaid dollars to support lead 

testing services authorized under Texas House Bill 1621 (72nd 

Legislative Session). Due to the poor experience with this first 

analyzer purchased, TDH proceeded to survey other blood lead 

testing laboratory facilities to find which equipment had been used 

with proven reliability. After the survey, it became evident that 

Perkin-Elmer Graphite Furnace Systems had established success in 

State level Public Health Laboratories in New York, Florida, 

Arkansas and in CDC Laboratory facilities. Although there were 

competing systems from other vendors that appeared to have 

potential, none had proven track records as yet in any major 

laboratories. 

"Based on this information, TDH laboratory staff gave much 

time and consideration to the preparation of the bid specifications 

in the state request for purchase of the four new graphite furnaces 

in order to assure the acquisition of quality equipment on behalf 

of the Department. This purchase request was submitted in May 1992 

to TDH Materials Acquisition and Management Division. 

"The bids for the equipment were reviewed in July and August 

of 1992 by TDH laboratory staff. However, the original purchase 

requisition had to be canceled when it became apparent that only 

one vendor, Perkin-Elmer, could meet all the specifications. 

Because certain specifications were unique to only one vendor, the 

 



  

4 

requisition was then required to have proprietary handling and 

justification. The purchase requisition was reprocessed in August 

1992 under Section 3.09 ' (Proprietary Purchase) of the State 

Purchasing Code. This, in turn, resulted in a formal protest from 

another vendor who had underbid Perkin-Elmer. The protest required 

subsequent legal review by TDH, who determined there had been no 

violation of the state purchasing code. 

"TDH Laboratory staff requested emergency purchase handling in an 

effort to avoid any further delays. As a result Perkin-Elmer 

received the purchase order in late August 1992. In the meantime, 

TDH began site preparation which included the relocation of an 

existing laboratory section, subsequent installation of additional 

high voltage electrical circuits, compressed gas system with flow 

lines, and an external ventilation system to handle the fumes 

generated during this type of blood analysis. The equipment 

arrived and was installed in late September 1992. After arrival, 

it took approximately two weeks for the service engineer to install 

and complete the checkout procedures on all four instruments. 

Following this, an application specialist from Perkin-Elmer came to 

the laboratory to verify the blood lead procedure and provide 

hands-on training to the TDH laboratory staff. Once validation 

procedures were completed, TDH laboratory staff began analyzing all 

EPSDT medical screening program blood specimens submitted for lead 

testing on the new equipment in accordance with the new CDC 

guidelines specifying direct blood lead level measurement down to 

 



  

5 

10 ug/dL. Use of this new laboratory analysis procedure is 

applicable to all specimens received for blood lead testing on and 

after October 23, 1992. 

"The facts stated above are within my personal knowledge, and are 

true and correct." 

  

Sworn to and subscribed before me, the undersigned authority, on 
7] 22 LA A yo 

this _ %° day of Gree pilin , 1992, to certify which 
  

witness my hand and seal of office. 

wh 0 = 

oor PTT A AL 2 i #5 CoA A 

  

Notary Public in and for 
the State of Texas