Order Concerning Motion for Class Certification

     [||25de8bb8-6370-4f83-ab45-b6965cf642cf||] ® » 

FILED 
UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION LEA 
ne HIER M 

BERNICE TERRY, ET AL. ) FRANCIS T. GRANDYS, CLERK 
4 : ) U. S. DISTRICT COURT 

Plaintiffs, ) 
) 

Vv, ) CIVIL NO. H 76-373 
) 

METHODIST HOSPITAL OF GARY, ) 
ET AL, ) 

) 
Defendants. ) 

RICHARD GORDON HATCHER, ET AL., ) 
) 

Plaintiffs, ) 

) 
7. ) CIVIL NO. H 77-154 

METHODIST HOSPITAL OF GARY, ) 
ET AL, ) 

) 
Defendants. ) 

ORDER 

  

Plaintiffs bring this action for declaratory and injunctive 

relief against defendants alleging default of obligations under 

Title VI of the Civil Rights Act of 1964, 42 U.S.C. §20004; Title 

VI of the Public Health Services Act, 142 U.S.C, $29: 8314 of the 

Public Health Services Act, 42 U.S.C. §246,:38504 of the Rehabili- 

tation Act as amended in 1973, 29'U.S.C. §794: $1122 of the Social 

Security Act, as amended, 1972, 42 U.S.C. §1302a-1; and to redress 

the alleged deprivation of plaintiffs' Constitutional rights under 

the Fifth and Fourteenth Amendments and the Civil Rights Act of 

1871, 42 U.S.C. §1983. The action alleges the existence, per- 

petuation and expansion of allegedly racially segregated and 

allegedly unequal hospital facilities operated by Methodist Hos- 

pital of Gary, Inc., and the approval and granting of federal 

financial assistance to said facilities by defendants Secretary 

Califano, Commissioner Paynter, Richard Thompson, Deloris Wakefield, 

and Director Kaplan. Jurisdiction is alleged under 28 U.S.C. §1331, 

1343 and 1361. Hatcher, et al., was consolidated with Terry, et 

al.;, by Order of this Court on July 6,-1977. 

 



  

This matter comes before the Court on: 

I. Plaintiffs' Motion to certify the proceedings as 

a class action pursuant to Federal Rules of Civil Procedure, 

Rule 23; 

II. Defendant Kaplan's Motion to dismiss; 

111... Plaintiffs’ Motion for continuance of the trial 

date; and 

IV. Plaintiffs' Motion for bifurcation of the issues 

at trial. 

I 

Plaintiffs’ Motion for Class Certification 
  

Plaintiffs seek to represent a class consisting of: 

1. All black and Hispanic residents of Gary, Indiana, 

who use, have used or will use Gary Methodist Hospital and 

who are, have been or will be injured by the creation, per- 

petuation and expansion of an allegedly segregated hospital 

system; and 

2. All dhandicapped residents of Gary who use, have 

used or will use and who are better served by facilities at 

Gary Methodist Hospital, and who are, have been or will be 

injured by the placement, removal to or expansion of facilities 

at Broadway Methodist Hospital. 

Defendants oppose certification alleging that plaintiffs have 

not met their burden of showing compliance with the prerequisites 

to certification contained in Rule 23(a) and that there is no 

factual support for certification. 

Subsection (a) of Rule 23 provides that a class action may 

be maintained ... "only if (1) the class is so numerous that joinder 

of all neler is impracticable, (2) there are questions of law or 

fact common to the class, (3) the claims or defenses of the repre- 

sentative 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 c¢lass." 

 



4 » 

  

If these requirements are met, Rule 23(b) (2) provides that 

1 the Court may grant class certification if 'the party opposing 

the class has acted or refused to act on grounds generally applicable 

to the class thereby making appropriate final injunctive relief or 

corresponding declaratory relief with respect to the class as a 

whole." 

Suits for alleged violations of Title VII of the Civil Rights 

Act of 1964 are often by their nature appropriate class actions 

because the alleged discrimination sought to be remedied is based 

on class characteristics such as race or sex. Bowe v. Colgate- 
  

Palmolive Co., 4l16.F.2d4 71), 719 (7th Civ. 1969) .: Even so, it is 
  

well settled that Title VII plaintiffs are not exempt from demon- 

strating compliance with the prerequisites to class certification 

of Rule 23(a). East Texas Motor Freight System, Inc. v. Rodriguez, 
  

1.8. = 978.C64 1891514. .£4.24.453. (1977). .. Purthexr the 
rn ——— 

burden is on the plaintiff to show that there is a class and that: 

he is a proper class representative. Redhouse v. Quality Ford   

Sales, 'Inc., 511 F.24 230, 236 {10th Cir. 1975), There mere asser-   

tion of representation based upon racial identity or a plaintiff's 

characterization of his cause as a “class action' without more 

will not qualify a plaintiff as a representative. Doctor v. Sea-   

board Coast Line R.R. Co., 540 °F. 24 669, 706 (4th Cir. 1976). - The 
  

Court finds this line of reasoning equally applicable to Title VI 

actions. 

The named plaintiffs in this action are identified as two 

black residents of Gary, Indiana, one of whom is Mayor of that city 

and one of whom is alleged to be handicapped within the meaning of 

29 U.S.C. §706. Insofar as Richard Hatcher's claim goes in part 

to allegations of his inability to perform his duties as Mayor 

of Gary, Indiana, due to the alleged discriminatory actions of 

defendants, the claim cannot be maintained as a class action be- 

cause it fails to meet the (numerosity) requirement of Rule 23(a). 

However, his status as a Black resident of Gary, Indiana, together 

with the Black residents of Gary who are plaintiffs in the Terry 

 



  

action and plaintiff Page's status as a black, handicapped regis’ 

dent of Gary, may be considered for purposes of deteoniiniag clans 

status. The third named plaintiff in this action, Metro Corps, 

Inc., is: identified as a not-for-profit corporation which, intey 

alia, conducts programs to assure that transportation to defendant's 

hospital is available to the poor, the elderly, and the handicapped 

residents of Gary, Indiana. One-third of the board of directors of 

Metro Corps, Inc. is alleged to be comprised of organizations with 

a manifest interest in and responsibility to the Black, Hispanic, 

poor, elderly, and handicapped citizens of Gary, Indiana. The Court 

finds authority for the position that such a group is not necessarily: :- 

precluded from representing a class where it exists to represent the 

interests of the class. Norwalk Core v. Norwalk Development Agency, 
  

395-F.24. 920, 937.¢(2nd Cir. 1968). #While such a group must 

additionally have standing, the Court does not here address that 

aspect. 

The initial consideration in a class determination is identi-. 

fication of the class and of its representatives. It is necessary 

to identify the class to determine whether the proposed class will 

be cohesive and homogenous. Martin v. Easton Publishing Co., --- 
  

F.Supp. =-~, 14 F.E.P. ‘cases 765, 769 (E.D.Pemm. 1977). The 

Court must also determine whether a class representative has the 

same interests and suffers the same injuries as other class members. 

Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208,   

94 S.Ct. 2925, 41 L.Ed.24 706 (1974). 

The Court is satisfied that plaintiffs have met their Rule 23(a) 

burden with respect 5 the class of Black residents of Gary, Indiana, 

whom they seek to represent. . Based upon evidence contained in the. 

pleadings, the Court is convinced that the class described is so 

numerous as to make joinder impracticable, that the claims of the 

named plaintiffs are typical and present common questions of both 

law and fact, and that the named plaintiffs can adequately and 

vigorously represent the class. Therefore, the class as to Black 

residents of Gary, Indiana, is certified under Rule 23(b) (2). 

 



  

This certification is conditionally granted pursuant to the 

provisions of Federal Rules of Civil Procedure, Rule 23 (c) (1) 

which allows the Court to alter or amend such an order. It seems 

clear that should the plaintiffs prevail on the merits, any benefit 

would inure to all others similarly situated. Further, if indi- 

vidual relief will remedy the problem, class certification is not 

necessary. [See for example Berlin Democratic Club v. Rumsfeld, 
  

410 F.Supp. 144 (D.D.C. 1976); O'Connell v. Teachers College, 
  

Columbia University, 63 F.R.D. 638 (S.D.N.¥. 1974); Lugo. Vv, 
  

Dumpson, 390 F.Supp. 379 (S.D.N.Y% 1975); District of Columbia 
  

Podiatric Soclety v, District of Columbia, 65 FLR.D. 113 (D.D.C; 
  

1974)]. Nevertheless, the Seventh Circuit has expressly stated 

that if all prerequisites to a class action have been met, the 

Court may not refuse to certify the action merely because there 

is no need for certification. Tuiishima v, Board of Education, 
  

460 F.2d 1355, ‘1360 (7th Cir. 1972). 

The pleadings in this case indicate that in 1970, sixty-two 

percent (62%) of the population of Gary, Indiana, was Black or His- 

panic yet not one ef the named plaintiffs is identified as being 

Hispanic even though plaintiffs seek to represent the Hispanic 

population of Gary, Indiana. The papers on file disclose little 

that would lead the Court to certify the named plaintiffs as repre- 

sentatives of the Hispanic community of Gary, Indiana. The only 

reference to the Hispanic community, aside from its inclusion in 

the group sought to be certified as a class is the statement that 

one-third of the board of directors of Metro Corps, Inc. is comprized 

of organizations with a manifest interest in and responsibility to 

the Black, Hispanic, poor, elderly and handicapped citizens of Gary. 

Without more, plaintiffs' representations regarding the Hispanic 

community of Gary, Indiana amount to merely a general interest 

common to all members of the public and are therefore not sufficient 

to support certification of the named plaintiffs in a class which 

includes the Hispanic community of Gary, Indiana. 

 



  

Plaintiffs seek also to represent a class of Gary residents. 

who are handicapped as defined in 29 U.S.C. §706(6). PLAtniife 

Page asserts information sufficient to bring her within this defi- 

nition. However, plaintiffs allege generally that approximately 

13,300 residents of Gary in 1970 were over 65 years of age and 

that as a group the aged suffer disproportionately from physical 

and mental impairments which could be said to bring them within 

the definition of "handicapped" of 29 U.S.C. §706(8). Since plain- 

tiff Page is 66 years old, and handicapped, plaintiffs would have 

the ‘Court certify the handicapped as a class and plaintiff Page as 

an adequate representative of the class. This the Court refuses 

to do. The pleadings contain information regarding the number of 

elderly individuals, yet plaintiffs do not seek to have the elderly 

certified as a class. Plaintiffs further represent the race and 

physical handicap of plaintiff Page but do not offer sufficient 

information to conclude that her claims are typical of a class of 

handicapped individuals. ' Therefore, the Court cannot certify the 

handicapped residents of Gary, Indiana as a class for purposes of 

this action. . | 

In certifying a 23(b)(3) class, it is generally incumbent 

upon the Court to order the plaintiffs to provide the most reason- 

able and practicable notice to the class members. Rule 23(c) (2), 

Federal Rules of Civil Procedure. The Court, however, perceives 

the concept of notice to be a judicial housekeeping consideration 

in 23) (2) types of class action, which may be waived in the 

Court's discretion. Johnson v. City of Baton Rouge, Louisiana 
Fi ) ) 

  

50 ¥.R.D, 295, 301 (U.5.D.C,-E.D. La, 1970).. Professor Moore, 

amplifying the Court's position, has stated that, ''the Rule 

does not command the giving of any notice to members of (b) (1) 

and (b) (2) types of ‘class action." 3B Moore, Federal Practice, 

$23.55, p. 23=1152.(1.976). 

In Yaffe v, Powers, 454 F.,24 1362 (lst Cir, 1972), ‘the Court 
  

of ‘Appeals for the First Circuit, in dealing with a 23(b)(2) action, 

stated: 

 



  

 £ J 

notice to the members of a (b) (2) class 
is not required and the actual membership of 
the class need not be ... precisely delimited. 
In fact the conduct complained of is the bench- 
mark for determining whether a ... (b) (2) class 
exists, making it uniquely suited to civil 
rights actions in which the members of the 
class are often incapable of specific enumera- 
tion." 454 7.24 at 1366, 

With this the Court agrees. It strikes this Court in the 

instant case that requiring plaintiffs to provide notice to all 

Black residents of Gary would be not only burdensome but also 

unnecessary. The relief sought by the plaintiffs, if success- 

ful on the merits, would inure to all, regardless of whether 

the plaintiffs represented a class. Therefore, the Court shall 

not require plaintiffs to provide notice to the (b) (2) class. 

11 

  

Defendant Kaplan's Motion to Dismiss 

Plaintiffs have requested no relief specifically against 

Director Kipton Kaplan or Northwest Indiana Health Systems Agency - 

(hereafter HSA), nor does the presence of Kaplan as Executive 

Director of HSA ad& to platatizfe ability to obtain the relief 

sought. Thus, Kaplan cannot be regarded as an "indispensable 

party" in this litigation. The Court finds that since the Depart- 

ment of Health, Education and Welfare (hereafter HEW) may alone 

grant or deny approval of federal financial assistance under §1122, 

and since HEW determines how the Health Systems Agency administers 

its responsibilities under §1122, including matters relative to 

Title VI of the Civil Rights Act of 1964 and §504 of the Rehabili- 

tation Act as amended, 1973, the presence of HEW as a party is 

suffietent to obtain whatever relief is required by the plain- 

tiff regarding HSA. 

In the situation now before the Court, the relief sought 

will require only HEW and Methodist Hospital of Gary, Inc. and 

the State defendants to take action to redress any violation of 

Title VI and Section 504. Since HEW has ultimate authority with 

 



pd ® * 

  

regard to the distribution of federal financial assistance under 

Section 1122 and Section 504 as well as the ultimate responsibility 

with respect to Title VI, the real controversy in this matter - 

exists only between plaintiffs and HEW and Methodist Hospital of 

Gary, Inc. and the State defendants. Such parties will not only 

facilitate judicial economy but also any relief which might be 

granted will become immediately applicable to and binding upon 

the local agency. 

For the above reasons, the Court GRANTS defendant Kaplan's 

Motion to Dismiss’. 

YI) 

Plalncilffs'=Motlion for Continuance of Trial Date 
SE —— 

    

Plaintiffs (in their Motion for Continuance) represented to 

the Court that due to the complexity of the issues presented by 

their claims, at least ninety additional days from December 5, 

1977 will be required for analysis and proposals for remedies. 

Defendant HEW in its response requests that this matter be set 

for trial sometime ¢after March, 1978 due to the fact that HEW is 

presently engaged in a Title VI study of all hospitals in Lake 

County, Indiana and that such study will not be completed prior 

to that date. Defendant Methodist Hospital of Gary, Inc. opposes 

this extension alleging that such a delay would cause them signi- 

ficant additional economic harm. In its Memorandum of Points and 

Authorities in Support of Motion for Reconsideration of December 

5, 1977 Trial Date, defendant HEW represented that it had offered 

to enter into a stipulation with both plaintiffs and defendant 

hospital, thereby tolling the time for enforcement of 42 C.F.R. 

§100.109 (a) which requires defendant hospital to obligate its funds 

by the end of March, 1978. (Memorandum at 9).   

 



- ® 
. - 

  

Being duly advised in this matter, the Court now finds that, 

due to the complexity of the issues involved and the Title VI 

study by HEW, additional time should be granted both plaintiffs 

and defendants. In view of the serious nature of the allega- 

tions raised and in light of the detailed study of the matter, 

presumed to have begun in September, 1977 by HEW, the Court 

believes that the parties need an additional ninety (90) days 

in which to prepare for the pretrial conference and for trial. 

foreover, in light of the Stipulation entered into by all 

parties and made a part of this Order, the Court is inclined to 

grant: the continuance.: :Therefore, the pretrial conference set for 

November 21, 1977, will be held February 20, 1978 at 10:00 a.m. 

The Pretrial Order is now due March 1, 1978. The trial set for 

December 5, 1977, 1s continued until March 13, 1978, at. 9:30 5.m. 

IV : 2 

Plaintiffs' Motion for Bifurcation 
of The Issues at Trials" 
  

Plaintiffs have moved this Court to bifurcate the trial of 

the issues and to WE for trial the issue of violations of the law 

prior to and separate from the issue of remedy. Due to the com- 

plexity of the issues as well as the enormity of ordering and 

structuring any remedial relief, the Court agrees that bifurcation 

of these issues is proper. Therefore, the March 13th trial date 

will consider only the issue of violations of the law. After the 

trial is concluded, the Court can then formulate, with the aid of 

all parties, any remedial measures which may be warranted. While 

bifurcating trials is not the practice of this Court, it does seem 

appropriate in this instance. 

WHEREFORE, IT IS ORDERED, ADJUDGED AND DECREED: 

1. That plaintiffs’ Motion for Class Certification under 

Rule 23(b) (2), Federal Rules of Civil Procedure, is conditionally 

GRANTED in part and DENIED in part according to the provisions of 

 



: # 
- $y : : 

  

Rule 23(c) (1), under which such an Order may be conditional, 

altered or amended prior to a decision on the merits. 

A. The Court certifies this action as a class action 

pursuant to Rule 23(b) (2) as regards all Black residents of 

Gary, Indiana who use, have used or will use Gary Methodist 

Hospital and who are, have been or will be injured by the 

creation, perpetuation and expansion of a segregated hospital 

system. 

B. For reasons stated above, the Court denies class 

action certification with respect to Hispanic and handicapped - 

residents of Gary. | 

2. That defendant Kaplan's Motion to Dismiss is GRANTED. 

3. That plaintiffs' Motion for a continuance is GRANTED. 

Accordingly, pretrial conference in this matter is now set for 

February 20, 41978, ar 10:00 a.m. and trial of this cause is now 

set for March 13, 1978, at 9:30 a.m., with the Pretrial Order 

being due March 1, 1978. - 

4, That plaintiffs' Motion to bifurcate the issues of vio- 

lation and remedy is GRANTED. 

So Ordered this 74 day of December, 1977. 

2 Yin pr 
She AE pS 
  

Judge, United States District Court [||25de8bb8-6370-4f83-ab45-b6965cf642cf||]