Plaintiffs' Brief in Support of Their Motion for Class Certification with Certificate of Service

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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 TAYLOR 
KEONDRA DIXON, ZACHERY X. 

WILLIAMS, CALVIN A. THOMPSON 

and PRENTISS LAVELL MULLINS, 

No. 3-92 CV 1539-R 

Plaintiffs Civil Action 

Vv. Class Action 

BURTON F. RAIFORD, in his 

capacity as Commissioner of 
the Texas Department of Human 

Services, 

and 

THE UNITED STATES OF AMERICA, 

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Defendants. 

PLAINTIFFS' BRIEF IN SUPPORT OF THEIR MOTION 
FOR CLASS CERTIFICATION 
  

 



  

“ » 

TABLE OF CONTENTS 

  

  

Page 

National class 

Local Rule 10.2 (1) appropriate Rule 23 sections 1 

Local rule 10.2 (2) specific factual allegations 

and common questions 4 

1. The number or approximate number of class members 4 

2. The definition of the class 4 

3. A description of the distinguishing and 

common characteristics of class members 
in terms of geography, time, common 
financial incentives, etc. 5 

4. The questions of law and fact claimed to 

be common to the class 

Local rule 10.2 (3) adequate representation 6 

1. Tvplcality’ 6 

2. Fair and adequate representative of the class 6 

3. Financial responsibility to fund the action 7 

Local rule 10.2 (4) jurisdictional amount 7 

Local rule 10.2 (5) notice to the class 7 

Local rule 10.2 (6) class discovery 7 

Local rule 10.2 (7) plaintiffs attorneys fees 7 

Other litigation 8 

Standing of plaintiffs to bring a national class action 8 

Discretion of the Court 9 

Statewide class 9 

Local Rule 10.2 (1) appropriate Rule 23 sections 9 

Local rule 10.2 (2) specific factual allegations 

and common questions 13 

 



  

1. The number or approximate number of class members 

2. The definition of the class 

3. A description of the distinguishing and 
common characteristics of class members 
in terms of geography, time, common 
financial incentives, etc. 

4. The questions of law and fact claimed 
to be common to the class 

Local rule 10.2 (3) adequate representation 

1. Typicality 

2. Fair and adequate representative of the class 

3. Financial responsibility to fund the action 

Local 

Local 

Local 

Local 

Other 

rule 10.2 (4) 

rule 10.2 (5) 

rule 10.2 (6) 

rule 10.2 (7) 

litigation 

jurisdictional amount 

notice to the class 

class discovery 

plaintiffs attorneys fees 

Standing of plaintiffs to bring a statewide class action 

Discretion of the Court 

ii 

13 

13 

14 

14 

14 

15 

15 

15 

16 

16 

16 

16 

16 

17 

17 

 



  

TABLE OF AUTHORITIES 

Cases: 

Califano v. Yamasaki, 442 U.S. 682 (1979) 
  

Childress v. Secretary of HHS, 679 F.2d 623 
{6th Cir. 1982) 
  

Hyatt v. Sullivan, 899 F.2d 329 (4th Cir. 1990) 
  

Johnson v. United States Railroad Retirement Board, 

969 F.24 1082 (D.C. Cir. 1992) 
  

Kuenz v. Goodyear Tire and Rubber Co., 104 F.R.D. 474 
(D. Mo. 1985) 
  

Lopez v. Heckler, 725 F.2d 1489 (9th Cir. 1984) 

vacated on other grounds and remanded, 
469 U.S. 1082 (1984) 

  

Lynch v. Rank, 604 F.Supp. 30 (N.D. Ca. 1984)   

Mertz v. Harris, 497 F. Supp. 1134 (S.D. Tex. 1980) 
  

Phillips v. Brock, 652 F.Supp. 1372 (D. MA. 1987) 
  

Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984) 
  

Stieberger v. Bowen, 801 F.2d 29 (24d Cir. 1986) 
  

Thomas v. Johnston, 557 F.Supp. 879 (W.D. Tex. 1983) 
  

Underwood v. Hills, 414 F.Supp. 526 (D.D.C. 1976) 
  

Warth v. Seldin, 422 U.S. 490 (1975) 
  

Rules: 

Fed. R. Civ. P. 23 (a) 

Fed. R. Civ. P. 23(b)(2) 

Statutes:   

28 U.5.C.'§S 1331 

Medicaid Act, 42 U.S.C. §§ 1396-1396s 

$i 

throughout 

throughout 

 



  

  

Page: 

Federal Publications: 

HHS, "Strategic Plan For The Elimination of Childhood Lead 

Poisoning", February 1991, page 18 4 

Section 5123.2.D.1 of the State Medicaid Manual 10 

iv 

 



* 9 

  

Plaintiffs have moved for certification of two classes: a 

national class of Medicaid-EPSDT children for the claims against 

the USA and a statewide class of Medicaid-EPSDT children for the 

claims against the state defendant, Raiford. Plaintiffs’ argument 

and demonstration of compliance with Local Rule 10.2 is set out 

separately for each class. 

National class 
  

Plaintiffs seek a national class to assert the claims under 

the Medicaid Act that require the use of a blood lead level test 

that is appropriate for age and risk factors. 

Local Rule 10.2 (1) appropriate Rule 23 sections 

Plaintiffs asset that the national class is authorized by 

Fed. R. Civ. P. 23(a) and 23(b)(2). The 23(a) requirements are 

discussed in the following sections. The 23(b)(2) requirement is 

met by the fact that the USA sanctions, supports, allows, and 

finances the use of the EP test as a lead poisoning screening 

device throughout the country and as a matter of conscious 

policy. 

The USA implements the requirements of the Medicaid Act 

through regulations and non-regulatory guidelines issued to the 

states. The primary non-regulatory guideline is the HCFA "State 

Medicaid Manual". The pre-9/19/92 State Medicaid Manual stated 

"In general, use the EP test as the primary screening. Perform 

venous blood lead measurements on children with elevated EP 

levels." The amendments to the State Medicaid Manual, that took 

effect on Sept. 19, 1992 continue to sanction the use of the EP 

 



  

test as the primary screening test for lead poisoning in young 

children throughout the country. E.g. "States continue to have 

the option to use the EP test as the initial screening blood 

test." These directions apply to each state in the union and to 

each child in each state. The USA’s implementation of a national 

policy makes injunctive relief appropriate for the class as a 

whole. Califano v. Yamasaki, 442 U.S. 682, 702 (1979); Fed. R. 
  

Civ. P. 23(b)X2)- 

The USA may argue that national class certification is not 

necessary because, should the USA lose, it will, or may, choose 

to follow the directive of the court irregardless of whether or 

not there is a national class. This policy of acquiescence in a 

judicial decision it did not like would be unusual for the USA. 

The executive branch consistently insists on the existence of 

some right to be free from the dictates of the law as declared 

even by the Circuit Courts of Appeals within the jurisdiction of 

those Courts of Appeals. Johnson v. United States Railroad 
  

Retirement Board, 969 F.2d 1082 (D.C. Cir. 1992). The U.S. 
  

Department of Health and Human Services, the agency directly 

involved in this litigation, has been one of the executive 

agencies most insistent on its alleged right to disobey the law 

as interpreted by the lower courts. Hyatt v. Sullivan, 899 F.2d 
  

  329 (4th Cir. 1990); Stieberger v. Bowen, 801 F.2d 29, 36-37 (2d 

Cir. 1986); Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.   

1984); Lopez v. Heckler, 725 F.2d 1489 (9th Cir. 1984) vacated on 
  

other grounds and remanded, 469 U.S. 1082 (1984); Childress v. 
  

 



  

* ® 

Secretary of HHS, 679 F.2d 623, 630 (6th Cir. 1982). 
  

Injunctive relief with respect to the class as a whole is 

necessary in order to provide the relief to which the class is 

entitled. Plaintiffs seek the following substantive relief 

against the USA: 

a. a temporary restraining order and a preliminary injunc- 

tion enjoining the USA, through the HCFA, from supporting, 

allowing or financing the States’ use of the EP test as an appro- 

priate screening test for lead poisoning and ordering defendant 

USA, through the HCFA, to require the States to use a blood lead 

level test as a screening device for childhood lead poisoning, 

b. a permanent injunction that: 

(1) contifues the relief granted by the TRO and prelim- 

inary injunction, 

(2) enjoins the operation and effect of any regulations 

or guidelines which allow for the use of and the compensation for 

EP tests to test for lead poisoning instead of blood lead level 

tests, 

(3) orders the publication of and enforcement of 

regulations and guidelines requiring the States to use blood lead 

tests and requiring the States to retest, using blood lead tests, 

each Medicaid eligible child for whom the States have used an EP 

test instead of a blood lead test and compensating the States for 

the retests. 

If the national class is certified, then the legal basis for 

the complete relief requested will undoubtedly be present. Absent 

 



  

* ® 

national class certification, there might be some questions about 

some of the relief requested, e.g., the retesting of each child 

for whom an EP test has been conducted and relied upon. 

Local rule 10.2 (2) specific factual allegations and common 

questions 

1. The number or approximate number of class members - 

There are and have been more than several million children 

residents of the United States who are eligible for Medicaid and 

the USA’s EPSDT program. As of 1989 there were 10 million total 

Medicaid-EPSDT eligible children in the country. "EPSDT is a 

comprehensive prevention and treatment program available to 

Medicaid-eligible persons under 21 years of age. In 1989, of the 

10 million eligible.persons, more than 4 million received initial 

or periodic screening health examinations...Screening services, 

defined by statute, must include a blood lead assessment ‘where 

age and risk factors indicate it is medically appropriate.’." 

HHS, "Strategic Plan For The Elimination of Childhood Lead 

Poisoning", February 1991, page 18. 

The class of all these persons is so numerous that joinder 

of all these persons is impractical. Joinder of millions of 

children is not feasible because of the number. The geographic 

dispersion and poverty status of these children makes joinder 

even more impractical. Lynch v. Rank, 604 F.Supp. 30, 36 (N.D. 
  

Ca. 1984); Mertz v. Harris, 497 F. Supp. 1134, 1138 (S.D. Tex. 
  

1980). 

2. The definition of the class - 

The national class is defined to be all Medicaid-eligible 

4 

 



  

children located in the United States of America. 

National classes are commonly used in matters of national 

policy involving social welfare programs. "The scope of injunc- 

tive relief is dictated by the extent of the violation and not by 

the geographical extent of the plaintiff class." Califano, 442   

U.s.. 682, 702 (1979); Phillips v. Brock, 652 F.Supp. 1372, 1377 
  

(D. Md. 1987); Kuenz v. Goodyear Tire and Rubber Co., 104 F.R.D. 
  

474 (D. Mo. 1985); Underwood v. Hills, 414 F.Supp. 526, 528 
  

(D.D.C. 1976}. 

Where the class is defined by reference to the defendant’s 

alleged nationwide practices, nationwide certification is proper. 

Orantes—-Hernandez v. Smith, 541 F.Supp. 351, 366 (C.D. Ca. 1982). 
  

3.h deserippion of the distinguishing and common character- 

istics of class members in terms of geography, time, common 

financial incentives, etc. - 

The common characteristic for the class is that they are all 

eligible for the Medicaid-EPSDT program because of their age and 

poverty. They are more likely to be at risk of childhood lead 

poisoning because of their age and poverty. While they are in 

different states, the federal policy complained of is common to 

each state. 

4. The questions of law and fact claimed to be common to the 

class - 

The common question of law is the central question of law in 

the case - does the U.S.A.’s continued sanction, support, and 

financial assistance for the EP test violate the requirements of 

 



  

the federal Medicaid Act. The determination of whether or not 

the EP test meets the statutory requirement that each child be 

given a blood lead level test appropriate for age and risk 

factors is the same whether the child lives in Alaska or Texas. 

This question of law is sufficient to support class certifica- 

tion. Califano, 442 U.S. 682, 702 (1979). 
  

Local rule 10.2 (3) adequate representation 

1. Typicality 

Plaintiffs’ claims involve proof of the same set of 

facts on their own behalf as they would have to prove on behalf 

of the class. Plaintiffs’ interests in proving liability by 

defendant United States are the same as the class members’ 

interests. : 

2. Fair and adequate representative of the class 

There is no conflict between the plaintiffs and the class. 

Plaintiffs seek the same injunctive relief on their own behalf as 

is sought on behalf of the class. 

There is no conflict of interest in terms of compensation of 

plaintiffs’ counsel. No plaintiff has paid or will pay any 

attorney’s fee in this case. Plaintiffs’ counsel are providing 

representation solely on the basis that if successful, attorney’s 

fees will be sought from court awarded, statutory fees and 

litigation expenses from defendants. A term of the retainer 

agreement with the name plaintiffs, however, is that plaintiffs 

will not accept a settlement that does not provide for reasonable 

attorneys fees and costs for its attorneys. Plaintiffs’ counsel 

 



have the same interest in obtaining relief for the class members 

as they do for the plaintiffs. 

Plaintiffs’ counsel Michael M. Daniel is an experienced 

civil rights attorney with prior experience litigating claims on 

behalf of poor persons and class members on a wide variety of 

issues. - 

3. Financial responsibility to fund the action 

Plaintiffs’ counsel Michael M. Daniel, P.C. has demonstrated 

the financial responsibility to advance the funding for substan- 

tial civil rights actions such as this case in a wide array of 

matters involving housing, voting rights, and environmental 

issues. 

Local rule 10.2 (4) jurisdictional amount 

There is no jurisdictional amount in the federal statute 

upon which jurisdiction is grounded in this case, 28 U.S.C. § 

1331. 

Local rule 10.2 (5) notice to the class 

Notice is not necessary at this juncture since it is a Rule 

23(b) (2) class that is seeking injunctive relief from the defen- 

dant. 

Local rule 10.2 (6) class discovery 

Plaintiffs see no need for further discovery on their part 

for class certification unless defendant U.S.A.’s opposition to 

the class certification raises issues needing discovery. 

Local rule 10.2 (7) plaintiffs attorneys fees 

No plaintiff has paid or will pay any attorney’s fee in this  



  

case. Plaintiffs’ counsel are providing representation solely on 

the basis that if successful, attorney’s fees will be sought from 

court awarded, statutory fees and litigation expenses from 

defendants. A term of the retainer agreement with the name 

plaintiffs, however, is that plaintiffs will not accept a settle- 

ment that does not provide for reasonable attorneys fees and 

costs for its attorneys. 

Other litigation 

The plaintiffs are aware of no other pending litigation 

anywhere in the country challenging the U.S.A.’s use of the EP 

test in the Medicaid-EPSDT program. 

Standing of plaintiffs to bring a national class action 

The name plaintiffs have suffered injury in fact. They are 

eligible for the Medicaid-EPSDT program. They were screened for 

lead poisoning with the challenged EP test which failed to detect 

plaintiffs’ lead poisoning. They are still participants in the 

EPSDT program and still subject to the challenged EP test. 

The injury suffered is distinct and palpable in that it is 

not an undifferentiated, generalized grievance against the 

government. Being subjected to the use of the EP test affects 

these plaintiffs differently from the citizenry at large. The 

injury has and will concretely harm plaintiffs by subjecting them 

to undiagnosed and untreated lead poisoning. 

The U.S.A’s failure to require the states to use a blood 

lead level test appropriate for age and risk factors is a dis- 

tinct causal factor in plaintiffs’ injuries. If the U.S.A. is 

 



  

required to withdraw its support for the EP test and require the 

use of blood lead level test, then plaintiffs’ injuries will be 

remedied. They will receive a blood lead level test that allows 

for diagnosis and treatment of lead poisoning. Warth v. Seldin, 
  

422 U.S. 490 (1975). 

Discretion of the Court 

Certifying a national class is within the discretion of the 

district court. The certification of this class is an efficient 

and expeditious means of reaching a final and binding resolution 

of the issue in this case. The national class would serve the 

anti-proliferation of litigation policy behind the class action 

rules. The focus of the litigation is narrow and revolves around 

a discrete issue. : 

The national class should be certified. Califano, 442 U.S. 
  

682, 702 (1979). 

Statewide class 
  

Plaintiffs seek a statewide class to assert the claims under 

the Medicaid Act that requires the state defendant Raiford to use 

of a blood lead level test that is appropriate for age and risk 

factors in the Texas EPSDT program. 

Local Rule 10.2 (1) appropriate Rule 23 sections 

Plaintiffs contend that the statewide class is authorized by 

Fed. R. Civ. P. 23(a) and 23(b)(2). The 23(a) requirements are 

discussed in the following sections. The 23(b) (2) requirement is 

met by the fact that defendant Raiford continues to allow the use 

of the EP test to test for lead poisoning in the Texas EPSDT 

 



  

® # 

program in violation of the Medicaid Act. 

The State of Texas participates in the federal Medicaid 

program and has established the Texas Department of Human Servic- 

es (TDHS) which provides medical services to low-income persons 

through reimbursement of health care providers for such services. 

The federal requirements of the Medicaid Act, 42 U.S.C. §§ 1396- 

1396s, are binding on the State of Texas. The class members are 

children eligible for Medicaid. Many of these children, because 

of their age and the environmental conditions in many areas of 

the State, are at risk or high risk of lead poisoning. 

Rather than comply with the Medicaid requirements of lead 

blood level assessment and treatment for the lead exposure 

discovered, defendant Raiford has deliberately and willfully 

chosen to disobey that mandate. Instead of testing for blood lead 

level, defendant uses a laboratory test to detect levels of 

Erythrocyte Protoporphin (EP). Defendant Raiford’s continued use 

of the EP test is inexplicable on any defensible grounds. 

Rather than comply with the statute’s mandate that the blood 

lead level assessment be done in accord with appropriate age and 

risk factors, defendant Raiford has willfully and deliberately 

chosen to use age as the primary factor in lead level assessment. 

The federal Health Care Financing Administration released a 

report dated July 12, 1991 that reviewed defendant’s compliance 

with the risk assessment requirement of the statute. The report 

found: "The State has not established risk factors (other than 

age) to assist providers in determining whether it is appropriate 

10 

 



  

to perform a blood lead level test. It has established an age 

factor. ..however, according to Section 5123.2.D.1 of the State 

Medicaid Manual, States should also consider environmental 

aspects when establishing risk factors." The report recommended 

that "The State should require that high blood lead level areas 

be taken into consideration when determining risk factors and it 

should furnish EPSDT screening providers with a list of these 

high risk zones." Defendant Raiford’s August 29, 1991 response 

to the HCFA report stated "We agree with the finding". Defendant 

Raiford has still not furnished EPSDT screening providers with a 

list designating high risk zones for childhood lead poisoning in 

the state. 

CDC has established a screening schedule for children at 

high risk for lead poisoning which starts at six months and 

varies throughout childhood depending on the results of the blood 

lead tests. Defendant Raiford requires only one screening for 

lead poisoning at either 6 months of age or once between the ages 

of 9 months and 20 years if not given at six months. 

Rather than comply with the statutory mandate to provide 

treatment for lead poisoning discovered in the screening process, 

defendant Raiford ignores the accepted CDC guidelines for medical 

and public health interventions once lead poisoning is discov- 

ered. For example, the plaintiff children’s files are empty of 

any intervention other than a referral to the City of Dallas for 

a follow up. Defendant Raiford does not provide individual case 

management including nutritional and educational interventions, 

11 

 



  

more frequent screening, environmental investigations (including 

a home inspection) and remediation for children with blood lead 

levels of 15-19 ug/dL. 

Injunctive relief with respect to the class as a whole is 

necessary in order to provide the relief to which the class is 

entitled. Plaintiffs seek the following substantive relief 

against defendant Raiford: 

a. a temporary restraining order enjoining defendant from 

the use of the EP test statewide as a blood lead level screening 

procedure and requiring the defendant to use the blood lead level 

test statewide as part of the EPSDT program, 

b. a preliminary and permanent injunction requiring Mr. 

Raiford to: J 

(1) continue the temporary relief, 

(2) declare West Dallas a geographic area of high risk for 

children for lead poisoning and notify all EPSDT providers that 

eligible children that live and have lived in West Dallas must be 

given lead blood level assessments. 

(3) declare other geographic areas of the State of Texas 

that have a risk of lead contamination as areas of high risk for 

children for lead poisoning and notify all EPSDT providers that 

eligible children that live in those high risk areas and have 

lived in those areas must be given lead blood level assessments. 

(4) give effective notice and outreach to all EPSDT eligible 

children who live in West Dallas or other high risk areas of the 

State of Texas or have lived in West Dallas or other high risk 

12 

 



  

areas in the state of the availability of the blood lead screen- 

ing and treatment. 

(5) re-test, using the blood lead level test, each person in 

the class for whom the EP test was given in the past, 

(6) implement a case management program to ensure that all 

children eligible for the screening receive it and that all 

necessary medical treatment is provided to the children for whom 

the screening indicates a lead poisoning related health risk. The 

screening, the schedule for screening and the treatment provided 

should all be conducted pursuant to the U.S. Department of Health 

and Human Services, Public Health Service, Centers for Disease 

Control guidelines. 

If the statewide class is certified, then the legal basis 

for the complete relief requested will undoubtedly be present. 

Without statewide class certification, there might be some ques- 

tions about some of the relief requested, e.g.,the retesting of 

each child in the state for whom an EP test has been conducted 

and relied upon and the designation of areas of the state as high 

risk zones for childhood lead poisoning. 

Local rule 10.2 (2) specific factual allegations and common 

questions 

1. The number or approximate number of class members - 

There are and have been more than several thousand children 

residents of the State of Texas who are eligible for Medicaid and 

defendant Raiford’s EPSDT program. As of 1991 there were at 

least 768,163 total Medicaid eligible children in the State of 

13 

 



  

Texas. The class of all these persons is so numerous that 

joinder of all these persons statewide is impractical. 

2. The definition of the class - 

The statewide class is defined to be all Medicaid-eligible 

children located in the state of Texas. 

Statewide classes are common in programs involving the 

social welfare of children. In Thomas v. Johnston, the Texas 
  

district court conditionally certified a class of children 

Medicaid recipients for their claims against the TDHS commission- 

er in order to grant the requested preliminary relief. 557 

F.Supp. 879, 916 (W.D. Tex. 1983). 

3. A description of the distinguishing and common character- 

istics of class nenbers in terms of geography, time, common 

financial incentives, etc. = 

The common characteristic for the class is that they are all 

eligible for defendant Raiford’s Medicaid-EPSDT program because 

of their age and poverty and location in Texas. They are more 

likely to be at risk of childhood lead poisoning because of their 

age and poverty. 

4. The questions of law and fact claimed to be common to the 

class - 

The common question of law is the state defendant Raiford’s 

failure to screen Texas-EPSDT children with a blood lead level 

test in accordance with the Medicaid Act. The question of law is 

common to all EPSDT children in the State of Texas regardless of 

whether they live in an area of high risk for childhood lead 

14 

 



  

poisoning or not. This question of law is sufficient to support 

class certification. 

Local rule 10.2 (3) adequate representation 

1. Typicality 

Plaintiffs’ claims involve proof of the same set of 

facts on their own behalf as they would have to prove on behalf 

of the class. Plaintiffs’ interests in proving liability by 

defendant Raiford are the same as the class members’ interests. 

2. Fair and adequate representative of the class 

There is no conflict between the plaintiffs and the class. 

Plaintiffs seek the same injunctive relief on their own behalf as 

is sought on behalf of the statewide class. 

There is no conflict of interest in terms of compensation of 

plaintiffs’ counsel. No plaintiff has paid or will pay any 

attorney’s fee in this case. Plaintiffs’ counsel are providing 

representation solely on the basis that if successful, attorney’s 

fees will be sought from court awarded, statutory fees and 

litigation expenses from defendants. A term of the retainer 

agreement with the name plaintiffs, however, is that plaintiffs 

will not accept a settlement that does not provide for reasonable 

attorneys fees and costs for its attorneys. Plaintiffs’ counsel 

have the same interest in obtaining relief for the class members 

as they do for the plaintiffs. 

Plaintiffs’ counsel Michael M. Daniel is an experienced 

civil rights attorney with prior experience litigating claims on 

behalf of poor persons and class members on a wide variety of 

15 

 



  

issues. 

3. Financial responsibility to fund the action 

Plaintiffs’ counsel Michael M. Daniel, P.C. has demonstrated 

the financial responsibility to advance the funding for substan- 

tial civil rights actions such as this case in a wide array of 

matters ‘involving housing, voting rights, and environmental 

issues. 

Local rule 10.2 (4) jurisdictional amount 

There is no jurisdictional amount in the federal statute 

upon which jurisdiction is grounded in this case, 28 u.s.c. § 

1331. 

Local rule 10.2 (5) notice to the class 

Notice is not Necessary at this juncture since it is a Rule 

23(b) (2) class that is seeking injunctive relief from the defen- 

dant. 

Local rule 10.2 (6) class discovery 

Plaintiffs see no need for further discovery on their part 

for class certification unless defendant Raiford’s opposition to 

the class certification raises issues needing discovery. 

Local rule 10.2 (7) plaintiffs attorneys fees 

No plaintiff has paid or will pay any attorney’s fee in this 

case. Plaintiffs’ counsel are providing representation solely on 

the basis that if successful, attorney’s fees will be sought from 

court awarded, statutory fees and litigation expenses from 

defendants. A term of the retainer agreement with the name 

plaintiffs, however, is that plaintiffs will not accept a settle- 

16 

 



  

ment that does not provide for reasonable attorneys fees and 

costs for its attorneys. 

Other litigation 

The plaintiffs are aware of no other pending litigation in 

the State of Texas challenging the state defendant Raiford’s use 

of the EP test in the Medicaid-EPSDT program. 

Standing of plaintiffs to bring a statewide class action 

The name plaintiffs have suffered injury in fact. They are 

eligible for the Texas Medicaid-EPSDT program. They were 

screened for lead poisoning with the challenged EP test which 

failed to detect plaintiffs’ lead poisoning. They are still 

participants in the Texas EPSDT program and still subject to the 

challenged EP toni 

The injury suffered is distinct and palpable in that it is 

not an undifferentiated, generalized grievance against the state 

defendant. Being subjected to the use of the EP test affects 

these plaintiffs differently from the citizenry at large. The 

injury has and will concretely harm plaintiffs by subjecting them 

to undiagnosed and untreated lead poisoning. 

Defendant Raiford’s failure to require the states to use a 

blood lead level test appropriate for age and risk factors is a 

distinct causal factor in plaintiffs’ injuries. If the requested 

relief is granted for the statewide class, then plaintiffs’ 

injuries will be remedied. They will receive a plocd lead level 

test that allows for diagnosis and treatment of lead poisoning. 

Warth v. Seldin, 422 U.S. 490 (1975). 
  

17 

 



  

Discretion of the Court 

Certifying a statewide class is within the discretion of the 

district court. The certification of this class is an efficient 

and expeditious means of reaching a final and binding resolution 

of the issue in this case. The statewide class would serve the 

anti-proliferation of litigation policy behind the class action 

rules. 

The statewide class should be certified. 

Respectfully submitted, 

MICHAEL M. DANIEL, P.C. 

3301 Elm Street 
Dallas, Texas 75226-1637 
(214) 939-9230 (telephone) 
Wo csimile) 

By: m 4 

Michael M. Daniel a 
State Bar No. 05360500 

By: na EE Le Hai 
Laura B. Beshara 
State Bar No. 02261750 

     

  

  

  

ATTORNEYS FOR PLAINTIFF 

CERTIFICATE OF SERVICE 
  

I certify that a true and correct copy of the above document 
was served upon counsel for defendants by being Plaged in the 
IR first class postage prepaid, on the /{/™ day of 

z ol 1992. 

rn 5 Erba 
~~ Laura B. Beshara 

  

  

18