FILED rus DISTF~ICT COURT CLERK UNITED STATES DISTRICT COU~I~T~;~] ~ .s~ ,~::T ~,,~: K Y
WESTE~ DIST~CT OF ~NTUC~ Ag~ -! P~ l: q~ AT LO~SVILLE

MARTEL CHAPMAN Individually and on Behalf of All Other Similarly Situated
go
HARDIN COUNTY SERVE: Hon. Harry Berry Hardin County Judge Executive Courthouse, 100 Public Square Elizabethtown, Kentucky 42701
LOUIS B. LAWSON, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS JAILER OF HARDIN COUNTY
SERVE: Louis B. Lawson Jailer Hardin County Jail 100 Lawson Blvd. Elizabethtown, Kentucky 42701
JOHN and JANE DOES NOS. 1, 2, and 3, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES AS OFFICERS AND EMPLOYEES OF THE HARDIN COUNTY JAIL
Defendants. COMPLAINT

PLAINTIFF

Comes the Plaintiff, Martel Chapman; by and through counsel, and for her Complaint states as follows: (1) Plaintiff, Martel Chapman, files this action individually and on behalf of
all persons who contracted MRSA as a consequence of the neglect, intent, recklessness and/or deliberate indifference of Defendants.

Specifically, the. Jail negligently, intentionally, recklessly and/or with deliberate indifference allowed Methicillin-Resistant Staphylococcus Aureus (MRSA) to be introduced to the jail population. Subsequently, the infection spread among the jail population. (2) Defendant’s conduct effected many other inmates at the jail. These inmates include numerous men and women, similarly situated to the Plaintiff, who likewise contracted MRSA. There are.questions of law and fact in this case that are common to all members of the class. The class of individuals include all those who contracted MRSA at the jail from one year preceding the filing of this Complaint to the present, and Plaintiff’s claims are typical of those of the class of individuals likewise infected, and she will fairly and adequately protect the interest of the class.
(3) Plaintiff, and all others similarly situated, seek actual and punitive
damages from Defendants under the Civil Rights Act of 1871, 42 U.S.C. Section 1983, for gross and unconscionable violation of their rights, privileges and immunities guaranteed them under the Eighth, Tenth and Fourteenth Amendments to the Constitution of the United States. This Court has jurisdiction of this case pursuant to 28 U.S.C. § 1331 and 1343. Plaintiff, and the other members of their class also seek damages for negligence; gross negligence, outrageous conduct and intentional infliction of emotional distress. Elizabethtown, Hardin County,

Kentucky is the location of the jail where all the actions occurred and venue is proper in this Court.
(4) Plaintiffs bring this action as a Class Action pursuant to Rules 23(b) (1)
(2) & (3) of the Federal Rules of Civil Procedure. Plaintiff will fairly and adequately protect the interests of all class members. She is a member of the class and her claims are typical of the claims of all class members. Plaintiff is offended at the treatment offered her and the class members and will aggressively pursue the interests of the entire class. Plaintiff’s claims are consistent with and not antagonistic with those with any other person within the class. (6) A Class Action is superior to other available methods for the fair and efficient adjudication of this comroversy because:
(a) A multiplicity of suits with consequent burden on the courts and Defendants should be avoided.
(b) It would be virtually impossible for all class members to intervene as parties-plaintiff in .this action.
(c) Upon adjudication of Defendants’ liability, claims of the class members can be determined by this Court.
(7) Plaintiff is a resident of Hardin County, Kentucky. Defendant, Hardin County, at all times mentioned herein, employed, and was responsible for the establishment of policies either formally or by custom for, and was responsible for the employment, training, supervision and conduct of the officers and employees of the Hardin County Jail. Defendant,

Louis B. Lawson, is Jailer of Hardin County and as such established policies formally or by custom for, and was responsible for the employment, training, supervision and conduct of the officers and employees of the Hardin County Jail. Defendants John and Jane Does numbers one, two and thre~, identities presently unknown, were at all times mentioned herein Officers and employees of the jail and participated in the unconstitutional and tortious actions against the Plaintiffs individually and/or in their official capacities.
(8) Defendants, individually and in conspiracy with one another, engaged
in the conduct described below under the color of law of the Commonwealth of Kentucky and Hardin County. Defendants failed to employ qualified persons for positions of authority; to properly or conscientiously train and supervise flae conduct of such persons after their employment; and to promulgate appropriate operating policies and procedures either formally or by custom to protect the constitutional rights of the inmates at the jail; and to ensure that proper policies and procedures were followed to safeguard the health and safety of the inmates. Defendants’ conduct was intentional or grossly negligent, or indicated active malice toward Plaintiff and the class for a total and reckless disregard for and indifference to their constitutional and common law rights, justifying an award of punitive damages in addition

to the actual damages which Plaintiff and the cIass are entitled to recover. (9) Defendants were required by statute to promulgate medical and safety procedures to be implemented and followed at the jail. Defendants either failed to promulgate proper policies to protect the inmates from MRSA and/or failed to follow their own policies and protocol established to diagnose, treat, isolate, and prevent the spread of MRSA. Defendants failed to properly clean and disinfect the jail, uniforms~ and linens, pursuant to an applicable or appropriate protocol, which caused the continual spread of MRSA. Defendants failed to provide proper and necessary medical treatment to those infected, which caused the continual spread of MRSA. Defendants failed to isolate the infected inmates, which caused the continual spread of MRSA. (10) Defendants’ violation of statutes, ordinances, regulations, policies,. procedures, protocol, customs and practices of the Commonwealth of Kentucky and Hardin County, either written or unwritten continued over many months of time. Defendants’ practices constitute an arbitrary use of Government power, and evince a total disregard for the constitutional and common law rights of the inmates, including Plaintiff and the members of the class, who they were required to protect. (11) ¯ Plaintiff and the class, through Defendants’ intentional or grossly negligent conduct, were deprived without due process of law of the following rights, privileges and immunities guaranteed them by the

Constitution of the United States in violation of the Civil Rights Act of

1871,42 U.S.C. § 1983: (a) Their right not to be subjected to cruel and unusual

punishment under the Eighth, Tenth and Fourteenth

Amendments of the Constitution of the United States and

Civil Rights Act of 1871, 42 U.S.C. § 1983;

(b) Their right to the equal protection of the law secured bythe

Fourteenth Amendment.

(12)

By virtue of Defendants’ violations described above and their

negligence, Plaintiff and the class have suffered and will suffer

severe mental and emotional distress.

(13)

Defendants’ negligence and statutory violations, committed

intentionally or recklessly with indifference to the rights of the

Plaintiffs, proximately caused all of their damages, as follows: (a) Medical expenses, past and future;

(b) Physical pain and suffering past and future;

(c) Loss of enjoyment of life;

(d) Loss of consortium; (e) Mental anguish, past and future; (f) Risk of future complications;

(g) Diminution of earning capacity.

(14) Defendants’ conduct in failing to protect Plaintiff and members of the class was intentional, reckless, deliberate, wanton, malicious and grossly negligent.
(15) Plaintiff will show that Defendants’ treatment of her was not unusual, but a continuing pattern by Defendants of willfully and deliberately ignoring a serious medical risk and the medical needs ofthe inmates. Such conduct is the result of the customs and practices of the jail, which are systematically applied to all persons who exhibit medical conditions or problems while incarcerated at the jail.
WHEREFORE, Plaintiffs and the class demand: (1) That this action proceed as a Class Action; (2) Trial by jury; (3) Award of attorney fees and costs; (4) Award of actual damages, more particularly described above; Award of ptmitive damages; ~~ff~S~& (5) (6) All other relief to which they may ap.,l~,ar to
Miller and Durham 400 W. Lincoln Trail Radcliff, KY 40i60 Attorney for Plaintiff

 
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE NO.3:05CV-00433-S

MARTEL CHAPMAN Individually and on Behalf of All Other Similarly Situated

PLAINTIFFS

AND

JOLENE HAZELWOOD

AND

TINA SPEARS

AND

DAVID STALLINS

AND

ANNETTE BORGES

AND

CHARLES ANDERSON

AND

CARROLL L. DAILEY

AND

MAURICH GRIMES

V.

HARDIN COUNTY SERVE: Hon. Harry Berry Hardin County Judge Executive Courthouse, 100 Public Square Elizabethtown, Kentucky 42701

DEFENDANTS

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LOUIS B. LAWSON, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS JAILER OF HARDIN COUNTY
SERVE: Louis B. Lawson Jailer Hardin County Jail 100 Lawson Blvd. Elizabethtown, Kentucky 42701
JOHN and JANE DOES NOS. 1, 2, and 3, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES AS OFFICERS AND EMPLOYEES OF THE HARDIN COUNTY JAIL
SECOND AMENDED COMPLAINT
*********
Come the Plaintiffs, Martel Chapman and Jolene Hazelwood, by and
through counsel, and for their Amended Complaint state as follows:
(1) Plaintiffs, Martel Chapman, Jolene Hazelwood, Tina Spears, David
Stallins, Annette Borges, Charles Anderson and Carroll L. Dailey file
.this action individually and on behalf of all persons who contracted
MRSA as a consequence of the neglect, intent, recklessness and/or
deliberate indifference of Defendants. Specifically, the Jail negligently,
intentionally, recklessly and/or with deliberate indifference allowed
Methicillin-Resistant Staphylococcus Aureus (MRSA) to be introduced
to the jail population. Subsequently, the infection spread among the jail
population.
(2) Defendant's conduct effected many other inmates at the jail. These
inmates include numerous men and women, similarly situated to the
Plaintiff, who likewise contracted MRSA. There are questions of law

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and fact in this case that are common to all members of the class. The class of individuals include all those who contracted MRSA at the jail from one year preceding the filing of this Complaint to the present, and Plaintiffs' claims are typical of those of the class of individuals likewise infected, and will fairly and adequately protect the interest of the class. (3) Plaintiffs, and all others similarly situated, seek actual and punitive damages from Defendants under the Civil Rights Act of 1871,42 U.S.C. Section 1983, for gross and unconscionable violation of their rights, privileges and immunities guaranteed them under the Eighth, Tenth and Fourteenth Amendments to the Constitution of the United States. This Court has jurisdiction of this case pursuant to 28 U.S.C. § 1331 and 1343. Plaintiffs, and the other members of their class also seek damages for negligence, gross negligence, outrageous conduct and intentional infliction of emotional distress. Elizabethtown, Hardin County, Kentucky is the location of the jail where all the actions occurred and venue is proper in this Court. (4) Plaintiffs bring this action as a Class Action pursuant to Rules 23(b) (1) (2) & (3) of the Federal Rules of Civil Procedure. (5) Plaintiffs will fairly and adequately protect the interests of all class members. Plaintiffs are members of the class and their claims are typical of the claims of all class members. Plaintiffs are offended at the treatment offered Plaintiffs and the class members and will aggressively pursue the interests of the entire class. Plaintiffs' claims are consistent

with and not antagonistic with those with any other person within the class. (6) A Class Action is superior to other available methods for the fair and efficient adjudication of this controversy because:
(a) A multiplicity of suits with consequent burden on the courts and Defendants should be avoided.
(b) It would be virtually impossible for all class members to intervene as parties-plaintiff in this action.
(c) Upon adjudication of Defendants' liability, claims of the class members can be determined by this Court.
(7) Plaintiffs are residents of Hardin County, Kentucky. Defendant, Hardin County, at all times mentioned herein, employed, and was responsible for the establishment of policies either formally or by custom for, and was responsible for the employment, training, supervision and conduct of the officers and employees of the Hardin County Jail. Defendant, Louis B. Lawson, is Jailer of Hardin County and as such established policies formally or by custom for, and was responsible for the employment, training, supervision and conduct of the officers and employees of the Hardin County Jail. Defendants John and Jane Does numbers one, two and three, identities presently unknown, were at all times mentioned herein Officers and employees of the jail and participated in the unconstitutional and tortious actions against the Plaintiffs individually and/or in their official capacities.

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(8) Defendants, individually and in conspiracy with one another, engaged in the conduct described below under the color of law of the Commonwealth of Kentucky and Hardin County. Defendants failed to employ qualified persons for positions of authority; to properly or conscientiously train and supervise the conduct of such persons after their employment; and to promulgate appropriate operating policies and procedures either formally or by custom to protect the constitutional rights of the inmates at the jail; and to ensure that proper policies and procedures were followed to safeguard the health and safety of the inmates. Defendants' conduct was intentional or grossly negligent, or indicated active malice toward Plaintiffs and the class for a total and reckless disregard for and indifference to their constitutional and common law rights, justifying an award of punitive damages in addition to the actual damages which Plaintiffs and the class are entitled to recover.
(9) Defendants were required by statute to promulgate medical and safety procedures to be implemented and followed at the jail. Defendants either failed to promulgate proper policies to protect the inmates from MRSA and/or failed to follow their own policies and protocol established to diagnose, treat, isolate, and prevent the spread of MRSA. Defendants failed to properly clean and disinfect the jail, uniforms, and linens, pursuant to an applicable or appropriate protocol, which caused

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the continual spread of MRSA. Defendants failed to provide proper and necessary medical treatment to those infected, which caused the continual spread of MRSA. Defendants failed to isolate the infected inmates, which caused the continual spread of MRSA. (10) Defendants' violation of statutes, ordinances, regulations, policies, procedures, protocol, customs and practices of the Commonwealth of Kentucky and Hardin County, either written or unwritten continued over many months of time. Defendants' practices constitute an arbitrary use of Government power, and evince a total disregard for the constitutional and common law rights of the inmates, including Plaintiffs and the members of the class, who they were required to protect. (11) Plaintiffs and the class, through Defendants' intentional or grossly negligent conduct, were deprived without due process of law of the following rights, privileges and immunities guaranteed them by the Constitution of the United States in violation of the Civil Rights Act of 1871,42 U.S.C. § 1983:
(a) Their right not to be subjected to cruel and unusual punishment under the Eighth, Tenth and Fourteenth Amendments of the Constitution of the United States and Civil Rights Act of 1871,42 U.S.C. § 1983;
(b) Their right to the equal protection of the law secured by the Fourteenth Amendment.

(12)

By virtue of Defendants' violations described above and their

negligence, Plaintiffs and the class have suffered and will suffer

severe mental and emotional distress.

(13)

Defendants' negligence and statutory violations, committed

intentionally or recklessly with indifference to the rights of the

Plaintiffs, proximately caused all of their damages, as follows:

(a) Medical expenses, past and future;

(b) Physical pain and suffering past and future;

(c) Loss of enjoyment of life;

(d) Loss of consortium;

(e) Mental anguish, past and future;

(f) Risk of future complications;

(g) Diminution of earning capacity.

(14) Defendants' conduct in failing to protect Plaintiffs and members of the

class was intentional, reckless, deliberate, wanton, malicious and

grossly negligent.

(15) Plaintiffs will show that Defendants' treatment of them was not unusual,

but a continuing pattern by Defendants of willfully and deliberately

ignoring a serious medical risk and the medical needs of the inmates.

Such conduct is the result ofthe customs and practices of the jail,

which are systematically applied to all persons who exhibit medical

conditions or problems while incarcerated at the jail.

WHEREFORE, Plaintiffs and the class demand:

(1) That this·action proceed as a Class Action;
(2) Trial by jury;
(3) Award of attorney fees and costs;
(4) Award of actual damages, more particularly described above;
(5) Award of punitive damages;
(6)
D Miller and Durham 400 W. Lincoln Trail Radcliff, KY 40160 Attorneyfor Plaintiffs

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 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
[Filed Electronically]

MARTEL CHAPMAN, et al., Individually and on behalf of All Others Similarly Situated,
PLAINTIFFS
v.
HARDIN COUNTY, et al.,
DEFENDANTS.

) ) ) ) ) ) C. A. NO. 3:05-CV-00433-S ) ) ) ) )

MEMORANDUM IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

TABLE OF CONTENTS
Page No.
Table of Authorities .........................................................................................................................v
BACKGROUND FACTS ..............................................................................................................1
I. Introduction..............................................................................................................1
II. MRSA: A Serious And Growing Public Health Threat..........................................3
A. Staphylococcus aureus.................................................................................3
B. MRSA ..........................................................................................................4
C. MRSA infections represent a growing health risk to the community, and jails contribute to the spread of MRSA infections in the community.........................................................................7
III. The Hardin County Jail Has Known In Detail Since At Least September 2004 How To Protect Its Inmates And The Surrounding Community From MRSA...........................................................................................................10
IV. Jail Records And Inmate Accounts Both Show That The Hardin County Jail Was Deliberately Indifferent To The Serious And Obvious Risks Posed By MRSA To Healthy Inmates And The Surrounding Community ...........................13
A. The Jail failed to isolate infectious inmates...............................................13
B. The Jail failed in its duty to educate inmates about proper hygiene..........17
C. The Jail failed in its duty to provide clean clothes, linen and living quarters ............................................................................................21
D. The Jail failed to provide inmates diagnosed with MRSA with a plan for follow-up care after release, causing their families and the community to suffer .............................................................................23
V. Defendants' Conduct Has Imperiled The Health Of The Surrounding Community ............................................................................................................25
A. Defendants have grossly underestimated the extent of the MRSA problem in the Hardin County Jail.............................................................25
- ii -

Page No.
B. Defendant Lawson has drastically underestimated the scope of the MRSA problem at the Jail..........................................................................26
C. Records contradict Lawson's claim that the Jail did not have an "outbreak" and that cases instead "came in from the street.".....................30
D. The Hardin County Jail failed in its community responsibility and its legal duty to recognize the MRSA outbreak and to report it to state authorities ...................................................................................32
LEGAL ARGUMENT.................................................................................................................35
I. The Utility And Standard For Class Actions In General .......................................35
II. Class Action Certification Is Both Proper And Superior In The Instant Case.......36
A. Plaintiffs have met the class action prerequisites enumerated in Rule 23(a)...................................................................................................37
1. The class is so numerous that joinder of all members is impracticable ..............................................................................37
2. There are questions of both law and fact common to the class................................................................................................39
3. The class representatives' claims are typical of the claims of the classes ..................................................................................40
4. Plaintiffs will adequately represent the class through qualified counsel ............................................................................42
B. Plaintiffs have met the requirements for an action to be maintained as a class action under Rule 23(b)..............................................................43
1. With the Rule 23(a) prerequisites satisfied, certification under Rule 23(b)(1) is appropriate to avoid inconsistent adjudications and to protect the rights of members of a class by ensured representation through the vehicle of a class action .....................................................................................44
- iii -

Page No.
2. With the Rule 23(a) prerequisites satisfied, certification under Rule 23(b)(2) is appropriate because Defendants have 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..............................................................................45
3. With the Rule 23(a) prerequisites satisfied, certification under Rule 23(b)(3) as to class claims for compensatory damages is appropriate because questions of law or fact common to the class predominate over questions affecting individual members and a class action is the superior method for resolving the class of claims........................................46
a. Defendants' common course of conduct, where conduct involves possibility of systemic violations of inmates rights and systemic gross negligence, has overriding significance to any individual factual or legal issues .........................................................47
b. Class action is the superior method of adjudication ..........48
(1) It is unrealistic to expect Plaintiffs to resort to individual litigation and there is no ongoing pertinent litigation....................................49
(2) It is desirable to concentrate similar actions in one forum and class action certification will not result in significant management difficulties or unduly burdensome litigation..........49
C. Class actions are commonly certified to address patterns and practices involving prisons or jails............................................................................50
D. A federal district court has already certified a class action in a comparable MRSA case.............................................................................52
CONCLUSION ............................................................................................................................53
CERTIFICATE OF SERVICE ..................................................................................................55
- iv -

TABLE OF AUTHORITIES

Page No.

Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997) .............................................................46 In re American Medical Systems, Inc., 75 F.3d 1069 (6th Cir. 1996) ..........................37, 39, 41, 46 Armstrong v. Davis, 275 F.3d 849 (9th Cir. 2001) .........................................................................40

Austin v. Hopper, 15 F.Supp. 2d 1210 (D. Ala. 1998)...................................................................51

Basile v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 105 F.R.D. 506 (S.D. Ohio 1985)..........................................................................................................................37

Boggs v. Divested Atomic Corp., 141 F.R.D. 58 (S.D. Ohio 1991)...............................................37

Brad H. v. City of New York, 712 N.Y.S. 2d 336 (N.Y. 2000) ......................................................24

Bremiller v. Cleveland Psychiatric Inst., 195 F.R.D. 1 (N.D. Ohio 2000)..............................37, 39

Bynum v. District of Columbia, 214 F.R.D. 27 (D.D.C. 2003)......................................................39

Califano v. Yamasaki, 442 U.S. 682 (1979) ..................................................................................39

Caroline C. By and Through Carter v. Johnson, 174 F.R.D. 452 (D. Neb. 1996)........................51

In re Catfish Antitrust Litig. 826 F.Supp 1019 (N.D. Miss. 1993) ................................................35

Coleman v. Wilson, 912 F.Supp. 1282 (D. Cal. 1995)...................................................................50

Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473 (2nd Cir. 1993)

38

Cox v. American Cast Iron Pipe Co., 784 F.2d 1546 (11th Cir.), cert denied, 479 U.S. 883 (1986) ........................................................................................................38

Davis v. Avco Corp., 371 F.Supp. 782 (N.D. Ohio 1974) .............................................................35

Dean v. Coughlin, 107 F.R.D. 331 ....................................................................................38, 46, 50

DeGidio v. Pung, 704 F.Supp. 922 (D. Minn. 1989).....................................................................50 De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225 (7th Cir. 1983)........................................41

Doe v. Lally, 467 F.Supp. 1339 (D. Md. 1979) .............................................................................51

- v -

Page No. Dukes v. WalMart Stores, Inc., No. C01-2252 (N.D. Cal. 6/22/04) ..............................................37 DuPont Glore Forgan v. AT&T, 69 F.R.D. 481 (S.D.N.Y.)..........................................................50 Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974)......................................................................35 Esplin v. Hirschi, 402 F.2d 94 (10th Cir. 168), cert. denied, 394
U.S. 928 (1969)............................................................................................................................36 Feliciano v. Barcelo, 672 F.Supp. 591 (D.P.R. 1986).............................................................50, 51 Fisher v. Koehler, 692 F.Supp. 1519 (D.N.Y. 1988).....................................................................51 Forbes v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997) ...................................................................41 Foster v. Fulton County, Ga., 223 F.Supp 2d 1292 (N.D. Ga. 2002)............................................24 General Tel. Co. of Southwest v. Falcon, 457 U.S. 147 (1982) ...................................................42 Glover v. Johnson, 85 F.R.D. 1 (E.D. Mich. 1977) .......................................................................38 Hendrix v. Faulkner, 525 F.Supp. 435 (N.D. Ind. 1981), aff'd in part,
vacated in part, 715 F. 2d 269 (7th Cir. 1983), cert. denied, 468 U.S. 1217 (1984)..............45, 53 Hirschfeld v. Stone, 193 F.R.D. 175 (S.D.N.Y. 2000).......................................................35, 38, 49 Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1982).......................................................................50, 51 Inmates of Bucks County Correctional Facility v. County of Bucks, 2004 WL 2958427
(E.D. Pa. 2004).......................................................................................................................52, 53 Inmates of Occoquan v. Barry, 717 F.Supp. 854 (D.D.C. 1989).............................................50, 51 Int'l Woodworkers of America, AFL-CIO v. Champion Intern. Corp., 790 F.2d 1974 (5th Cir. 1986)...............................................................................................................................51 Jenkins v. Raymark Industries, 782 F.2d 468 (5th Cir. 1986) ........................................................46 Jones v. Diamond, 519 F.2d 1090 (5th Cir. 1975)..........................................................................35 Jones v. Diamond, 636 F.2d 1364 (5th Cir. 1981)..........................................................................51
- vi -

Page No. Kahan v. Rosentiel, 424 F.2d 161 (3d Cir. 1970), cert. denied, 398 U.S. 950 (1970)............................................................................................................................35 Kifafi v. Hilton Hotels Retirement Plan, 189 F.R.D. 174 (D.D.C. 1999) ......................................38 LaMarca v. Turner, 995 F.2d 1526 (99th Cir. 1993)......................................................................51 Langley v. Coughlin, 715 F.Supp. 522 (S.D.N.Y. 1989) .........................................................46, 47 Lightfoot v. Walker, 486 F.Supp. 504 (D. Ill. 1980) ......................................................................50 Lombard v. Marcera, 442 U.S. 915 (1979) ...................................................................................46 Marcera v. Chinlund, 595 F.2d 1231 (2d Cir. 1970).....................................................................46 Martino v. Carey, 563 F.Supp. 984 (D. Or. 1983)...................................................................50, 51 Meyer v. Citizens & Southern Nat'l Bank, 106 F.R.D. 356 (M.D. Ga 1985).................................39 Miller v. Mackey Int'l, 452 F.2d 424 (5th Cir. 1971)......................................................................36 In re Nasdaq Market-Makers Antitrust Litig., 169 F.R.D. 493 (S.D.N.Y. 1996)..........................51 Owens-El v. Robinson, 442 F. Supp. 1368 (D. Pa. 1978)..............................................................51 Palmigiano v. Garrahy, 443 F.Supp. 956 (D.R.I. 1977) ...............................................................51 Pecere v. Empire Blue Cross and Blue Shield, 194 F.R.D. 66 (E.D.N.Y. 2000) ..........................35 Phillips Petroleum v. Shutts, 472 U.S. 797 (1985) ........................................................................35 Pigford v. Glickman, 182 F.R.D. 341 (D.D.C. 1998) ....................................................................38 Robinson v. Metro-North Commuter R.R., 267 F.3d 147 (2d Cir. 2001) ......................................40 Rouse v. Plantier, 182 F.3d 192 (3d Cir. 1999).............................................................................50 Scholes v. Stone, McGuire & Benjamin, 143 F.R.D. 181 (N.D. III. 1992)....................................49 Senter v. General Motors Corp., 532 F.2d 511 (6th Cir. 1975)..........................................38, 41, 42 Skinner v. Uphoff, 234 F.Supp. 2d 1208 (D. Wyo. 2002)..............................................................51 Sterling v. Veisicol Chem. Corp., 855 F.2d 1188 (6th Cir. 1988).............................................39, 48
- vii -

Page No. Swanson v. American Consumer Industries, Inc., 415 F.2d 1326 (7th Cir. 1969) .........................37
Thomas v. Baca, 231 F.R.D. 397(C.D. Cal. 2005) ................................................................ passim
Wehner v. Syntex Corp., 117 F.R.D. 641 (N.D. Cal. 1987)...........................................................49
Other Sources
U.S. Dep't of Health and Human Services, Ctrs. for Disease Control and Prevention, Community-Associated MRSA Information for the Public ......................................................3, 4
MRSA Task Force of the Greater Omaha Chapter of the Association for Professionals in Infection Control & Epidemiology, Inc., Guidelines for the Control of MRSA .......................3
Commonwealth of Massachusetts Dep't of Public Health, MRSA and Correctional Health .............................................................................................................................................4
U.S. Bureau of Prisons, Clinical Practice Guidelines, Management of MethicillinResistant Staphylococcus Aureus (MRSA) Infections, (2005) ......................................................5
National Institutes of Health, U.S. National Library of Medicine, MedlinePlus, Sepsis .............................................................................................................................................5
National Institutes of Health, U.S. National Library of Medicine, MedlinePlus, MRSA Infection.............................................................................................................................5
Betsy McGaughey, To Catch a Deadly Germ, N.Y. Times, Nov. 14, 2006............................5, 7, 8
Sara E. Cosgrove, Youlin Qi, Keith S. Kaye, Stephan Harbarth, Adolf W. Karcher & Yehuda Carmeli, The Impact of Methicillin Resistance in Staphylococcus Aureus Bacteremia on Patient Outcomes: Mortality, Length of Stay, and Hospital Charges..................6
MRSA Task Force of the Greater Omaha Chapter of the Association for Professionals in Infection Control & Epidemiology, Inc. ....................................................................................7
Devesh Tiwary, Drug Labeling: FDA Requires New Label for Antibiotics to Prevent Overuse, 31 J.L. Med. & Ethics, 458 (Fall) 2003..........................................................................8
Nicola Zetola, John S. Francis, Eric L. Nuermberger, William R. Bishai, Communityacquired methicillin-resistant Staphylococcus aureus: an emerging threat, 5 Lancet Infectious Disease (May 2005) 275 ...............................................................................................8
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Page No. Bala Hota, Charlotte Ellenbogen, Mary K. Hayden, Alla Aroutcheva, Thomas W. Rice & Robert A. Weinstein, Community-Associated Methicillin-Resistant Staphylococcus aureus Skin and Soft Tissue Infections at a Public Hospital: Do Public Housing and Incarceration Amplify Transmission?, 167 Archives of Internal Med. 1026 (May 28, 2007) .............................9 Bala Hota and Robert A. Weinstein, Community-associated Methicillin-resistant Staphylococcus aureus, 12 Emerging Infectious Diseases 9 (September 2006) ...........................9 David M. Hartley, Jon P. Furuno, Marc O. Wright, David L. Smith & Eli N. Perencevich, The Role of Institutional Epidemiologic Weight in Guiding Infection Surveillance and Control in Community and Hospital Populations, 27 Infection Control and Hosp. Epidemiology 2 (2006) ..................................................................................................................9 County of Los Angeles Department of Public Health Services, Acute Communicable Disease Control Special Studies Report 2002, 37 .......................................................................10 501 KAR 3:080 Section 1(1)(13), Jail Standards for Full Service Facilities; Sanitation; Hygiene ........................................................................................................................................19 Federal Bureau of Prisons Clinical Practice Guidelines, Management of MethicillinResistant Staphylococcus Aureus (MRSA) Infections ..................................................................28 MRSA Task Force of the Greater Omaha Chapter of the Association for Professionals in Infection Control & Epidemiology, Inc. ..................................................................................29 Public Health Agency of Canada, Material Safety Data Sheet -- Infectious Substances, Staphylococcus Aureus, Section II .............................................................................................30 Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure, 81 Harv. L. Rev. 356 ..........................................................................34 7B Wright, Miller & Kane, Federal Practice and Procedure (1986), § 1785 ..............................35 Practicing Law Institute, Recent Developments in Class Action Law, 1590 PLI/Corp 85 (March-May 2007).......................................................................................................................36 Wright, Miller & Kane, Federal Practice and Procedure (3d) Chapter 5 § 1760 (2007).............36
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION

[Filed Electronically]

MARTEL CHAPMAN, et al., Individually and on behalf of All Others Similarly Situated,
PLAINTIFFS
v.
HARDIN COUNTY, et al.,
DEFENDANTS.

) ) ) ) ) ) C. A. NO. 3:05-CV-00433-S ) ) ) ) )

MEMORANDUM IN SUPPORT OF MOTION FOR CLASS CERTIFICATION Plaintiffs have moved the Court to certify this case as a class action under Federal Rules of
Civil Procedure 23(b)(2) (for injunctive and declaratory relief) and 23(b)(1) or (3) (for recovery of actual and punitive damages). The classes Plaintiffs seek to represent would be composed of (a) all persons who, since August 1, 2004, contracted methicillin-resistant Staphylococcus aureus ("MRSA") at the Hardin County Detention Center ("the Jail"), and (b) all persons who are or will be confined at the Jail. Plaintiffs respectfully file this memorandum in support of their motion.
BACKGROUND FACTS I. Introduction.
MRSA is an antibiotic-resistant bacterium that flourishes in skin and mucous membranes. It can be chronic, and it can be fatal. It is always painful and often disfiguring. It can be highly infectious, and can significantly and negatively impact a person's health, employability, insurability, and relations with friends and loved ones.

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Public health authorities have documented an alarming rise in the incidence of MRSA both nationwide and locally. Recent studies have shown that jails and prisons are "incubators" of the disease as a consequence of overcrowding and substandard sanitation and hygiene, and may be contributing to community outbreaks generally. It is thus essential that jails like the one in this case take the steps necessary to protect healthy inmates from MRSA, to effectively treat those who contract the disease, and to prevent any MRSA outbreak in the correctional environment from spreading to the outside community.
Since at least September 2004, Defendants and the Jail have known about MRSA, and have known the steps that needed to be taken to protect healthy inmates and the outside community and to treat infected inmates. Defendants even adopted internal policies that acknowledged their duty to the Jail's inmates and to the surrounding community. But Defendants then failed to implement and enforce such policies. Incoming inmates were not screened for the disease. Inmates were not educated about the disease or its prevention, treatment or consequences. Infected inmates with open, draining lesions were not isolated. Treatment was haphazard, at best. On release, inmates were provided no information on their condition, nor were they given any medication even to complete a course of treatment they had been prescribed.
As a result, since the summer of 2004, more than 80 inmates, and possibly significantly more, have been infected with MRSA while incarcerated at the Jail. The Jail reported none of this to correctional or local or state public health authorities. Defendants' conduct, in light of their knowledge of the seriousness of MRSA, was abhorrent and caused severe harm to the inmates of the Jail and very likely harmed the community in which they were released.
Defendant Jailer Louis Lawson continues to assert that there has been no outbreak of MRSA infections in the Jail. Even after multiple Jail employees were diagnosed with MRSA, Lawson did
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nothing to investigate how those employees had become infected. As recently as April 23, 2007, Defendant Lawson declined to categorize MRSA as one of the communicable diseases he considers to be "real serious." The Jailer's indifference to this problem is, in a word, staggering.
The Court must certify a class in this case in order to begin the process of bringing the Jail and Defendants into compliance with their duty to the Jail's inmates and to the Hardin County community as a whole. II. MRSA: A Serious And Growing Public Health Threat.
A. Staphylococcus aureus. Staphylococcus aureus, a type of bacterium often referred to as "staph," is quite common, according to government and medical literature. It is estimated that it can be found in the nostrils of between 25 and 30 percent of the U.S. population.1 Staphylococcus aureus was first identified by Sir Alexander Ogston, a Scottish surgeon and bacteriologist, in 1880. Abscesses he studied that were warm to the touch, he found, often were associated with the same organism that appeared under the microscope as a clustered mass of golden orbs. To name the bacterium, Ogston chose words reflecting that appearance -- the Greek word staphyle, meaning "bunch of grapes," and aureus, a gold coin of ancient Rome. Thus, Staphylococcus aureus was given its permanent, and rather vivid, identity. "In 1928, penicillin was discovered and was found effective in treating S. aureus. In 1959, the first semi-synthetic penicillin, methicillin, was produced by altering the chemical composition of penicillin. Two years later, the first methicillin resistant strains of S. aureus were reported."2
1 U.S. DEP'T OF HEALTH AND HUMAN SERVS., CTRS. FOR DISEASE CONTROL AND PREVENTION, COMMUNITYASSOCIATED MRSA INFORMATION FOR THE PUBLIC, available at http://www.cdc.gov/ncidod/dhqp/ar_mrsa_ca_public.html (last visited July 29, 2007).
2 MRSA TASK FORCE OF THE GREATER OMAHA CHAPTER OF THE ASSOCIATION FOR PROFESSIONALS IN INFECTION CONTROL & EPIDEMIOLOGY, INC., GUIDELINES FOR THE CONTROL OF MRSA 9, available at
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Staphylococcus aureus often does no harm, or only little harm. The 25 to 30 percent of the population who studies say carry it in such places as their noses or on their skin are described in medical literature as having been "colonized" with the bacterium -- meaning, colonies of staph live in or on them, and many of them "do not know they are carrying it. They do not get skin infections. They do not have any sign or symptoms of illness."3 Those who do develop symptoms often develop only simple, unremarkable skin infections. "Most of these skin infections are minor (such as pimples and boils) and can be treated without antibiotics."4 However, there are types of Staphylococcus aureus that are dangerous -- particularly MRSA, an antibiotic-resistant staph first reported in 1961.
B. MRSA. MRSA is far less common than staph. MRSA is found only in approximately one out of every 100 people.5 MRSA "is resistant to a family of antibiotics related to penicillin that includes antibiotics called methicillin and oxacillin, but it is often resistant to many other antibiotics as well."6 More so than with infections caused by a form of staph that is susceptible to antibiotics, MRSA infections are likely to lead to serious and painful symptoms. "Inmates with MRSA skin infections commonly complain of 'an infected pimple,' 'an insect bite,' 'a spider bite,' or 'a sore.' … however,
http://goapic.org/MRSA.htm (last visited July 29, 2007). (The MRSA Task Force report was the work of 13 doctors and 10 nurses and was intended to advise local institutions in Nebraska on proper strategies for preventing the spread of MRSA.)
3 COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF PUBLIC HEALTH, MRSA AND CORRECTIONAL HEALTH, ¶ 4, available at http://www.mass.gov/dph/cdc/antibiotic/mrsa_correctional.htm (last visited July 29, 2007).
4 Id. at ¶ 1. 5 U.S. DEP'T OF HEALTH AND HUMAN SERVS., CTRS. FOR DISEASE CONTROL AND PREVENTION, supra note 1, at ¶ 2. "While 25% to 30% of the population is colonized with staph, approximately 1% is colonized with MRSA." 6 Id. at ¶ 1.
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even otherwise healthy individuals can develop very serious MRSA infections, such as cellulitis, deep-seated abscesses, necrotizing fasciitis, septic arthritis, necrotizing pneumonia, and sepsis."7 ("Sepsis is a severe illness caused by overwhelming infection of the bloodstream by toxin-producing bacteria. …. Sepsis is often life-threatening, especially in people with a weakened immune system or other medical illnesses."8) The symptoms of more serious staph infections may include rash, shortness of breath, fever, chills, chest pain, fatigue, muscle aches, malaise and headache, and the "outcome varies with the severity of the infection, and the general condition of the person who has the infection. MRSA pneumonia and blood poisoning have high death rates."9
Betsy McGaughey, a former lieutenant governor of New York and founder of the Committee to Reduce Infection Deaths, describes MRSA more succinctly: It is, she wrote in The New York Times, a "killer."10 Hardin County Jailer Louis Lawson recognizes this, too. "If it's untreated it could be deadly," he said in his deposition on April 23, 2007.11
A study published in 2005 of 348 hospital patients in Boston with staph infections of their blood illustrated the death rate from such infections, and measured what it found to be "significant" costs caused by MRSA. Those costs, to patients, hospitals and society, are exacted in the form of higher hospital charges and longer hospital stays, the study found. "S. aureus is the most common cause of nosocomial (hospital-acquired) infections reported to the National Nosocomial Infections
7 U.S. BUREAU OF PRISONS, CLINICAL PRACTICE GUIDELINES, MANAGEMENT OF METHICILLIN-RESISTANT STAPHYLOCOCCUS AUREUS (MRSA) INFECTIONS, (2005) 1. Attached as Exhibit A.
8 NATIONAL INSTITUTES OF HEALTH, U.S. NATIONAL LIBRARY OF MEDICINE, MEDLINEPLUS, SEPSIS, available at http://www.nlm.nih.gov/medlineplus/ency/article/000666.htm (last visited July 29, 2007).
9 NATIONAL INSTITUTES OF HEALTH, U.S. NATIONAL LIBRARY OF MEDICINE, MEDLINEPLUS, MRSA INFECTION, available at http://www.nlm.nih.gov/medlineplus/ency/article/007261.htm (last visited July 29, 2007).
10 Betsy McGaughey, To Catch a Deadly Germ, N.Y.Times, Nov. 14, 2006, available at http://www.nytimes.com/2006/11/14/opinion/14mccaughey.html?ex=1184299200&en=91.
11 Dep. of Louis Brown Lawson 129, attached as Exhibit S.
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Surveillance System. It is the leading cause of nosocomial pneumonia and surgical-site infections and the second leading cause of bloodstream infections in the United States."12 Staph infections of the blood, the researchers reported, are associated with death rates of between 15 and 60 percent.13 Of the 348 patients studied, 252 were infected with staph that was susceptible to methicillin, and 96 had MRSA.14 The death rates within the two groups were comparable -- 19.8 percent of the patients with methicillin-susceptible staph died, while 22.9 percent of the patients with methicillin-resistant staph died15 -- but those MRSA-infected patients who did not die needed to stay in the hospital an average of two days longer16 and incurred additional average charges of $7,212 more than their counterparts infected with methicillin-susceptible staph.17 This translated into an annual cost attributable to MRSA at the 630-bed Boston hospital where the study was conducted of $122,752.18 It is not difficult to see that society's economic stake alone in controlling MRSA is substantial.
A sampling of accounts from inmates of the Hardin County Jail, provided to Plaintiffs' attorneys and attached as Exhibit C, tell the specifics of what some of the inmates there experienced:
• "Knots under my skin that open and drain. Sometimes 1 large one or several small ones in various spots all over my body."
• "Sore on right breast with a knot bigger than a golf ball. Very painful!"
12 Sara E. Cosgrove, Youlin Qi, Keith S. Kaye, Stephan Harbarth, Adolf W. Karchmer & Yehuda Carmeli, The Impact of Methicillin Resistance in Staphylococcus Aureus Bacteremia on Patient Outcomes: Mortality, Length of Stay, and Hospital Charges, 26 INFECTION CONTROL AND HOSP. EPIDEMIOLOGY 2 (2005), 166, 171. Attached as Exhibit B.
13 Id. at 166. 14 Id. at 168. 15 Id. 16 Id. at 170. 17 Id. at 171. 18 Id. at 173.
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• "My leg swelled up with big boils that were oozing green stuff fever and lots and lots of pain."
• "Bump on my left ear, nausea and vomiting. Left ear very sore to touch, swollen and pus drainage."
• "My arm swelled up real bad and hurt real bad. I couldn't close my hand or bend my fingers."
• "A bite that swelled up and immobilized me. I got headaches and was very sick."19 C. MRSA infections represent a growing health risk to the community, and jails
contribute to the spread of MRSA infections in the community. Researchers report that MRSA in the past decade has advanced rapidly from a problem largely associated with hospitals to become, now, a fast-emerging problem in communities at large. It also is one increasingly associated with jails. The first hospital outbreak of MRSA documented in the United States was at Boston City Hospital in 196820 -- and since then, the prevalence of antibiotic-resistant staph has ballooned throughout the country, not just in hospitals (where infections are commonly referenced in literature as hospital-acquired, or HA-MRSA) but outside hospitals (where infections are commonly referenced in literature as community-acquired, or CA-MRSA) as well. "Sixty percent of staph infections are now drug resistant …, up from 2 percent in 1974."21 The Boston study by Cosgrove et al. in 2005 reported a similar, recent trend: "Resistance to methicillin in S. aureus isolates is a growing problem; 55% of nosocomial (hospital-acquired) infections in U.S. intensive care unit (ICU) patients are due to methicillin-resistant S. aureus (MRSA), representing a 29% increase in the
19 Attached as Exhibit C. (These Questionnaires and Affidvits are being filed under seal in compliance with the Agreed Protective Order signed by Magistrate Judge Dave Whalin on March 13, 2006.)
20 MRSA TASK FORCE OF THE GREATER OMAHA CHAPTER OF THE ASSOCIATION FOR PROFESSIONALS IN INFECTION CONTRON & EPIDEMIOLOGY, INC., supra note 2, at 9.
21 McGuaghey, supra note 10.
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incidence of MRSA infections during the past 4 years. Community-acquired MRSA infections are increasingly recognized as an emerging problem."22
Another authority in 2003 explained the growth of MRSA this way: In 1941, Staphylococcus aureus was "almost invariably susceptible to penicillin," while today, "fewer than 5 percent" are. "When physicians started using methicillin in the 1960s, methicillin-resistant Staphylococcus aureus (MRSA) emerged. … By 1992, nearly 40 percent of isolated strains … in the United States were MRSA. … Many strains of MRSA are susceptible to only one antibiotic, the very expensive vancomycin. … In 1997, three isolates of MRSA from different areas of the world responded poorly even to vancomycin."23
In other words, researchers now recognize that while it has been identified as a hospital management and hospital patient concern for 45 years, MRSA has recently emerged as a threat in other places in our society. "(I)n the past decade new strains of MRSA have emerged in the community, causing aggressive infections in young, otherwise healthy people. … The increasing prevalence of community-acquired MRSA in multiple countries and the substantial morbidity and mortality associated with these infections suggest that community-acquired MRSA will continue to develop into a challenging public health problem." 24 Another researcher agreed with the assessment that MRSA's community spread has been on about a 10-year sprint. "Since 1998, communityacquired methicillin-resistant Staphylococcus aureus (CA-MRSA) infections have emerged among patient groups with risk factors unassociated with health care, including sports exposure,
22 Cosgrove et al, supra note 12, at 166. 23 Devesh Tiwary, Drug Labeling: FDA Requires New Label for Antibiotics to Prevent Overuse, 31 J.L. Med. & Ethics 458, 459 nn. 16-21 (Fall 2003). Attached as Exhibit D. 24 Nicola Zetola, John S. Francis, Eric L. Nuermberger, William R. Bishai, Community-acquired methicillinresistant Staphylococcus aureus: an emerging threat, 5 LANCET INFECTIOUS DISEASE (May 2005) 275-86, 275. Attached as Exhibit E.
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incarceration, intravenous drug use, overcrowded housing, tattooing and poor hygiene."25 The latter
researchers, Hota et al., found that the rate of community-acquired MRSA infections had risen
roughly seven-fold in Chicago's main public hospital between 2000 and 2005 -- rising from 24 per
100,000 to 164 per 100,000 -- and concluded that jails were at least in part responsible.
"Incarceration and residence at some public housing complexes increased the chance of infection
with CA-MRSA."26 Co-authors Hota and Weinstein, in a recent letter to a medical journal,
described community-acquired MRSA bluntly as "a global emerging threat."27
Hota, Weinstein and their colleagues were not the first researchers to connect the upsurge in
community-acquired MRSA infections with the conditions inside jails. A group of researchers at the
University of Maryland in 2006 described the spread of MRSA infections as an increasing threat and
raised the specter of an "MRSA pandemic" to which short-term correctional facilities can be
expected to be significant contributors.28 The researchers, referring to MRSA specifically, said:
"Given this organism's association with skin and soft-tissue infections, a reasonable working hypothesis is that institutions that house large numbers of individuals in small areas support intense MRSA transmission. If such institutions release colonized individuals (i.e., carriers) into the community at high rates, they may contribute disproportionately to the MRSA pandemic. ....
" … our results illustrate that institutions with high acquisition and turnover rates contribute substantially to the transmission of MRSA and should represent a key focus for prevention and control efforts."
Hartley et al., supra note 28, at 170, 173.
25 Bala Hota, Charlotte Ellenbogen, Mary K. Hayden, Alla Aroutcheva, Thomas W. Rice & Robert A. Weinstein, Community-Associated Methicillin-Resistant Staphylococcus aureus Skin and Soft Tissue Infections at a Public Hospital: Do Public Housing and Incarceration Amplify Transmission?, 167 ARCHIVES OF INTERNAL MED. 1026 (May 28, 2007), 1026. Attached as Exhibit F.
26 Id. at 1032. 27 Bala Hota and Robert A. Weinstein, Community-associated Methicillin-resistant Staphylococcus aureus, 12 EMERGING INFECTIOUS DISEASES 9 (September 2006) 1469. Attached as Exhibit G. 28 David M. Hartley, Jon P. Furuno, Marc O. Wright, David L. Smith & Eli N. Perencevich, The Role of Institutional Epidemiologic Weight in Guiding Infection Surveillance and Control in Community and Hospital Populations, 27 INFECTION CONTROL AND HOSP. EPIDEMIOLOGY 2 (2006) 170. Attached as Exhibit H.
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A study in Los Angeles, Calif., in 2002 of a MRSA outbreak in that county's very large jail
confirmed that confinement in jail puts one at risk for acquiring MRSA. The Los Angeles County
Department of Health Studies concluded that "the longer a person is in the jail system, the greater
their risk is of developing an MRSA wound infection.. … Due to the severity of MRSA skin
infections and the difficulty in eliminating the spread of this disease in large incarcerated
populations, it is important for jail and prison medical staff to be vigilant in monitoring MRSA infections in their institutions."29
Clearly, in the breeding of so-called community-acquired MRSA, the jail is increasingly
being recognized as a community petri dish.
III. The Hardin County Jail Has Known In Detail Since At Least September 2004 How To Protect Its Inmates And The Surrounding Community From MRSA.
Being "vigilant," as the Los Angeles report urged, means following a clearly-drawn road
map. Abundant literature is readily available telling institutions such as jails how to stem outbreaks
of MRSA, and the Hardin County Jail has had such literature since at least September 2004.
The Los Angeles report in 2002 provided a laundry list of steps:
"Recommendations include increasing surveillance for MRSA infections, educating (sic) for staff and inmates on MRSA infections, increasing opportunities for inmate hygiene including removal of disincentives for maintaining personal hygiene, immediate cell cleaning for inmates with suspect MRSA infections, increasing laundry changes for all inmates and limiting facility transfers for inmates with open wounds. Additionally, a plan was developed for the treatment of soft tissue infections. The plan stressed sound drainage and subsequent wound care as the first line of treatment for a soft tissue infection. If drainage did not cure the infection or if drainage was not possible, appropriate antibiotics should be provided to the inmate."
County of Los Angeles, supra note 29, at 37.
29 COUNTY OF LOS ANGELES DEPARTMENT OF PUBLIC HEALTH SERVICES, ACUTE COMMUNICABLE DISEASE CONTROL SPECIAL STUDIES REPORT 2002, 35-37, 37. Attached as Exhibit I.
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In 2004, when evidence developed thus far in this case indicates that MRSA was first recognized in the Hardin County Jail, the Jail received two directives, or protocols, that clearly stated the means by which MRSA is transferred from person to person. The two protocols also clearly stated what steps should be taken to minimize chances of its transfer. One protocol, according to Jailer Lawson, was the result of information provided by Hardin Memorial Hospital,30 and the other was from the Kentucky Department of Corrections.31
The latter was mailed on Sept. 1, 2004, by the state Corrections Commissioner, John D. Rees, to all Kentucky jailers, including Defendant Lawson in Hardin County. The eight-page "Health Care Services Protocol" announced that it is the state's policy "to address the clinical and security issues associated with" MRSA.32 In line with medical literature and other government advisories, the protocol advised Lawson and other jailers that MRSA is transmitted by people with contaminated hands, by the sharing of "towels, personal hygiene items, athletic equipment, through close-contact sports, by sharing injection drug use equipment, and through food-borne outbreaks."33 "MRSA pneumonia," it said, can be spread by coughing. The protocol also mentioned hazards of unsanitary tattooing practices. Advice in the protocol for inmates included recommendations to wash one's hands thoroughly and regularly, particularly after using the toilet and before eating; to never touch another's wounds or dirty bandages; to shower regularly, keep living space clean and launder bed linens regularly; to not share personal hygiene items; to clean recreational equipment, such as weight benches, or to use a shirt or towel as a buffer to avoid contact with the equipment; to
30 Attached as Exhibit J, "MRSA PROTOCOL." 31 Attached as Exhibit K, "Kentucky Corrections Health Care Services Protocol." 32 Id. at 1. 33 Id.
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shower after playing contact sports; and to not get a tattoo in prison, use injection drugs or have sex with another inmate.34
Similarly, Jailer Lawson said in his deposition that in 2004 he asked a Jail medical department employee to solicit advice on MRSA from Hardin Memorial Hospital, and the employee in turn received a 10-point "MRSA Protocol."35 The Jail's contract physician signed the protocol, Lawson said, and it was Lawson's understanding that the protocol had to be followed in order to protect the inmates of the Jail from MRSA.36 The protocol, echoing much of the state Corrections department's advice, called for:
● cultures to be performed of inmates' sores, and for any inmate with a suspected MRSA infection to be given antibiotics and put in isolation from other inmates;
● inmates who are isolated because of infections to shower twice daily, receive clean linens and clothing daily, to eat with disposable kitchenware, to place dirty linen, clothing and food trays in biohazard bags, and to remain in isolation until the wound has stopped draining and a doctor has approved returning to the jail's general population;
● inmates' living areas to be cleaned with disinfectant weekly, and for tables, sinks and toilets to be wiped down daily; and
● inmates to be given instruction in the importance of hygiene and frequent hand washing. 37 Therefore, by the late summer of 2004 at the latest, Lawson and the Jail's medical staff were well versed in measures to stem the spread of MRSA.
34 Id. at 7. 35 Lawson dep. 102, attached as Exhibit S. 36 Id. at 109 (Exhibit S). 37 See Exhibit J, supra note 30.
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IV. Jail Records And Inmate Accounts Both Show That The Hardin Jail Was Deliberately Indifferent To The Serious And Obvious Risks Posed By MRSA To Healthy Inmates And The Surrounding Community. A. The Jail failed to isolate infectious inmates. The Hardin County Jail's "MRSA Protocol" calls for any inmate with open wounds or skin
conditions to be subjected to a culture of the wounds, and to begin receiving antibiotics "as per HCDC physician's orders."38 Item No. 3 of the Protocol then says: "ANY INMATE WITH SUSPECTED MRSA TO BE PLACED IN ISOLATION UNTIL CULTURE REPORTS SHOW NEGATIVE RESULTS."39 Additionally, Jailer Lawson sent a memorandum to Jail staff dated August 2, 2004, which said that "inmates that are diagnosed with MRSA should be placed in a single cell in order to reduce the risk of MRSA transmissed (sic) to other inmates."40 And, the state Corrections department's Sept. 1 Health Care Services Protocol said that "inmates with potentially contagious infections … should be assigned to single-cell housing."41
Indeed, Lawson said in his deposition that it was the practice of the Hardin County Jail to place inmates diagnosed with MRSA in isolation,42 "and once we culture it and find out, that we isolate that inmate and get that person on their medicines."43 Lawson further said that he was personally unaware of any instances in which an inmate with a MRSA infection was not isolated.44
38 Id. 39 Id. 40 Attached as Exhibit L, Memo from Louis Lawson date Aug. 2, 2004. 41 Exhibit K, supra note 31, at 5. 42 Lawson deposition, 100, attached as Exhibit S 43 Id. at 99, Exhibit S 44 Id. at 162, Exhibit S
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The record, however, reveals a reality at odds with Jailer Lawson's characterizations. For example, records show that after Plaintiff Martel Chapman entered the jail on June 17, 2004, she was placed in Pod 137 with multiple other female inmates, where she remained exclusively for more than three months.45 One inmate in that cell, Judy Williams, said that more than 20 inmates were in cell space containing eight beds, and as a result most slept on the floor.46 Among the other inmates in overcrowded Pod 137 with Chapman in June 2004 was an inmate who Chapman said proceeded to show the other inmates a boil and to tell them that she had "a staph infection."47 Jailer Lawson was aware that the inmate Chapman described, who had been brought from the Nelson County Jail, had been previously diagnosed with MRSA. "As soon as she was booked," Lawson said of the inmate from Nelson County, "she said something about it, and the booking officer referred to medical and the medical brought it to my attention."48 That, Lawson said, was "the first I had ever heard" of MRSA.49
Subsequently, Chapman said in her deposition, she observed "a huge boil"50 on the back of inmate MRSA Patient No. 1,51 and a draining sore on the neck of inmate MRSA Patient No. 2.52 In the case of inmate MRSA Patient No. 2, Chapman said, "she was in our cell for quite a while with it
45 Attached as Exhibit M, Chapman Medical Records. 46 Dep. of Judy Williams 10, attached as Exhibit Y. 47 Chapman dep. 22, attached as Exhibit T. 48 Lawson dep. 80, attached as Exhibit S. 49 Id (Exhibit S). 50 Chapman dep. 24, attached as Exhibit T. 51 Attached as Exhibit N, "Plaintiffs' Reference List Under Seal In Support of Memorandum." (The names of this inmate and others are being filed under seal in compliance with the Agreed Protective Order of March 13, 2006.) 52 Chapman dep. 27 (Exhibit T), and Exhibit N, supra note 51.
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draining without them taking her out" to isolation.53 "I believe that they cultured it, but they left her in the pod until it came back, you know, positive or negative …" Chapman said.54
Chapman herself experienced the following sequence of events, according to records
produced by the Jail:
● On Sept. 18 -- six weeks after Lawson's August 2 memo and 17 days after the Corrections department's advisory -- Chapman filled out a Medical Request form complaining that "I have a boil under my arm." The same day, the medical staff at the jail saw her. It appears from the record that the medical staff member initiated an antibiotic, Keflex, and wrote: "if draining, report to Med. for culture." Chapman was not isolated, but was left in Pod 137.55
● On Sept. 20, Chapman, still in Pod 137, filled out another Medical Request form. "I need to see the doctor," she wrote. "I have a boil under my arm."56
● On Sept. 21, the jail's contract physician saw her, reported that the sore had "minimal drainage," changed antibiotics, and ordered a culture. She remained in Pod 137.57
● On Sept. 23 -- five days after she first reported her boil, in a crowded cell where Lawson knew at least one MRSA-infected inmate had been housed -Chapman was sent from Pod 137 to an isolation cell "per medical."58 This was the same day that the culture results were returned, confirming that Chapman had a "heavy growth" MRSA infection.59
Clearly, for those five days, Chapman was not taken to isolation, as the Jail's MRSA Protocol
calls for in the case of inmates with even suspected cases of MRSA while culture results are
pending. Instead, she was left in the pod in contact with other inmates. "It kept getting bigger, and
53 Chapman dep. 27, attached as Exhibit T. 54 Id. at 28 (Exhibit T). 55 See Exhibit M, supra note 45. 56 Id. 57 Id. 58 Id. 59 Id.
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I wrote medical requests -- I think I wrote two or three of them before they came back to look at me," she said in her deposition. "And it ended up popping. They cultured it and came back maybe two days later and put me in isolation because it was a staph infection."60 Chapman's account and the Jail record agree: She was left in contact with other inmates after her boil had been draining to a degree sufficient to permit a culture, and while the culture was pending, in violation of the MRSA Protocol.
In Chapman's three months-plus in Pod 137 before being moved briefly to isolation, she maintained that four women were left in the pod for days at a time while suffering obvious skin infections -- MRSA Patient No. 1, MRSA Patient No. 2, the Nelson County inmate and Chapman herself.
Numerous other inmates maintain that, like Chapman, they were not isolated during times when their infections were active and draining. Counsel for Plaintiffs have attempted to contact all 80-plus people identified as having been treated for MRSA in the Jail. Forty-two of those inmates have signed and returned questionnaires. In their responses, those potential class members report failure by the Jail to incorporate a wide array of recommended preventive measures, including the isolation of inmates. Twenty-six of the 42 respondents reported having shared a cell with someone with open sores -- logically, a highly likely source of many of their exposures -- and eight said they were not put in isolation after developing open sores of their own.61 Five of the respondents said they worked in the Jail's kitchen after they had developed symptoms of MRSA, and four said they
60 Chapman dep. at 30, attached as Exhibit T. 61 See Exhibit C, supra note 19.
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continued to work there after having been diagnosed with MRSA. One reported working in the Jail's laundry after both the onset of symptoms and diagnosis with MRSA.62
In depositions, inmates related similar experiences. Annette Borges, for example, said that after entering the Jail in July 2005 -- nearly a year after the Jail had had its first experience with MRSA -- she was isolated only upon her first two outbreaks, and not during multiple other outbreaks.63 Inmate Jolene Hazelwood said that other inmates were upset because Borges was not isolated during some of her outbreaks of sores. "She was in the pod with the MRSA and wanted to be put in medical lock-down to make sure nobody else could catch it," Hazelwood said. "People in the pod were talking junk, they didn't want to catch it."64 Borges maintains that she once complained for three days before officers finally took her to the medical department.65
The Jail records and inmate responses to Plaintiffs' counsel provide an abundant bank of similar tales. Clearly, there is a reasonable conclusion to be drawn that this practice of the Jail -leaving infectious inmates in intimate contact with healthy inmates and not responding promptly to complaints of infections -- caused the healthy inmates to become infected and caused the spread of MRSA in the inmate population generally.
B. The Jail failed in its duty to educate inmates about proper hygiene. The Hardin County jail's "MRSA Protocol" says: "INMATES TO BE INSTRUCTED IN IMPORTANCE OF PROPER HYGIENE AND NEED FOR FREQUENT HAND WASHING."66
62 Id. 63 Dep. of Annette Borges 73-78, attached as Exhibit V. 64 Dep. of Jolene Hazelwood 98-99, attached as Exhibit W. 65 Borges dep. 65-67 (Exhibit V). 66 See Exhibit J, supra note 30.
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The state Department of Corrections' Health Care Services Protocol says: "Correctional staff and inmates should be periodically provided education on the importance of hand hygiene and effective hand hygiene techniques."67
It is abundantly clear from discovery in this case that the Jail's efforts to communicate with inmates about MRSA were woefully deficient. In his deposition, Jailer Lawson said he knew of only one effort by Jail staff over two and a half years to speak with inmates about proper hygiene to curb MRSA. In that instance, Lawson said that he asked a Jail medical staff member to speak directly to inmates about hygiene once in either the summer of 2004, or perhaps as late as September or October of 2004.68 Asked if anyone had spoken to inmates about the importance of hygiene since then, Lawson said, "This new stuff, I don't know about that."69 And he exhibited a breathtaking lack of awareness of educational measures by his own staff. He said he did not know what that employee told inmates in September or October of 2004:70 he did not know whether inmates were given any other information beyond that;71 he did not know what written information was provided them;72 and in fact said he had no policies in place in the Jail concerning inmate education on infection control, nor were there any policies concerning what inmates should be told.73 There was no inmate
67 Exhibit K, supra note 31, at 3. 68 Lawson dep. 130, attached as Exhibit S. 69 Id (Exhibit S). 70 Id. at 130-132. (Exhibit S). 71 Id. at 131 (Exhibit S). 72 Id.at 132 (Exhibit S). 73 Id. at 249 (Exhibit S).
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education beyond what they might be told by the medical staff, Lawson said, and he said he did not know what in fact inmates are told by the medical staff.74
When asked again whether inmates are told orally or in writing about good hygienic practices, Lawson asserted that "we encourage good personal hygienes." Asked how the Jail does that, he said, "Just tell them to bathe regular." Asked if they are told anything other than that, he replied in the negative.75
Plaintiff Martel Chapman said in her deposition that when she was finally placed in isolation following her diagnosis of MRSA infection, she was not regularly given an opportunity to shower. She said: "When I was in lockdown cell, they didn't give me no gauze, no tape, no soap. I mean I went -- I remember specifically one time that I was in lockdown three days with no shower.76 … and if you have an infectious disease that spread it, you have to keep good hygiene. How can you keep good hygiene if they don't let you have a shower?"77
The responses of the 42 infected individuals surveyed by Plaintiffs' attorneys show that even as the Jail was in the throes of an outbreak of MRSA, but before the onset of their symptoms, 36 of the respondents said they were told nothing about the advisability of hand washing; 31 said they were told nothing about the need to change sheets and towels; 39 said they were not told to change their clothes daily; 41 said they were told nothing about covering their noses and mouths; 37 said they were told nothing about the need to bathe or shower daily; 36 said they were told nothing about the hazards of sharing towels or razors; 39 said they were told nothing about the need to report
74 Id (Exhibit S).. 75Id. at 271 (Exhibit S). 76 See also 501 KAR 3:080 Section 1(1)(13), JAIL STANDARDS FOR FULL SERVICE FACILITIES; SANITATION; HYGIENE: "Prisoners shall be permitted to shower daily." 77 Chapman dep. 54, attached as Exhibit T.
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apparent symptoms; 40 said they were told nothing about the dangers of touching sores or wounds; and 41 said they were told nothing about the need to clean recreation and exercise equipment after use.78
Later, once they developed and reported symptoms but before they had been diagnosed with MRSA, 25 of the 42 responding inmates said, Jail medical and corrections staff minimized their symptoms by telling the infected individuals that their symptoms were simply spider bites, boils, or infected or ingrown hairs.79
Then, after having been diagnosed with MRSA, the respondents said, the Jail's cautionary conduct on those points improved only somewhat. Of the 42 respondents, 15 reported still having been given no advice on hand washing; 20 reported still having received no advice on the need to change sheets and towels; 24 said they still were told nothing about the need to change clothes daily; 31 said they still were told nothing about the need to cover their noses and mouths; 19 reported still having received on advice on the need to bathe or shower; 21 said they still were told nothing about the need to avoid sharing towels and razors; 19 said they still were not advised of the need to report symptoms; and 32 said they still were told nothing about the need to clean exercise or recreation equipment after use.80
One inmate, Tina Spears, said in a deposition that discussion of MRSA was so minimal that she was given the assignment of cleaning isolation cells "unaware that there were people in there with staph infection."81 Spears said her MRSA infection has affected her profoundly, and discussed that effect in her deposition. "For the rest of my life I'll worry about being sick," she said.82
78 See Exhibit C, supra note 19. 79 Id. 80 Id. 81 Tina Spears Dep. 33, Attached as Exhibit U.
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Once an outbreak occurs among jail employees, one might expect a jail manager to inquire into the exact place or means within the jail that the infection was being transferred to jail staff, in order to better educate staff members about workplace dangers. Lawson said during his deposition on May 29, 2007 that "probably three or four" of his employees had acquired MRSA.83 Asked if the Jail conducted an investigation to see if or how the workers might have acquired it at work, Lawson said it had not, and explained, apparently referring to one of the employee-victims: "He could have caught it at work. He could have caught it at any place he was."84 In other words, the depth of Lawson's knowledge about the extent of MRSA education given to inmates is matched by his curiosity about how and where his employees contracted the same infection.
C. The Jail failed in its duty to provide clean clothes, linen and living quarters. The Hardin County Jail's "MRSA Protocol" says: "ISOLATED INMATES TO RECEIVE CLEAN UNIFORMS AND LINENS DAILY. … INMATES LIVING AREA TO BE CLEANED THOROUGHLY EACH WEEK WITH DISINFECTANT. DAILY WIPE-DOWNS OF TABLES, SINK, COMMODE."85 The Department of Corrections' "Health Care Services Protocol" addresses the same issues: "Inmate housing areas and bathroom facilities should be regularly cleaned with a detergent disinfectant according to the manufacturer's instructions. … Correctional staff should conduct sanitation inspections of living and bathroom areas to identify visibly dirty areas. Specific attention should be focused on the cells of inmates with cognitive impairments or mental illnesses who are more likely to have poor personal hygiene." The state Corrections document also said that
82 Id. at 86-88 (Exhibit U). 83 Lawson dep. 295, attached as Exhibit S. 84 Id. at 296 (Exhibit S). 85 Exhibit J, supra note 30.
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"all shared laundry, including sheets, blankets and issued clothing should be collected and bagged at the bedside, washed regularly with a detergent using a hot water cycle for at least 25 minutes and then thoroughly air dried."86
Jailer Lawson said during his deposition that cells are cleaned after each meal by the inmates in each cell, who are given bottles with a disinfectant spray, a mop, a bucket, and other supplies, and not supervised during their cleaning work.87 In addition, "at periodic times" that are "pretty regular," showers and bath areas are sprayed with "a special spray … to kill germs."88 A cell where an inmate diagnosed with MRSA had last resided is cleaned immediately, and all living areas are thoroughly cleaned once a month, he said.89 Likewise, uniforms and bed linens are cleaned "on a routine schedule."90
Inmate accounts, however, show that the Jail failed to provide clean clothing, linen or living space as required by the Jail's own protocol. In the survey responses from 42 infected inmates to Plaintiffs' attorneys, only one inmate reported having received a daily change of clothes, and none reported receiving a change of sheets daily. Only one reported receiving clean towels daily, and only 10 reported daily cleanings of their cells.91
Inmate Tina Spears said in her deposition that she did not receive a clean towel, washcloth and uniform daily as her hospital discharge instructions had called for, and was not supplied
86 Exhibit K, supra note 31, at 3-4. 87 Lawson dep. 86-87, attached as Exhibit S. 88 Id. at 188 (Exhibit S). 89 Id. at 157-60 (Exhibit S). 90 Id. at 80 (Exhibit S). 91 Exhibit C, supra note 19.
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materials to change her wound's dressing daily.92 She also asserted that in the six and a half months she was in the Jail, her cell was cleaned and the walls sprayed down with bleach twice, not monthly.93
Jailer Lawson also said during his deposition that he had never heard of a recommendation that sports equipment, such as weight lifting equipment, be wiped down after every use, and he said he did not know whether inmates wipe down his jail's weight bench after using it.94 It appears therefore that if Lawson read the Department of Corrections' "Health Care Services Protocol" sent to him in September 2004, he did not retain what it says on page 4: "Recreational equipment, such as weight benches, should routinely be wiped clean after use with a clean dry towel. Inmates should be instructed to use readily available barriers to bare skin, such as a towel or clean shirt, while using exercise equipment."95
D. The Jail failed to provide inmates diagnosed with MRSA with a plan for followup care after release, causing their families and the community to suffer.
After inmate Annete Borges was discharged from the Hardin County Detention Center on Dec. 13, 2005 -- carrying MRSA -- a relative noticed the spots on Borges's skin, for which she had taken an antibiotic while in the Jail a week before.96 As Borges related it in her deposition, her relative was concerned because the relative's son had had eye surgery and was in vulnerable health.
92 Tina Spears dep. 47, attached as Exhibit U. 93 Id. at 88 (Exhibit U). 94 Lawson dep. 192-93, attached as Exhibit S. 95 Exhibit K, supra note 31, at 4. 96 Borges dep. 112, attached as Exhibit V.
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The relative urged her to go to Hardin Memorial Hospital to be checked for an active MRSA infection.97
The relative's son soon was diagnosed himself with a MRSA infection, and in her deposition Borges indicated that the bacterial infection she acquired while in the Jail may have found its way through her to the relative's son.98 It is significant to note that the follow-up medical attention Borges sought was at the urging of her relative and not under any follow-up plan provided her by the Hardin County Jail.
The importance of providing follow-up instruction for inmates with an infectious disease was before the U.S. District Court for the Northern District of Georgia in 2002, when it dealt with, among other things, the question of appropriate discharge planning for inmates who had tested positive for the human immunodeficiency virus (HIV). See Foster v. Fulton County, Ga., 223 F.Supp 2d 1292 (N.D. Ga. 2002). The HIV-positive inmates had filed suit alleging that conditions and medical care in a jail were inadequate, and a Settlement Agreement two years earlier between the jail and the inmate had said:
"Prior to discharge from the jail to the community, all HIV-positive inmates shall have an appropriate discharge plan. A post-discharge appointment with an appropriate HIV medical care provider in the community shall be scheduled for every HIV-positive inmate, and each inmate shall be informed upon discharge of the date, time, and location of that appointment." Foster, 223 F.Supp. 2d at 1298. The Court in Foster ordered the defendant county, two years after the agreement, to, among other things, implement a plan to put the unrealized discharge planning provision into effect. Id. Courts also have recognized the importance of discharge planning for mentally ill inmates. See Brad H. v. City of New York, 712 N.Y.S.2d 336 (N.Y. 2000).
97 Id (Exhibit V). 98 Id. at 115 (Exhibit V).
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With MRSA-positive inmates, as with HIV-positive inmates, the potential for both losing control of an individual's treatment and for infecting others stands as a potential by-product of inadequate medical attention once the inmate leaves the jail setting. The role of jails as incubators of MRSA has been recognized by medical researchers and inmates such as Borges believe they have provided pathways for that very thing: the spread of the disease.
Another such inmate illustrating that phenomenon is Plaintiff David Stallins. He said in his deposition in this case that two of his relatives acquired MRSA following his release from jail.99 V. Defendants' Conduct Has Imperiled The Health Of The Surrounding Community.
A. Defendants have grossly underestimated the extent of the MRSA problem in the Hardin County Jail.
In his deposition, Jailer Lawson understated the extent of MRSA infections in the Hardin County Jail, and he misstated the Jail's responsibility for the spread of those infections. Lawson's repeated mischaracterizations of fact suggest strongly that he and the Jail staff -- even now, some three years into this outbreak within their facility -- still have not come to terms with the depth of the problem they have on their hands. This in turn underscores the need for the Court to certify the class and assume a broad role in the ultimate answer to this public health crisis.
The Hardin County Jail's own records provided to the Plaintiffs in this litigation may not be all the records relevant to the issue -- Plaintiffs' attorneys' investigation thus far in this case leads them to believe that there are more MRSA victims of the Hardin Jail than the 80 so far identified100 - but the Jail records are easily sufficient to build a picture of an institutional epidemic.101
99 David Stallins dep. 46-49, attached as Exhibit X. 100 Attached as Exhibit O, "Inmate Reference List of 82 Inmates Diagnosed With MRSA Infections." 101 Defendants' production of records in this case has been spotty. For example, on July 13, 2006, Magistrate Judge Whalin entered an order instructing Defendants to provide to Plaintiffs within 30 days "the inmate files and medical files in their possession that concern persons diagnosed with methicillin-resistant Staphylococcus aureus (MRSA) while incarcerated at the Hardin County Detention Center" between Aug. 1,
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That picture, viewed from a broad perspective, provides a wide-angle view of the spread of
MRSA infections in the Jail since 2004 -- and it illustrates what, in effect, has been a steady
drumbeat of MRSA diagnoses at least since mid-2005 among Jail inmates. Those records also show
that the infections struck more widely among the Jail's population than Lawson acknowledged in his
deposition.
Viewed from a narrower perspective, these records also provide snapshots of single moments
in time inside the Jail. Those snapshots show, among other things, that the percentage of inmates
with MRSA diagnoses in the Hardin County Detention Center at specific times was significantly
greater than Lawson described in his deposition in this case. One such time was Aug. 30, 2006. On
that day, the incidence of MRSA in the Jail was four times greater than Lawson acknowledged.
B. Defendant Lawson has drastically underestimated the scope of the MRSA problem at the Jail.
Defendant Lawson testified repeatedly in his deposition that the percentage of inmates diagnosed
with MRSA in the Jail has remained at one percent of the Jail population or less. For example, there
was this exchange between Plaintiffs' counsel and Lawson:
Q. Let me make sure I understand. Of the total jail population -- of all the people you've ever had in the jail, only one percent have been diagnosed with MRSA while at the jail? A. That's correct.102
Elaborating on the same point later during the same examination, Lawson appears to assert that
state statutes or regulations require the Jail to report to health authorities only a MRSA outbreak
2004 and June 30, 2006. Defendants have continued to provide Plaintiffs with records of inmates diagnosed through January 2007. In total, Defendants have provided Plaintiffs with medical records of 79 inmates who tested positive for MRSA and whose records Defendants had not specifically requested. However, Defendants learned of other at least four other MRSA cases independently, mainly through other inmates. For example, inmate No. 3 on Exhibit N, supra note 51, was diagnosed on Aug. 19, 2005, but his records were not provided to Plaintiffs in Defendants' initial response in March 2006; counsel for Plaintiffs learned about him from another inmate and requested his records specifically.
102 Lawson dep. 74, attached as Exhibit S.
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reaching three percent of the Jail's population, the level at which he said an outbreak is considered
"epidemic." Lawson said that the Jail filed no such reports with health authorities because the Jail's
incidence of MRSA had always remained at or below one percent. In that exchange, Lawson also
asserted that the Jail had not seen "an outbreak or an epidemic" of the infection. He said:
" … by our understanding through the Cabinet of Health and Family Services, that once you get MRSA, you establish a percentage of one percent, and we did that. If you went to three percent, then you would have to report it, because it's covered by K.S.R (sic) on that.
" … as long as you stay at that level and it's not an epidemic until it goes to about three percent. Then it becomes an epidemic. We have never grown from the one percent.
"… An epidemic would be if we've reached the three percent, and we've never reached that. I don't think we've had an outbreak or an epidemic. I think we've had the individual cases that's came in from the street."103
During the concluding portion of his deposition on May 29, Lawson repeated his assertion
that for purposes of determining whether the Jail had what would be, in his understanding of the law,
a reportable outbreak of MRSA, the Jail considered all inmates who had been diagnosed with
MRSA. The Jail, he agreed in response to a question, did the math this way: It divided the total
number of people in the Jail on a particular day who had been diagnosed with MRSA infections by
the total number of people in the Jail that day.104 The infected inmates included in the first number,
Lawson said, could be found "throughout the jail. They could be in isolation. They could have had
MRSA but it's not draining any more and they've got a bandage on it and the doctor said put them
back in living quarters."105

103 Id. at 124-25 (Exhibit S). 104 Id. at 283 (Exhibit S). 105 Id. (Exhibit S).

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Back to August 30, 2006. The Jail that day held 479 inmates, according to the Hardin County Detention Center's Inmate Population Analysis for August, 2006.106 Among those inmates in the Jail that day, according to the Jail's records provided to Plaintiffs, were at least 19 people who had been diagnosed with MRSA.107 That group scattered throughout the facility made up 3.96 % of the Jail's population that day -- well above the 3 percent "reportable" level for diagnosed inmates that Lawson described during his deposition.
To say that the Jail had 1 percent or less of its population with MRSA infections is to significantly minimize -- and to flatly mischaracterize -- a situation in which, in reality, at least 19 inmates throughout the Jail went to bed on Aug. 30, 2006 having been treated in the jail for MRSA infection.
Other snapshots in time would yield similar images. For example, according to the records provided by the Jail, on August 30, 2005, the same day one year earlier, there were 15 inmates sleeping, eating, showering and exercising in the jail who had been treated for MRSA infections.
Defendants' records show diagnoses of MRSA infections were confirmed among jail inmates during every single month between June 2005 and January 2007. In other words, there was a steady stream of diagnoses every month for 20 straight months -- a time period during which, in Jailer Lawson's evident assessment, the Jail was not experiencing an outbreak or reportable incidence of the disease.
Overall, more than 80 inmates have undergone such diagnosis and treatment in the past three years, according to the Jail's records made available to Plaintiffs to date.108
106 Attached as Exhibit P, "Hardin County Detention Center's Inmate Population Analysis for August, 2006." 107 See Exhibit N, supra, note 51. 108 Exhibit O, supra note 100.
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It is inarguable that the occurrence of scores of cases of the same communicable disease in one jail in a 29-month period constitutes an "outbreak" in the view of national corrections and health officials. The Clinical Practice Guidelines of the Federal Bureau of Prisons defines a MRSA outbreak as "a clustering of two or more epidemiologically-related, culture-positive cases of MRSA infection."109 The guidelines go on to say that evidence that an outbreak is caused by the same organism is found if there are "similar isolate antibiotic susceptibilities and further supported if molecular analysis … identifies a predominant MRSA strain."110 The study of the task force in Omaha, Nebraska, supra note 2, in defining the word "outbreak," said: "The common definition of a MRSA epidemic is: 1) several (e.g. three or more nosocomially-acquired) cases which are epidemiologically associated by person, time or place, or 2) a substantial increase in number of cases in a facility endemic for MRSA."111
Clearly, Jailer Lawson has a wholly inadequate grasp of the extent of the problem in his jail. The fact that he does not understand it -- at this late date in this complicated and prolonged outbreak -- adds further urgency to the need for this Court to certify the class.
Even in its responses to this litigation, the Jail has been slow to recognize the facts of the case. In Defendants' Conference Statement filed Nov. 23, 2005, the Defendants said: "Defendants are only aware of a handful of persons that were diagnosed with MRSA while incarcerated at the Hardin County Detention Center."112 Subsequently, after review of the Jail's own records, four months later, on March 21, 2006, Defendants produced a list of 32 inmates that the Defendants said
109 FEDERAL BUREAU OF PRISONS CLINICAL PRACTICE GUIDELINES, MANAGEMENT OF METHICILLINRESISTANT STAPHYLOCOCCUS AUREUS (MRSA) INFECTIONS, supra note 7, 21.
110 Id. 111 MRSA TASK FORCE OF THE GREATER OMAHA CHAPTER OF THE ASSOCIATION FOR PROFESSIONALS IN INFECTION CONTRON & EPIDEMIOLOGY, INC.,supra note 2, at 4. 112 Defendants' Conference Statement, p. 2.
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represented "every inmate diagnosed with MRSA while incarcerated at the Hardin County Jail from August, 2004 through December 31, 2005."113 However, Plaintiffs now believe that, at a bare minimum, 35 were diagnosed during that time period. Plaintiffs later learned of at least three more inmates diagnosed in 2005 who were not on the Jail's list, but for whom the Jail eventually found and produced records. Those three inmates appear on Exhibit E as inmates Nos. 3, 23 and 24. Similarly, the Jail, acting on its own initiative, provided Plaintiffs with records of 79 diagnosed imates; Plaintiffs' running count of diagnoses since September, 2004 stands at 83 inmates.
In sum, through the records provided and the assertions of Defendant Lawson, the Jail has consistently understated the extent of the problem.
C. Records contradict Lawson's claim that the Jail did not have an "outbreak" and that cases instead "came in from the street."
When Jailer Lawson said in his deposition that "I don't think we've had an outbreak or an epidemic," but instead "I think we've had the individual cases that's came in from the street,"114 the clear implication was that the principal source of MRSA infection in the Jail was something other than transmission of bacteria between inmates. Indeed, Lawson said in his deposition that he was unaware of any instance in which the Jail medical staff determined that the Jail was the source of an inmate's MRSA infection.115 The medical files of inmates, however, strongly indicate that the vast majority of MRSA infections diagnosed in the Jail were acquired in the Jail and not brought "in from the street."
The incubation period for MRSA infections is typically described in medical literature as variable, but commonly four to 10 days passes from initial infection with MRSA to the onset of
113 Supplemental Answer to First Set of Written Discovery by Louis B. Lawson Hardin County, p.1 and Exhibit A to that document.
114 Lawson dep. 125, attached as Exhibit S. 115 Id. at 195 (Exhibit S).
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symptoms.116 Accordingly, if an inmate has no prior record of MRSA symptoms, and then begins to exhibit such symptoms after being in the Jail 10 days or more, it is probable that she acquired the infection while incarcerated in the Jail.117 Jail medical records show that once a culture is taken -either of a draining sore or of matter expressed from a sore -- and submitted to Hardin Memorial Hospital's laboratory, a final lab analysis is almost always available roughly 48 hours after the taking.
Defendants have provided Plaintiffs with medical records of more than 80 inmates who have been treated for MRSA infections while in the Jail since September, 2004. In several of those cases, it was not possible to tell from the records how much time elapsed between the time the inmate entered the Jail and the date of diagnosis with MRSA infection. Of the 77 cases in which that time period could be determined, the breakdown as tabulated by Plaintiffs' counsel is as follows:
● 19 inmates, or 24.6 percent of the group for whom the time span could be determined, were diagnosed during their first month in the Jail. ● 58 inmates, or 75.3 percent, were diagnosed after their first month in the Jail. ● 32 inmates, or 41.5 percent, were diagnosed after three months or more in the Jail. ● Four inmates were diagnosed with MRSA after having been in the Jail for a year or more. Of the 42 people who responded to Plaintiffs' questionnaire, 39 reported that they had had no MRSA-like symptoms prior to entering the Jail. Of the 40 people who answered the question of how long they were in the Jail before they began exhibiting the symptoms that ultimately resulted in a diagnosis of MRSA infection, 31 said they had been in the Jail one month or more before the onset
116 See, e.g., PUBLIC HEALTH AGENCY OF CANADA, MATERIAL SAFETY DATA SHEET -- INFECTIOUS SUBSTANCES, STAPHYLOCOCCUS AUREUS, Section II, at http://www.phac-aspc.gc.ca/msds-ftss/msds143e.html (last visited July 29, 2007).
117 Opinion of Dr. John Clark, attached as Exhibit Q.
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of symptoms. That represents 77.5 percent of those responding, a percentage that is virtually identical to the 75.3 percent (58 of 77) shown in Jail records to have been diagnosed after a month or more in the Jail.
Therefore, both the Jail's records and Plaintiffs' survey of inmates agree in this important respect -- they strongly indicate that a large majority of inmates experienced the onset of symptoms after more than a month in the Jail. That is a time period well beyond the common four-to-10-day incubation period for MRSA infections. And that, in turn, leads to a logical conclusion that a large majority of infected Hardin County inmates were infected while in the Hardin County Jail. As inmates in most cases rarely leave the Jail premises during their incarceration, the strong inference to be drawn is that inmate MRSA infections diagnosed in the Jail are acquired in the Jail in at least three cases out of four.
D. The Hardin County Jail failed in its community responsibility and its legal duty to recognize the MRSA outbreak and to report it to state authorities.
The Jail's duty to report infectious diseases is clearly established by a Kentucky administrative regulation. The regulation, 501 KAR 3:020 § 4(3), applies to all county jails in Kentucky that house state inmates, a group that includes the Hardin County Jail. The regulation says: "A telephonic report to the Department of Corrections shall be made of all extraordinary or unusual occurrences within twenty-four (24) hours of the occurrence, and a final written report shall be made within forty-eight (48) hours. This report shall be placed in the jail record. Extraordinary or unusual occurrences shall include, but shall not be limited to: ….. (i) Occurrence of contagious or infectious disease, or illness within the facility."
In his deposition on April 23, 2007, Jailer Lawson said that the Jail did not send reports of its MRSA cases to the state Department of Corrections118 or the Hardin County Health Department,119
118 Lawson dep. 152, attached as Exhibit S.
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and it did not report the occurrence of infectious disease in monthly reports to Hardin County Fiscal Court.120
Plaintiffs made a request under the Kentucky Open Records Act for all reports of extraordinary or unusual occurrences filed by the Hardin County Jail with the Division of Local Facilities within the state Department of Corrections since 2004. In its response, the Division produced no records of telephonic or written reports to the Division from the Hardin jail concerning MRSA.
The most logical interpretation of the Jail's failure to follow the requirements of state regulations on the reporting of disease is that Defendants have simply been deliberately indifferent to the MRSA problem. After Lawson said during his deposition on April 23, 2007 that the Jail would report any single occurrence of venereal disease or tuberculosis to the Health Department,121 he was asked if the Jail would report to the department any other infectious diseases:
A. Not unless they reached an epidemic.
Q. Okay. And again, that's the three percent figure?
A. Well, depends on -- depends on what it would be. You know, if it was something that was real serious, that would be something that would be discussed with the doctor and medical staff, and we'd look at it and see where we were on it at that -- I can't think of any other diseases that were out there that we're not thinking of that would be."122 (Emphasis added.)

Consider: Plaintiffs have already shown that the incidence of MRSA in the Jail at times approached four percent, well in excess of Lawson's alleged three percent reporting requirement.

119 Id. at 149-151 (Exhibit S). 120 Id. at 25 (Exhibit S). 121 Id. at 149-151 (Exhibit S). 122 Id. at 151 (Exhibit S).

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Now, Jailer Lawson is testifying that a disease would be reportable to the Health Department at less than the three percent standard if it is an illness the Jail considers to be "real serious."
* * * * * * * * * * The facts above speak loudly: The Hardin County Detention Center has exhibited an abominable lack of regard for the inmates under its charge and the community in which it operates. The 80-plus inmates identified by the Defendants and discussed in this Memorandum may well be only a small portion of the people who have acquired MRSA in the Hardin County Detention Center. As described in this Memorandum, the Plaintiffs identified at least four more inmates who acquired staph infections in the Hardin County Detention Center but whose names had not been supplied by Defendants -- including four not included in the original discovery response of March 21, 2006 listing 32 inmates diagnosed with MRSA while in the Hardin County Jail between August 1, 2004 and December 31, 2005. In addition, it is reasonable to assume that more inmates acquired the infection in the Jail but did not experience onset of symptoms until after their release, and therefore were not diagnosed while in the Jail. Neither Defendants nor the Plaintiffs would have any certain way of learning about such individuals. Certification of this action as a class action is necessary in order to provide notice to and locate all such individuals, to determine the actual scope of the MRSA problem throughout the Jail and the Hardin County community, and to establish, implement and consistently enforce a single standard of conduct for the Hardin County jail. The Plaintiffs respectfully ask this Court to certify this action as a class action.
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LEGAL ARGUMENT I. The Utility And Standard For Class Actions In General.
The Reporter for the 1966 Amendments to the Federal Rules of Civil Procedure recognized the value of the class action mechanism in protecting "small claims held by small people -- who for one reason or another, ignorance, timidity, unfamiliarity with business or legal matters, will simply not take the affirmative step." Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure, 81 Harv.L.Rev. 356, 397-398 (1967).
In Phillips Petroleum v. Shutts, 472 U.S. 797 (1985), the United States Supreme Court, citing Professor Kaplan's commentary, also recognized the value of a class action to a "plaintiff so unfamiliar with the law, that he would not file suit individually, nor [even] affirmatively request inclusion in the class. . . ." 472 U.S. at 812-813. The class action is an "effective weapon for an across-the-board attack against systemic abuse." Jones v. Diamond, 519 F.2d 1090, 1100 (5th Cir. 1975).
At the class certification stage, the Court is required to assume that the substantive allegations of the Complaint are true. Pecere v. Empire Blue Cross and Blue Shield, 194 F.R.D. 66 (E.D.N.Y. 2000) (citing Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974)); Davis v. Avco Corp., 371 F.Supp. 782, 790 (N.D. Ohio 1974)).123 "However, a court may consider material outside the pleadings in determining the appropriateness of class certification," Hirschfeld v. Stone, 193 F.R.D. 175, 182 (S.D.N.Y. 2000), and Plaintiffs in this case have provided the Court far more than just the allegations of their complaint to justify class certification. Even in an uncertain case (which this is not), “any error, if there is to be one, should be committed in favor of allowing the class action.” Davis, supra at 791 (emphasis added); Kahan v. Rosentiel, 424 F.2d 161, 169 (3d Cir.
123 See also In re Catfish Antitrust Litig., 826 F. Supp 1019 (N.D. Miss. 1993) (“the invitation to pre-try the case through the vehicle of this (class certification) motion must be respectfully declined…rather, the court’s focus on a class certification motion is strictly on the requirements articulated in Rule 23”).
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1970), cert. denied, 398 U.S. 950 (1970); Esplin v. Hirschi, 402 F.2d 94, 101 (10th Cir. 1968), cert. denied, 394 U.S. 928 (1969); 7B Wright, Miller & Kane, Federal Practice and Procedure (1986), § 1785 at 199.
“In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but whether the requirements of Rule 23 are met.” Eisen, supra at 178 (quoting Miller v. Mackey Int'l, 452 F.2d 424, 427 (5th Cir. 1971)). Thus,
a court must avoid "minitrials," and any factual determination in the Rule 23 ruling would only be for the purpose of class certification and would not be binding on the trier of fact. Practicing Law Institute, Recent Developments in Class Action Law, 1590 PLI/Corp 85, 91 (March-May 2007). "If the general outlines of the membership of the class are determinable at the outset of the litigation, a class will be deemed to exist." Wright, Miller & Kane, Federal Practice and Procedure (3d) Chapter 5 § 1760, 7AA FPP 1760 (2007) (footnote omitted). In the instant case, the general outlines of the membership of the class are determinable. The proposed class represents inmates, both men and women, who contracted MRSA at the Hardin County Jail sometime from one year preceding the filing of the Complaint to the present, and those who are or will be inmates of the Jail. Class members are readily identifiable, with reasonable effort, for the given time period and their names and addresses are ascertainable through Hardin County Jail records. II. Class Action Certification Is Both Proper And Superior In The Instant Case. "Rule 23 of the Federal Rules of Civil Procedure outlines a two-step process for determining whether class certification is appropriate." Thomas v. Baca, 231 F.R.D. 397, 399 (C.D. Cal. 2005). First, all four of the prerequisites set forth in Rule 23(a) must be satisfied. Id. Second, with the Rule
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23(a) prerequisites satisfied, "the party seeking class certification must also demonstrate that the action falls within one of the three kinds of actions permitted under Rule 23(b)." Id.
A. Plaintiffs have met the class action prerequisites enumerated in Rule 23(a). In order to justify class certification, the Federal Rules of Civil Procedure Rule 23(a) require Plaintiffs to show that they meet each of the following four prerequisites:
One or more members of a class action may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative 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 class. Fed.R.Civ.P 23(a). "These four requirements are often referred to as numerosity, commonality, typicality, and adequacy." Thomas, supra at 399. 1. The class is so numerous that joinder of all members is impracticable. When class size reaches substantial proportions, the impracticability requirement is usually satisfied by the numbers alone. In re American Medical Systems, Inc., 75 F.3d 1069, 1079 (6th Cir. 1996). Moreover, the number of class members who actually come forward is not determinative of the numerosity issue. Bremiller v. Cleveland Psychiatric Inst., 195 F.R.D. 1, 20 (N.D. Ohio 2000). “Satisfaction of the numerosity requirement does not require that joinder is impossible, but only that plaintiff will suffer a strong litigational hardship or inconvenience if joinder is required.” Boggs v. Divested Atomic Corp., 141 F.R.D. 58, 63 (S.D. Ohio 1991). Classes have ranged in size from just 4 members, as in Swanson v. American Consumer Industries, Inc., 415 F.2d 1326, 1333 (7th Cir. 1969), to the 23 plaintiffs in Basile v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 105 F.R.D. 506, 507 (S.D. Ohio 1985), to the 1.6 million plaintiffs in Dukes v. WalMart Stores, Inc., No. C01-2252 (N.D. Cal. 6/22/04). Generally speaking, however, courts have presumed that numerosity exists with proposed classes consisting of at least 40
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members. Allen, supra at 406; Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1993); Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir.), cert. denied, 479 U.S. 883 (1986).
Furthermore, it is not required that a class representative state the exact number of class members or identify each class member, as "a judge may consider reasonable inferences drawn from facts before him at that stage of the proceedings. . . ." Senter v. General Motors Corp., 532 F.2d 511 (6th Cir. 1975); Kifafi v. Hilton Hotels Retirement Plan, 189 F.R.D. 174, 176 (D.D.C. 1999); Pigford v. Glickman, 182 F.R.D. 341, 347 (D.D.C. 1998); Glover v. Johnson, 85 F.R.D. 1 (E.D. Mich. 1977). Given the presently known facts, the membership of both proposed classes significantly exceeds 40. Defendants have already identified more than 80 persons who were diagnosed with MRSA while incarcerated at the Jail, and more -- perhaps significantly more -- likely exist. In addition, Plaintiffs seek certification of a class of persons incarcerated now or in the future at the Jail, a facility with a daily inmate population of over 400 souls. Once this case is certified as a class action and potential claimants receive notice, a substantial number of new MRSA claimants are likely to come forward. In Dean v. Coughlin, the proposed class consisted of 500 inmates of a correctional facility. 107 F.R.D. 331, 332. The Dean court observed that
in this case, as in many civil rights cases, the members of the class are 'incapable of specific enumeration.' The fluid composition of a prison population is particularly well-suited for class status, because, although the identity of the individuals involved may change, the nature of the wrong and the basic parameters of the group affected remain constant. Id. (emphasis added). As in Hirschfeld, "[t]he fluid nature of the class further supports th[e] Court's finding that joinder is impracticable." Hirschfeld, supra at 182. As aforementioned, class members are sufficiently definite for class certification. Unquestionably, Plaintiffs have satisfied the numerosity requirement of Rule 23(a)(1).
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2. There are questions of both law and fact common to the class. Rule 23(a)(2) requires that questions of law or fact common to the class be present, and that the resolution of common questions affect all or a substantial number of the class members. Califano v. Yamasaki, 442 U.S. 682, 701 (1979); In re American Med. Systems, supra at 1080. Further, peripheral or secondary individual member questions do not destroy class certification. “The mere fact that questions peculiar to each individual member of the class remain after the common questions of the defendant’s liability have been resolved does not dictate the conclusion that a class action is impermissible.” Sterling v. Veisicol Chem. Corp., 855 F.2d 1188, 1197 (6th Cir. 1988). “It is to be expected that there will be some factual differences between individual plaintiffs; moreover, the commonality requirement may be met if the common questions go to liability despite individual differences in damages.” Bremiller, supra at 20. In addition, it is not necessary that every issue of law or fact be common to each class member, only that "a single aspect or feature of the claim is common to all proposed class members." Bynum v. District of Columbia, 214 F.R.D. 27, 33 (D.D.C. 2003) (citations omitted). A common question has been defined as "one which arises from a 'nucleus of operative facts,' regardless of whether 'the underlying facts fluctuate over a class period and vary as to individual claimants.'" Meyer v. Citizens & Southern Nat'l Bank, 106 F.R.D. 356, 360 (M.D. Ga 1985) (citations omitted). Although only a single aspect or feature of the claim must be common to all proposed class members, there are multiple features of the immediate claim that is shared by all proposed class members. There is overwhelming overlap in the questions of both law and fact presented in this case. The common questions raised by Plaintiffs’ claims include, but are not limited to: (a) whether the Jail failed to properly screen, isolate, educate, or treat its inmates in violation of the very policies
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the Jail had adopted to protect inmates from MRSA; (b) whether the MRSA problem at the Jail was caused or contributed to by overcrowding, understaffing, underfunding, or a lack of training, education or supervision of the Jail's employees; (c) whether the Jail has experienced incidence of MRSA sufficient to warrant reporting to state correctional and local and state public health authorities; (d) whether the Jail has experienced a MRSA "outbreak" sufficient to warrant an outbreak investigation to determine the source of the MRSA infection and means of transmission; (e) whether the MRSA problem at the Jail reached "epidemic" proportions warranting quarantine of the facility; (f) whether injunctive relief is necessary to protect current and future inmates at the Jail, and the Hardin County community; and (g) whether Defendants are liable for the actual damages sustained by infected inmates.
"[C]ommonality is satisfied where [a] . . . lawsuit challenges a system-wide practice or policy that affects all of the putative class members." Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001). More generally, Plaintiffs believe that most, if not all, of the abuses identified in their Complaint are the result of Defendants' deliberate indifference to their constitutional right to be protected from a known and obvious hazard to their health. All Plaintiffs share the essential circumstance of being in the custody and care of the Hardin County Jail and being subjected to the deliberate indifference of Defendants. Thus, Plaintiffs allege both "system-wide practice or policy that affects all of the putative class members" and constitutional violations, "thus raising questions of law common to all class members." Armstrong, supra at 868. The commonality prong is undoubtedly satisfied.
3. The class representatives’ claims are typical of the claims of the classes. Rule 23(a)(3) requires that “claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed.R.Civ.P 23(a). “Typicality 'requires that the claims of the class
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representatives be typical of those of the class, and is satisfied when each class member’s claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant’s liability.'” Robinson v. Metro-North Commuter R.R., 267 F.3d 147 (2d Cir. 2001) (quoting Marisol A. by Forbes v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997)). The Sixth Circuit has explained that a “necessary consequence of the typicality requirement is that the representative’s interests will be aligned with those of the represented group, and in pursuing his own claims, the named plaintiff will also advance the interests of the class members.” In re American Medical Systems, supra at 1082.
A plaintiff’s claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members and his or her claims are based on the same legal theory. . . The typicality requirement may be satisfied even if there are factual distinctions between the claims of the named plaintiffs and those of other class members. De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983) (emphasis added). See also Senter v. General Motors Corp., supra at 525, n. 31 (6th Cir. 1976) (“To be typical, a representative’s claim need not always involve the same facts or law, provided there is a common element of fact or law.”) "The test generally is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct." Thomas, supra at 400 (citation omitted). Plaintiffs suffered the same injury from systemic conduct of Defendants, conduct that was not unique to the named plaintiffs and accordingly, other class members have been injured by the same course of conduct. Even if Defendants' claim that MRSA infections vary (amongst those infected) too greatly to be deemed the "same" injury, typicality is still met. "Where an action challenges a policy or practice, the named plaintiffs suffering one specific injury from the practice
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can represent a class suffering other injuries, so long as all the injuries are shown to result from the practice." Thomas, supra at 401 (quoting General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 157-59 (1982)). Both policies and practices are being challenged in the instant action and will be shown to cause Plaintiffs' injuries.
Both typicality and commonality serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.
General Tel. Co., supra at 157, n.13. Interests of the class members will be "fairly and adequately protected in their absence." Id. The named Plaintiffs' claims all arose from the same operative facts that bind them to all class members and the injuries asserted by Plaintiffs resulted from the same policies and practices being challenged. Named Plaintiffs and class members share a common interest in eliminating the unconstitutional conditions and practices they endured (as a group) at Hardin County Jail, along with receiving damages for injuries suffered. The typicality requirement is met.
4. Plaintiffs will adequately represent the class through qualified counsel. In Senter v. General Motors Corp., supra, the Court articulated two criteria for determining adequacy of representation: “1) the representative must have common interests with unnamed members of the class, and 2) it must appear that the representatives will vigorously prosecute the interests of the class through qualified counsel.” 532 F.2d at 525. There can be no doubt that the adequacy prong is satisfied. Class representatives have interests which are identical to the members of the class. In addition, the representatives eagerly seek relief for their injuries. Named Plaintiffs seek no special consideration or relief through this suit. There is no potential conflict between the class representatives and the unnamed members of the class.
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Moreover, Plaintiffs are represented by counsel who has substantial experience in prison
abuse litigation. Gregory Belzley is an expert in the Fourth, Eighth and Fourteenth Amendment
rights of inmates and pretrial detainees, and in civil rights class actions against jails. He has been
actively engaged in civil rights jail litigation for almost 20 years, was lead counsel for plaintiffs in
three prior jail class actions,124 and is lead counsel for plaintiffs in six other pending cases brought as
class actions against Kentucky jails, four of which (including this case) involve MRSA.125 The
pleadings, conduct of pretrial discovery, and other pretrial memoranda further demonstrate counsel's
competence and diligence. Counsel has repeatedly demonstrated his intent and wherewithal to
undertake litigation of this magnitude, and to vigorously prosecute this action before this Court.
B. Plaintiffs have met the requirements for an action to be maintained as a class action under Rule 23(b).
In order for a class action to be maintainable, the putative class also must satisfy one of the
three subsections of Rule 23(b):
(1) [T]he prosecution of separate actions by or against individual members of the class would create a risk of
(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
(B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
124 Eddleman, et al. v. Jefferson County, et al., No. 3:91-CV-144-J (W.D. Ky.); Wilson, et al. v. Franklin County, et al., No. 97-35 (E.D. Ky.); Foreman, et al. v. State of Connecticut, et al., No. 3:01-CV-0061 (D.C. Conn.).
125 Turner, et al. v. Hopkins County, et al., No. 4:03-CV-00003-M (W.D. Ky.); Miracle, et al. v. Bullitt County, et al., No. 05-00130-C (W.D. Ky.); Chapman, et al. v. Hardin County, et al., No. 3:05-CV-00433-S (W.D. Ky.); Napier, et al. v. Laurel County, et al., No. 6:06-CV-00368-DCR (E.D. Ky.); Taber, et al. v. McCracken County, et al., No. 5:06-CV-00144-R (W.D. Ky.); and Mumphrey, et al. v. Shelby County, et al., No. 3:06-CV-00070-KKC (E.D. Ky.).
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(2) [T]he 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; or
(3) [T]he court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. . . .
Fed.R.Civ.P. 23(b). Given the facts and legal issues of the instant case, class certification can be satisfied through more than one of the subsections of Rule 23(b).
1. With the Rule 23(a) prerequisites satisfied, certification under Rule 23(b)(1) is appropriate to avoid inconsistent adjudications and to protect the rights of members of a class by ensured representation through the vehicle of a class action.
Rule 23(b)(1)(A) states that class certification is proper if separate actions “would create a risk of inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class.” Fed.R.Civ.P. 23(b)(1)(A). “The phrase 'incompatible standards of conduct' is deemed to refer to the situation in which different results in separate actions would impair the opposing party’s ability to pursue a uniform continuing course of conduct.” Wright & Miller, Federal Practice & Procedure: Civil 2d § 1773, 7AA FPP 1773 (2007) (citations omitted). “[S]ubdivision 23(b)(1)(A) is applicable when practical necessity forces the opposing party to act in the same manner toward the individual class members and thereby makes inconsistent adjudication in separate actions unworkable or intolerable.” Id. It is clear from the circumstances of this case that the interests of all parties would be served by having common issues resolved as a class action, rather than in separate actions that could produce varying results that would only confuse the issue further and delay effective remedy.
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2. With the Rule 23(a) prerequisites satisfied, certification under Rule 23(b)(2) is appropriate because Defendants have 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.
In addition to monetary relief, Plaintiffs seek declaratory and injunctive relief requiring Defendants to adopt, observe, respect and implement the recognized policies and applicable state and federal regulations necessary to protect their inmates and the Hardin County community from MRSA. In Hendrix v. Faulkner, a case involving conditions of confinement at the Indiana State Prison, the court stated that "[a] class action is particularly well-suited to this civil rights case alleging that certain conditions, practices, and procedures of defendants violate constitutional guarantees. Courts have unhesitatingly certified classes when confronted with similar problems involving prisoners." 525 F.Supp. 435, 443 (N.D. Ind. 1981), aff'd in part, vacated in part, 715 F.2d 269 (7th Cir. 1983), cert. denied, 468 U.S. 1217 (1984) (citations omitted).
Certification under Rule 23(b)(2) is warranted where the “defendant has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive and corresponding declaratory relief with respect to the class.” Fed.R.Civ.P. 23(b). Such is the case here. "The Defendants have acted on grounds generally applicable to the class." Thomas, supra at 403. Under this rule, “injunctive relief embraces all forms of judicial orders, whether they be mandatory or prohibitory.” Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 1775, 7AA FPP 1775 (2007). Moreover, the “corresponding declaratory relief” language of Rule 23(b)(2) refers “to any remedy that ‘as a practical matter…affords injunctive relief or serves as a basis for later injunctive relief.” Id. at 462.
As the Second Circuit has stated '. . . it is well established that civil rights actions are the paradigmatic 23(b)(2) class suits, for they seek classwide structural relief that would clearly redound equally to the benefit of each class member.'
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Dean, supra at 335 (quoting Marcera v. Chinlund, 595 F.2d 1231, 1240 (2d Cir. 1979), vacated on other grounds sub nom. Lombard v. Marcera, 442 U.S. 915 (1979).
For all these reasons, federal courts frequently certify Rule 23(b)(2) class actions to consider declaratory and injunctive relief in cases like this one that involve claims arising from "conditions of confinement." See, e.g., Langley v. Coughlin, 715 F.Supp. 522 (S.D.N.Y. 1989). Indeed, the Hardin County Jail's systemic failure to protect inmates in its custody and care make this case particularly appropriate for injunctive relief.
3. With the Rule 23(a) prerequisites satisfied, certification under Rule 23(b)(3) as to class claims for compensatory damages is appropriate because questions of law or fact common to the class predominate over questions affecting individual members and a class action is the superior method for resolving the class of claims.
"Recovery of damages is available under [Rule] 23(b)(3)." Thomas, supra at 399. Rule 23(b)(3) has two primary requirements: (1) common issues must predominate over individual issues, and (2) class treatment must be superior to other methods of adjudication. Fed.R.Civ.P. 23(b)(3). Stated differently, Rule 23(b)(3) has both a predominance requirement and a superiority requirement. Rule 23(b)(3) parallels Rule 23(a)(2) in that both subdivisions require that common issues exist, but Rule 23(b)(3)’s predominance test goes further by ensuring that the common issues predominate over individual issues. In re American Medical Systems, supra at 1084. “In order to 'predominate,' common issues must constitute a significant part of the individual cases.” Jenkins v. Raymark Industries, 782 F.2d 468, 472 (5th Cir. 1986). "The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation." Thomas, supra at 402 (quoting Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623 (1997)). "[T]he determination rests not on whether individualized damages determinations will be necessary but on 'legal or factual questions that qualify each class member's case as a genuine controversy.'" Id.
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The Thomas court characterized this requirement as "a heightened commonality inquiry: do the
common legal and factual questions appear more significant than the individualized legal and factual
questions?" Thomas, supra at 402. This Court should answer, "Yes."
a. Defendants' common course of conduct, where conduct involves possibility of systemic violations of inmates rights and systemic gross negligence, has overriding significance to any individual factual or legal issues.
The overarching commonality among all class claims trumps any factual differences among
class members' individual claims. As previously noted in Plaintiffs’ discussion regarding
commonality pursuant to Rule 23(a)(2), common issues of law and fact pervade this case and there
will likely be very little factual variation in the legal issues that determine the Defendants’ liability.
If the cases were to be tried individually, all class members would be offering essentially identical
proof in support of their claims. The common issues in this action that link Plaintiffs and all
members of the classes unquestionably predominate over any questions affecting only individual
class members. Given the number and extent of the common issues in this case, a class action
certified under Rule 23(b)(3) is clearly superior to any other method and will advance the efficient
and fair adjudication of this controversy.
In Langley, supra, the court said:
Plaintiffs' "failure to treat" claims raise a number of common legal and factual issues. To the extent that plaintiffs seek to recover based on a "systemic failure to treat" claim, each must demonstrate such "systemic" failures in the manner in which mental health care was provided at Bedford Hills during the relevant period and the Court must determine whether such failures did indeed occur and whether, as a matter of law, they were of such a dimension as to constitute potential violations of the constitutional rights of those inmates on whom they impacted. These broad historical issues plainly require common factual presentations. Furthermore, to the extent that an individual claimant contends that specific medical decisions of the defendants that affected her were so egregiously improper as to reflect deliberate indifference, she will necessarily seek to
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demonstrate an extended pattern of such erroneous decisions — whether concerning her or other class members — as a means of showing that the alleged errors constituted not merely simple negligence but rather deliberate indifference. (Citations omitted). Such an effort to prove the defendants' indifference will necessarily require each class member to rely on the same body of evidence for the purpose of persuading the court that when the responsible authorities erred, it occurred for reasons other than honest error. This too adds a large body of common issues of both fact and law to the "failure to treat" case, thus further enhancing the appropriateness of class treatment.
Id. at 560 (emphasis added).
Likewise, class-action treatment is appropriate in the immediate action, since common
questions represent a majority of the components of this action and thus, can be resolved for all
members in a single adjudication, rather than on an individual basis. In the Sixth Circuit, class
actions are a favored procedural tool:
The procedural device of a Rule 23(b)(3) class action was designed not solely as a means for assuring legal assistance in the vindication of small claims, but rather to achieve the economies of time, effort and expense.
Sterling, supra at 1196-97.
b. Class action is the superior method of adjudication.
Subdivision (b)(3) of Rule 23 lists four factors that the court should consider to determine
whether class-action treatment would be the superior method of adjudication:
(A) the interest of members of the class in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; [and]
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(D) the difficulties likely to be encountered in the management of a class action.
Fed.R.Civ.P. 23(b)(3). An examination into each of these factors will indicate that class-action treatment is the superior method.
(1) It is unrealistic to expect Plaintiffs to resort to individual litigation and there is no ongoing pertinent litigation.
Although each MRSA class member has sustained a significant injury, their ignorance of their rights, the costs of pursuing the matter individually, and the fact that each member of the class has acquired an infectious disease that may make them fearful of public scrutiny significantly impairs the ability of individual claimants to come forward and proceed on a case-by-case basis. Further, the injuries and claims of the putative class members are virtually identical.
Under similar situations, courts enthusiastically certify class actions where the cost of individual adjudication, personal and economic, may discourage plaintiffs from pursuing their claims. Scholes v. Stone, McGuire & Benjamin, 143 F.R.D. 181, 185 (N.D. Ill. 1992); Wehner v. Syntex Corp., 117 F.R.D. 641, 645 (N.D. Cal. 1987). In the instant case, litigation will truly be reduced by class certification because its highly unlikely that class members will exclude themselves under Rule 23(c)(2). As stated previously, Plaintiffs are eager to pursue their claims against the Defendants. Further, there are no potential conflicts or complications from ongoing litigation that would interfere with the interests of other plaintiffs. "Additionally, because of the transitory nature of the class members, class certification will avoid any mootness issues that could otherwise arise if an individual's claims became moot." Hirschfeld, supra at 184.
(2) It is desirable to concentrate similar actions in one forum and class action certification will not result in significant management difficulties or unduly burdensome litigation.
“Certainly any difficulties in handling this suit as a class action are far surpassed by the difficulties, in terms of judicial economy of administration, which would be involved in litigating
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these claims as individual actions.” DuPont Glore Forgan v. AT&T, 69 F.R.D. 481, 489 (S.D.N.Y. 1975). Indeed, certification will permit the Court, through the use of a class trial, to resolve the predominant common issues. Individual trials, as opposed to class trials, will require courts to hear the same evidence regarding Defendants’ practices and procedures. Individual trials will require the parties to incur substantial expense in re-litigating issues. Class certification will promote economy, expediency, and efficiency. Individual trials will promote delay, increase the costs of the litigation and inundate the Court with unnecessary individual claims. It is in the best interest of all parties, including the Court to certify this class.
The class descriptions are sufficiently definite to be administratively feasible in the identification of class members. There will be limited management difficulties in identifying class membership. Certification of this action is therefore consistent with both the spirit and letter of Rule 23.
C. Class actions are commonly certified to address patterns and practices involving prisons or jails.
The instances and circumstances in which federal courts have certified inattention-tomedical-needs class actions are too numerous to list here, but for a sample, see Rouse v. Plantier, 182 F.3d 192 (3d Cir. 1999); Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1982); Coleman v. Wilson, 912 F.Supp. 1282 (D. Cal. 1995); Inmates of Occoquan v. Barry, 717 F.Supp. 854 (D.D.C. 1989) (involving claims of inattention to inmates with, among other things, urinary problems, dizziness, Hodgkin's disease, diabetes, vision problems, dental problems and mental health issues); De Gidio v. Pung, 704 F.Supp. 922 (D. Minn. 1989); Feliciano v. Barcelo, 672 F. Supp. 591 (D.P.R. 1986); Dean v. Coughlin, 107 F.R.D. 331 (D.N.Y. 1985); Martino v. Carey, 563 F.Supp. 984 (D. Or. 1983) (involving claims of inattention to medical needs including but not limited to epilepsy, delusions and other mental health conditions); Lightfoot v. Walker, 486 F.Supp. 504, 506 (D. Ill. 1980) (involving
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a comprehensive assault on all aspects of the prison's health care system and its inattention to the full panoply of inmate medical needs); Owens-El v. Robinson, 442 F.Supp. 1368 (D. Pa. 1978); and Palmigiano v. Garrahy, 443 F.Supp. 956, 966 (D.R.I. 1977).
Likewise, the number of federal courts that have certified failure-to-protect class actions is comparably numerous. See, e.g., LaMarca v. Turner, 995 F.2d 1526 (11th Cir. 1993) (failure to protect from inmate assaults); Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1982); Jones v. Diamond, 636 F.2d 1364 (5th Cir. 1981), overruled on other grounds by, Int’l Woodworkers of America, AFLCIO v. Champion Intern. Corp., 790 F.2d 1174 (5th Cir. 1986); Skinner v. Uphoff, 234 F. Supp. 2d 1208 (D. Wyo. 2002); Austin v. Hopper, 15 F. Supp. 2d 1210 (D. Ala. 1998) (involving allegations that the defendants' policies, customs and practices placed inmates at the risk of unprovoked assault, bodily injury and death at the hands of other inmates); Caroline C. By and Through Carter v. Johnson, 174 F.R.D. 452 (D. Neb. 1996); Inmates of Occoquan v. Barry, 717 F. Supp. 854 (D.D.C. 1989); Fisher v. Koehler, 692 F.Supp. 1519 (D.N.Y. 1988); Feliciano v. Barcelo, 672 F.Supp. 591 (D.P.R. 1986); Martino v. Carey, 563 F.Supp. 984 (D. Or. 1983) (assaults by other inmates); Doe v. Lally, 467 F.Supp. 1339, 1346 (D. Md. 1979); and Palmigiano v. Garrahy, 443 F.Supp. 956, 966 (D.R.I. 1977).
In addition, a court can simultaneously certify a 23(b)(2) class with a 23(b)(3) class. Practicing Law Institute, supra at 107. The Southern District of New York has stated that
[n]othing in the language of Rule 23 precludes certification of both an injunctive and a damages class in the same action. In fact, where injunctive relief and damages are both important components of the relief requested, courts have regularly certified an injunctive class under Rule 23(b)(2) and a damages class under Rule 23(b)(3) in the same action. Id. (quoting In re Nasdaq Market-Makers Antitrust Litig., 169 F.R.D. 493, 515 (S.D.N.Y. 1996)). Such is the case here--both injunctive relief and damages are important components of the relief
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requested. Alternatively, if the Court believes there are separate issues concerning damages amongst the class,
the common issue of liability [could be] adjudicated on a class basis. Rule 23 provides the courts with enough flexibility and room for judicial innovation so that the question of damages can be determined through individual trials on that issue pursuant to "equitable procedures" devised by the court. Wright, Miller & Kane, Federal Practice and Procedure Chapter 5, § 1784, 7AA Fed. Prac. & Proc. Civ.3d § 1784 (2007) (footnotes omitted). D. A federal district court has already certified a class action in a comparable MRSA case. In Inmates of Bucks County Correctional Facility v. County of Bucks126, Plaintiffs alleged Eighth and Fourteenth Amendment violations around the "conditions of confinement" at the Bucks County Correctional Facility (the "Bucks County jail"). Bucks County, 2004 WL 2958427, 4 (E.D. Pa. 2004). Amongst other allegations, Plaintiffs claimed that as of June 2004, 95 inmates had been isolated for MRSA infection. Id. Plaintiffs also alleged that all inmates were "threatened and effected by the disease due to the unsanitary conditions within the facility" and alleged Eighth and Fourteenth Amendment violations "based on systemic deficiencies in sanitation and basic medical and health care needs." Id. The Bucks County court held that the numerosity requirement was "clearly" met -considering that Plaintiffs alleged that the size of the class exceeded 650 members and that the fluidity of class made joinder impracticable. Id. at 3. Further, the court concluded that "common questions exist[ed] as to the conditions and as to whether the Defendants' conduct violate[d] the
126 Attached as Exhibit R. Not reported in F. Supp. 2d. This is the only case presently known to counsel where a MRSA class has been certified. No published case provides such analogous relevance and precedential value.
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constitutional rights of Plaintiffs." Id. at 4. Typicality and adequacy were likewise determined to be satisfied by the court. It stated that
[i]n the case at bar, Plaintiffs aver that the Defendants have instituted a policy and practice of both action and inaction which deprives Plaintiffs of humane treatment in violation of their Constitutional rights and is thus appropriate for a class action suit. Bucks County, supra at 5. Ultimately, the court concluded that the Plaintiffs' claims met the requirements of a class action pursuant to Rule 23(a) and (b)(2). Id. Bucks County shares many commonalities with the instant case. Both cases allege federal constitutional violations involving inmates of a correctional facility with similar population sizes, where MRSA was colonizing, causing inmates to suffer preventable injuries because of (and without the remediation of) the Defendants' conduct and practices. Systemic deficiencies in both sanitation and isolation procedures were common allegations, as well as inattention to medical needs. Thus, Plaintiffs are not asking this Court to write on a clean slate.
CONCLUSION The persons victimized by the continuing abuses at the Hardin County Jail must be identified, contacted, permitted to come forward to assert their claims, and awarded damages in instances in which their treatment violated their constitutional rights. One thing is certain -- absent certification of a class action, the legitimate claims of unnamed class members will never be discovered and will likely be forever barred. The record indicates that there are many more claims like Plaintiffs' that have yet to be asserted. A comprehensive remedy, finality, and economy not only for the Court, but for all parties require that this case be certified a class action for injunctive and declaratory relief and recovery of damages. In addition, certification is required in order to afford potential class members the protection of numerosity and ensured representation. In the instant case, "a class action is the procedural vehicle of choice." Hendrix, supra at 443.
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Federal courts have certified class actions in circumstances similar to those presented in this case. The Defendants bear direct responsibility for their continued and systemic conditions and practices, actions and inactions, which give rise to the present suit. The conditions of confinement at Hardin County Jail affect not only named Plaintiffs and proposed class members, but has general application to Hardin County jail inmates, past, present, and future, and the Hardin County community beyond the jail walls.
FOR THESE REASONS, Plaintiffs respectfully request that their motion for class certification be granted.
Respectfully submitted,
___________________________ Gregory A. Belzley James L. Adams DINSMORE & SHOHL LLP 1400 PNC Plaza 500 West Jefferson Street Louisville, KY 40202 (502) 540-2300 Telephone (502) 585-2207 Facsimile Douglas Miller Miller & Durham 400 W. Lincoln Trail Radcliff, Kentucky 40160 Counsel for Plaintiffs
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CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was served this 30th of July, 2007 via CM/ECF, on: Ken Howard Hardin County Attorney 100 Public Square P.O. Box 884 Elizabethtown, Kentucky 42702-0884 Stacey A. Blankenship Denton & Keuler P.O. Box 929 Paducah, Kentucky 42002-0929 Counsel for Defendants
__________________________ Gregory A. Belzley
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 Case 3:05-cv-00433-CRS-DW Document 193 Filed 12/14/10 Page 1 of 2 PageID #: 2105

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE

MARTEL CHAPMAN, et al.

PLAINTIFFS

v.

CIVIL ACTION NO. 3:05-CV-433-S

HARDIN COUNTY, KENTUCKY, et al.

DEFENDANTS

FINDINGS OF FACT CONCLUSIONS OF LAW AND RECOMMENDATION

* * * * *

This matter is before the Court for further consideration based upon its prior order

entered on November 1, 2010. The Court by that order permitted the withdrawal of the

Plaintiffs’ counsel pursuant to L.R. 83.6 (DN 191, pp. 1-2). The individual Plaintiffs were

provided with a copy of the order, which directed them individually to contact the Court in

writing within 30 days to advise whether any of them have retained new counsel, or

alternatively, desired to proceed pro se. (Id. at p. 3). The order specifically cautioned the

Plaintiffs that

3. The failure of any Plaintiff to comply with the terms of the preceding paragraph of this order shall result in the Magistrate Judge recommending to the District Court that the claims of the Plaintiff be dismissed with prejudice.

(DN 191, p. 3).

The 30-day period provided for in the order has now expired. None of the named

Plaintiffs has notified the Court in writing, or otherwise attempted to contact the Court, to

express an interest in pursuing further proceedings. In light of the recent adverse opinion

rendered by the Sixth Circuit in Wooler v. Hickman County, et al., 377 Fed. Appx. 502 (6th Cir.

May 14, 2010), the probability that any Plaintiff will now come forward to request the

Case 3:05-cv-00433-CRS-DW Document 193 Filed 12/14/10 Page 2 of 2 PageID #: 2106
opportunity to proceed with the lawsuit is extraordinarily remote. Given the Plaintiffs failure to comply with the order of November 1, 2010, and the impact of the Wooler decision, the Magistrate Judge shall recommend that the lawsuit be involuntarily dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. See, Link v. Wabash R.R. Co., 370 U.S. 626, 62930 (1962) (“The authority of a federal trial court to dismiss a plaintiff’s action with prejudice because of his failure to prosecute cannot seriously be doubted.”). See also, Carter v. City of Memphis, Tennessee, 636 F.2d 159, 161-62 (6th Cir. 1980) (“Strict compliance with orders of the District Court is an important duty....”).
RECOMMENDATION The Magistrate Judge having made findings of fact and conclusions of law recommends, in accordance with the order of November 1, 2010, that the present action be DISMISSED WITH PREJUDICE for failure to prosecute.
December 14, 2010

NOTICE

Within fourteen (14) days after being served a copy of these proposed Findings and
Recommendation, any party who wishes to object must file and serve written objections or further appeal is waived. Thomas v. Arn, 728 F.2d 813 (6th Cir. 1984), aff’d., 474 U.S. 140 (1985). 28
U.S.C. § 636(b)(1)©; Fed.R.Civ.P. 72(b).

Copies to:

Counsel of Record Plaintiffs pro se: Martel Chapman, Annette Borges, Tina Spears, David Stallins, Charles Anderson, Carroll L. Dailey, Maurich Grines

2

 
 Case 3:05-cv-00433-CRS-DW Document 195 Filed 01/12/11 Page 1 of 1 PageID #: 2110

132254

ELECTRONICALLY FILED
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION CASE NO.: 3:05-CV-00433-S

MARTEL CHAPMAN, et al.

PLAINTIFFS

v.

ORDER OF DISMISSAL

HARDIN COUNTY, et al.

DEFENDANTS

*** *** *** *** ***

Defendants, by and through counsel, having moved for entry of an order dismissing the

claims of Charles Anderson, Annette Borges, Martel Chapman, Carroll L. Dailey, Maurich

Grimes, Tina Spears, and David Stallins, and the Court being sufficiently advised,

IT IS HEREBY ORDERED that Defendants’ motion is GRANTED, and the claims of

Charles Anderson, Annette Borges, Martel Chapman, Carroll L. Dailey, Maurich Grimes, Tina

Spears, and David Stallins are hereby DISMISSED with prejudice. The Court notes that this

Order disposes of all remaining claims in this action.

IT IS THEREFORE FURTHER ORDERED that this matter is hereby DISMISSED with

prejudice.

January 12, 2011

cc: Parties

 
 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE

MARTEL CHAPMAN, et al., individually and on behalf of all others similarly situated

PLAINTIFFS

v.

CIVIL ACTION NO. 3:05-CV-433-S

HARDIN COUNTY, et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER

This matter is before the court upon the m otion of plaintiffs Paul Amaral, Larry Ashford,

Amanda Bray, Jessica Lee Carragher, Edward Carroll,Alan Crabtree, Benjamin Fisher, Jheirquann

Gibbs, Michael Hegg, Trem ain Johnson, William Jutz, Shawna Marie Lavvorn, Stephen Long,

Rachel Marcum, Jennie Mcelvain, Deella Louise Mcneal, Derwin Nickleberry, Charles Valentine,

Francis Vandivier, Jr., W illiam Vanmeter, Dannie Vertrees, Jr., Jam es Williams, Tiffany Ann

Williams, Cortez Williamson, and James Winkle (“Movants”) to intervene in the above-styled action

(DN 153). Defendants Hardin County, et al. (“Dfeendants”) have responded (DN 154) and Movants

have replied (DN 155). For the reasons that follow, Movants’ motion to intervene will be denied.

The original plaintiff in this matter, Martel Chapman (“Chapman”), was a former inmate of

the Hardin County Detention Center (“Jail”). Chapman alleges that the policies and procedures –

or, lack thereof – of Defe ndants violated her rights under the Eighth, Tenth, and Fourteenth

Amendments of the U.S. Constitution. Specifica lly, Chapman alleges that Defendants allowed

methicillin-resistant Staphylococcus aureus bacteria (“MRSA”) to be introduced to and spread

among the Jail population, and as a consequence she was infected.1

1For a more comprehensive statement of the facts of this case, see Memorandum Opinion, pp. 1-7 (DN 149).

Movants similarly allege that they were infected with MRSA while incarcerated at the Jail. Specifically, Movants allege that they “were denied appropriate and necessary m edication and medical attention for their serious medical needs, all as a consequence of Defendants’ neglect and deliberate indifference.” Motion to Intervene, p. 2.
Federal Rule of Civil Procedure 24(b) governs permissive intervention.2 Rule 24 provides, in pertinent part, that “[o]n timely motion, the court may permit anyone to intervene who. . . has a claim. . . that shares with the m ain action a common question of l aw or fact.” Fed. R. Civ. P. 24(b)(1)(B). The rule further states that “[i]n exercising its discretion, the court m ust consider whether the intervention will unduly delay or prej udice the adjudication of the original parties’ rights.” Fed. R. Civ. P. 24(b)(3).
In our memorandum opinion denying Chapman’s motion for class certification, the court found that there were no questions of law or fact com mon to all members of the proposed class. Mem. Op. at 10-11. Here, for the same reasons, the court finds that there is no question of law or fact common to all plaintiffs, “the resolution of which will advance the litigation .” Sprague v. General Motors, 133 F.3d 388, 397 (6th Cir. 1998) (emphasis added).
Movants allege that their claims share with the primary action issues concerning Defendants’ employment practices, Jail operations funding, and the promulgation of policies and procedures to protect the inm ate population. However, Movants fail to identify a particular question, the resolution of which will establish common causation, or consistently impact damages. Contrary to Movants’ contention, there is no single set of operative facts fromwhich all of their claims, as well as Chapman’s claim, arises. Questions as to theconditions at the Jail and the implementation of the
2Movants are not entitled to intervention of right under Rule 24(a). -2-

Jail’s MRSA policies are different for Chapman and each plaintiff. Whether the Jail failed to protect Chapman and/or any individual plaintiff from exposure to MRSA is an inquiry complete unto itself. Accordingly, Movants’ motion to intervene will be denied. Therefore, there is no danger of undue delay or prejudice to the adjudication of the original parties’ rights.3
If Movants wish to assert their claims, they have the right to file individual actions. Should multiple plaintiffs choose to do so, then at the appropriate time and in the interest of judicial economy, the court will order consolidation of all prertial discovery to the fullest extent practicable.
For the above reasons, and the courtbeing otherwise sufficiently advised, IT IS HEREBY ORDERED AND ADJUDGED that Movant’s motion to intervene (DN 153) is DENIED.
IT IS SO ORDERED.
May 14, 2009
3The court declines to address the Prison Litigation Reform Act (“PLRA”) question, as it is unnecessary to the resolution of the present matter.
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 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE

MARTEL CHAPMAN, et al., individually and on behalf of all others similarly situated

PLAINTIFFS

v.

CIVIL ACTION NO. 3:05-CV-433-S

HARDIN COUNTY et al.

DEFENDANTS

MEMORANDUM OPINION

This matter is bef ore the court on plaintif fs’ motion for class certif ication (DN 117).

Defendants have responded (DN 128) and plaintiffs have replied (DN 135). Plaintiffs have further

moved for oral argument (DN 138) and defendants have responded (DN 141). De fendants have

moved for leave to file a sur-reply (DN 140) and plaintiffs have responded (DN 142). Defendants

have further m oved for leave to file a supplemental response to plaintiffs’ m otion for class

certification (DN 146). Plaintiffs responded to defendants’ motion without objection (DN 147).

After review of the record, the court finds that oral argument is unnecessary, and for the reasons that

follow will deny plaintiffs’ m otion for class cer tification. Consequently, the court will deny

defendants’ motion for leave to file a sur-reply as moot.

BACKGROUND

This action was filed on August 1, 2005, by pl aintiff Martel Chapman (“Chapman”), a

former inmate at the Hardin County Detention Center (“Jail”). Chapman alleges that defendants

Hardin County and Hardin County Jailer Louis Lawson (“Lawson”) (hereinafter collectively,

“Defendants”) failed to implement and enforce internal policies regarding the protection of inmates

from exposure to methicillin-resistant Staphylococcus aureus bacteria (“MRSA”), which caused her

to become infected with MRSA during her incarceration. Chapman further alleges that she was left

in contact with other inmates and not given proper treatment after she became infected. Chapman alleges that it was the Jail’s pr actice to leave inf ected inmates in contact with healthy inm ates, which, coupled with the Jail’s failure to e ducate inmates about hygiene and provide a sanitary environment, caused MRSA to spread through the inmate population.
MRSA is an antibiotic-resistant bacterium that flourishes in skin a nd mucus membranes, which can be chronic, fa tal, and highly inf ectious. Motion for Class Certification , p. 1. Even otherwise healthy individuals can develop serious MRSA infections that lead to painful symptoms and severe illness or death. Id. at 5. Researchers report that jails and prisons are increasingly contributing to the com munity health problem of MRSA infections. Id. at 7-10. Inm ates with MRSA are commonly misdiagnosed as having infected pimples, insect bites, spider bites, or sores. Id. at 4.
Chapman alleges that Defendants have knownhow to minimize inmate exposure to MRSA since at least September 2004. However, Chapman alleges that Defendants have failed to implement and enforce the policies developed by the Jail in response to the MRSA threat. As a consequence, Chapman alleges that a multitude of Jail inmates have been exposed to MRSA. Chapman alleges that more than eighty (80) inmates, and possibly many more, have been infected with MRSA at the Jail since the summer of 2004.
Chapman alleges that Defendants violated her constitutional rights (and the rights ofothers similarly situated) by failing to adequately m inimize her exposure to MRSA. Chapm an asserts claims under 42 U.S.C. § 1983 for the violation of her Eighth, Tenth, and Fourteenth Amendment constitutional rights. Chapm an seeks to repr esent: (a) all persons who, since August 1, 2004, contracted MRSA at the Jail; and (b) all persons who are or will be confined at the Jail.
-2-

Chapman has submitted a number of exhibits and other evidence in support of her contention that Defendants failed to protect inm ates from exposure to MRSA. This evidence includes: two protocols, one solicited by Lawson from Hardin Memorial Hospital and another issued by the Kentucky Department of Corrections, for minimizing inmate exposure to MRSA; a memorandum from Lawson to all Jail em ployees regarding procedures for handling MRSA-infected inm ates; deposition testimony of inmates who claim to have been exposed to MRSA at the Jail; responses by forty-two (42) i nmates who were treated for MRSA at the Jail to a questionnaire prepared by Chapman’s counsel1; several academic and government publications about MRSA; Chapm an’s medical records; and the m edical opinion of Dr. John Clark. Chapm an also directs the c ourt’s attention to Inmates of the Bucks Count y Correctional Facility v. Bucks County , 2004 U.S. Dist. LEXIS 30547 (Dec. 20, 2004 E.D. Pa.), in which the court there granted class certification based on allegations of cruel and unusual punishm ent under the Eight h and Fourteenth Amendments regarding inmate exposure to MRSA.
Chapman alleges that the Jail f ailed to isolate infected inm ates, as directed by the Jail’s adopted MRSA protocols. Chapman was incarcerated on June 17, 2004 and placed in Pod 137 with multiple other female inmates, where she remained exclusively for more than three months. Shortly after Chapman entered the Jail, another woman in Pod 137 revealed a boil to the rest of the inmates in the pod and told them that she had a staph infection. This infected inmate had told the same to Jail officials when she was transferred to the Jail from Nelson County, where she had been
1The court observes that the surveys of potential claimants prepared by Chapman’s counsel were not administered under oath. However, Chapman has provided supplementary affidavits of fifteen (15) of the forty-two (42) respondents, presumably to bolster the unsworn questionnaire responses.
-3-

previously diagnosed with MRSA. The infected Nelson County transferee’s case of MRSA had been “the first [Lawson] had ever heard of [MRSA].”
Subsequently, Chapman observed “a huge boil” on the back of a second woman in Pod 137 and a draining sore on the neck of another. Chapman alleges that the inmate with the sore on her neck was left in the pod “for quite a while with it draining without them taking her out,” and was also left in the pod while the results of a culture of the sore were pending.
On September 18, 2004, Chapman filled out a medical request form complaining, “I have a boil under my arm.” Jail medical staff saw Chapman that day, initiated an antibiotic, and noted for the record, “If draining, report to Med. for culture.” Chapman was not isolated at that time; she was left in the pod. On September 20, Chapman filled out another medical request form, “I need to see the doctor. I have a boi l under my arm.” The Jail’s contract physician saw Chapm an the following day, reported that the boil had “m inimal drainage,” changed antibiotics, and ordered a culture. Chapm an was not isolated at that tim e; she was left in the pod. On Sept ember 23, Chapman’s culture returned confirmation of a “heavy growth” MRSA infection and Chapman was sent to an isolation cell.
Chapman alleges that before her move to isolation she was one of four inmates left in Pod 137 for days at a time while suffering obvious skin infections. Eight (8) questionnaire respondents also allege that they were left in contact with other inmates after having developed open sores of their own. Inmate Annette Borges (“Borges”), also a named plaintiff in this case, alleges that she was isolated after her first two outbreaks of MRSA in July 2005 but l eft in contact with other inmates following multiple subsequent outbreaks.
Chapman further alleges that the Jail failed to instruct inmates on the importance of proper
-4-

hygiene and frequent hand washing, as directed by Jail protocols. Almost all of the questionnaire respondents allege that the Jail failed to instruct inm ates on one or m ore of t hese issues: hand washing; the need to change sheets and towels; the need to bathe or shower daily; the hazards of sharing towels or razors; the need to report appare nt symptoms; the dangers of touching sores or wounds; and the need to clean recre ation and exercise equipment after use. Inm ate Tina Spears (“Spears”), another named plaintiff here, alleges that discussion of MRSA atthe Jail was so minimal that she was given the assignment of cleaning isolation cells “unaware that there were people in there with staph infection.” Moreover, questionnaier respondents allege that the Jail misled inmates by telling infected individuals that their symptoms were spider bites, boils, or infected or ingrown hairs.
Chapman also alleges that the Jail failed to provide inmates clean clothes, linens, and living quarters, as directed by Jail protocols. Chapman alleges that she was not given an opportunity to shower regularly while she was infected and inisolation. Only one questionnaire respondent reports having received a daily change of clothes whileisolated; none report having received a daily change of sheets. Spears alleges that she did not receivea clean towel, washcloth, and uniformdaily, as her hospital discharge called for, and she was not givne materials to change her wound’s dressing daily. Spears further alleges that her cell was not cleane d or sprayed with bleach on a regular basis, as directed.
Finally, Chapman alleges that the Jail failed toprovide inmates diagnosed with MRSA a plan for follow-up care after release, which caused their families and the community to suffer. Borges and inmate David Stallins, who is a named plaintiff as well, both allege that they transmitted MRSA to relatives after their releases from Jail.
-5-

Chapman argues that class certification should begranted in order to notify and locate those
individuals similarly situated; to determine the scope of the MRSA problem throughout the Jail and
the Hardin County community; and to bring the Jail into compliance with state policy.
Defendants argue that Chapman’s proposed class of “all persons who are or will be confined
at the Jail” is improper because there is no indication that such persons’ rights are being or will be
violated. Moreover, Defendants assert that conditions at the Jail are improving. Defendants argue
that Chapman’s proposed class of “all personswho, since August 1, 2004, contracted MRSA at the
Jail” is improper because it would require extensive inquiry into whether each individual acquired
MRSA at the Jail.
There are numerous disputed facts in this case. Defendants dispute that there has ever been
an MRSA probl em at the Jail. Defendants disput e that they f ailed to isolate inf ected inmates,
educate inmates about proper hygiene, or provide inm ates a sanitary environm ent. Defendants
disagree with Chapman on various aspects of the science of MRSA.
Defendants argue that distinct, individuali zed issues of fact surround each m ember of
Chapman’s proposed classes, and therefore this case is improper for class certification:
This case is not appropriate for class treatment. This case will never be appropriate for class treatment. It doesnot contain a readily-identifiable class, the putative class definitions identify distinct ques tions of fact that would need to be answered by every named plaintiff and putative class member prior to ascertaining whether such individual is even a m ember of the class, and the merits of each putative class member’s claim are so intermingled with proper consideration of issues germane to certification that class certif ication is im proper. Response to Motion for Class Certification, p. 42.
Restated, Defendants argue that to certify a class in this instance would require a mini-trial
of each putative class member to determine whether that individual contracted MRSA at the Jail.
Defendants contend that Chapman cannot prove thatshe contracted MRSA at the Jail, much less that
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she can prove the members of her first proposed class did. Defendants argue that authenticating the membership of Chapman’s first proposed class would saddle the court with a vast adm inistrative burden, defeating the very purpose of class certification:
The in-depth individual inquiries into the facts and circumstances of the claims of each potential class m ember necessary to establish m embership and ultim ately damages in the present case would create an adm inistrative nightmare which far outweighs the economies of class litigation. Id. at 46. Defendants argue that class action is an inferior mechanism for resolution of Chapm an’s claims and is not m aintainable. Defendants further argue that Chapm an cannot m eet the prerequisites for class certification under Rule 23 of the Federal Rules of Civil Procedure.
DISCUSSION A party seeking class certification initially must meet the four prerequisites of Rule 23(a) of the Federal Rules of Civil Procedure: (1) the class is so num erous that joinder of all members is impracticable; (2) there are questions of law or factcommon to the class; (3) the claims or defenses of the representative parties are typical of t he claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. The party seeking class certification bears th e burden of e stablishing that certification is proper. In re American Medical Sys., Inc., 75 F.3d 1069, 1079 (6th Cir. 1996). The party seeking class certification must do more than simply rely upon mere repetition of the language of Rule 23(a). Weathers v. Peters Realty Corp., 499 F.2d 1197, 1200 (6th Cir. 1974). A class is not maintainable as a class action by virtue of its designation as such in the pleadings and the court must conduct a rigorous analysis into whether the prerequisites of Rule 23 are met. American Medical at 1078-79. Chapman seeks to certify two classes: (a)all persons who, since August 1, 2004, contracted MRSA at the Jail; and (b) all persons who are or will be confined at the Jail.
-7-

As a primary matter, the court finds that any person who meets only the class definition of “all persons who [] will be confined at the Jail” would lack standing in this situation because there is no indication that such persons’ rights will necessarily be violated. In addition, it woul d be unusual to be able to prove that a person will be, in the future, confined at the Jail. Chapm an certainly makes no such showing with respect to herself.
Further, because Chapman is no longer confined atthe Jail, she is not similarly situated with “all persons who are [] confined at the Jail,” andcannot purport to represent a class of which she is not a member. Of course, current inmates who have contracted MRSA at the Jail since August 2004 fall within Chapman’s first proposed class. Accordingly, the court will only consider certification of Chapman’s proposed class of all persons whos, ince August 1, 2004, contracted MRSA at the Jail.
Rule 23(a)(1) requires that the proposed class be so numerous that joinder of all members is impracticable. There is no magic number at which joinder of all members becomes impracticable. Bacon v. Honda of America Mfg., Inc., 370 F.3d 565, 570, 58 Fed. R. Serv. 3d 590 (6th Cir. 2004), cert. denied, 543 U.S. 1151, 125 S.Ct. 1334, 161 L. Ed. 2d 115 (2005) (“There is no automatic cutoff point at which the number of plaintiffs makes joinder impractical, thereby making a class-action suit the only viable alternative.”). Classes have ranged in size from just four (4) members, as in Swanson v. American Consumer Industries, Inc., 415 F.2d 1326, 1333 (7th Cir. 1969) , to the 1.6 million plaintiffs in Dukes v. WalMart Stores, Inc., No. C01-2252 (N.D. Cal 6/22/04). Ultimately, class certification is a mechanism for convenience inthe administration of justice when a court finds that the number of parties involved would be otherwise unmanageable.
Chapman alleges to represent a class of atleast 80-plus persons who since August 1, 2004, have contracted MRSA at the Jail. Chapman argues that 80 persons is a sufficient number to satisfy
-8-

numerosity. However, Defendants argue that thetrue membership of Chapman’s proposed class is not ascertainable and thus zero (emphasis theirs). De fendants argue that the m embership of Chapman’s proposed class cannot be determi ned until the num ber of persons shown to have contracted MRSA at the Jail since August 2004 has been counted (emphasis theirs). Defendants argue that such a tally is complicated by the recent “explosion” of MRSA in society, the heightened incidence of MRSA-colonized individuals in inmate populations compared to the public at large, and the uncertain science on the relationship between exposure to MRSA and i nfection. See Response to Motion fo r Class Certification at 14-17; 22-24. Defendants argue that putative members of the proposed class must be evaluated independently in order to determine the number of individuals, if any, whose prim ary exposure to MRSA occurred at the Jail. Otherwise, Defendants contend that numerosity in this case isindeterminable and any finding that Chapman has met the numerosity requirement would be merely speculative.
While the burden is on Chapman to establish by a preponderance of the evidence that she (and those whom she seeks to represent) contracted MRSA at the Jail if she is to succeed on her claims, the law does not require that she f ully prove her case at this stage of the litigation. Theoretically, it is possible that each and every putative member of the proposed class contracted MRSA not at the Jail but at the courthouse, or at the supermarket. If we consider the putative class members’ affidavits stating no prior experience of MRSA symptoms before entering the Jail, it is not unreasonable to assum e, arguendo, that the size of the cl ass Chapman seeks to represent approximates 80 persons.
Yet joinder of all members of the proposed class is not impracticable. Class certification is one of many available tools at the court’s disposal for m anaging litigation between num erous
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parties; in this case, the court has other tools better equipped for the task at hand. The numerosity
requirement has not been met.
Rule 23(a)(2) requires that there be questions oflaw or fact common to the class. The Sixth
Circuit has held that in order to satisf y the commonality requirement there need only be a single
question common to all class members. American Medical at 1080. However, the question must
be one the resolution of which will advance the litigation. Sprague v. General Motors, 133 F.3d
388, 397 (6th Cir. 1998). Chapman argues that there are several questions common to all members
of the proposed class. Chapman asserts that those questions are:
(a) whether the Jail failed to properly screen,isolate, educate, or treat its inmates in violation of the very policies the Jail hadadopted to protect inmates from MRSA; (b) whether the MRSA problem at the Jail wa s caused or contributed to by overcrowding, understaffing, underfunding, or a lack of training, education or supervision of the Jail’s employees; (c) whether the Jail has experienced incidence of MRSA sufficient to warrant reporting to state correctional and l ocal and state public health authorities; (d) whether the Jail has experienced an MRSA outbreak sufficient to warrant an outbreak investigation to determine the source ofthe MRSA infection and means of transmission; (e) whether the MRSA problem at the Jail reached epidemic proportions warranting the quarantine of the facility; (f) whether injunctive relief is necessary to protect current and future inmates at the Jail, and the Hardin County community; and (g) w hether Defendants are liable f or the actual damages sustained by infected inmates. Motion for Class Certification at 39-40.
Regardless of the fact that the plainti ffs would pose these questions with respect to each
putative claimant, it is clear that the answers either: (1) are different as to each individual claimant;
or (2) do not advance the litigation because they donot impact liability or damages, thus defeating
the “advance the litigation” requirement.
Moreover, in this case, there is no single set of operative facts that establishes liability on
Defendants, or proximate cause with respect toeach proposed class member. Individualized inquiry
is required to determine whether the Jail failed to prot ect any one given inmate from exposure to
-10-

MRSA. It is c lear that any question of actual damages would vary from class member to class member. Even accepting Chapm an’s presupposition of an MRSA problem at the Jail, these questions ignore the overarching problemwith the proposed class, which is further discussed below.
Even if the threshold for satisfying the commonality requirement of Rule 23(a)(2) is low, the questions as to the conditions at the Jail and the im plementation of the Jail’s MRSA policies are different for each putative claimant. It is alsoobvious that the individual questions of jail conditions at the tim es each putative plaintiff was incarcer ated would necessarily predom inate over any common issues, thus negating the requirement of Rule 23(b)(3). The commonality has not been met.
Typicality, like commonality, “serve[s] as [a]guidepost[] for determining whether under the particular circumstances maintenance of a class action is econom ical and whether the nam ed plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.”Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 158 n. 13 (1982). Rule 23(a)(3) requires “the claims of the class representatives be typical of those of the class, and is satisfied when each class member’s claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant’s liability.” Robinson v. Metro-North Commuter R.R., 267 F.3d 147 (2nd Cir. 1997) (internal quotation marks and citation omitted).
As discussed with regard to commonality, a consistent theory of liability on the Jail’s part is rather tenuous due to situational differences fr om one proposed class member to the next. All class members’ claims do not arise from the same course of events. Therefore, the court cannot conclude that Chapman’s claims are typical of those of the proposed class. Moreover, Defendants have demonstrated the ability to posit unique defenses to the diverse allegations ofthe several named
-11-

plaintiffs. By virtue of the binding and preclusive effect of class action judgments, Hansberry v. Lee, 311 U.S. 32, 61 S. Ct. 115, 85 L. Ed. 22 (1940), ifthe claim of Chapman (or any of the named plaintiffs) fails, so should the claims of all proposed class members. The proposed class members’ interests are not so nearly tethered to Chapman’s own that their fates ought to be bound to hers. The typicality requirement has not been met.
Rule 23(a)(4) requires that representative par ties will f airly and adequately protect the interests of the class. “There aer two criteria for determining whether the representation of the class will be adequate: 1) The representative must have common interests with unnamed members of the class, and 2) it must appear that the representa tives will vigorously prosecute the interests of the class through qualified counsel.” Senter v. General Motors Corp. , 532 F.2d 511, 524-25 (6th Cir.1976).
As the court has found that Chapm an lacks com monality and typicality of claim s with unnamed members of the proposed class, Chapman does not have common interests to adequately represent those individuals.
Chapman has failed to establish the prerequisites for class certification under subsection (a) of Rule 23 of the Federal Rules of Civil Procedure.
CONCLUSION Chapman’s motion for class certification will be denied. A separate order will be entered herein this date in accordance with this opinion.
February 11, 2009
-12-

 
 Chapman v. Hardin County, Not Reported in F.Supp.2d (2006)

2006 WL 1382272 Only the Westlaw citation is currently available.
United States District Court, W.D. Kentucky, at Louisiville.
Martel CHAPMAN, Individually, and on Behalf of all Others Similarly Situated, Plaintiff v. HARDIN COUNTY, et al., Defendants.
Civil Action No. 3:05CV-433-S. | May 15, 2006.
Attorneys and Law Firms
Douglas E. Miller, Miller & Durham, Radcliff, KY, Gregory A. Belzley, Dinsmore & Shohl LLP, Louisville, KY, for Plaintiff.
Kenneth M. Howard, Elizabethtown, KY, Stacey A. Blankenship, Denton & Keuler, LLP, Paducah, KY, for Defendants.
Opinion
MEMORANDUM OPINION AND ORDER
CHARLES R. SIMPSON, III, Judge.
*1 This matter is before the court on motion of the plaintiff, Martel Chapman, for leave to amend her complaint to join Jolene Hazelwood, Tina Spears, David Stallins, and Annette Borges as plaintiffs in this action brought under the Civil Rights Act of 1871, 42 U.S.C. § 1983. (DN 20).
In this action, Chapman alleges that she and other inmates of the Hardin County Jail contracted Methicillin-Resistant Staphylococcus Aureus (“MRSA”) because of inadequate policies and practices to diagnose, treat, isolate, and prevent the spread of MRSA. Chapman purports to represent the class of others similarly situated to herself. A class action is asserted in the Complaint. To date, the matter has not been certified as a class action.
The defendants, Hardin County, et al., object to the motion to amend the complaint to add Tina Spears as a plaintiff on the ground that the statute of limitations has run on her claim.1 There appears to be no dispute that the one-year statute of limitations for personal injury governs in this matter. Collard v. Kentucky Board of Nursing, 896 F.2d 179 (6th Cir.1990). The parties also agree that Chapman’s motion to amend was filed over one year after Spears’ release from incarceration. The United States

Supreme Court held in American Pipe and Construction Co. v. Utah, 414 U.S. 538, 554, 94 S.Ct. 756, 766, 38 L.Ed.2d 713 (1974) that “the commencement of the original class suit tolls the running of the statute [of limitations] for all purported members of the class who make timely motions to intervene after the court has found the suit inappropriate for class action status.” The Court went on to explain that
... A contrary rule allowing participation only by those potential members of the class who had earlier filed motions to intervene in the suit would deprive Rule 23 class actions of the efficiency and economy of litigation which is a principal purpose of the procedure. Potential class members would be induced to file protective motions to intervene or to join in the event that a class was later found unsuitable ... [A] rule requiring successful anticipation of the determination of the viability of the class would breed needless duplication of motions. We are convinced that the rule most consistent with federal class action procedure must be that the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action. Id.
The defendants contend that since the court has not certified the case as a class action, Spears cannot join as a plaintiff. They urge that the mere fact that Plaintiff has brought suit ‘on behalf of all others similarly situated’ is irrelevant at this time, as Plaintiff has not sought to certify this case as a class action, nor has the Court done so. Obviously, if this case is subsequently certified, then Spears may be able to join as a class member. But for now, her claims are barred by the applicable statute of limitations.
*2 Response to Motion to Remand, p. 2, ¶ 4 (emphasis in original).
Chapman relies upon a ruling by United States District Judge Joseph H. McKinley, Jr., in which she contends he rejected the identical argument made by the defendants here. Plaintiff’s Reply, p. 2, ¶ 2.
None of the citations of authority offered by either side address the precise question before the court-whether this purported class member may be joined prior to the court’s consideration of class action status. The Supreme Court in both American Pipe, supra., and in Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983) addressed the question of intervention after class certification had been denied. Judge McKinley was asked to address a challenge to the standing of certain
1

Chapman v. Hardin County, Not Reported in F.Supp.2d (2006)

members in a class which had already been certified.
The defendants have not provided any authority for the proposition that Chapman must first move for class certification before seeking to join the proposed plaintiff. Rather, the defendants’ authority holds that a potential class member need not be a party to the suit or file her own lawsuit until she is no longer afforded the protection of the class action tolling rule.
The defendants do not challenge the contention that Spears is an asserted member of the proposed class defined by the complaint. Thus, whether she is permitted to join as a plaintiff, or waits to pursue her claim, the Supreme Court has held that she is to be afforded the protection of the tolling rule upon the commencement of

the class action suit. American Pipe, supra. The court has been shown no basis for the assertion that the joinder of Spears under Fed.R.Civ.P. 20 is inappropriate.
Motion having been made and for the reasons set forth herein and the court being otherwise sufficiently advised, IT IS HEREBY ORDERED AND ADJUDGED that the motion of the plaintiff, Martel Chapman, for leave to amend the complaint (DN 20) is GRANTED, and the Amended Complaint is ordered FILED in this matter.
IT IS SO ORDERED.
	  

Footnotes

1

There is no opposition to the joinder of Jolene Hazelwood, David Stallins or Annette Borges.

	  

2

 
 Case: 3:05-cv-433 As of: 07/03/2013 04:40 PM EDT 1 of 24
CASREF,CLOSED,PROTOR
U.S. District Court Western District of Kentucky (Louisville) CIVIL DOCKET FOR CASE #: 3:05−cv−00433−CRS−DW

Chapman v. Hardin County, Kentucky et al Assigned to: Senior Judge Charles R. Simpson, III Referred to: Magistrate Judge Dave Whalin Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 08/01/2005 Date Terminated: 01/12/2011 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Martel Chapman individually and on behalf of all others similarly situated

represented by Martel Chapman Hardin County Jail, Pod 151 100 Lawson Blvd. Elizabethtown, KY 42701 PRO SE

Douglas E. Miller Miller &Durham 400 W. Lincoln Trail Blvd. Radcliff, KY 40160 270−351−4383 Fax: 270−351−4426 Email: miller.durham@insightbb.com TERMINATED: 11/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gregory A. Belzley P.O. Box 278 Prospect, KY 40059 502−292−2452 Fax: 502−494−6186 Email: gbelzley@aol.com TERMINATED: 11/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James L. Adams Dinsmore &Shohl LLP − Louisville 101 S. Fifth Street, Suite 2500 Louisville, KY 40202 502−540−2300 Fax: 502−585−2207 Email: james.adams@dinslaw.com TERMINATED: 11/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Eliot Durham Miller &Durham 400 W. Lincoln Trail Blvd. Radcliff, KY 40160 270−351−4383 Fax: 270−351−4426 Email: send2md@hotmail.com TERMINATED: 11/01/2010 ATTORNEY TO BE NOTICED

Plaintiff Annette Borges

represented by Annette Borges 1705 Greentree Blvd., Apt. 6

Case: 3:05-cv-433 As of: 07/03/2013 04:40 PM EDT 2 of 24

Clarksville, IN 47129 PRO SE

Gregory A. Belzley (See above for address) TERMINATED: 11/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James L. Adams (See above for address) TERMINATED: 11/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Douglas E. Miller (See above for address) TERMINATED: 11/01/2010 ATTORNEY TO BE NOTICED

Matthew Eliot Durham (See above for address) TERMINATED: 11/01/2010 ATTORNEY TO BE NOTICED

Plaintiff
Jolene Hazelwood TERMINATED: 01/11/2010

represented by Gregory A. Belzley (See above for address) TERMINATED: 11/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James L. Adams (See above for address) TERMINATED: 11/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Douglas E. Miller (See above for address) TERMINATED: 11/01/2010 ATTORNEY TO BE NOTICED

Plaintiff Tina Spears

represented by Tina Spears 12896 Highway 1247 Eubank, KY 42567 PRO SE

Gregory A. Belzley (See above for address) TERMINATED: 11/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James L. Adams (See above for address) TERMINATED: 11/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Douglas E. Miller (See above for address) TERMINATED: 11/01/2010

Case: 3:05-cv-433 As of: 07/03/2013 04:40 PM EDT 3 of 24

ATTORNEY TO BE NOTICED

Matthew Eliot Durham (See above for address) TERMINATED: 11/01/2010 ATTORNEY TO BE NOTICED

Plaintiff David Stallins

represented by David Stallins 629 S. Lincoln Blvd. Hodgenville, KY 42748 PRO SE

Gregory A. Belzley (See above for address) TERMINATED: 11/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James L. Adams (See above for address) TERMINATED: 11/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Douglas E. Miller (See above for address) TERMINATED: 11/01/2010 ATTORNEY TO BE NOTICED

Matthew Eliot Durham (See above for address) TERMINATED: 11/01/2010 ATTORNEY TO BE NOTICED

Plaintiff Charles Anderson

represented by Charles Anderson 202 Jeffrey Dr. Radcliff, KY 40160 PRO SE

Gregory A. Belzley (See above for address) TERMINATED: 11/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James L. Adams (See above for address) TERMINATED: 11/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Douglas E. Miller (See above for address) TERMINATED: 11/01/2010 ATTORNEY TO BE NOTICED

Matthew Eliot Durham (See above for address) TERMINATED: 11/01/2010 ATTORNEY TO BE NOTICED

Case: 3:05-cv-433 As of: 07/03/2013 04:40 PM EDT 4 of 24

Plaintiff Carroll L. Dailey

represented by Carroll L. Dailey 8737 Flint Hill Rd. Sonora, KY 42776 PRO SE

Gregory A. Belzley (See above for address) TERMINATED: 11/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James L. Adams (See above for address) TERMINATED: 11/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Douglas E. Miller (See above for address) TERMINATED: 11/01/2010 ATTORNEY TO BE NOTICED

Matthew Eliot Durham (See above for address) TERMINATED: 11/01/2010 ATTORNEY TO BE NOTICED

Plaintiff Maurich Grimes

represented by Maurich Grimes 1445 Hill St., Trailer 28 Radcliff, KY 41060 PRO SE

Gregory A. Belzley (See above for address) TERMINATED: 11/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James L. Adams (See above for address) TERMINATED: 11/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Douglas E. Miller (See above for address) TERMINATED: 11/01/2010 ATTORNEY TO BE NOTICED

Matthew Eliot Durham (See above for address) TERMINATED: 11/01/2010 ATTORNEY TO BE NOTICED

V. Defendant Hardin County, Kentucky

represented by Douglas R. Moore Denton &Keuler, LLP 555 Jefferson Street, Suite 301

Case: 3:05-cv-433 As of: 07/03/2013 04:40 PM EDT 5 of 24

Paducah, KY 42001 270−443−8253 Fax: 270−442−6000 Email: dmoore@dklaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kenneth M. Howard Hardin County Attorney's Office 109 East Dixie Elizabethtown, KY 42702−0884 270−765−6726 Fax: 737−0087 TERMINATED: 05/07/2009 LEAD ATTORNEY

Stacey A. Blankenship Denton &Keuler, LLP 555 Jefferson Street, Suite 301 Paducah, KY 42001 270−443−8253 Fax: 270−442−6000 Email: sblankenship@dklaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Philip W. Moore Hardin County Attorney's Office 109 East Dixie Elizabethtown, KY 42702−0884 270−765−6726 Fax: 270−737−0087 Email: philipm.hcao@hcky.org ATTORNEY TO BE NOTICED

T. Steven Bland Hardin County Attorney's Office 109 East Dixie Elizabethtown, KY 42702−0884 TERMINATED: 07/06/2010

Defendant
Louis B. Lawson individually and in his official capacity as Jailer of Hardin County

represented by Douglas R. Moore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kenneth M. Howard (See above for address) TERMINATED: 05/07/2009 LEAD ATTORNEY

Stacey A. Blankenship (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Philip W. Moore (See above for address) ATTORNEY TO BE NOTICED

T. Steven Bland (See above for address) TERMINATED: 07/06/2010

Case: 3:05-cv-433 As of: 07/03/2013 04:40 PM EDT 6 of 24

Defendant Does 1 through 3
Intervenor − Pending Paul Amaral TERMINATED: 05/15/2009
Intervenor − Pending Larry Ashford TERMINATED: 05/15/2009
Intervenor − Pending Amanda Bray TERMINATED: 05/15/2009
Intervenor − Pending Jessica Lee Carragher TERMINATED: 05/15/2009
Intervenor − Pending Edward Carroll TERMINATED: 05/15/2009
Intervenor − Pending Alan Crabtree TERMINATED: 05/15/2009
Intervenor − Pending Benjamin Fisher TERMINATED: 05/15/2009
Intervenor − Pending

represented by Douglas R. Moore (See above for address) ATTORNEY TO BE NOTICED
Stacey A. Blankenship (See above for address) ATTORNEY TO BE NOTICED
represented by Gregory A. Belzley (See above for address) TERMINATED: 11/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gregory A. Belzley (See above for address) TERMINATED: 11/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gregory A. Belzley (See above for address) TERMINATED: 11/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gregory A. Belzley (See above for address) TERMINATED: 11/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gregory A. Belzley (See above for address) TERMINATED: 11/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gregory A. Belzley (See above for address) TERMINATED: 11/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gregory A. Belzley (See above for address) TERMINATED: 11/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:05-cv-433 As of: 07/03/2013 04:40 PM EDT 7 of 24

Jheirquann Gibbs TERMINATED: 05/15/2009

represented by Gregory A. Belzley (See above for address) TERMINATED: 11/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor − Pending
Michael Hegg TERMINATED: 05/15/2009

represented by Gregory A. Belzley (See above for address) TERMINATED: 11/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor − Pending
Tremain Johnson TERMINATED: 05/15/2009

represented by Gregory A. Belzley (See above for address) TERMINATED: 11/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor − Pending
William Jutz TERMINATED: 05/15/2009

represented by Gregory A. Belzley (See above for address) TERMINATED: 11/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor − Pending
Shawna Marie Lavvorn TERMINATED: 05/15/2009

represented by Gregory A. Belzley (See above for address) TERMINATED: 11/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor − Pending
Stephen Long TERMINATED: 05/15/2009

represented by Gregory A. Belzley (See above for address) TERMINATED: 11/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor − Pending
Rachel Marcum TERMINATED: 05/15/2009

represented by Gregory A. Belzley (See above for address) TERMINATED: 11/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor − Pending
Jennie Mcelvain TERMINATED: 05/15/2009

represented by Gregory A. Belzley (See above for address) TERMINATED: 11/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor − Pending
Deella Louise Mcneal TERMINATED: 05/15/2009

represented by Gregory A. Belzley (See above for address) TERMINATED: 11/01/2010 LEAD ATTORNEY

Case: 3:05-cv-433 As of: 07/03/2013 04:40 PM EDT 8 of 24

ATTORNEY TO BE NOTICED

Intervenor − Pending
Derwin Nickleberry TERMINATED: 05/15/2009

represented by Gregory A. Belzley (See above for address) TERMINATED: 11/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor − Pending
Charles Valentine TERMINATED: 05/15/2009

represented by Gregory A. Belzley (See above for address) TERMINATED: 11/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor − Pending
Francis Vandivier, Jr. TERMINATED: 05/15/2009

represented by Gregory A. Belzley (See above for address) TERMINATED: 11/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor − Pending
William Vanmeter TERMINATED: 05/15/2009

represented by Gregory A. Belzley (See above for address) TERMINATED: 11/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor − Pending
Dannie Vertrees, Jr. TERMINATED: 05/15/2009

represented by Gregory A. Belzley (See above for address) TERMINATED: 11/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor − Pending
James Williams TERMINATED: 05/15/2009

represented by Gregory A. Belzley (See above for address) TERMINATED: 11/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor − Pending
Tiffany Ann Williams TERMINATED: 05/15/2009

represented by Gregory A. Belzley (See above for address) TERMINATED: 11/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor − Pending
Cortez Williamson TERMINATED: 05/15/2009

represented by Gregory A. Belzley (See above for address) TERMINATED: 11/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor − Pending

Case: 3:05-cv-433 As of: 07/03/2013 04:40 PM EDT 9 of 24

James Winkle TERMINATED: 05/15/2009

represented by Gregory A. Belzley (See above for address) TERMINATED: 11/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/01/2005 08/01/2005 08/12/2005 08/19/2005 08/22/2005 10/20/2005 10/28/2005 11/01/2005
11/22/2005 11/23/2005 11/23/2005 12/02/2005
01/23/2006 01/30/2006 02/03/2006 02/06/2006

# Docket Text
1 COMPLAINT against Hardin County, Kentucky, Louis B. Lawson, Does 1 through 3, filed by Martel Chapman. Filing fee $ 250, receipt number 3812. Summons(es) Issued (Attachments: # 1 Cover Sheet)(TLB) (Entered: 08/02/2005)
2 Case Assignment (Random Selection): Case Assigned to Charles R. Simpson III. Magistrate designation: Dave Whalin. (TLB) (Entered: 08/02/2005)
3 NOTICE of Entry of Appearance by Hardin County, Kentucky (Blankenship, Stacey) (Entered: 08/12/2005)
4 ANSWER to Complaint with trial by jury by Hardin County, Kentucky, Louis B. Lawson.(Blankenship, Stacey) (Entered: 08/19/2005)
NOTICE OF DOCKET CORRECTION re 4 Answer to Complaint; Error:typed name omitted by s/; Correction:attorney advised of signature requirements (TLB) (Entered: 08/22/2005)
5 NOTICE of Appearance by Gregory A. Belzley on behalf of Martel Chapman (CSD) (Entered: 10/24/2005)
7 Agreed Discovery Plan. (TLB) (Entered: 11/07/2005)
6 ORDER (EBOC) by Charles R. Simpson III on 10/31/2005; Referring Case to Magistrate Judge Dave Whalin pursuant to 28:636(b)(1)(A); scheduling conference set for 12/1/2005 11:00 AM before Magistrate Judge Dave Whalin.cc:Counsel(TLB) (Entered: 11/01/2005)
8 REPORT of Rule 26(f) Planning Meeting by Martel Chapman, Hardin County, Kentucky, Louis B. Lawson. (MLG) (Entered: 11/22/2005)
9 Defendants' CONFERENCE STATEMENT re 6 Order Referring Case to Magistrate Judge, Schedules by Louis B. Lawson. (Blankenship, Stacey) (Entered: 11/23/2005)
10 CONFERENCE STATEMENT by Martel Chapman. (TLB) (Entered: 11/29/2005)
11 MEMO OF RULE 16 SCHEDULING CONF. AND ORDER for proceedings held before Dave Whalin(EBOC); held on 12/1/2005; cnsl present for parties; cnsl have completed exchange of information re by FRCP 26(a)(1); Expert Witness Reports (Plaintiff) due by 5/1/2006; Expert Witness Reports (Defendant) due by 6/1/2006; Motions for Joinder of Parties or Amended Pleadings due by 4/30/2006 for pla and 5/31/06 for dft; Discovery due by 9/1/2006; Dispositive Motions due by 10/15/2006; Status Conference set for 1/26/2006 10:30 AM in Teleconference before Magistrate Judge Dave Whalin; Ct will initiate the call cc:Counsel (Entered: 12/02/2005)
12 MOTION by Martel Chapman for production of inmate medical information. Responses due by 2/10/2006 (Attachments: # 1 Proposed Order)(TLB) (Entered: 01/24/2006)
13 RESPONSE to Motion re 12 MOTION to Produce by Hardin County, Kentucky, Louis B. Lawson, Does 1 through 3. Replies due by 2/13/2006. (Attachments: # 1 Proposed Order)(Blankenship, Stacey) (Entered: 01/30/2006)
NOTICE OF DOCKET CORRECTION re 13 Response to Motion; Error:typed name omitted by s/; Correction:attorney advised of signature requirements (TLB) (Entered: 02/03/2006)
14 ORDER for proceedings held before USMJ Dave Whalin : Telephonic Status Conference held on 2/6/2006. Telephonic Status Conference set for 3/22/2006

Case: 3:05-cv-433 As of: 07/03/2013 04:40 PM EDT 10 of 24

03/09/2006 03/13/2006 03/28/2006 03/28/2006 03/28/2006 03/31/2006 04/06/2006
04/17/2006 05/01/2006
05/12/2006 05/17/2006 05/17/2006 05/23/2006 05/25/2006 05/30/2006 06/06/2006

09:00 AM before Magistrate Judge Dave Whalin. cc:Counsel(SJS) (Entered: 02/06/2006)
15 Proposed Agreed Order/Stipulation Agreed Protective Order. by Martel Chapman, Hardin County, Kentucky, Louis B. Lawson, Does 1 through 3. (Blankenship, Stacey) (Entered: 03/09/2006)
16 AGREED PROTECTIVE ORDER by Dave Whalin on 3/13/2006; parties to comply as set forth in order.cc:Counsel(TLB) (Entered: 03/13/2006)
17 ORDER (EBOC) for proceedings held before Dave Whalin : telephonic status conference held on 3/22/2006; further telephonic status conference set for 4/27/2006 02:30 PM before Magistrate Judge Dave Whalin. cc:Counsel(TLB) (Entered: 03/28/2006)
18 MOTION to Amend 1 Complaint by Martel Chapman. Responses due by 4/17/2006. (Attachments: # 1 Amended Complaint)(NMB) (Entered: 03/29/2006)
19 NOTICE of Deficiency re 18 Motion to Amend: failure to comply will be brought to the attention of the Court. Response due by 4/4/2006. (NMB) (Entered: 03/29/2006)
20 MOTION for Leave to File Amended Complaintby Martel Chapman. Responses due by 04/18/2006. (Attachments: # 1 Amended Complaint; # 2 Proposed Order)(NMB) (Entered: 03/31/2006)
21 RESPONSE to Motion re 18 MOTION to Amend/Correct 1 Complaint by Hardin County, Kentucky, Louis B. Lawson, Does 1 through 3. Replies due by 4/20/2006. (Attachments: # 1 Proposed Order denying Plaintiff's Motion to Amend her Complaint to add Tina Spears, but granting Motion to Amend to add Jolene Hazelwood# 2 Exhibit A − Tina Spears booking sheet)(Blankenship, Stacey) (Entered: 04/06/2006)
22 REPLY by Martel Chapman to Response to 18 MOTION to Amend 1 Complaint (Attachments: # 1 Exhibit A)(TLB) (Entered: 04/18/2006)
23 ORDER (EBOC) for proceedings held before USMJ Dave Whalin : Telephonic Status Conference held on 4/27/2006. Pltf shall file motion for discovery within 20 days of this conference. All current scheduling ddls are suspended pending resolution of the discovery issue. The pending motion to amend the complaint is under submission to the District Judge. cc:Counsel(SJS) (Entered: 05/01/2006)
24 MOTION to Compel Production of MRSA Inmate Documents by Martel Chapman. Responses due by 5/30/2006 (Attachments: # 1 Exhibit Opinion − Croskey v. BMW# 2 Proposed Order Order)(Belzley, Gregory) (Entered: 05/12/2006)
25 MEMORANDUM OPINION AND ORDER by U.S. District Court Judge Charles R. Simpson III on 5/15/06;, for reasons set forth DN 20 is GRANTED and the Amended Complaint is ordered FILED in this matter.cc:Counsel(SJS) (Entered: 05/17/2006)
26 AMENDED COMPLAINT against Hardin County, Kentucky, Louis B. Lawson, Does 1 through 3, filed by Annette Borges, Jolene Hazelwood, Tina Spears, David Stallins, Martel Chapman.(TLB) (Entered: 05/18/2006)
27 ANSWER to Amended Complaint by Hardin County, Kentucky, Louis B. Lawson, Does 1 through 3.(Blankenship, Stacey) (Entered: 05/23/2006)
28 RESPONSE to Motion re 24 MOTION to Compel Production of MRSA Inmate Documents by Hardin County, Kentucky, Louis B. Lawson, Does 1 through 3. Replies due by 6/8/2006. (Attachments: # 1 Proposed Order)(Blankenship, Stacey) (Entered: 05/25/2006)
29 REPLY to Response to Motion re 24 MOTION to Compel Production of MRSA Inmate Documents by Annette Borges, Jolene Hazelwood, Tina Spears, David Stallins, Martel Chapman. (Belzley, Gregory) (Entered: 05/30/2006)
30 MOTION by plaintiffs for leave to file second amended complaint. Responses due by 6/26/2006 (Attachments: # 1 tendered second amended complaint# 2 Proposed

Case: 3:05-cv-433 As of: 07/03/2013 04:40 PM EDT 11 of 24

06/22/2006 07/13/2006 07/13/2006 07/17/2006
07/28/2006 07/28/2006 08/07/2006 09/20/2006 09/20/2006
10/30/2006
11/02/2006 11/17/2006 11/20/2006 12/05/2006 02/01/2007

Order)(TLB) (Entered: 06/08/2006)
31 ORDER (EBOC) by USMJ Dave Whalin on 6/21/06; Telephonic Conference set for 6/23/06 is RESCHEDULED to 7/12/2006 02:00 PM before Magistrate Judge Dave Whalin.cc:Counsel(SJS) (Entered: 06/22/2006)
32 ORDER by USMJ Dave Whalin on 7/13/06 granting 24 Motion to Compel. Defendant shall produce requested files within 30 days of entry of Order. Any such information shall be subject to Protective Order entered separately this date. cc:Counsel(NMB) (Entered: 07/13/2006)
33 PROTECTIVE ORDER by USMJ Dave Whalin on 7/13/06: Parties to comply as set forth.cc:Counsel(NMB) (Entered: 07/13/2006)
34 ORDER for proceedings held before USMJ Dave Whalin : Telephonic Status Conference held on 7/17/2006. By agreement of Counsel all deadlines are extended as follows: Discovery due by 3/1/2007; Dispositive Motions due by 4/15/2007; Expert Witness (Defendant) due by 12/1/2006, Expert Witness (Plaintiff) due by 11/1/2006; Joinder of Parties due by 11/30/2006; Telephonic Status Conference set for 9/12/2006 10:00 AM ibefore Magistrate Judge Dave Whalin. cc:Counsel(SJS) (Entered: 07/17/2006)
35 ORDER by Dave Whalin on 7/27/2006; granting 30 motion for leave to file second amended complaint cc:Counsel(TLB) (Entered: 07/28/2006)
36 SECOND AMENDED COMPLAINT against Hardin County, Kentucky, Louis B. Lawson, Does 1 through 3, filed by Charles Anderson, Carroll L. Dailey, Maurich Grimes, Annette Borges, Jolene Hazelwood, Tina Spears, David Stallins, Martel Chapman.(TLB) (Entered: 07/28/2006)
37 ANSWER to Amended Complaint by Hardin County, Kentucky, Louis B. Lawson, Does 1 through 3.(Blankenship, Stacey) (Entered: 08/07/2006)
Proceedings held before USMJ Dave Whalin : Telephonic Status Conference held on 9/12/2006. (SJS) (Entered: 09/20/2006)
38 ORDER (EBOC) by USMJ Dave Whalin on 9/19/06; Telephonic Status Conference held 9/12/06; Counsel for pltfs to furnish new medical suthorizations with current date, and respond to outstanding interrogatories within 20 days; Expert Witness (Defendant) due by 12/1/06 EXTENDED to 1/8/2007. Telephonic Status Conference set for 11/15/2006 10:30 AM before Magistrate Judge Dave Whalin.cc:Counsel(SJS) (Entered: 09/20/2006)
39 Joint MOTION for Extension of Time to Complete Discovery by Annette Borges, Jolene Hazelwood, Tina Spears, David Stallins, Charles Anderson, Carroll L. Dailey, Maurich Grimes, Martel Chapman, Hardin County, Kentucky, Louis B. Lawson, Does 1 through 3. Responses due by 11/9/2006 (Attachments: # 1 Proposed Order)(Belzley, Gregory) (Entered: 10/30/2006)
40 AGREED ORDER by USMJ Dave Whalin on 11/2/06 granting 39 Motion for Extension of Time to Complete Discovery. Deadlines amended as set forth in Order. cc:Counsel(NMB) (Entered: 11/02/2006)
Proceedings held before USMJ Dave Whalin: Status Conference held on 11/17/2006. (NMB) (Entered: 11/20/2006)
41 ORDER by USMJ Dave Whalin on 11/17/06: Status Conference held 11/15/06; Further Telephonic Status Conference set for 1/22/2007 at 10:00 AM. Parties to comply with remainder of Order as set forth.cc:Counsel(NMB) (Entered: 11/20/2006)
42 ORDER by Magistrate Judge Dave Whalin (EBOC) on 12/4/2006. Telephonic Status Conference previously scheduled for 1/22/2007 is rescheduled to commence on 2/7/2007 at 9:30 a.m. The Court will initiate the call and no cell phone participation will be permitted.cc: Counsel(RLK) (Entered: 12/05/2006)
43 Expert Witness Disclosure by Annette Borges, Charles Anderson, Carroll L. Dailey, Martel Chapman. (Attachments: # 1 Exhibit Expert Report and CV)(Belzley, Gregory) (Entered: 02/01/2007)

Case: 3:05-cv-433 As of: 07/03/2013 04:40 PM EDT 12 of 24

02/07/2007 02/09/2007 02/09/2007
02/09/2007
02/13/2007
03/07/2007 03/13/2007 03/14/2007 03/27/2007 03/27/2007 03/27/2007 03/27/2007 04/23/2007 04/27/2007 05/04/2007 05/15/2007
05/15/2007 05/15/2007

Proceedings held before Magistrate Judge Dave Whalin : Status Conference held on 2/7/2007. (NMB) (Entered: 02/13/2007)
44 NOTICE to Take Deposition of Martel Chapman by Hardin County, Kentucky, Louis B. Lawson, Does 1 through 3.(Blankenship, Stacey) (Entered: 02/09/2007)
45 NOTICE TO TAKE DEPOSITION of Tina Spears on March 1, 2007 by Hardin County, Kentucky, Louis B. Lawson, Does 1 through 3.(Blankenship, Stacey) Modified on 2/12/2007: modified text to reflect Notice (NMB). (Entered: 02/09/2007)
46 NOTICE TO TAKE DEPOSITION of Jolene Hazelwood on March 1, 2007 &March 2, 2007 by Hardin County, Kentucky, Louis B. Lawson, Does 1 through 3.(Blankenship, Stacey) Modified on 2/12/2007: modified text to reflect Notice (NMB). (Entered: 02/09/2007)
47 ORDER by Magistrate Judge Dave Whalin (eboc) on 2/12/07: Telephonic Status Conference held 2/7/07; Plaintiff to respond to outstanding discovery requests within 10 days from conference; Fact Discovery due by 5/7/07; Any motion for Class Certification due by 6/7/07; Expert Depositions due by 10/22/07; Supplemental Expert Witness Disclosures (Defendant) due by 8/23/2007. Supplemental Expert Witness Disclosures (Plaintiff) due by 7/9/2007. Further Telephonic Status Conference set for 3/7/2007 at 11:00 AM. Parties to comply as set forth.cc:Counsel(NMB) (Entered: 02/13/2007)
Proceedings held before Magistrate Judge Dave Whalin : Telephonic Status Conference held on 3/7/2007. (NMB) (Entered: 05/15/2007)
48 NOTICE to Take Deposition of Martel Chapman by Hardin County, Kentucky, Louis B. Lawson, Does 1 through 3.(Blankenship, Stacey) (Entered: 03/13/2007)
49 Proposed Agreed Order/Stipulation. by Hardin County, Kentucky, Louis B. Lawson, Does 1 through 3. (Blankenship, Stacey) (Entered: 03/14/2007)
50 AGREED ORDER by Magistrate Judge Dave Whalin on 3/27/07: Defendants' deadline for identifying expert witnesses is extended to 4/23/07. cc:Counsel(NMB) (Entered: 03/27/2007)
51 NOTICE to Take Deposition of Annette Borges by Hardin County, Kentucky, Louis B. Lawson, Does 1 through 3.(Blankenship, Stacey) (Entered: 03/27/2007)
52 NOTICE to Take Deposition of Maurich Grimes by Hardin County, Kentucky, Louis B. Lawson, Does 1 through 3.(Blankenship, Stacey) (Entered: 03/27/2007)
53 NOTICE to Take Deposition of Martel Chapman by Hardin County, Kentucky, Louis B. Lawson, Does 1 through 3.(Blankenship, Stacey) (Entered: 03/27/2007)
54 Expert Witness Disclosure by Hardin County, Kentucky, Louis B. Lawson, Does 1 through 3. (Attachments: # 1 Exhibit A −Ray Sabbatine Expert Report# 2 Exhibit B− Curriculum Vitae Dr. Paris)(Blankenship, Stacey) (Entered: 04/23/2007)
55 SUPPLEMENT re 54 Expert Witness Disclosure by Hardin County, Kentucky, Louis B. Lawson, Does 1 through 3. (Attachments: # 1 Exhibit − Dr. Pais Expert Report)(Blankenship, Stacey) (Entered: 04/27/2007)
56 SUPPLEMENT re 54 Expert Witness Disclosure by Hardin County, Kentucky, Louis B. Lawson, Does 1 through 3. (Blankenship, Stacey) (Entered: 05/04/2007)
57 ORDER by Magistrate Judge Dave Whalin (eboc) on 3/12/07: telephonic status conference held 3/7/07; Further Telephonic Status Conference set for 5/15/2007 at 11:00 AM. Parties to comply with deadlines as set forth.cc:Counsel(NMB) (Entered: 05/15/2007)
58 MOTION for Leave to Take Deposition by Hardin County, Kentucky, Louis B. Lawson, Does 1 through 3. Responses due by 6/4/2007 (Attachments: # 1 Proposed Order)(Blankenship, Stacey) (Entered: 05/15/2007)
Proceedings held before Magistrate Judge Dave Whalin : Telephonic Status Conference held on 5/15/2007. (NMB) (Entered: 05/16/2007)

Case: 3:05-cv-433 As of: 07/03/2013 04:40 PM EDT 13 of 24

05/16/2007 05/16/2007 05/17/2007 05/17/2007 05/21/2007 05/21/2007 05/22/2007 05/22/2007 05/22/2007 07/11/2007 07/18/2007 07/18/2007 07/19/2007 07/19/2007 07/27/2007
07/30/2007
07/30/2007
07/30/2007

59 ORDER by Magistrate Judge Dave Whalin (eboc) on 5/15/07: telephonic status conference held 5/15/07; further telephonic Status Conference set for 7/11/2007 at 10:00 AM.cc:Counsel(NMB) (Entered: 05/16/2007)
60 ORDER by Magistrate Judge Dave Whalin on 5/16/07 granting 58 Motion for Leave to Take Deposition of Plaintiff Anderson. cc:Counsel(NMB) (Entered: 05/16/2007)
61 MOTION for Leave to Take Deposition of David Stallins by Hardin County, Kentucky, Louis B. Lawson, Does 1 through 3. Responses due by 6/4/2007 (Attachments: # 1 Proposed Order)(Blankenship, Stacey) (Entered: 05/17/2007)
62 MOTION for Leave to take Deposition of Carroll Dailey by Hardin County, Kentucky, Louis B. Lawson, Does 1 through 3. Responses due by 6/4/2007 (Attachments: # 1 Proposed Order)(Blankenship, Stacey) (Entered: 05/17/2007)
63 ORDER by Magistrate Judge Dave Whalin on 5/18/07 granting 61 Motion for Leave to take Deposition of Plaintiff Stallins. cc:Counsel(NMB) (Entered: 05/21/2007)
64 ORDER by Magistrate Judge Dave Whalin on 5/18/07 granting 62 Motion for Leave to take Deposition of Plaintiff Dailey. cc:Counsel(NMB) (Entered: 05/21/2007)
65 NOTICE to Take Deposition of David Stallins by Hardin County, Kentucky, Louis B. Lawson, Does 1 through 3.(Blankenship, Stacey) (Entered: 05/22/2007)
66 NOTICE to Take Deposition of Carroll Dailey by Hardin County, Kentucky, Louis B. Lawson, Does 1 through 3.(Blankenship, Stacey) (Entered: 05/22/2007)
67 NOTICE to Take Deposition of Charles Anderson by Hardin County, Kentucky, Louis B. Lawson, Does 1 through 3.(Blankenship, Stacey) (Entered: 05/22/2007)
Proceedings held before Magistrate Judge Dave Whalin : Status Conference held on 7/11/2007. (NMB) (Entered: 07/19/2007)
ERROR: Wrong event selected. Re−docketed as Notice to Take Deposition by Court. (Entered: 07/18/2007)
71 NOTICE to Take Deposition of Tina Spears by Hardin County, Kentucky.(NMB) (Entered: 07/19/2007)
69 ORDER by Magistrate Judge Dave Whalin (eboc) on 7/17/07: telephonic status conference held 7/11/07; further telephonic Status Conference set for 10/3/2007 at 9:45 AM.cc:Counsel(NMB) (Entered: 07/19/2007)
70 Proposed Agreed Order/Stipulation. by Annette Borges, Jolene Hazelwood, Tina Spears, David Stallins, Charles Anderson, Carroll L. Dailey, Maurich Grimes, Martel Chapman. (Belzley, Gregory) (Entered: 07/19/2007)
72 AGREED ORDER by Magistrate Judge Dave Whalin on 7/26/2007. Plaintiff's Motion for Class Certification due by 7/30/2007. Defendant's Response to Motion due within 30 days. Plaintiff's Reply to Response due within 15 days.cc: Counsel (RLK) (Entered: 07/27/2007)
73 MOTION for Leave to File Expert Report by Annette Borges, Jolene Hazelwood, Tina Spears, David Stallins, Charles Anderson, Carroll L. Dailey, Maurich Grimes, Martel Chapman. Responses due by 8/17/2007 (Attachments: # 1 Exhibit Expert Report# 2 Proposed Order)(Belzley, Gregory) (Entered: 07/30/2007)
74 MOTION for Leave to File Excess Pages by Annette Borges, Jolene Hazelwood, Tina Spears, David Stallins, Charles Anderson, Carroll L. Dailey, Maurich Grimes, Martel Chapman. Responses due by 8/17/2007 (Attachments: # 1 Proposed Order)(Belzley, Gregory) (Entered: 07/30/2007)
75 MOTION to Certify Class by Annette Borges, Jolene Hazelwood, Tina Spears, David Stallins, Charles Anderson, Carroll L. Dailey, Maurich Grimes, Martel Chapman. Responses due by 8/17/2007 (Attachments: # 1 Memorandum in Support of Motion for Class Certification# 2 Exhibit A, Federal Bureau of Prisons MRSA Report, Pages 1−10# 3 Exhibit A, Pages 11−20, Federal Bureau of Prisons

Case: 3:05-cv-433 As of: 07/03/2013 04:40 PM EDT 14 of 24

07/31/2007
07/31/2007 08/02/2007 08/02/2007
08/06/2007 08/06/2007 08/07/2007
08/07/2007 08/16/2007 08/29/2007 08/29/2007 09/28/2007

Report# 4 Exhibit A, Pages 21−30, Federal Bureau of Prisons MRSA Report# 5 Exhibit A, Pages 31−40, Federal Bureau of Prisons MRSA Report# 6 Exhibit A, Pages 41−43, Federal Bureau of Prisons MRSA Report# 7 Exhibit B, Infection Control and Hospital Epidemology# 8 Exhibit C, Questionnaires &Affidavits, Docs Filed Under Seal# 9 Exhibit D, 31 J.L. Med. &Ethics 458# 10 Exhibit E, Pages 1−10, Zetola &Francis Article# 11 Exhibit E, Pages 11−12, Zetola &Francis Article# 12 Exhibit F, Hota &Ellenbogen Article# 13 Cover Sheet G, Hota &Weinstein Article# 14 Exhibit H, Hartley &Furuno Article# 15 Exhibit I, Los Angeles Special Report# 16 Cover Sheet J, MRSA Protocol# 17 Exhibit K, Pages 1−10, Ky. Corrections Protocol# 18 Exhibit K, Pages 11, Ky. Corrections Protocol# 19 Exhibit L, Lawson's 8/02/04 Memo# 20 Cover Sheet M, Chapman Medical Requests# 21 Exhibit N, Plaintiff's Reference List Under Seal# 22 Exhibit O, Inmate Reference List Under Seal# 23 Exhibit P, Inmate Daily Population Analysis# 24 Exhibit Q, Dr. Clark Report# 25 Index R, Inmates of Bucks County v. County of Bucks# 26 Exhibit S, Pages 1−10, Lawson Deposition# 27 Exhibit S, Pages 11−14, Lawson Deposition# 28 Exhibit S, Pages 15−23, Lawson Deposition# 29 Exhibit T, Chapman Deposition# 30 Exhibit U, Spears Deposition# 31 Exhibit V, Borges Deposition# 32 Exhibit W, Hazelwood Deposition# 33 Exhibit X, Stallins Deposition# 34 Exhibit Y, Judy Williams Statement# 35 Proposed Order)(Belzley, Gregory) (Entered: 07/30/2007)
76 MOTION for Leave to File Exhibits C, N and O Under Seal re 75 Motion to Cerify Classby Annette Borges, Jolene Hazelwood, Tina Spears, David Stallins, Charles Anderson, Carroll L. Dailey, Maurich Grimes, Martel Chapman. Responses due by 8/20/2007 (Attachments: # 1 Proposed Order)(NMB) (Entered: 07/31/2007)
77 Sealed Document re 76 Motion for Leave to File Under Seal by Annette Borges, Jolene Hazelwood, Tina Spears, David Stallins, Charles Anderson, Carroll L. Dailey, Maurich Grimes, Martel Chapman. (NMB) (Entered: 07/31/2007)
78 RESPONSE to Motion re 74 MOTION for Leave to File Excess Pages by Hardin County, Kentucky, Louis B. Lawson. Replies due by 8/16/2007. (Attachments: # 1 Proposed Order)(Blankenship, Stacey) (Entered: 08/02/2007)
79 MOTION for Extension of Time to File Response/Reply as to 75 MOTION to Certify Class by Hardin County, Kentucky, Louis B. Lawson. Responses due by 8/9/2007 (Attachments: # 1 Proposed Order)(Blankenship, Stacey) (Entered: 08/02/2007)
80 ORDER by Magistrate Judge Dave Whalin on 8/6/07 granting 76 Motion for Leave to File Under Seal. cc:Counsel(NMB) (Entered: 08/06/2007)
81 NOTICE of Entry of Appearance by Hardin County, Kentucky, Louis B. Lawson (Moore, Douglas) (Entered: 08/06/2007)
82 ORDER by Magistrate Judge Dave Whalin (eboc) on 8/6/07 granting 74 Motion for Leave to File Excess Pages, granting 79 Motion for Extension of Time to File Response/Reply. Dfts to file response to 75 Motion for Class Certification by 9/30/07. Plaintiffs' Reply thereto due by 10/15/07. cc:Counsel(NMB) (Entered: 08/07/2007)
83 ORDER by Magistrate Judge Dave Whalin (eboc)on 8/6/07 granting Plaintiffs leave to file memorandum in support of motion for class certification in excess of 40 page limitation. cc:Counsel(NMB) (Entered: 08/07/2007)
84 NOTICE to Take Deposition of Tina Spears by Hardin County, Kentucky, Louis B. Lawson, Does 1 through 3.(Blankenship, Stacey) (Entered: 08/16/2007)
85 ORDER by Judge Charles R. Simpson III on 8/28/07 granting 73 Motion for Leave to File Expert Report. cc:Counsel (NMB) (Entered: 08/29/2007)
86 Expert Witness Report of John H. Clark, MD by Annette Borges, Jolene Hazelwood, Tina Spears, David Stallins, Charles Anderson, Carroll L. Dailey, Maurich Grimes. (NMB) (Entered: 08/29/2007)
87 MOTION for Leave to File Excess Pages to their Response to Motion for Certification by Hardin County, Kentucky, Louis B. Lawson, Does 1 through 3.Responses due by 10/18/2007 (Attachments: # 1 Proposed Order) (Blankenship,

Case: 3:05-cv-433 As of: 07/03/2013 04:40 PM EDT 15 of 24

09/28/2007 09/28/2007
09/28/2007 10/03/2007 10/03/2007 10/10/2007 10/10/2007 10/10/2007 10/10/2007 10/10/2007

Stacey) (Entered: 09/28/2007)
88 MOTION to Supplement re 54 Expert Witness Disclosure by Hardin County, Kentucky, Louis B. Lawson, Does 1 through 3.Responses due by 10/18/2007 (Attachments: # 1 Exhibit − Report of Martin Raff, M.D.# 2 Exhibit − Martin Raff, M.D. Curriculum Vitae# 3 Proposed Order) (Blankenship, Stacey) (Entered: 09/28/2007)
89 RESPONSE to Motion re 75 MOTION to Certify Class by Hardin County, Kentucky, Louis B. Lawson, Does 1 through 3.Replies due by 10/12/2007. (Attachments: # 1 Exhibit A − Article "Super−strong bacteria attacks patients"# 2 Exhibit B − Article "No Reliable Risk Factors fo CA−MRSA"# 3 Exhibit C − Article − "Hospital−Acquired Infections"# 4 Exhibit D − Article "Invasive Comm−Acquired MRSA..."# 5 Exhibit E − Article "New Bacterial Strain Affects Comm"# 6 Exhibit F − Article ABC News, That's No Spider Bite# 7 Exhibit G − The Courier Journal Article# 8 Exhibit H − The New York Times Article# 9 Exhibit I − Article "Demystifying MRSA"# 10 Exhibit J − CDC Fact Sheet# 11 Exhibit K − KY Cabinet for Health and Family Fact Sheet# 12 Exhibit L − Depo of Louis Lawson# 13 Exhibit M − Louis Lawson Memo# 14 Exhibit N − Hospital MRSA Fact Sheet# 15 Exhibit O − MRSA Protocol# 16 Exhibit P − Jail Cleaning Log, pg 1−20# 17 Exhibit P − Jail Cleaning Log, pg 21−36# 18 Exhibit Q − Affidavit of Louis Lawson# 19 Exhibit R − Depo of Annette Borges# 20 Exhibit S − Memo of Kelly White# 21 Exhibit T − Sealed − records# 22 Exhibit U − Sealed, Lawson depo pgs 78−80# 23 Exhibit V − Sealed, records# 24 Exhibit W − Report/CV pgs 1−24 of Dr. Raff# 25 Exhibit W − Curriculum Vitae of Dr. Martin Raff, pg 25−46# 26 Exhibit X − Relevant pgs of Depo Dr. Smith# 27 Exhibit Y − Relevant pgs of David Stallins Depo# 28 Exhibit Z − Relevant pgs to Charles Anderson Depo# 29 Exhibit AA − Relevant pgs to Maurich Grimes Depo# 30 Exhibit BB − Affidavit of Chris Swenson# 31 Exhibit CC − Relevant pgs to Tina Spears Depo# 32 Exhibit DD − Relevant pgs to Martel Chapman Depo# 33 Exhibit EE − Relevant pgs to Carroll Dailey Depo# 34 Exhibit FF − Relevant pgs to Jolene Hazelwood Depo# 35 Exhibit GG − Sealed, Chart of Inmates Diagnosed w/MRSA# 36 Exhibit HH − Monthly Chart of Diagnosed Cases and Pop. Count# 37 Exhibit II − Sealed, Chart of Inmates Treated for MRSA# 38 Exhibit JJ − Sealed, Chart of Inmates Treated for MRSA# 39 Exhibit KK − Canada MRSA Material Safety Data Sheet# 40 Exhibit LL − Affidavit of Jeff Burton# 41 Exhibit MM − Sealed, Chart of Depicting Diff Stories# 42 Proposed Order) (Blankenship, Stacey) (Entered: 09/28/2007)
90 MOTION for Leave to File Exhibits Under Seal by Hardin County, Kentucky, Louis B. Lawson, Does 1 through 3.Responses due by 10/18/2007 (Attachments: # 1 Proposed Order) (Blankenship, Stacey) (Entered: 09/28/2007)
91 Sealed Document re 90 . (TLB) (Entered: 10/05/2007)
Proceedings held before Magistrate Judge Dave Whalin : Status Conference held on 10/3/2007. (NM) (Entered: 10/10/2007)
92 ORDER by Magistrate Judge Dave Whalin (eboc) on 10/9/07. Telephonic Status Conference held 10/3/07. Further Telephonic Status Conference set for 1/9/2008 at 09:30 AM. cc: Counsel (NM) (Entered: 10/10/2007)
93 ORDER by Magistrate Judge Dave Whalin on 10/10/07 granting 88 Motion to Supplement Identification of Expert Witnesses. cc: Counsel (NM) (Entered: 10/10/2007)
94 Expert Witness Disclosure by Hardin County, Kentucky, Louis B. Lawson, Does 1 through 3. (Attachments: # 1 Raff CV) (NM) (Entered: 10/10/2007)
95 ORDER by Magistrate Judge Dave Whalin on 10/10/07 granting 87 Motion for Leave to File Excess Pages. cc:Counsel (NM) (Entered: 10/10/2007)
96 ORDER by Magistrate Judge Dave Whalin on 10/10/07 granting 90 Motion for Leave to File Exhibits Under Seal. Clerk directed to retain original exhibits under seal. cc:Counsel (NM) (Entered: 10/10/2007)

Case: 3:05-cv-433 As of: 07/03/2013 04:40 PM EDT 16 of 24

10/24/2007 10/24/2007 10/25/2007 10/26/2007 10/31/2007
10/31/2007
11/01/2007 11/09/2007 11/12/2007
11/16/2007
11/20/2007 11/26/2007

97 Proposed Agreed Order for extension of time to file reply re 89 Response to Motion,,,,,,,,, by Annette Borges, Jolene Hazelwood, Tina Spears, David Stallins, Charles Anderson, Carroll L. Dailey, Maurich Grimes, Martel Chapman. (Belzley, Gregory) Modified text on 10/26/2007 (Mayfield, Jason). (Entered: 10/24/2007)
98 MOTION to Supplement re 89 Response to Motion,,,,,,,,, by Hardin County, Kentucky, Louis B. Lawson.Responses due by 11/13/2007 (Attachments: # 1 Exhibit A − Opinion and Order as to Richardson v. Jewish Hospital Healthcare# 2 Proposed Order) (Moore, Douglas) (Entered: 10/24/2007)
99 RESPONSE to Motion re 98 MOTION to Supplement re 89 Response to Motion by Annette Borges, Jolene Hazelwood, Tina Spears, David Stallins, Charles Anderson, Carroll L. Dailey, Maurich Grimes, Martel Chapman.Replies due by 11/8/2007. (Attachments: # 1 Proposed Order) (Belzley, Gregory) (Entered: 10/25/2007)
100 ORDER by Magistrate Judge Dave Whalin on 10/26/07; Pltfs shall have to and including 11/15/07 to file their reply in support of their motion for class certification.cc:Counsel (SJS) (Entered: 10/26/2007)
101 MOTION Extension, preliminary injunction hearing by Annette Borges, Jolene Hazelwood, Tina Spears, David Stallins, Charles Anderson, Carroll L. Dailey, Maurich Grimes, Martel Chapman.Responses due by 11/19/2007 (Attachments: # 1 Exhibit KDOC Memorandum# 2 Exhibit MRSA Protocol# 3 Exhibit Stanley Deposition Excerpts# 4 Exhibit FBOP Guidelines# 5 Exhibit NY Times Article and CDC Report# 6 Proposed Order) (Belzley, Gregory) (Entered: 10/31/2007)
102 Supplement to 101 MOTION Extension, preliminary injunction hearing by Annette Borges, Jolene Hazelwood, Tina Spears, David Stallins, Charles Anderson, Carroll L. Dailey, Maurich Grimes, Martel Chapman.Responses due by 11/19/2007 (Attachments: # 1 Exhibit Letter from Ms. Blankenship# 2 Proposed Order) (Belzley, Gregory) Modified on 11/1/2007: changed to Supplement instead of Supplemental Motion (McClure, Natalee). (Entered: 10/31/2007)
103 REPLY to Response to Motion re 98 MOTION to Supplement re 89 Response to Motion,,,,,,,,, MOTION to Supplement re 89 Response to Motion,,,,,,,,, by Hardin County, Kentucky, Louis B. Lawson. (Blankenship, Stacey) (Entered: 11/01/2007)
104 ORDER for proceedings held before Magistrate Judge Dave Whalin (eboc): Telephone Conference held on 11/9/2007. Deadline for Reply to Motion for Class Certification is STAYED pending ruling on DN 101 . cc:Counsel (NM) (Entered: 11/09/2007)
105 MOTION to Produce MRSA Inmate Documents by Annette Borges, Jolene Hazelwood, Tina Spears, David Stallins, Charles Anderson, Carroll L. Dailey, Maurich Grimes, Martel Chapman.Responses due by 11/30/2007 (Attachments: # 1 Exhibit A, Ky. Dept. of Corrections Memo# 2 Exhibit B, MRSA Protocol# 3 Exhibit C, Southern Health Partners MRSA Protocol# 4 Proposed Order) (Belzley, Gregory) (Entered: 11/12/2007)
106 RESPONSE to Motion re 101 MOTION Extension, preliminary injunction hearing, 102 Supplemental MOTION for extension, preliminary injunction/show cause hearing re 101 MOTION Extension, preliminary injunction hearingSupplemental MOTION for extension, preliminary injunction/show cause hearing re 101 MOTION Extension, preliminary injunction hearing by Hardin County, Kentucky, Louis B. Lawson.Replies due by 11/30/2007. (Attachments: # 1 Exhibit A − Protective Order# 2 Exhibit B − Southern Health Partners Protocols# 3 Exhibit C − Deposition Transcript of Deborah Stanley# 4 Exhibit D − Affidavit of Deborah Stanley) (Blankenship, Stacey) Additional attachment(s) added on 11/21/2007: Proposed Order (McClure, Natalee). (Entered: 11/16/2007)
107 Proposed Order re 106 Response to Motion,, by Hardin County, Kentucky, Louis B. Lawson. (Blankenship, Stacey) (Entered: 11/20/2007)
108 RESPONSE to Motion re 105 MOTION to Produce MRSA Inmate Documents filed by Hardin County, Kentucky, Louis B. Lawson, Does 1 through 3. Replies due by 12/10/2007. (Blankenship, Stacey) (Additional attachment(s) added on 11/28/2007: # 1 Proposed Order) (NM). (Entered: 11/26/2007)

Case: 3:05-cv-433 As of: 07/03/2013 04:40 PM EDT 17 of 24

11/27/2007 11/28/2007 12/20/2007 01/10/2008 02/04/2008 02/28/2008 03/03/2008 03/04/2008 03/04/2008
03/04/2008

109 Proposed Order re 108 Response to Motion. (Blankenship, Stacey) (Entered: 11/27/2007)
110 REPLY to Response to Motion re 105 MOTION to Produce MRSA Inmate Documents filed by Annette Borges, Jolene Hazelwood, Tina Spears, David Stallins, Charles Anderson, Carroll L. Dailey, Maurich Grimes, Martel Chapman. (Belzley, Gregory) (Entered: 11/28/2007)
111 ORDER granting 105 Motion to Produce signed by Magistrate Judge Dave Whalin on 12/20/07. Dfts to produce requested documents within 20 days of entry of this Order. cc:counsel (NM) (Entered: 12/20/2007)
112 MEMORANDUM OF TELEPHONIC STATUS CONFERENCE AND ORDER by Magistrate Judge Dave Whalin on January 10, 2008; telephonic status conference held on 1/9/2008; further telephonic status conference set for 1/31/2008 10:00 AM before Magistrate Judge Dave Whalin. cc:counsel (TLB) (Entered: 01/10/2008)
113 ORDER by Magistrate Judge Dave Whalin on 1/31/2008; telephonic status conference held 1/31/2008; 75 motion for class certification, 98 motion to supplement, and 101 motion for preliminary injunction hearing administratively remanded with leave to re−file; motion for class certification due 3/3/2008; response due 4/2/2008; telephonic status conference set for 3/10/2008 02:00 PM before Magistrate Judge Dave Whalin. cc:counsel (TLB) (Entered: 02/04/2008)
114 MOTION in Limine re Gordon Kamka by Plaintiffs Annette Borges, Jolene Hazelwood, Tina Spears, David Stallins, Charles Anderson, Carroll L. Dailey, Maurich Grimes, Martel Chapman Responses due by 3/17/2008 (Attachments: # 1 Exhibit Kamka CV, # 2 Exhibit Kamka depo. excerpts, # 3 Exhibit Ireland v. Hodes, # 4 Proposed Order) (Belzley, Gregory) (Entered: 02/28/2008)
115 MOTION for Leave to File Excess Pages by Plaintiffs Annette Borges, Jolene Hazelwood, Tina Spears, David Stallins, Charles Anderson, Carroll L. Dailey, Maurich Grimes, Martel Chapman Responses due by 3/21/2008 (Attachments: # 1 Proposed Order) (Belzley, Gregory) (Entered: 03/03/2008)
116 MOTION for Leave to File Motion for Class Certification Outside the Deadline Set by the court by Plaintiffs Annette Borges, Jolene Hazelwood, Tina Spears, David Stallins, Charles Anderson, Carroll L. Dailey, Maurich Grimes, Martel Chapman Responses due by 3/24/2008 (Attachments: # 1 Affidavit of Joyce Jenkins, # 2 Proposed Order) (Belzley, Gregory) (Entered: 03/04/2008)
117 MOTION to Certify Class by Plaintiffs Annette Borges, Jolene Hazelwood, Tina Spears, David Stallins, Charles Anderson, Carroll L. Dailey, Maurich Grimes, Martel Chapman Responses due by 3/24/2008 (Attachments: # 1 Proposed Order, # 2 Memorandum in Support, # 3 Exhibit A, Part 1, Fed. Bur. of Prisons MRSA Management, # 4 Exhibit A, Part 2, # 5 Exhibit A, Part 3, # 6 Exhibit A, Part 4, # 7 Exhibit B, Deborah Stanley Deposition, # 8 Exhibit C, KDOC MRSA Protocol, # 9 Exhibit D, Dr. Scott Haas Deposition, # 10 Exhibit E, Affidavits of Inmates Filed Under Seal, # 11 Exhibit F, Affidavits of Inmates Filed Under Seal, # 12 Exhibit G, Louis Lawson Deposition, # 13 Exhibit H, Chicago Tribune Article, # 14 Exhibit I, AMA Article, # 15 Exhibit J, Communicable Disease Control, # 16 Exhibit K, MRSA Questionnaires Filed Under Seal, # 17 Exhibit L, Community−Associated MRSA, # 18 Exhibit M, The Role of Institutional Epidemiologic Weight, # 19 Exhibit N, MRSA Protocol, # 20 Exhibit O, Chapman Medical Records, # 21 Exhibit P, Statement of Judy Williams, # 22 Exhibit Q, Martel Chapman Deposition, # 23 Exhibit R, Inmate Reference List Filed Under Seal, # 24 Exhibit S, Annette Borges Deposition, # 25 Exhibit T, Jolene Hazelwood Deposition, # 26 Exhibit U, Dr. Clark Expert Report, # 27 Exhibit V, Tina Spears Deposition, # 28 Exhibit W, David Stallins Deposition, # 29 Exhibit X, List of Inmates Filed Under Seal, # 30 Exhibit Y, Nonpublished Case Law) (Belzley, Gregory) (Entered: 03/04/2008)
118 MOTION for Leave to File Reference List, Questionnaires and Affidavits Under Seal by Plaintiffs Annette Borges, Jolene Hazelwood, Tina Spears, David Stallins, Charles Anderson, Carroll L. Dailey, Maurich Grimes, Martel Chapman. Responses due by 3/24/2008. (Attachments: # 1 Proposed Order) (NM) (Entered:

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03/04/2008 03/07/2008 03/10/2008 03/13/2008 03/14/2008 03/18/2008 03/18/2008 03/31/2008
04/14/2008 04/16/2008

03/06/2008)
119 Sealed Document re 118 Motion (NM) (Entered: 03/06/2008)
120 Proposed Agreed Order/Stipulation Extending Time to Respond to Motion in Limine by Annette Borges, Jolene Hazelwood, Tina Spears, David Stallins, Charles Anderson, Carroll L. Dailey, Maurich Grimes, Martel Chapman, Hardin County, Kentucky, Louis B. Lawson, Does 1 through 3. (Blankenship, Stacey) (Entered: 03/07/2008)
122 Order for proceedings held before Magistrate Judge Dave Whalin: Telephonic Status Conference held on 3/10/2008. 115 Motion for Leave to File Memo in Excess of Page Limit is GRANTED; 116 Motion for Leave to File Motion for Class Certification beyond deadline is GRANTED; Dfts granted until 4/16/08 to Respond thereto. 118 Motion to File Under Seal is GRANTED; Dfts to file Response to Motion in Limine by 3/31/08. cc:counsel (NM) (Entered: 03/14/2008)
121 Proposed Agreed Order/Stipulation Extending Deadline to Respond to Motion for Class Certification by Annette Borges, Jolene Hazelwood, Tina Spears, David Stallins, Charles Anderson, Carroll L. Dailey, Maurich Grimes, Martel Chapman, Hardin County, Kentucky, Louis B. Lawson, Does 1 through 3. (Blankenship, Stacey) (Entered: 03/13/2008)
ORDER granting 115 Motion for Leave to File Excess Pages; granting 116 Motion for Leave to File Out of Time; granting 118 Motion for Leave to File Under Seal signed by Magistrate Judge Dave Whalin on 3/14/08. TEXT ONLY ENTRY; SEE DN 122 . (NM) (Entered: 03/14/2008)
123 AGREED ORDER by Magistrate Judge Dave Whalin on 3/17/2008; re 114 MOTION in Limine re Gordon Kamka filed by David Stallins, Carroll L. Dailey, Tina Spears, Charles Anderson, Jolene Hazelwood, Annette Borges, Maurich Grimes, Martel Chapman; response due 3/31/2008.cc:counsel (TLB) (Entered: 03/18/2008)
124 AGREED ORDER by Magistrate Judge Dave Whalin on 3/17/2008; re 117 MOTION to Certify Class; response due 4/16/2008.cc:counsel (TLB) (Entered: 03/18/2008)
125 RESPONSE to Motion re 114 MOTION in Limine re Gordon Kamka filed by Hardin County, Kentucky, Louis B. Lawson, Does 1 through 3. Replies due by 4/14/2008. (Attachments: # 1 Exhibit A − Newspaper Articles from The New York Times and The Washington Post, # 2 Exhibit B − Applicable Court Order − Jail sentence and probation, # 3 Exhibit C − Applicable Court Order − indicted for insurance fraud, # 4 Exhibit D − Jail Commitment, # 5 Exhibit E − 1995 Letter − termination due to offense of insurance fraud, # 6 Exhibit F − Court Order − child support back pay, # 7 Exhibit G − Findings of Fact, Conclusions of Law Order − sale of farm land, # 8 Exhibit H − Worthless check charge, # 9 Exhibit I − Opinion − United States v. Arhebramen, # 10 Exhibit J − April 4, 06 Kamka depo transcript pg 9, # 11 Exhibit K − Indictment − 3rd degree arson, # 12 Exhibit L − January 23, 08 Kamka depo transcript pg 167−168, # 13 Exhibit M − 1996 Indictment − insurance fraud, # 14 Exhibit N − January 23, 08 Kamka depo transcript, # 15 Exhibit O − October 16, 07 Kamka depo transcript pgs 27 and 32, # 16 Proposed Order) (Blankenship, Stacey) (Entered: 03/31/2008)
126 REPLY to Response to Motion re 114 MOTION in Limine re Gordon Kamka filed by Annette Borges, Jolene Hazelwood, Tina Spears, David Stallins, Charles Anderson, Carroll L. Dailey, Maurich Grimes, Martel Chapman. (Belzley, Gregory) (Entered: 04/14/2008)
127 MOTION for Leave to Supplement Plaintiffs' Reply to Defendants' Response to Plaintiffs' Motion in Limine by Plaintiffs Annette Borges, Jolene Hazelwood, Tina Spears, David Stallins, Charles Anderson, Carroll L. Dailey, Maurich Grimes, Martel Chapman Responses due by 5/5/2008 (Attachments: # 1 Exhibit A, Settlement Agreement, # 2 Proposed Order) (Belzley, Gregory) (Entered: 04/16/2008)

Case: 3:05-cv-433 As of: 07/03/2013 04:40 PM EDT 19 of 24

04/16/2008
04/17/2008 04/21/2008 04/21/2008 04/25/2008
04/29/2008 05/09/2008 05/12/2008 05/12/2008 05/12/2008 05/13/2008 05/14/2008 05/20/2008

128 RESPONSE to Motion re 117 MOTION to Certify Class filed by Hardin County, Kentucky, Louis B. Lawson, Does 1 through 3. Replies due by 4/30/2008. (Attachments: # 1 Exhibit A − Medical News Today Article, # 2 Exhibit B − CDC Pamphlet, # 3 Exhibit C − CHFS MRSA Fact Sheet, # 4 Exhibit D − Medical Records Filed Under Seal, # 5 Exhibit E − Disease Control Special Studies Report, # 6 Exhibit F − Relevant Pgs to Jailer Lawson Deposition, # 7 Exhibit G − Lawson Memo, # 8 Exhibit H − MRSA Guidelines, # 9 Exhibit I − Dr. Miller's MRSA Protocol, # 10 Exhibit J − KDOC MRSA Protocol, # 11 Exhibit K − Relevant Pgs of Dr. Haas Deposition, # 12 Exhibit L − Relevant Pgs to Debra Stanley Deposition, # 13 Exhibit M − FBOP Protocol, # 14 Exhibit N − Demystifying MRSA Article, # 15 Exhibit O − Material Safety Data Sheet, # 16 Exhibit P − Report of Dr. Martin Raff, # 17 Exhibit Q − Relevant Pgs of Spears Chapman and Anderson Depositions, # 18 Exhibit R − David Stallins Deposition Filed Under Seal, # 19 Exhibit S − Relevant Pgs to Grimes Anderson Dailey Haizelwood Chapman Spears Depositions, # 20 Exhibit T − Annette Borges Deposition Filed Under Seal, # 21 Exhibit U − Chart, # 22 Exhibit V − Courier Journal Article, # 23 Exhibit W − Opinion in Napier v. Laurel County, # 24 Exhibit X − Opinion in Turner v. Grant County, # 25 Exhibit Y − Opinion and Order in Richardson v. Jewish Hospital, # 26 Proposed Order) (Moore, Douglas) (Entered: 04/16/2008)
129 MOTION to Seal Document 128 Response to Motion,,,,, (Exhibts D, R, and T) by Defendants Hardin County, Kentucky, Louis B. Lawson, Does 1 through 3 Responses due by 5/5/2008 (Attachments: # 1 Proposed Order) (Moore, Douglas) (Entered: 04/17/2008)
130 ORDER signed by Magistrate Judge Dave Whalin on 4/18/08 granting 129 Motion to Seal Document re exhibits to 128 Response to Motion. cc: counsel (NM) (Entered: 04/21/2008)
131 Sealed Document (TLB) (Entered: 04/21/2008)
132 Proposed Agreed Order/Stipulation for extension of time for Plaintiffs to file their reply in support of their renewed motion for class certification by Annette Borges, Jolene Hazelwood, Tina Spears, David Stallins, Charles Anderson, Carroll L. Dailey, Maurich Grimes, Martel Chapman, Hardin County, Kentucky, Louis B. Lawson, Does 1 through 3. (Belzley, Gregory) (Entered: 04/25/2008)
133 ORDER by Magistrate Judge Dave Whalin on 4/29/08: Reply in support of 117 MOTION to Certify Class due by 5/12/08. cc:counsel (NM) (Entered: 04/29/2008)
134 ORDER granting 127 Motion for Leave to Supplement 114 Reply signed by Magistrate Judge Dave Whalin on 5/8/08. cc: counsel (NM) (Entered: 05/09/2008)
135 REPLY re 117 MOTION to Certify Class filed by Martel Chapman. (Attachments: # 1 Exhibit A − Letter dated 2/15/08) (Belzley, Gregory) (Entered: 05/12/2008)
136 MOTION to Seal Document by Plaintiff Martel Chapman Responses due by 5/30/2008 (Attachments: # 1 Proposed Order to file under seal) (Belzley, Gregory) (Entered: 05/12/2008)
137 Sealed Document (TLB) (Entered: 05/13/2008)
138 MOTION for Hearing re 117 MOTION to Certify Class by Plaintiffs Annette Borges, Jolene Hazelwood, Tina Spears, David Stallins, Charles Anderson, Carroll L. Dailey, Maurich Grimes, Martel Chapman Responses due by 6/2/2008 (Attachments: # 1 Proposed Order) (Belzley, Gregory) (Entered: 05/13/2008)
139 ORDER granting 136 Motion to Seal Document signed by Magistrate Judge Dave Whalin on 5/14/08. cc: counsel (NM) (Entered: 05/14/2008)
140 MOTION for Leave to File a Sur−Reply to Plaintiffs' Motion for Class Certification by Defendants Hardin County, Kentucky, Louis B. Lawson, Does 1 through 3 Responses due by 6/9/2008 (Attachments: # 1 Proposed Order, # 2 Reply (Sur−Reply), # 3 Exhibit A − ABC News Article ("That's No Spider Bite"), # 4 Exhibit B − Relevant pgs to Dr. Clark deposition transcript, # 5 Exhibit C − March 27, 08 Letter to Greg Belzley) (Blankenship, Stacey) (Entered: 05/20/2008)

Case: 3:05-cv-433 As of: 07/03/2013 04:40 PM EDT 20 of 24

05/27/2008 06/05/2008 06/26/2008 09/16/2008 11/03/2008 01/09/2009 01/12/2009
01/26/2009 02/13/2009 02/13/2009
02/13/2009 03/04/2009 03/06/2009

141 RESPONSE to Motion re 138 MOTION for Hearing re 117 MOTION to Certify Class MOTION for Hearing re 117 MOTION to Certify Class filed by Hardin County, Kentucky, Louis B. Lawson, Does 1 through 3. Replies due by 6/10/2008. (Attachments: # 1 Proposed Order) (Blankenship, Stacey) (Entered: 05/27/2008)
142 RESPONSE to Motion re 140 MOTION for Leave to File a Sur−Reply to Plaintiffs' Motion for Class Certification filed by Annette Borges, Jolene Hazelwood, Tina Spears, David Stallins, Charles Anderson, Carroll L. Dailey, Maurich Grimes, Martel Chapman. Replies due by 6/19/2008. (Attachments: # 1 Proposed Order) (Belzley, Gregory) (Entered: 06/05/2008)
143 MOTION to Appoint Expert by Plaintiffs Annette Borges, Jolene Hazelwood, Tina Spears, David Stallins, Charles Anderson, Carroll L. Dailey, Maurich Grimes, Martel Chapman Responses due by 7/14/2008 (Attachments: # 1 Proposed Order) (Belzley, Gregory) (Entered: 06/26/2008)
144 ORDER granting 143 Motion to Appoint Expert signed by Magistrate Judge Dave Whalin on 9/15/08. Plaintiffs given 60 days to retain and identify another jail expert. cc:counsel (NM) (Entered: 09/16/2008)
145 Expert Witness Disclosure by Annette Borges, Jolene Hazelwood, Tina Spears, David Stallins, Charles Anderson, Carroll L. Dailey, Maurich Grimes, Martel Chapman. (Attachments: # 1 Exhibit Expert Report of E. Eugene Miller) (Belzley, Gregory) (Entered: 11/03/2008)
146 MOTION for Leave to Supplement Response to Motion for Class Certification by Defendants Hardin County, Kentucky, Louis B. Lawson Responses due by 1/27/2009 (Attachments: # 1 Proposed Order, # 2 Supplement Response to Motion for Class Certification, # 3 Exhibit A − Taber v McCracken County, # 4 Exhibit B − Wooler v Hickman County) (Moore, Douglas) (Entered: 01/09/2009)
147 RESPONSE to Motion re 146 MOTION for Leave to Supplement Response to Motion for Class Certification, 138 MOTION for Hearing re 117 MOTION to Certify Class MOTION for Hearing re 117 MOTION to Certify Class, 117 MOTION to Certify Class filed by Annette Borges, Jolene Hazelwood, Tina Spears, David Stallins, Charles Anderson, Carroll L. Dailey, Maurich Grimes, Martel Chapman. Replies due by 1/26/2009. (Belzley, Gregory) (Entered: 01/12/2009)
148 REPLY to Response to Motion re 146 MOTION for Leave to Supplement Response to Motion for Class Certification filed by Hardin County, Kentucky, Louis B. Lawson. (Moore, Douglas) (Entered: 01/26/2009)
149 MEMORANDUM OPINION signed by Judge Charles R. Simpson, III on 2/11/2009. For the reasons set forth, 117 Plaintiffs' MOTION to Certify Class will be denied. A separate order will be entered.cc: Counsel (RLK) (Entered: 02/13/2009)
150 ORDER signed by Judge Charles R. Simpson, III on 2/11/2009. For the reasons set forth in the 149 Memorandum Opinion, 146 Motion for Leave to File a Supplemental Response to Plaintiffs' Motion for Class Certification is GRANTED and is DEEMED FILED; 117 Plaintiffs' Motion for Class Certification is DENIED; and 140 Defendants' Motion for Leave to File a Sur−reply is DENIED. cc: Counsel (RLK) (Entered: 02/13/2009)
151 Supplemental RESPONSE to 117 MOTION for Class Certification filed by Hardin County, Kentucky; and Louis B. Lawson. Replies due by 2/27/2009. (Attachments: # 1 Exhibit A − Taber v. McCracken County, # 2 Exhibit B − Wooler v. Hickman County) (Docketed by Clerk per 150 Order.) (RLK) (Entered: 02/13/2009)
152 ORDER (eboc) by Magistrate Judge Dave Whalin on 3/4/09: Telephonic Status Conference set for 4/15/2009 at 02:30 PM. cc: counsel (NM) (Entered: 03/04/2009)
153 MOTION to Intervene Responses due by 3/24/2009 (Attachments: # 1 Exhibit 1, Intervening Complaint, # 2 Proposed Order) (Belzley, Gregory) (Entered: 03/06/2009)

Case: 3:05-cv-433 As of: 07/03/2013 04:40 PM EDT 21 of 24

03/24/2009
04/03/2009
04/29/2009
05/04/2009 05/06/2009 05/15/2009 06/16/2009 06/25/2009 07/10/2009 07/24/2009 08/13/2009 08/18/2009
08/25/2009

154 RESPONSE to Motion re 153 MOTION to Intervene filed by Hardin County, Kentucky, Louis B. Lawson. Replies due by 4/7/2009. (Attachments: # 1 Exhibit A − Chart, # 2 Exhibit B − Dept of Corrections Printouts, # 3 Exhibit C − Worthen v. Oklahoma Dept Corrections, # 4 Exhibit D − Case Lilly v. Ozmint, # 5 Exhibit E − Swenson v. MacDonald, # 6 Exhibit F − Jones v. Fletcher, # 7 Exhibit G − Order Mumphrey v Shelby Co, # 8 Proposed Order to Response to Motion to Intervene) (Blankenship, Stacey) (Entered: 03/24/2009)
155 REPLY to Response to Motion re 153 MOTION to Intervene filed by Paul Amaral, Larry Ashford, Amanda Bray, Jessica Lee Carragher, Edward Carroll, Alan Crabtree, Benjamin Fisher, Jheirquann Gibbs, Michael Hegg, Tremain Johnson, William Jutz, Shawna Marie Lavvorn, Stephen Long, Rachel Marcum, Jennie Mcelvain, Deella Louise Mcneal, Derwin Nickleberry, Charles Valentine, Francis Vandivier, Jr., William Vanmeter, Dannie Vertrees, Jr., James Williams, Tiffany Ann Williams, Cortez Williamson, James Winkle. (Attachments: # 1 Exhibit Monahan v. City of Wilmington, # 2 Exhibit Memorandum Opinion and Order in Taber) (Belzley, Gregory) (Entered: 04/03/2009)
156 Order for proceedings held before Magistrate Judge Dave Whalin: Telephonic Status Conference held on 4/15/2009. After discussion of the status of this litigation, and the motion to intervene, counsel and the Ct were of the opinion that realistic scheduling ddls could not be set at present time. When a ruling is issued on the motion, a further telephonic conference will be scheduled. cc:counsel (SJS) (Entered: 04/29/2009)
157 Mail sent to Kenneth M. Howard Returned as Undeliverable (DN 156). (TLB) (Entered: 05/06/2009)
158 NOTICE of Address and Position Change as to Kenneth Howard by Hardin County, Kentucky, Louis B. Lawson (Blankenship, Stacey) (Entered: 05/06/2009)
159 MEMORANDUM OPINION AND ORDER by Judge Charles R. Simpson, III on 5/14/2009; 153 Motion to Intervene DENIED. cc:counsel (TLB) (Entered: 05/15/2009)
160 ORDER (eboc) by Magistrate Judge Dave Whalin on 6/16/09: Telephonic Status Conference set for 6/25/2009 at 10:30 AM. cc:counsel (NM) (Entered: 06/16/2009)
161 Order (eboc) for proceedings held before Magistrate Judge Dave Whalin: Telephonic Status Conference held on 6/25/2009. Plaintiff's counsel to update medical provider list by 7/9/09. Fact Discovery due by 11/6/09. Expert Discovery due by 12/6/2009. Dispositive Motions due by 1/30/2010. Telephonic Status Conference set for 10/7/2009 at 10:30 AM. cc:counsel (NM) (Entered: 07/01/2009)
162 Proposed Agreed Order/Stipulation by Annette Borges, Jolene Hazelwood, Tina Spears, David Stallins, Charles Anderson, Carroll L. Dailey, Maurich Grimes, Martel Chapman. (Belzley, Gregory) (Entered: 07/10/2009)
163 AGREED ORDER by Magistrate Judge Dave Whalin on 7/14/2009; plaintiffs shall have extension of time to provide signed medical authorizations and updated medical information on the plaintiffs to the defendants in this matter up to and including 8/9/2009.cc:counsel (TLB) (Entered: 07/24/2009)
164 Proposed Agreed Order/Stipulation by Annette Borges, Jolene Hazelwood, Tina Spears, David Stallins, Charles Anderson, Carroll L. Dailey, Maurich Grimes, Martel Chapman, Hardin County, Kentucky, Louis B. Lawson. (Belzley, Gregory) (Entered: 08/13/2009)
165 AGREED ORDER by Judge Charles R. Simpson, III on 8/17/2009; plaintiff Jolene Hazelwood shall have 30 days from the date of this order in which to contact her counsel or obtain new counsel or her claim shall be dismissed with prejudice; plaintiff's counsel shall send copy of this order via certified mail, return receipt requested to last known address of Ms. Hazelwood.cc:counsel (TLB) (Entered: 08/18/2009)
166 NOTICE of Compliance with Agreed Order by Annette Borges, Jolene Hazelwood, Tina Spears, David Stallins, Charles Anderson, Carroll L. Dailey, Maurich Grimes, Martel Chapman re 165 Order, (Attachments: # 1 Exhibit Returned Mail Addressed

Case: 3:05-cv-433 As of: 07/03/2013 04:40 PM EDT 22 of 24

11/04/2009 11/06/2009 11/18/2009 11/19/2009 01/07/2010
01/07/2010
01/11/2010 01/11/2010
01/11/2010 01/15/2010 01/19/2010 04/01/2010
04/28/2010
05/06/2010

to Jolene Hazelwood) (Belzley, Gregory) (Entered: 08/25/2009)
167 ORDER (eboc) by Magistrate Judge Dave Whalin on 11/3/2009. Status Conference held on 10/26/2009. Discovery due by 2/28/2010. Dispositive Motions due by 4/15/2010. Further Telephonic Status Conference set for 1/7/2010 10:00 AM before Magistrate Judge Dave Whalin. cc: Counsel (RLK) (Entered: 11/04/2009)
168 Mail Returned as Undeliverable. Mail sent to T. Steven Bland. DN 167 (TLB) (Entered: 11/09/2009)
169 NOTICE of Change of Address by Gregory A. Belzley (Belzley, Gregory) (Entered: 11/18/2009)
170 NOTICE of Change of Address by Gregory A. Belzley (Belzley, Gregory) (Entered: 11/19/2009)
171 Proposed Agreed Order/Stipulation to dismiss Plaintiff Jolene Hazelwood's claims by Plaintiffs Martel Chapman, Annette Borges, Tina Spears, David Stallins, Charles Anderson, Carroll L. Dailey, and Maurich Grimes; and Defendants Hardin County, Kentucky, and Louis B. Lawson. (Belzley, Gregory) Modified on 1/8/2010: add party filers (RLK). (Entered: 01/07/2010)
172 Proposed Agreed Order/Stipulation re Tina Spears by Plaintiffs Martel Chapman, Annette Borges, David Stallins, Charles Anderson, Carroll L. Dailey, and Maurich Grimes; and Defendants Hardin County, Kentucky, and Louis B. Lawson. (Belzley, Gregory) Modified on 1/8/2010: add party filers (RLK). (Entered: 01/07/2010)
173 AGREED ORDER signed by Judge Charles R. Simpson, III on 1/8/2010. Plaintiff Jolene Hazelwood's claims are dismissed with prejudice.cc: Counsel (RLK) (Entered: 01/11/2010)
174 AGREED ORDER signed by Judge Charles R. Simpson, III on 1/8/2010. Plaintiff Tina Spears has thirty (30) days from the date of this Agreed Order in which to contact her counsel or obtain new counsel, or her claim shall be dismissed. Plaintiff's counsel to send a copy of this Agreed Order via certified mail, to the last known address of Ms. Spears.cc: Counsel (RLK) (Entered: 01/11/2010)
175 ORDER (eboc) by Magistrate Judge Dave Whalin on 1/11/2010. Telephonic Status Conference was held on 1/7/2010. Case is progressing according to the Scheduling Order. No further status conferences will be scheduled. cc: Counsel (RLK) (Entered: 01/11/2010)
176 Mail Returned as Undeliverable re 175 Order. Mail sent to T. Steven Bland. (AEP) (Entered: 01/19/2010)
177 NOTICE of Change of Address by Douglas R. Moore (Moore, Douglas) (Entered: 01/19/2010)
178 ORDER (eboc) by Magistrate Judge Dave Whalin on 4/1/2010. Telephonic Conference was held on 4/1/2010. Deadline for the filing of Dispositive Motions is extended thirty (30) days following the issuance of a ruling in Wooler v. Hickman. Counsel will file a notice with the Court when the ruling is issued, and a Further Telephonic Conference will be scheduled. cc: Counsel (RLK) (Entered: 04/01/2010)
179 Proposed Agreed Order/Stipulation giving Chapman, Spears, Anderson, and Dailey 30 days to contact counsel by Charles Anderson, Annette Borges, Martel Chapman, Carroll L. Dailey, Does 1 through 3, Maurich Grimes, Hardin County, Kentucky, Louis B. Lawson, Tina Spears, David Stallins. (Blankenship, Stacey) (Entered: 04/28/2010)
180 AGREED ORDER signed by Magistrate Judge Dave Whalin on 5/6/2010. Plaintiffs Martel Chapman, Tina Spears, Charles Anderson, and Carroll Dailey have thirty (30) days in which to contact their counsel or obtain new counsel, or the undersigned shall recommend that their claims be dismissed with prejudice. Plaintiff's counsel to send a copy of this Agreed order via certified mail, return receipt requested, to the last known addresses of these Plaintiffs, and report the

Case: 3:05-cv-433 As of: 07/03/2013 04:40 PM EDT 23 of 24

05/14/2010 05/20/2010 06/29/2010
07/01/2010 07/06/2010 07/30/2010 08/09/2010 09/01/2010 09/15/2010 09/20/2010 11/01/2010
12/09/2010 12/14/2010

results to the Court.cc: Counsel (RLK) (Entered: 05/06/2010)
181 STATUS REPORT RE NOTICE OF DECISION IN WOOLER V. HICKMAN COUNTY, ET AL. (Attachments: # 1 Exhibit Wooler decision, # 2 Proposed Order) by Martel Chapman. (Belzley, Gregory) (Entered: 05/14/2010)
182 Proposed CONSENT ORDER re substitution of attorney by Hardin County, Kentucky (Moore, Philip) Modified on 5/21/2010: clearly define filing (RLK). (Entered: 05/20/2010)
183 MOTION for Leave to have a telephonic status conference by Plaintiffs Charles Anderson, Annette Borges, Martel Chapman, Carroll L. Dailey, Maurich Grimes, Tina Spears, David Stallins, Defendants Hardin County, Kentucky, Louis B. Lawson Responses due by 7/23/2010 (Attachments: # 1 Proposed Order) (Blankenship, Stacey) (Entered: 06/29/2010)
184 ORDER signed by Magistrate Judge Dave Whalin on 6/30/2010, GRANTING 183 Motion for Status Conference. Telephonic Status Conference is set for 7/28/2010 at 10:15 AM before Magistrate Judge Dave Whalin. cc: Counsel (RLK) (Entered: 07/01/2010)
185 CONSENT ORDER signed by Magistrate Judge Dave Whalin on 6/30/2010. Attorney Phillip Moore substituted for Attorney T. Steven Bland.cc: Counsel (RLK) (Entered: 07/06/2010)
186 ORDER (eboc) by Magistrate Judge Dave Whalin re the Telephonic Status Conference held on 7/28/2010. Counsel for the plaintiffs shall file a Status Report by 8/9/2010. Parties to provide an agreed order to the Court regarding further proceedings in this matter. cc: Counsel (AEP) (Entered: 07/30/2010)
187 Joint STATUS REPORT (Attachments: # 1 Proposed Order) by all parties. (Belzley, Gregory) Modified on 8/10/2010: added party filers (RLK). (Entered: 08/09/2010)
188 ORDER (EBOC) by Magistrate Judge Dave Whalin on 9/1/2010. A Telephonic Status Conference is set for 9/14/2010 at 9:30 AM before Magistrate Judge Dave Whalin. The Court will initiate the call and no cell phone participation is permitted. cc: Counsel (AEP) (Entered: 09/01/2010)
189 MOTION to Withdraw as Attorney. (Continue to receive notice:Yes)by Plaintiff Martel Chapman Responses due by 10/4/2010 (Attachments: # 1 Proposed Order) (Belzley, Gregory) (Entered: 09/15/2010)
190 ORDER (EBOC) by Magistrate Judge Dave Whalin on 9/14/2010. Telephonic Conference was held on 9/14/2010. Attorney Belzley withdrew his previously tendered order regarding withdrawal, and indicated that a motion to withdraw will be filed. cc: Counsel (RLK) (Entered: 09/20/2010)
191 ORDER signed by Magistrate Judge Dave Whalin on 11/1/2010. Counsel for the Plaintiffs is permitted to withdraw from further representation of the Plaintiffs in this action. Plaintiffs have thirty (30) days in which to contact the Court, in writing, to advise whether he or she has retained new counsel, or alternatively, desires to represent him or herself in this matter. Failure to comply shall result in the Magistrate Judge recommending to the District Court that the claims of that Plaintiff be dismissed with prejudice. Clerk of Court to mail a copy of this order to the last known address of each of the named Plaintiffs in this action, as provided by Plaintiffs' counsel. cc: Plaintiffs, pro se; Counsel (RLK) (Entered: 11/01/2010)
192 MOTION to Dismiss by Defendants Hardin County, Kentucky, Louis B. Lawson Responses due by 1/3/2011 (Attachments: # 1 Proposed Order of Dismissal) (Blankenship, Stacey) (Entered: 12/09/2010)
193 FINDINGS OF FACT, CONCLUSIONS OF LAW AND RECOMMENDATION signed by Magistrate Judge Dave Whalin on 12/14/2010 re 192 MOTION to Dismiss. Magistrate Judge recommends, in accordance with the Order of 11/1/2010 191 , that the present action be DISMISSED WITH PREJUDICE for failure to prosecute. Objections due within fourteen (14) days.cc: Plaintiffs, pro se; Counsel (RLK) Modified on 12/14/2010: cc (RLK). (Entered: 12/14/2010)

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194 MOTION to Dismiss by Defendants Hardin County, Kentucky, Louis B. Lawson Responses due by 2/3/2011 (Attachments: # 1 Proposed Order of Dismissal) (Blankenship, Stacey) (Entered: 01/10/2011)
195 ORDER signed by Judge Charles R. Simpson, III on 1/12/2011, GRANTING 194 Motion to Dismiss. The claims of Charles Anderson, Annette Borges, Martel Chapman, Carroll L. Dailey, Maurich Grimes, Tina Spears, and David Stallins are DISMISSED. This Order disposes of all remaining claims. Matter is DISMISSED. cc: Plaintiffs, pro se; Counsel (RLK) (Entered: 01/12/2011)
196 Mail Returned as Undeliverable as to DN 191, sent to Martel Chapman at Hardin County Jail, Pod #151, 100 Lawson Blvd., Elizabethtown, KY 42701. (RLK) (Entered: 01/19/2011)
197 Mail Returned as Undeliverable as to DN 193, sent to Martel Chapman at Hardin County Jail, Pod #151, 100 Lawson Blvd., Elizabethtown, KY 42701. (RLK) (Entered: 01/19/2011)
198 Mail Returned as Undeliverable/No Longer At This Address as to DN 195 , sent to Martel Chapman at Hardin County Jail, Pod #151, 100 Lawson Blvd., Elizabethtown, KY 42701 (SC) (Entered: 02/10/2011)

 
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2010 Canoe Run, Loone)'v1I1e WV 25259 phone 304.927.1818/ fax 304.342i367 www.kamkaartdasSoc.com
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January 29, 2007
Gregory A. Belzley. Dinsmore and Shohi, LLP 1400 PNC Plaza 500 West Jefferson Street Louisville, KY 40202
Re: Chapman v.. Hardlu County, KY
Dear Mr. Belzley:
Pursuant to your request, I have reviewed the September 1, 2004 letter from the Kentucky Department of Corrections to all Kentucky jailers In addition,! reviewed the Hardin County Detention Center Infection Control and Risk Management Policy and Procedure Manual and the complaint Chapman v. Hardin County, Kentucky.
As you are aware I have served for more than forty years in several high level positions in both jails and prisons and have testified at an expert wilness across the country. My credentials are attached.
You asked specific questions in your letter dated January 16,2007, and I shall answer them directly and in the sequence you describet
1. The memo dated Septemberl, 2004, from Kelly W. White, Kentucky Department of Corrections, is speçifiè and clear, pointing out the danger of Methicillin — Resistailt StaihylOcoàcñs Aureus (MRSA) especially with an incarcerated population. The memo addresses education, preventicrn diagnosis, tracking and treatment of MRSA and: how to contain MRSA positive patients.
2. The Hardin County Detention Center Infection Control and Risk Management Manual is comprehensive and details steps to be taken with liv and Hepatitis B patients but fails to mention MRSA. There is no date on the manual, but it should have been updated after the KDOC letter of January 16, 2004.

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3. When ajalier becomes are of an inmate with MRSA, the jailer has the responsibifity to follow the dictates of thc September 1, 2004 letter.
4. The jailer had the responsibility to implement the KDOC policy, particularly after knowing there was a MRSA ii e hi the jail.
5. Their thilure to implement the KDOC letter as well as their own internal
procedures constitutes deliberate indifference especially after knowing they had a MRSA inmate.iTrthç jail,
6. There is no excuse or justification for impates rendering health care to other inmates. The American Correction Stañdàrds for Adult Local Detention Facilities specifically prohibits inmates from providing direct patient care. Creating conditions which inmates have to render health care to other inmates, particularly inmates with infectious disease, constitutes deliberate indifference.
7. I am aware that additional information is being sought. If relevant information is provided, 1:reserve the tightto amend my report.
If you need further information, please do not hesitate to contact me.
Sincerely,
Gordon C. Kamka President

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