Plaintiff's Proposed Findings of Fact and Conclusions of Law on Class Certification

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IN THE UNITED STATES DISTRICT COURT [J(; o 

FOR THE NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION ' 
  

NANCY DOHERTY, CLERK 

  

  

THE UNITED STATES OF AMERICA, 

LOIS THOMPSON on behalf of and * BY me i 

as next friend to TAYLOR * uty 

KEONDRA DIXON, ZACHERY X. * I 

WILLIAMS, CALVIN A. THOMPSON * No. 3-92 CV:1539~R 

and PRENTISS LAVELL MULLINS, * 
* 

Plaintiffs * Civil Action 
%* 

Vv. * Class Action 
* 

BURTON F. RAIFORD, in his * 

capacity as Commissioner of * 
the Texas Department of Human * 
Services, * 

* 

and * 
* 

* 

* 

* Defendants. 

PLAINTIFFS’ PROPOSED FINDINGS OF FACT AND 

CONCLUSIONS OF LAW ON CLASS CERTIFICATION 
  

I. Proposed Findings of Fact 
  

At least two of the plaintiffs are still subject to the 

challenged EP test as set out in Plaintiffs’ Proposed Findings of 

Fact and Conclusions of Law in opposition to the USA’s motion for 

summary judgment. 

Whether class members are high risk or low risk, they are 

all subject to the use of the challenged EP test. 

The numerosity of the class is not challenged by either the 

USA or Raiford. Raiford admits numerosity in the response to 

plaintiffs’ motion for class certification. There are millions 

of potential class members [plaintiffs’ exhibit #1, pages 4, 18; 

 



  

plaintiffs’ exhibit #2, page 4]. 

Plaintiffs are represented by able and competent counsel. 

The fact that these counsel have made a fee arrangement with 

their clients which prohibits a settlement which would deprive 

counsel of any pay for their work representing the class does not 

pose a conflict of interest with the class. But for this fee 

arrangement, the class would not be represented and would not be 

in court. This fee provision is no more a conflict than the 

normal contingency fee arrangement in damage class actions. In 

those cases, the compensation to the class is directly reduced in 

order to pay plaintiffs’ counsel. There will be no such reduc- 

tion of benefits to this class since any compensation will come 

only from an award against defendants if plaintiffs are success- 

ful. Would defense counsel admit to a conflict of interest with 

his client if he asserted a contractual right to be paid even if 

plaintiffs insisted on a condition of settlement that defense 

counsel go without compensation? 

II. Conclusions of Law 
  

As set out in the proposed findings and conclusions in 

opposition to the USA’s motion for summary judgment, plaintiffs 

do have standing to bring this action. 

The common issue of fact and law is plain - whether the 

Medicaid Act allows defendants to continue the use of the EP test 

as a lead screening test. 

The named plaintiffs are members of the class they seek to 

represent. Their claims are identical with the claims of the 

 



  

class members — the EP test is prohibited by the Medicaid Act. 

There is no conflict. Named plaintiffs are adequate repre- 

sentatives. The USA concedes this point in its argument that no 

intervention is necessary because the named plaintiffs adequately 

represent the interests of the class. [pages 21-25 of Defendant 

USA’s Opposition to Plaintiff-Intervenors’ Motion to Intervene]. 

The USA and Raiford’s actions continuing the use of the EP 

test are actions taken on grounds generally applicable to the 

class making injunctive relief appropriate for the class. 

The U.S. Supreme Court has specifically approved nation-wide 

classes in social welfare litigation such as this. Califano v. 
  

Yamasaki, 442 U.S. .682 (1979). The USA’s cases cited in opposi- 
  

tion to national classes are not on point. Those cases involved 

the issue of collateral estoppel against the federal government 

in individual plaintiff cases, not class actions. 

Plaintiffs’ requested class of all Medicaid eligible chil- 

dren is granted. 

 



Respectfully Submitted, 

MICHAEL M. DANIEL, P.C. 
3301 Elm Street 
Dallas, Texas 75226-1637 

(214) 939-9230 
(214) 939-9229 FAX 

IN / 

By: Thy ia) 
Michael M. Daniel 

State Bar No. 05360500 

  

£50 ] A ; 

By:_ XNA. Ped alo 
Iaura B. Beshara 

State Bar No. 02261750 

  

ATTORNEYS FOR PLAINTIFFS 

CERTIFICATE OF SERVICE 
  

I certify that a true and correct copy of the above document 

was served upon counsel for defendants by FAX on this the | [t"day 

of December, 1992. 

) / . 

S@uiro IA Brabus 
Laura B. Beshara