Messier v. Southbury Training Sch.

• V HH

HHI| • • • • • • • • • •

MR-CT-003-001

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT
RICHARD MESSIER, by his guardian, Thomas Nerney,
THOMAS MALONEY, by his guardian and sister, Kate Clinton,
CAROLE ANN CARR, by her guardian, Ted Bergeron,
LEON HORTON, by his mother and guardian, Emma Debiase,
RAYMOND MITCHELL, by his guardian, Frank Wargo,
LEONARD HAVERSAT, by his guardian, Mary Tracy,
GREGORY KABBAI, by his guardian, Jane Williams,

PEOPLE FIRST OF CONNECTICUT, INC., ARC/CONNECTICUT, INC., WESTERN CONNECTICUT ASSOCIATION
FOR HUMAN RIGHTS, Plaintiffs, v.
SOUTHBURY TRAINING SCHOOL,

TONI RICHARDSON, Commissioner, Connecticut Department of Mental Retardation,

THOMAS HOWLEY, Director, Southbury Training School,

PATRICIA GIARDI, Commissioner, Connecticut Department of Social Services,

SUSAN S. ADDISS, Commissioner, Connecticut Department of Public Health and Addiction Services,

Defendants,

October 5, 1994

COMPLAINT

I. JURISDICTION;

1. This action seeks injunctive relief to redress the

deprivation under color of state law of rights secured to the

plaintiffs by the Fourteenth Amendment to the United States

Constitution, and federal laws, in particular the Americans with

Disabilities Act, 42 U.S.C. § 12132, the Rehabilitation Act, 29

U.S.C. § 794, and the Social Security Act, 42 U.S.C. § 1396a. The

amount in controversy exceeds $50,000 exclusive of interest and

costs.

2. The jurisdiction of this court is invoked under 28 U.S.C.

§§ 1331, 1343, 2201, 2202 and 42 U.S.C. §§ 1983 and 1988.

2

3. Money damages are inadequate and plaintiffs have been suffering and will continue to suffer irreparable harm from defendants' actions, policies and procedures and from violations of the laws complained of herein. Accordingly, injunctive relief is necessary. II. PARTIES;
A. Plaintiffs: Richard Messier
4. Richard Messier is a fifty year-old man with retardation who lives in Cottage 32 on the grounds of STS. Richard has no family. He brings this lawsuit by and through his guardian, Thomas Nerney.
5. Richard was placed at STS in 1965 essentially because he was homeless. Since then he has been transferred to at least four different buildings on the STS grounds.
6. Since his placement at STS Richard has been injured on numerous occasions due to the unsafe environment and lack of meaningful habilitation or training. He has also had his teeth removed for reasons that are not apparent from his record.

7. It has long been the professional judgment of Richard's planning team that he should be transferred to the community with appropriate supervision and support services to protect him from harm and to provide a decent and humane living environment.
8. Richard has remained at STS for nearly thirty years, however, because the state defendants have failed to redirect the substantial public resources spent to confine him at STS so as to permit him to move to a community home with the supervision and programming necessary to respond to his individual needs.
Thomas Maloney 9. Thomas Maloney is a thirty-nine year-old man who lives in Cottage 27 on the grounds of Southbury Training School ("STS"). Thomas brings this suit by and through his sister and guardian, Kate Clinton. 10. Thomas was placed at STS on January 14, 1980. Since then he has been transferred to several different buildings on the grounds of STS. 11. Thomas has been injured on numerous occasions at STS due to assaults from other residents and/or staff. The defendants' failure to provide a humane and safe living environment and

appropriate programming threatens Thomas' health, physical wellbeing and safety.
12. It has long been the judgment of Thomas1 interdisciplinary team that he should be transferred to the community to protect him from harm and to provide a humane living environment. He has remained at STS for fourteen years, however, because the defendants have failed to redirect public funds used to confine him at STS so that an individualized community living arrangement could be developed.
Carole Ann Carr 13. Carole Ann Carr is a forty-nine year-old adult with retardation who lives in Cottage 18 on the grounds of STS. Carole Ann brings this suit by her guardian, Theodore Bergeron. Her family is not involved in her life. 14. Carole Ann was placed at STS on March 3, 1959. Since then she has been transferred to at least four different buildings on the grounds of STS. 15. Carole Ann has sustained many injuries during her thirtyfive years at STS. The defendants' failure to provide a humane and safe environment and appropriate programming threatens Carole Ann's

health, physical well-being and safety. 16. It has long been the professional judgment of Carole
Ann's professional team that she should be transferred to the community with appropriate individualized supervision and support services to protect her from harm and to provide a decent and humane living environment. She has remained at STS for thirty-five years, however, because the state defendants have failed to redirect the substantial state and federal money spent to confine her in Cottage 18 so that the supervision and programming necessary to respond to her individualized needs could be provided in the community.
Leon Horton 17. Leon Horton is a forty-three year-old former resident of Southbury Training School. Leon brings this suit by his mother and guardian, Emma Debiase. 18. Leon was committed to STS at age ten in January 1961 because the state failed to make available the family support services, including behavior modification programs and community living alternatives, necessary to keep him at home, or as close to home as possible.

19. Leon was transferred to many different buildings at STS. He has been injured on numerous occasions due primarily to the failure of the defendants to develop and provide appropriate programs and services to treat his serious self-injurious behaviors. This failure to treat Mr. Horton continued until in March, 1994 when STS discharged him to a Danbury apartment with minimal support and supervision. The failure to attend to his individual support needs lead to his confinement on at least one occasion to Fairfield Hills Hospital.
20. The defendants' failure to provide necessary individualized support services for the plaintiff continues to place Mr. Horton at risk of continued injury and harm and readmission to STS.
Raymond Mitchell 21. Raymond Mitchell is a fifty-four year-old man with retardation who lives at 22 Colony Court on the grounds of STS. Raymond brings this lawsuit through his guardian and next friend, Frank Wargo. 22. Raymond was placed at STS on April 16, 1959. Since then he has been transferred to some fourteen different wards on the

grounds at STS. 23. It has long been the professional judgment of Richard's
planning team that he should be transferred to the community with appropriate supervision and support services to protect him from harm and to provide a decent and humane living environment.
24. Richard has remained at STS for nearly thirty-five years, however, because the defendants have failed to redirect the substantial public funds spent to confine him at STS so that he can move to a community home with supervision and programming designed to meet his individual needs.
Leonard Haversat 25. Leonard Haversat is forty-three years old and has lived at STS since July 13, 1965. Leon brings this suit by and through his guardian, Mary Tracy. 26. Leonard was placed at STS on July 13, 1965. During the years that followed he was then transferred to several different buildings at STS and to Fairfield Hills Hospital on several occasions. 27. Leonard has had numerous psychiatric hospitalizations and many different, inaccurate diagnoses.
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28. Leonard's professional team has determined that he should be moved to a supervised community living arrangement to protect him from harm and to provide a humane living environment. He has remained at STS for twenty-nine years, however, because the defendants have failed to redirect public funds from STS so that individualized services necessary to support community living can be provided.
Gregory Kabbai 29. Gregory Kabbai is forty years old and has lived at STS since April 19, 1962. Gregory brings this case by and through his guardian, Jane Williams. 30. Gregory was placed at STS on April 19. 1962. During the years that followed he was transferred to several different buildings at STS and, even to a rest home at twenty years of age. 31. Gregory's planning team has made the professional judgment that he should be moved to supervised community living to protect him from harm and provide a humane living environment. He has remained at STS for thirty-two years, however, because the defendants have failed to redirect public funds used to confine him at STS so that he can experience community living.

32.

is forty-nine years old and has lived at STS

for ten years. He brings this case by and through his sister and

guardian,

. "

: •

33.

was placed at STS on March 6, 1984 after more than

ten years of confinement at Mansfield Training School and transfers

to inadequately supported placements. He was finally admitted to

STS due to the state's failure to provide proper support services

in the community.

34.

has been hospitalized on many occasions and has

been consigned to the Health Care Unit at STS since March, 1994 due

to chronic thrombosis.

35. Although staff has promised

that he can leave STS,

they tell him that he can't move until his medical condition is

effectively treated. Unfortunately, effective treatment has proven

elusive. Meanwhile, he has been forced to live in a health care

unit at STS where programming is unavailable because no other unit

on grounds can accommodate his physical disabilities.

36.

remains at STS where programming and effective

treatment are unavailable because the defendants refuse to permit

10

him to use state funds earmarked for his care to purchase appropriate supervision and care in the community.
People First of Connecticut. Inc. 37. People First of Connecticut, Inc. was organized and incorporated under the laws of Connecticut in 1987 to serve as a vehicle for self-advocacy development. 38. People First is a statewide organization with fourteen community and institution chapters and 350 members. Its membership is composed of people with significant disabilities, including retardation, who have been excluded entirely from educational opportunities or required to attend segregated educational programs. Its membership also includes citizens of this state who have experienced firsthand the humiliating experience of spending decades segregated at STS or Mansfield Training School where meaningful participation in Connecticut life is impossible. They are, therefore, in the best position to inform the court about what effects segregation has on the lives and self-esteem of persons with disabilities, and what society loses when such a discrete and insular minority is excluded.
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ARC/Connecticut, Inc. 39. The Association for Retarded Citizens of Connecticut, Inc. ("ARC/Connecticut") is a statewide nonprofit advocacy association of parents of children and adults with mental retardation, people with mental retardation, advocates, friends and interested citizens. The Association, with 4000 members, is the largest voluntary advocacy group for persons with mental retardation in Connecticut. For forty-two years ARC/Connecticut has sponsored virtually every major piece of legislation affecting persons with mental retardation and their families. The Association has also been a party to several significant cases which shaped the service delivery system for citizens with disabilities and protected the constitutional and statutory rights of persons with retardation.
WECAHR 40. The Western Connecticut Association for Human Rights ("WECAHR'1) is a parent association of 250 families and individuals with an interest and concern for the welfare of people with disabilities. Its sole purpose is to provide advocacy and to protect the rights of people with disabilities in Western
12

Connecticut and Southbury Training School. In addition, WeCAHR staff provide support and advice to People First of Connecticut, Inc., an organization for adults with mental retardation.
Class Action 41. The plaintiffs bring this case on their own behalf and on behalf of all similarly situated persons. The members of the class include all persons who are now at STS, those who may be placed at STS in the future, and persons who have been transferred from STS and remain under the custody and control of the Director of STS. 42. This is a proper class action under Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure. The class is so numerous as to make joinder of all members impracticable. There are substantial questions of law and fact common to the entire class, and claims of the plaintiffs are typical of the class and predominate over any questions affecting individual members. A class action is superior to any other available method for the fair and efficient adjudication of the controversy. B. Defendants:
Southbury Training School 43. Until last summer Connecticut had two large institutions
13

for persons with retardation: Mansfield Training School and Southbury Training School. Mansfield Training School closed last summer after all its residents were transferred to properly supported and supervised community living arrangements over a tenyear period. STS was created in 1941 because of overcrowding at Mansfield Training School and the concomitant failure of the state to provide citizens with retardation services in the community. The Southbury Training School was created by the state to be an educational facility that would train and return its residents promptly to the community. Instead of fulfilling its original purpose, Southbury quickly became an institution for the long term segregation of persons with retardation under inhumane conditions.
Toni Richardson 44. Defendant, Toni Richardson, is the Commissioner of the Connecticut Department of Mental Retardation. She is responsible for the planning and development of a complete, comprehensive and integrated state-wide program for persons with retardation; for the implementation of that program; and for the coordination of efforts of DMR with other state agencies, municipal governments and private agencies providing services to persons with retardation. She is
14

responsible for the administration and operation of STS, the regional centers, and all state-operated community and residential facilities. She is responsible for the development of criteria for eligibility for residential and/or program services from DMR. She may also assign persons under her care to public or private facilities or may transfer such persons from one institution or facility to another.
Thomas Howlev 45. Defendant, Thomas Howley, is the Director of Southbury Training School. He is responsible for the operation and administration of the training school, and for the custody and control of all persons admitted to STS. He is also responsible for authorizing transfers into and out of STS and for transferring STS residents from one facility to another. The Director is also responsible for placing persons committed or admitted to STS in a community residential setting or in another residential facility. The Director remains responsible for exercising control over the person after transfer and for exercising the power to return such person to the training school.
15

III. FACTS: 46. Persons were placed at Southbury Training School because
defendants failed to provide alternative services in the community. When a crisis occurred, no services were available to support the family or to assist in the care and treatment and the raising of the child at home or in a community residence near the home.
47. Persons remain at Southbury Training School for the same reason; the failure of the defendants to provide alternative services, including residential support, in the community. Although the care is unconstitutionally deficient and dangerous at Southbury, persons with disabilities and their families have relied upon the institution for continuity of custody and care once they reach majority and/or after the death of their parents.
The Institution 48. The defendants have failed and/or refused to provide to persons placed at Southbury habilitation in community settings. 49. Southbury Training School is located on the outskirts of South Britain, Connecticut, a small rural community in Western Connecticut. The location is remote and inaccessible by public transportation, which limits the ability of families and friends to
16

maintain frequent contacts with their relatives and friends. The hardship is greater for persons with limited means, but in all cases the sheer isolation of Southbury accelerates the decline of affectionate relationships, stripping from the individual with a disability those supports, both emotional and material, which are normally available in the community.
50. Most STS residents are rarely if ever visited by their families. Many have been abandoned altogether. Moreover, the typical STS resident cannot speak for himself due to his disabilities. As a result, most STS residents are at the mercy of a vast and impersonal bureaucracy when it comes to eradicating unconstitutional conditions or realizing their elusive dream of living in the community.
51. Southbury's isolation prohibits the use of community resources as an integral part of a training program, to meet health needs, to provide employment or recreation, or as aids in the development of those diversified activities which noninstitutionalized persons take for granted. Local resources are insufficient to absorb the social needs of Southbury's population.
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52. Living and activity space at STS is inadequate in design, insufficient in area, inappropriate in setting, and dehumanizing in condition. Buildings are not functional for modern needs and are not architecturally accessible to persons with physical disabilities. Buildings are dirty and unsanitary, exposing plaintiffs to physical health hazards in addition to the discomfort of constant odors and filth.
53. The physical layout and furnishing of buildings at Southbury Training School are devoid of warmth, individuality, and dignity. The living and sleeping areas are sparsely furnished and are without the lamps, sofas, rugs, comfortable chairs, pictures, magazines, and other age-appropriate furnishings associated with normal living. Plaintiffs are denied the developmental, sensory and intellectual stimulation, comfort and pleasure community residents obtain from the usual physical accoutrements in homes, schools, restaurants, workplaces, and recreational facilities.
54. The physical setting at STS does not allow privacy, individuality, or freedom of association. Plaintiffs are deprived of freedom to choose or reject associates and to determine when and in what way they relate to their friends.
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55. Few closets or chests for personal possessions are available, and those that exist are not accessible or permitted to be used by residents. Because of the shortage of staff and the lack of facilities for storage of personal items, the few belongings which plaintiffs own are usually lost, stolen or destroyed within a short period of time. These conditions deprive plaintiffs of their dignity and identity.
56. Toilet facilities are inadequate. Bathrooms frequently lack wall partitions or curtains between toilets or doors on stalls. Many living areas have a definite stench of urine. Plaintiffs are deprived by these conditions of the right taken for granted by other citizens to exercise their bodily functions in privacy and to observe proper hygienic measures.
The Staff 57. Staff resident ratios and staff training are inadequate to provide care, let alone to evoke development and habilitation or to protect plaintiffs from harm. The staffing requirements of recognized authoritative minimum standards are not met. 58. Plaintiffs are not provided with the services, stimulation and attention necessary to prevent deterioration of and
19

injury to their physical condition, psychological well-being, and personal development. Staff-patient ratios and the gross scale of institutional living operate to discourage personal, intimate, primary relationships, like those enjoyed in normal living.
59. Defendants have failed to recruit, employ and train direct care and professional personnel in sufficient numbers, and have failed to place personnel in an environment where it is possible for them to stimulate and assist in the daily life activities of plaintiffs.
60. Adequate and regular evaluations of each resident's physical, social, psychological, and personal development are not made. Defendants have not uniformly utilized a standard process for assessment of each resident. Individualized habilitation plans and programs for each resident of Southbury Training School are not uniformly provided.
61. Defendants have failed to provide periodic review of the appropriateness and effectiveness of the plaintiffs' plans or programs.
62. Defendants have failed to provide necessary services, including medical and dental care and treatment, nursing care,
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psychological services, personal care and protection, social work services, physical and occupational therapy, speech pathology and audiology services, recreation, and vocational and rehabilitative training.
63. Defendants have failed to prepare residents for or assist them in securing gainful employment.
64. Defendants have failed to provide each resident an individualized exit plan for placement in a less restrictive integrated community setting.
65. Activities such as eating/ toileting, and bathing are often conducted en masse, at predetermined and unchanging times, chosen for the convenience of the institution. This regimentation deprives plaintiffs of the normally experienced freedom and dignity of choosing when to attend to their individual daily tasks and interests, and arranging their appearances according to their personal taste.
66. Physical and pharmaceutical restraint procedures are frequently utilized for convenient control of residents and as a substitute for appropriate care and programs of habilitation.
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67. Southbury Training School has not provided its residents with minimally professionally acceptable levels of active programming or habilitation or protection from harm, which has caused deterioration and injury to residents and decreased levels of safety.
68. There are no active habilitation programs for persons with the most severe physical and behavioral handicaps. Many of the persons with severe behavioral problems have not developed those behaviors as a result of their disabilities. Rather, they are the outgrowth of the inhumane environment, lack of habilitation programs and crowded and chaotic conditions on living units. Physically handicapped persons are also at risk because basic therapies and equipment necessary to preserve their health and prevent loss of use of the limbs are not provided.
69. As a result of the conditions set out in paragraphs 47 through 55 above, plaintiff classmembers have suffered numerous lacerations, broken bones and other serious injuries, have been subjected to frequent physical and mechanical restraints, and have suffered severe physical deterioration.
22

70. Medical care at STS is so deficient that plaintiffs are exposed to risk of harm and death.
71. A substantial percentage of the STS budget is spent on approximately one-third of the residents who live in federally certified units. This disproportionate spending on one-third of the population deprives two-thirds of the residents of basic services and decent living conditions.
72. Do Not Resuscitate Orders are imposed as a matter of course on many STS residents who are admitted to community medical facilities for treatment. Do Not Resuscitate Orders needlessly subject plaintiffs to an increased risk of death.
73. Persons with retardation, like all people, are capable of growth and development throughout life.
74. Habilitation is necessary for persons with retardation, especially those with the most severe disabilities, to maintain their health and safety and protect them from harm and unnecessary restraint. Without habilitation programs STS residents will regress and lose the skills they had when admitted to STS.
75. No person with retardation needs to be at Southbury Training School. All can live in the community as long as
23

habilitative services, supervision and support are provided. Multiple handicaps or severe medical conditions do not preclude persons with retardation from living safe and productive lives in the community. In recognition of these facts, no new admissions to STS have been made for nearly a decade.
76. A necessary condition of growth and development and maintenance of skills of persons with retardation is individualized habilitative programs and individualized relationships in normalized settings.
77. The learning characteristics and capabilities of persons with retardation require that they have an opportunity to receive programs or training and habilitation in environments that are integrated (i.e. allow for interaction between persons with disabilities and nondisabled persons).
78. The State of Connecticut, like most other states, has adopted policies and professional practices based upon the professionally accepted facts concerning the developmental potential of persons with retardation and the requirements of normalization, individualization and integration for persons with retardation to realize their developmental potential and, at the
24

same time, be protected from harm and unnecessary restraint while in the state's care.
79. Despite their own policies and professional judgments that each plaintiff and each classmember should be transferred to an appropriately structured community setting, defendants have not acted to transfer the resources being used to support them at Southbury Training School to the community so that plaintiffs can leave STS.
80. On or about October 30, 1986 the United States of America filed a lawsuit entitled United States v. State of Connecticut. No. N-86-252 (EBB). At the same time the United States filed and moved for expedited adoption of a Consent Decree. The court ultimately approved the Consent Decree after denying intervenor status to many individuals and organizations, including some of the plaintiffs in this lawsuit, who were directly affected by the Consent Decree. The court's ruling, however, expressly permitted plaintiffs to file a separate lawsuit if the USA v. Connecticut Consent Decree was not effective in remediating violations of the rights of Southbury Training School residents.
25

81. Although the USA v. Connecticut Consent Decree has been in effect for nearly nine years, the conditions at STS have actually worsened. A recent investigation by the United States documented gross violations of human rights at STS, many of which place classmembers at risk of serious harm and death.
COUNT I; DUE PROCESS 82. The acts and omissions of the defendants deny plaintiffs and members of the plaintiff class their constitutional rights secured by the Due Process Clause of the Fourteenth Amendment to the United States Constitution: a) to an individually controlled and designed habilitation plan and program to help classmembers maintain self-care skills; b) to a humane and decent existence; c) to habilitation necessary to ensure that Southbury Training School residents are safe and free from unnecessary physical, mechanical and chemical restraint; d) to adequate shelter, clothing, nutrition and medical care; e) to have community placements that are integrated in society that will enable STS residents to enjoy the benefits of
26

citizenship; f) to have all community placement decisions made on an
individualized basis and implemented in accordance with the recommendations of planning teams composed of friends and family and professionals who know the person with a disability best and an opportunity to be heard periodically on the appropriateness of placement plans prior to and after discharge or transfer from Southbury Training School;
g) to have community placements provided when planning teams composed of friends, family and professionals who know classmembers best develop self-determined support plans and determine that transfer to the community is necessary to protect classmembers1 rights under the federal constitution and federal laws;
h) to have individual advocates assist classmembers in protecting their rights under state and federal law;
i) to have individual budgets to implement the decisions of properly composed planning teams.
COUNT II; DISCRIMINATION CLAIM 83. By failing to provide residents of Southbury Training School the opportunity to receive state support in the community
27

rather than in a segregated institution and by failing to provide the most severely handicapped residents of Southbury Training School with the same opportunity to benefit from programs and community living as are provided residents of STS with mild disabilities, defendants have violated plaintiffs1 rights secured by the Americans with Disabilities Act, 42 U.S.C. 12132, and the Rehabilitation Act, 29 U.S.C. 794.
COUNT III: SOCIAL SECURITY ACT CLAIM 84. Defendants have violated the rights of some three hundred residents of Southbury Training School by not providing active treatment as required by 42 U.S.C. 1396 et seq. by a) failing to provide training and habilitation services to all residents regardless of the nature or severity of his or her disability; b) failing to provide the professional services to residents including physical therapy, occupational therapy, medical services and psychological services; c) failing to develop adequate activities for residents; d) failing to provide individual treatment plans; e) failing to evaluate the appropriateness of continued placement at STS; f) failing to develop meaningful discharge plans.
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IV. RELIEF; WHEREFORE, proposed plaintiffs respectfully request that this
Court: 1. Certify this case as a class action and designate
plaintiffs as representatives of a class of persons that includes all persons residing at Southbury Training School, all persons who may be placed at or transferred to Southbury Training School at some future date and all persons who have been transferred out of STS yet remain under the Director's custody and control.
2. Enjoin defendants from admitting persons to Southbury Training School or transferring persons from STS unless such transfer is to an integrated community home with supports developed through a person-centered planning process by a team comprised of the classmember, his friends, family and professionals who know him best.
3. Enjoin defendants to identify through a person-centered planning process a written plan for each classmember which describes the individualized programs, supports and supervision necessary to protect each classmember and to meet his/her individualized needs and how and when those services will be
29

provided. 4. Enjoin the defendants to identify in a written plan the
community homes necessary to protect classmembers • rights under the United States Constitution and federal laws and to remediate the environmental and program deficiencies identified in this complaint and to provide the community supports through individualized person-centered planning processes.
5. Enjoin the defendants to make available individual and independent advocates for each plaintiff and member of the plaintiff class to assist them in securing their rights.
6. Enjoin the defendants to provide plans, support services and community living opportunities to all classmembers, regardless of the severity or nature of their disabilities.
7. Enjoin the defendants to prohibit the use of Do Not Resuscitate Orders on classmembers until procedures are developed and followed which assure protection of rights secured to classmembers by the federal Constitution and laws.
8. Enjoin the defendants to submit to plaintiffs and the court for its approval a plan for the implementation of the aforesaid.
30

9. Award the plaintiffs costs and attorneys1 fees. INDIVIDUAL PLAINTIFFS AND PLAINTIFF, PEOPLE FIRST OF CONNECTICUT, INC.,
BY.
David C. Shaw, Esq. 410 Asylum Street, Suite 610 Hartford, CT 06103 (203) 541-6167 Fed. No. ctO5239 PLAINTIFFS, ARC/CONNECTICUT AND WECAHR,
Frank Laskx, Esq 154 Oliver Road Waban, Ma. 02168
31

 
 Sch.

M R C*~T noQ nno

•

>

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

RICHARD MESSIER, et al.
v.

: Civil No. 3:94CV01706

:

(EBB)

:

SOUTHBURY TRAINING SCHOOL, et al. : March 14, 1995

MOTION FOR CLASS CERTIFICATION

The plaintiffs request, pursuant to Rules 23(a) and 23(b)(2)

of the Federal Rules of Civil Procedure, that they be authorized to

maintain this action on their own behalf and on behalf of all

current residents of Southbury Training School ("STS"), those who

may be placed there in the future, and persons who have been

transferred from STS and remain under the custody and control of

the Director of STS. In support of this motion the plaintiffs

represent the following:

1. the joinder of all members is impracticable;

2. there are questions of law and fact common to the class

including, inter alia

a) whether the acts and omissions of the defendants

deprived the plaintiffs and members of the plaintiff class of their

rights to freedom from harm and restraint, adequate shelter,

clothing, medical care, training necessary to preserve basic self-

care skills and community placement when recommended by individual professional planning teams, secured by the Due Process Clause of the Fourteenth Amendment to the United States Constitution;
b) whether the use of Do Not Resuscitate Orders on classmembers without any process to determine whether the order is in their best interest denies them their right to life without Due Process in violation of the Fourteenth Amendment;
c) whether the acts and omissions of defendants deny plaintiffs and members of the plaintiff class their rights to nondiscriminatory program and placement decisions and to avoid unnecessarily separate services secured by 42 U.S.C. § 12132 and 29 U.S.C. § 794; and
d) whether STS residents in ICFMR-certified units have ' been deprived of active treatment in violation of 42 U.S.C. § 1396 et seq..
3. the claims of the representative parties are typical of the claims of the class;
4. the representative parties will fairly and adequately protect the interests of the class; and
5. the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making

appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.
Plaintiffs have submitted a memorandum of law in support of their motion for class certification.
INDIVIDUAL PLAINTIFFS AND PLAINTIFF, PEOPLE FIRST OF CONNECTICUT, INC.,

David C. Shaw, Esq. 410 Asylum Street, Suite 610 Hartford, CT 06103 (203) 541-6167 Fed. No. ctO5239

PLAINTIFFS, ARC/CONNECTICUT AND WECAHR,

By 1\?Mk w*uK>

'j-j

Frank Laski, Esq

24 6 Walnut Street, Suite 202

Newton, MA 02160

CERTIFICATION

This is to certify that a copy of the foregoing was mailed,

postage prepaid, to the following on March 14, 1995:

Henry Salton, Esq. Assistant Attorney General 55 Elm Street Hartford, Ct. 06106

James P. Welsh, Esq. Office of Attorney General MacKenzie Hall 110 Sherman Street Hartford, Ct. 06105

Frank J. Silvestri, Jr.
Zeldes, Needle & Cooper, P.C. 1000 Lafayette Blvd. Bridgeport, Ct. 06601

/I //>

David C. Shaw, Esq.

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

RICHARD MESSIER, et al.

:

:

v.

:

SOUTHBURY TRAINING SCHOOL, et al. :

Civil No. 3:94CV01706 (EBB)
March 14, 1995

PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

I. INTRODUCTION The complaint1 in this case was filed October 6, 1994, by
eight present or former residents of Southbury Training School ("STS") and three organizational plaintiffs (People First of Connecticut, ARC/Connecticut, and Western Connecticut Association for Human Rights) as a class action on behalf of all persons with disabilities residing at STS, those who may be placed at STS in the future, and persons who have been transferred from STS and remain under the custody and control of the Director of STS. Plaintiffs have brought this action to redress unlawful conditions at STS, alleging violations of the STS residents1 rights secured by the Fourteenth Amendment Due Process Clause of the U.S. Constitution,

*A11 references are to the Second Amended Complaint.

the Americans with Disabilities Act, the Rehabilitation Act and the Social Security Act. More specifically, plaintiffs allege, inter alia, that:
(1) The defendants are denying plaintiffs and members of the plaintiff class their constitutional rights secured by the Due Process Clause of the Fourteenth Amendment to the United States Constitution:
a) to an individually controlled and designed habilitation plan and program to help classmembers maintain selfcare skills;
b) to a humane and decent existence; c) to habilitation necessary to ensure that Southbury Training School residents are safe and free from unnecessary physical, mechanical and chemical restraint; d) to adequate shelter, clothing, nutrition and medical care; e) to have community placements that are safe, properly monitored and integrated in society; f) to have all community placement decisions made on an individualized basis and implemented in accordance with the

recommendations of planning teams composed of friends and family and professionals who know the person with a disability best and an opportunity to be heard periodically on the appropriateness of placement plans prior to and after discharge or transfer from Southbury Training School;
g) to have community placements provided when planning teams composed of friends, family and professionals who know classmembers best develop self-determined support plans and determine that transfer to the community is necessary to protect classmembers1 rights under the federal constitution and federal laws;
h) to have individual advocates assist classmembers in protecting their rights under state and federal law;
i) to have individual budgets to implement the decisions of properly composed planning teams;
j) to life, without due process of law, by developing and enforcing standards which permit community hospitals to write and implement DNR Orders on nonterminally ill classmembers without any process to ensure that the decision to withhold routine medical care is consistent with the best interests of the classmember;

(2) The defendants are violating plaintiffs' rights secured by the Americans with Disabilities Act, 42 U.S.C. 12132, and the Rehabilitation Act, 29 U.S.C. 794 by failing to provide residents of Southbury Training School the opportunity to receive state support in the community rather than in a segregated institution and by failing to provide the most severely handicapped residents of Southbury Training School with the same opportunity to benefit from programs and community living as are provided residents of STS with mild disabilities.
(3) The defendants are violating the rights of some two hundred residents of Southbury Training School to active treatment as required by 42 U.S.C. 1396 et seq. by a) failing to provide training and habilitation services to all residents regardless of the nature or severity of his or her disability; b) failing to provide the professional services to residents including physical therapy, occupational therapy, medical services and psychological services; c) failing to develop adequate activities for residents; d) failing to provide individual treatment plans; e) failing to evaluate the appropriateness of continued placement at STS; f) failing to develop meaningful discharge plans.

Plaintiffs seek classwide declaratory and injunctive relief which would:
(1) Enjoin defendants from admitting persons to Southbury Training School or transferring persons from STS unless such transfer is to an integrated community home with supports developed through a person-centered planning process by a team comprised of the classmember, his friends, family and professionals who know him best ;
(2) Enjoin defendants to identify through a person-centered planning process a written plan for each classmember which describes the individualized programs, supports and supervision necessary to protect each classmember and to meet his/her individualized needs and how those services will be provided;
(3) Enjoin the defendants to identify in a written plan the community homes necessary to protect classmembers' rights under the United States Constitution and federal laws and to remediate the environmental and program deficiencies identified in the complaint and to provide community supports through individualized personcentered planning processes;
(4) Enjoin the defendants to make available independent

advocates for each plaintiff and member of the plaintiff class to
assist them in securing their rights;
(5) Enjoin the defendants to provide plans, support services
and community living opportunities to classmembers, regardless of
the severity or nature of their disabilities;
(6) Enjoin the defendants to prohibit the use of Do Not
Resuscitate Orders on classmembers until procedures are developed
and followed which assure protection of rights secured to
classmembers by the federal Constitution and laws.
II. ARGUMENT
Rule 23(a) of the Federal Rules of Civil Procedure establishes
four prerequisites to the maintenance of a class action suit:
(a) Prerequisites to a Class Action. One or more members of a class 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 and defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
In addition, Rule 23(b)(2) imposes an additional applicable

requirement:
the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole;
A. Plaintiffs' Class Satisfies the Numerositv Requirement.
Plaintiffs in this case seek to represent a class consisting
of all persons who are now at STS, those who may be placed at STS
in the future, and persons who have been transferred from STS and
remain under the custody and control of the Director of STS. At
present, according to Presentation on Governor's Proposed Budget
for FY 96-97 dated February 27, 1995, there are 871 persons residing at STS.2
There is no set number of members that is required to meet
the numerosity requirement. The federal rules merely require a
determination that the class is so numerous as to make joinder of
2In view of the fact that there have been no new placements at STS and the ongoing concerns about the appropriateness of new placements at STS, it would be, at best, speculative to estimate the number of persons who may be placed at STS in the future. Nevertheless, plans for the construction of additional facilities at STS are being considered by the Connecticut legislature. Thus, there remains a possibility of new placements at STS in the future.

all members impracticable. A class consisting of at least 871 members is clearly sufficient to satisfy this requirement. See Korn v. Franchard Corp.. 456 F.2d 1206, 1209 (2nd Cir. 1972) (class consisting of 212 members sufficient); Connecticut Traumatic Brain Injury Association (CTBIA) v. Hoaan. Civil No. H-90-97 (PCD) Slip Op. at 3-4 (D.Conn., July 6, 1990) (Exhibit A) (110-150 persons with mental retardation and/or brain injury sufficient); National Super Spuds v. New York Mercantile Exchange. 77 F.R.D. "3*61, 367 (S.D.N.Y. 1977) (500 to 1000 members sufficient). It is highly unlikely that individual claimants would institute separate suits for declaratory and injunctive relief in the event class certification is denied. See CTBIA v. Hoganr Slip Op. at 2-3 (citing, Jordan v. County of Los Angeles. 669 F.2d 1311, 1319 (9th Cir. 1982), vacated on other grounds. 459 U.S. 810 (1982) and. Armstead v. Pingree. 629 F. Supp. 273, 279 (M.D. Fla. 1986)). Moreover, the proposed class members are institutionalized individuals with mental retardation, which "is precisely the type of group which class treatment was designed to protect." See Armstead. 629 F. Supp. at 279. Under these circumstances "the difficulty or inconvenience of joining all members makes class

litigation desirable." Koster v. Perales. 108 F.R.D 46, 49 (E.D.N.Y. 1985) (citing. Northwestern National Bank of Minneapolis V. Fox & Co. . 102 F.R.D. 507, 511 (S.D.N.Y. 1984)).
The inclusion of future members of a class is routine in a civil rights action such as this one seeking injunctive relief against conduct that is likely to cause future injuries similar to those suffered by the named plaintiffs. 1 Newberg on Class Actions,, 3.07 (3rd Ed. 1992). As a result, in civil rights cases, the membership of the class is usually "incapable of specific enumeration." Powell v. Ward. 487 F. Supp. 917, 922 (S.D.N.Y. 1980) (citing. Robertson v. National Basketball Association. 389 F. Supp. 867, 897 (S.D.N.Y. 1975) and Advisory Note to Rule 23). In such circumstances, "a class action may proceed upon estimates as to the size of the proposed class." Jane B. v. New York City Dep't. of Social Servs.. 117 F.R.D. 64, 70 (S.D.N.Y. 1987) (citing. In re Alcoholic Beverages Litigation. 95 F.R.D. 321, 324 (E.D.N.Y. 1982). 11 [C] lass certification including future members is appropriate." Powell v. Ward, 487 F. Supp. at 922 (citing. Gerstein v. Pugh. 420 U.S. 103, 110-11 n. 11 95 S.Ct. 854, 861 n. 11, 43 L.Ed. 2d 54 (1974)).

B. Class Certification Is Appropriate Because There Are Questions of Law and Fact Common to the Entire Class.
The requirements of joinder impracticality of Rule 23(a)(1) and the commonality requirement of Rule 23(a)(2) are correlative tests. "Thus, a class action is proper only when there is a group of persons who share a common issue and are so numerous that joinder of them all would be impracticable." 1 Newbera 3.10.
"There is no requirement that the factual basis for the claims of all members of a proposed class be identical*." Koster v. Perales. 108 F.R.D. at 52; Wilder v. Bernstein. 499 F. Supp. 980, 992 (S.D.N.Y. 1980); Abramovitz v. A h e m . 96 F.R.D. 208, 216 (D.Conn. 1982). Nor is there any requirement of absolute identity between the legal theories supporting claims by class members. CTBIA v. Hoqan. Slip. op. at 5 ("Rule 23 (a) (2) does not require that there are questions of law and fact common to the class but rather only requires that there be either legal issue[s] or factual issue[s] common to the class." Citing. Pottinger v. City of Miami, 720 F. Supp. 955, 958 (S.D.Fla. 1989) (emphasis in original)); Cf. Gold Strike Stamp Company v. Christensen. 436 F.2d 791, 796 (10th Cir. 1970) ("... where the question of basic liability can be established
10

readily by common issues, then it is apparent that the case is appropriate for class action."); Abramovitz. 96 F.R.D. at 216 ("The fact that some individual questions of law and fact also must be decided will not necessarily defeat a request for class certification."). Rather, in actions such as this one, it is sufficient that the claims for declaratory and injunctive relief as to which the plaintiffs seek class certification:
"challenge several institutional practices and policies regarding the provision of ... care to all .... Those practices and policies apply with equal force to, and affect similarly, all [residents] within the facility. Moreover the complaint details several instances of institution-wide inadequacies .... These matters are common to all [residents]."
Dean v. Couahlin. 107 F.R.D. 331, 333-34 (S.D.N.Y. 1985). This case satisfies the commonality requirement of Rule
23(a)(2) since the putative class members present similar factual situations which give rise to common legal issues. The plaintiffs challenge STS policies and practices involving all present and future residents of that institution and persons in the custody of the Director of STS. STS policies and practices concerning the environment, training and habilitation services, professional services, support services, planning, programming, supervision,
11

medical procedures and community living opportunities apply with equal force to, and affect similarly all residents of STS, and persons in the custody of the Director of STS. The alleged inadequacies in staffing, facilities, policies and procedures at STS are systemic, and are of common concern to all STS residents. Although putative class members may not have identical habilitative or rehabilitative needs or treatment histories, the common facts alleged in the Complaint give rise to common legal issues under the Due Process and Equal Protection clauses of the Fourteenth Amendment, as well as federal statutory law. See Armstead. 629 F. Supp. at 280 ("The conditions at NEFSH and defendants1 policies regarding treatment of those residents who suffer, in varying degrees, from mental retardation are examples of the factual questions linking the subclasses.11); Santiago v. City of Philadelphia. 72 F.R.D. 619, 624 (E.D.Pa. 1976).

C The Claims of the Representative Parties Are Typical of

the Claims of the Class.

«__—_*__—___——————__^

•

•

:•»

The typicality requirements of Rule 23(a)(3) focus on whether

the named plaintiffs' claims and the class claims "are so

interrelated that the interests of the class members will be fairly 12

and adequately protected in their absence." General Telephone Co. v. Falcon. 457 U.S. 147, 157-58 n.13 (1982). The typicality requirement demands no showing of complete identity between the legal claims of a representative and each member, but only "... a showing of sufficient interrelationship between the claims of the representative and those of the class so that adjudication of the individual claims will necessarily involve the decision of common questions affecting the class." 1 Newberq 3.17). Similarly, individual, factual discrepancies between class members and representatives do not defeat typicality. See CTBIA v. Hogan. Slip, op. at 7 ("There may be factual distinctions, but their claims arise from the same allegedly illegal policies and practices and are based on legal theories claimed for the entire class." Citing. Jane B. . 117 F.R.D. at 70); Koster v. Perales. 108 F.R.D. at 51-2; Dean v. Coughlin. 107 F.R.D. at 334. "All that is required for this original certification is a nexus between the claims of the representatives and those of the other members of the class." CTBIA v. Hoqan, Slip. op. at 7 (citing. Roby v. St. Louis Southwestern Railway Co.. 775 F.2d 959, 962 (8th Cir. 1985); Harrison v. Simon. 91 F.R.D. 423, 430 (E.D.Pa. 1981)).
13

In this case, the nexus between the class members and class representatives is plain in all of the representatives' claims. As is indicated in the Complaint and above:
"... plaintiffs claim systemic behavior and harm. The claims of the class representatives are typical: each has been subjected to some or all of the general, institution-wide deprivations alleged on behalf of the class." Dean v. Coughlin, 107 F.R.D. at 334. See also Hassine v. Jeffes. 846 F.2d 169, 178 (3rd Cir. 1988) (complainants1 assertion that conditions existed, and that they were subject to them, was sufficient to require classwide adjudication of claims). There are substantial questions of law and fact common to the entire class, and claims of the plaintiffs are typical of the class and predominate over any questions affecting individual members. Cf. Santiago. 72 F.R.D. at 625 (Same legal theories applied to named plaintiffs and future residents. This was supported by allegations that class representatives and members suffered the same types of injuries as a result of the policies and practices of the institution. There was a "close nexus" between factual questions raised by the representatives and members pertaining to the administration of and conditions at the institution) . Moreover, as
14

was the case in CTBIA v. Hogan;
"Because plaintiffs allege violations of law common to all members of the class, courts may, despite factual differences, certify the class for purposes of determining liability. Then, if conflicts over relief are apparent, or if discovery reveals that ... plaintiffs have adverse or distinct interests, the class can be split into subclasses at that time. Halderman v. Pennhurst State Sch. & Hospital. 612 F.2d 84, 109 (3rd Cir. 1979), rev'd on other grounds. 451 U.S. 1 (1980); Jacobi v. Bache & Co.. 16 F.R.D. 71, 72-73 (S.D.N.Y. 1972). In fact "[i]t is often proper ... for a district court to view a class action liberally in the early stages of litigation, since the class can always be modified or subdivided as issues are refined for trial."
Slip op., at 6.
D. The Representative Parties Will Fairly and Adequately Protect the Interests of the Class.
The prerequisites for satisfying Rule 23 (a) (4) are as follows:
... an essential concomitant of adequate representation is that the party's attorney be qualified, experienced and generally able to conduct the proposed litigation. Additionally, it is necessary to eliminate so far as possible the likelihood that the litigants are involved in a collusive suit or that plaintiff has interests antagonistic to those of the remainder of the class.
Eisen v. Carlisle & Jaaueline. 391 F.2d 555, 562 (2nd Cir. 1968).
With regard to the qualifications, experience, and abilities
of counsel, from 1975 to the present Attorney David Shaw has acted
as lead counsel, or played a central role, in many class action and
15

civil rights lawsuits brought to enforce the federal constitutional and statutory rights of Connecticut citizens with disabilities. (See Exhibit B) . Attorney Frank Laski also has an extensive record in litigating cases brought to enforce the rights of persons with disabilities secured by state and federal law. (See Exhibit C ) .
Through this and other litigation Attorneys Shaw and Laski have developed expertise in litigating civil rights cases for disabled citizens through the federal trial and appellate courts. Plaintiffs1 counsel have established themselves as competent and vigorous advocates of persons with disabilities, and particularly for persons with mental retardation in institutional settings, and can be expected to pursue such interests in the future.
There has been a suggestion by the intervenor applicants that the proposed class representatives have interests in conflict with class members, and that they may act collusively with the defendants in this case. In their Memorandum of Law in Support of Motion to Intervene, the Home and School Association of Southbury Training School, The Southbury Training School Foundation Inc., several residents and their guardians (Southbury Group) asserted that "defendants espouse some of the same social policies advocated
16

by plaintiffs in favor of closing STS and placing all STS residents
in community settings." (Memorandum, at p. 12)
This type of general assertion is insufficient to overcome the
adequacy of representation, particularly when the policy issue
intervenors posit as non-adversarial and conflicting is not
properly before the Court. Plaintiffs' complaint does not seek
closure of STS. Even if the complaint did ask for such relief, it
would be beyond the power of this court to grant it.3 Rather, the
3 In Richard C. v. Snider. C.A. No. 89-2038 (N.D. Pa. 6/22/93) (attached), an organization of parents and guardians, similar to intervenor applicants have challenged the closure of a Pennsylvania facility for the mentally retarded (Western Center), Judge Standish wrote:
The Court has no authority to direct [defendants] to deliver its services to any particular facility. The state has the power to relocate its residents for its own administrative needs or unilaterally to close any of it institutions for economic or other reasons. Id., Slip Op. at pp. 19-20.
Accord Le1 sz v. Kavanauqh. 783 F. Supp. 286, 291, 298 (N.D.Tex.. 1991). More recently Judge Wolf, in Massachusetts, denied intervention to a group that raised interests similar to Southbury interests here. The Court's reasoning applies here:
The Association's submission expresses its intention to argue the value of a centralized institution such as Dever as opposed to community-based placements for certain individuals and the importance of Dever remaining open. ... However, the relative value of Dever as compared to increased use of
(continued. ..)
17

court's role is to ensure that placements, like other treatment
decisions, are being made pursuant to professional judgment,
Younabera v. Romeo. 457 U.S. 307, 315-319 (1982); and the nondiscrimination mandates of the Americans with Disabilities Act 42 U.S.C. 12132 and Rehabilitation Act 29 U.S.C. 794 and the requirements of the Social Security Act 42 U.S.C. 1396 et seq.. The Intervenor applicants have not alleged that the program or placement decisions of the STS interdisciplinary teams are inadequate. Even if they had made this allegation, there are extensive state-law procedures already in place for resolving a dispute over interdisciplinary team decisions. The relief plaintiffs have requested specifically contemplates a planning process for each resident of STS by a team comprised of the resident, his guardians, family and professionals who know him best. The plan would describe "the individualized programs,
3(...continued) community-based facilities is a question who resolution is committed to the democratically accountable political branches of the Commonwealth of Massachusetts government as long as they act in accordance with law. This court does not understand that it has been asked by plaintiffs to decide this policy question and, in any event, does not intend to do so.
Healev v. Weld. C.A. No. 94-11804-MLW (11/23/94) (attached).
18

supports and supervision necessary to protect each classmember and to meet his/her individualized needs and how and when these services will be provided." (Complaint p. 29, para. 3). Any parent, guardian or resident who disagrees with the recommendations of his/her planning team has a right to a hearing. At that hearing the burden is on the state to show by "clear and convincing evidence" that the placement recommendations are in the STS resident's best interest.4
The Southbury Group has made no showing that plaintiffs will not vigorously represent the interests of all residents, but simply expresses a difference of opinion with some of the plaintiff parent organizations on the issue of whether STS should remain open — a difference of opinion that has no relevance to this litigation. As to unconstitutional conditions, the Southbury Group complained not that plaintiffs are inadequate, but that they are overly adversarial saying "plaintiffs have grossly exaggerated the deficiencies of the case provided at STS" (Memorandum, at 12). In
4This standard appears in Administrative Directive # 15. This provision was negotiated by plaintiffs and was ultimately approved by the Intervenor Applicants when they approved the C.A.R.C. v. Thome Consent Decree. A copy of Administrative Directive # 15 is attached as Exhibit D.
19

their answer, the Southbury Group adopts a defendant's posture denying, demurring and diminishing the allegations of unconstitutional conditions set forth in plaintiffs complaint. Although the Southbury group has displayed at length its policy disagreements with the plaintiffs and defendants, it did not come close to demonstrating inadequacy of representation.5 If any substantial conflict over a material issue should arise in the course of this litigation, there will be ample opportunity for the court to address it at that time. See CTBIA v. Hoaanf Slip op. at
6.
Moreover, the Southbury Group chooses to ignore the record of rigorous representation in opposition to plaintiffs in related litigation, C.A.R.C. v. T h o m e (the Mansfield case) . The highly adversarial nature of the pre-trial and trial phase of the Mansfield case and the decades of litigation during the implementation stage belie any suggestion of collusion hinted at by Southbury Intervenors. Cf. In re Agent Orange Product Liability Litigation. 996 F.2d 1425, 1436 (2nd Cir. 1993) ("By all accounts,
5The Home and School Association agreed to and signed the Consent Decree negotiated by the attorneys for the class in C.A.R.C. v. T h o m e .
20

the negotiations were arm's-length and adversarial . . . . " ) . The named plaintiffs do not have interests divergent from the
rest of the residents at STS. See Dean v. Couqhlin. 107 F.R.D. at 334; Wilder v. Bernstein. 499 F. Supp. at 993 ("The fact that some members of the class may be personally satisfied with the existing system and may prefer to leave the violation of their rights unremedied is simply not dispositive to a determination under Rule 23(a)."). Since, in this case, the commonality and typicality requirements, are satisfied, the vigorous prosecution of claims by the named plaintiffs is ensured. There is no substantial reason to doubt that the named plaintiffs will adequately represent the interests of residents of STS on their claims relating to unconstitutional conditions and statutory violations.
E. The Requirements of Rule 23(b)(2) are Satisfied in That 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.
Having satisfied the requirements of Rule 23(a), plaintiffs must also satisfy one of the provisions of Rule 23 (b). "[I]t is well established that civil rights actions are the paradigmatic 23(b)(2) class suits, for they seek classwide structural relief
21

that would clearly rebound equally to the benefit of each class member." Marcera v. Chinlund. 595 F.2d 1231, 1240 (2nd Cir. 1979), vacated on other grounds sub nom. Lombard v. Marcera. 442 U.S. 915 (1979). See also Colev v. Clinton. 635 F.2d 1364, 1378 (8th Cir. 1980) (Rule 23(b)(2) held to be "an especially appropriate vehicle for civil rights actions" seeking prison or hospital reform. This principle limits a district court's discretion to refuse to certify a class); Dean v. Coughlin. 107 F.R.D. at 335; Ram v. Blum. 533 F. Supp. 933, 938 (S.D.N.Y. 1982); Santiago. 72 F.R.D. at 625-26 (subsection "liberally applied in the area of civil rights, including suits challenging conditions and practices at various detention facilities").
Although the plaintiffs need not prove the necessity of class certification, see Nelson v. Regan. 560 F. Supp. 1101, 1105 (D.Conn. 1983), aff'd. 731 F.2d 105 (2nd Cir. 1984), cert, denied. 469 U.S. 853 (1984), Rule 23(b)(2) class certification may be inappropriate where a class action designation is "largely a formality." Galvan v. Levine. 490 F.2d 1255, 1261 (2nd Cir. 1973), cert, denied. 417 U.S. 936 (1974). In this case, certification of the class is justified because plaintiffs seek to mandate certain
22

actions by the defendants. See Jane B. . 117 F.R.D. at 72 ("Certification of the class is necessary to guarantee that mandatory relief runs to the benefit of all members of the class.11); Koster v. Perales. 108 F.R.D. at 55. The mandatory relief requested by plaintiff class includes court orders: (1) requiring defendants to identify a written plan for each classmember to meet his/her individualized needs; (2) requiring the defendants to identify in a written plan the community homes necessary to protect classmembers' rights and to remediate the environmental and program deficiencies identified in this complaint; (3) requiring the defendants to make available independent advocates for each member of the plaintiff class; and (4) requiring the defendants to provide support services, habilitative programs and decent care to all ' classmembers. Under these circumstances, class certification is both necessary and appropriate to ensure that relief runs equally to all members of the class.
Additional factors also make 23(b)(2) certification appropriate including: (a) the need to facilitate the enforcement of a favorable judgment, Westcott v. Califano. 460 F. Supp. 737, 746 (D. Mass. 1978); Koster v. Perales. 108 F.R.D. at 54-55;
23

(b) judicial economy, Alton v. Coughlin. 109 F.R.D. 609, 612
(S.D.N.Y. 1986); Wilder v. Bernstein. 499 F. Supp. at 994; (c)
there is no commitment by defendants that prospective relief would
be uniformly applied, Dionne v. Boulev. 757 F.2d 1344, 1356 (1st
Cir. 1985); Wilder v. Bernstein. 499 F. Supp. at 994; and (d) class
certification does not impose any significant burden on the court.
Dionne v. Bouley. 757 F.2d at 1356.
In sum, this is a proper class action under Rules 23(a) and 23(b)(2)6 of the Federal Rules of Civil Procedure.
III. CONCLUSION
For the reasons discussed above, it is respectfully requested
that this Court certify this case as a class action and designate
plaintiffs as representatives of a class of persons that includes
all persons residing at Southbury Training School, all persons who
may be placed at or transferred to Southbury Training School at
6 Although a class action is superior to any other available method for the fair and efficient adjudication of the controversy, the "superior method" criterion is not applicable to matters sought to be certified under Rule 23(b)(2) See Penland v. Warren County Jail. 797 F.2d 332, 334-35 (6th Cir. 1986). Also, because the plaintiff class requests to be certified under Rule 23(b)(2) the mandatory notice provision of Rule 23(c)(2) does not apply. See Frost v. Weinberger, 515 F.2d 57, 65 (2nd Cir. 1975), cert, denied. 424 U.S. 958 (1976).
24

some future date and all persons who have been transferred out of STS yet remain under the Director's custody and control.
INDIVIDUAL PLAINTIFFS AND PLAINTIFF, PEOPLE £IRST OF CONNECTICUT, INC.,
BY. David C. Shaw, Esq. 410 Asylum Street, Suite 610 Hartford, CT 06103 (203) 541-6167 Fed. No. ctO5239
PLAINTIFFS, ARC/CONNECTICUT AND WECAHR, B y 1M-)I<U-:j\(i
Frank Laski, Esq 246 Walnut Street, Suite 202 Newton, MA 02160
25

 
 UNITED STATES DISTRICT COURT ~ " ' -

DISTRICT OF CONNECTICUT ,' -. ? ,,

RICHARD MESSIER, et al.

:

L ;

" '' c^

v.

: No. 3:94~CV-1706; (EBB)

SOUTHBURY TRAINING SCHOOL,

et al.

:

RULING ON MOTION TO INTERVENE

Seven individual residents of Southbury Training School ("STS") , together with their parents and/or guardians, as well as the Home and School Association of STS and the STS Foundation, Inc. (collectively, the "proposed intervenors") move to intervene in the above-captioned matter. For the following reasons, the proposed intervenors' motion [Doc. No. 13] is denied.1

DISCUSSION

I. Intervention as of Right Under Federal Rule of Civil Procedure 24(a)(2), intervention
as of right is available, upon timely application, if:
the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the

1

The background and procedural history of this case, as

well as a discussion of the claims asserted by the plaintiffs,

are set forth in this Court's February 9, 1996, Ruling on

Defendants' Motion to Dismiss. Familiarity with this opinion is

presumed in the following discussion.

Messier v. Southbury Training Sch.

1

8/82^

* "™~

••

VH

mm H nil |

MR-CT-003-003

disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties. Fed. R. Civ. Proc. 24(a)(2). Precedents under Rule 24 have not, to date, clearly defined the type of interest that is required for intervention as of right. 7C Wright, Miller & Kane, Federal Practice and Procedure § 1908 (Civil 2d 1986). However, it is clear that the interest involved must be a "significantly protectable interest." Donaldson v. United Statesr 400 U.S. 517, 531 (1971). Once an applicant for intervention succeeds in showing the existence of such an interest, the applicant need only provide "minimal" proof that the interest may not be adequately represented by existing parties. Trbovich v. United Mine Workers of Am.. 404 U.S. 528, 538 n.10 (1972). The proposed intervenors assert three principal interests which they claim may be impaired or impeded by the instant litigation, and which they claim may not be adequately represented by the existing parties.2 However, as is discussed below, the Court disagrees with respect to each of the asserted interests.

2

The proposed intervenors in fact claim that they

possess six types of interests which may be adversely affected by

the instant litigation. Mem. in Supp. of Mot. to Intervene, at

6-8. However, three of these alleged interests are in fact

purely derivative of the other three claimed interests.

Specifically, the interests asserted in ff 3, 5 & 6 on pages

seven and eight of the proposed intervenors' brief are asserted

by parents and by the two proposed intervenor organizations, as

representatives of STS residents. Thus, these interests are

wholly derivative of the residents' rights asserted inflfl1-2 on

page six of the proposed intervenors' brief.

AO72A (Rev. 8/82)

1. Interest in Keeping Southbury Training School Open The gravamen of the proposed intervenors• motion is their
asserted "right not to be forced out of an institutional setting and into community settings against their wishes and against the judgments of their parents and guardians." Mem. in Supp. of Mot. to Intervene, at 6. In support of their contention that the instant litigation threatens such a harm, the proposed intervenors repeatedly assert that the plaintiffs "espouse a philosophy, and seek injunctive relief, mandating controversial social policies designed to close residential facilities such as STS and to place all residents of those facilities in community settings." Id.., at 11-12.
As an initial matter, the Court chooses not to speculate as to the parties' philosophies. Whereas the proposed intervenors may or may not be correct concerning the plaintiffs1 philosophy, the only relevant consideration is what effect the instant litigation may have on the proposed intervenors' rights or interests. In this connection, the Court is cognizant that the plaintiffs' complaint could be read as seeking slowly to shut down STS, by ending all new admissions and forcing transfers to community settings. See Complaint, at 29 (seeking to "[e]njoin defendants from admitting persons to [STS] or transferring persons from STS unless such transfer is to an integrated community home . . .") .
However, as discussed in this Court's recent ruling on the defendants' motion to dismiss, under prevailing precedent the
A O 72A (Rev. 8/82)

plaintiffs• complaint must be read as seeking to require STS to consider whether each resident is appropriate for community placement and to then act accordingly based upon such consideration. To the extent that plaintiffs' complaint instead sought to end all new admissions to STS, transfer all residents to community settings or otherwise shut down STS, this Court has effectively narrowed the complaint, as mandated by prevailing precedent, to exclude any such relief. See Ruling on Motion to Dismiss, February 9, 1996, at 13 (noting that "'there is no constitutional right to community placement,'" but that "a decision to keep a resident in an institutional rather than community setting is only constitutional to the extent that it is a 'rational decision based upon professional judgment'") (citation omitted).
Thus, the most that plaintiffs can accomplish is to require STS to conform with its constitutional duty to consider the appropriateness of community placement for each resident. In no way can the plaintiffs force STS to place in community settings those residents for whom community placement is inappropriate, or force the State of Connecticut to shut down STS. Therefore, the proposed intervenors' interest in keeping STS open cannot be impeded or impaired by the instant litigation.3

3

This Court concurs with the findings of Judge Wolf in

his ruling on an analogous Motion to Intervene in Healy v. Weld,

No. 94-11804-MLW (D. Mass. Nov. 23, 1994), a case involving the

Dever State School. Judge Wolf found that:

The [intervenors'] submission expresses [their]

4

A O 72A (Rev. 8/82)

2. Parents' and Guardians' Right to Participate in Decisions Concerning Community Placement The proposed intervenors also assert that the instant
litigation jeopardizes parents1 and guardians1 "right to participate in decisions concerning community placement of their children and wards." Mem.- in Supp. of Mot. to Intervene, at 7. Specifically, the proposed intervenors claim that these rights will be "usurped by 'independent' advisors whose agenda is to compel the placement of all STS residents in community settings." Id- The basis for the proposed intervenors' allegations is that portion of plaintiffs' complaint in which plaintiffs seek to "[ejnjoin the defendants to make available individual and independent advocates for each plaintiff and member of the plaintiff class to assist them in securing their rights." Complaint, at 30.
This Court has no knowledge as to whom the plaintiffs^ seek to have assigned as "independent advocates," or precisely what type of role plaintiffs expect such advocates to play. However, this Court is unaware of any authority under which plaintiffs may seek to have any party usurp the rights and duties held by parents and legal guardians. Thus, whatever role the plaintiffs
intention to argue the value of a centralized institution such as Dever as opposed to community-based placements for certain individuals, and the importance of Dever remaining open . . . [However,] [t]his court does not understand that it has been asked by plaintiffs to decide this policy question and, in any event, does not intend to do so. Healyf slip op. at 2-3.
AO72A (Rev. 8/82)

have in mind for the proposed independent advocates, such advocates, if appointed, certainly could not infringe upon the legal rights of parents and guardians.4
It is conceivable that STS professionals might determine that community placement is appropriate for a resident whose parent or guardian is opposed to such placement.5 Indeed, such a conflict could arise currently, even absent any relief awarded to the plaintiffs. If and when such a conflict arises, the parents or guardians involved have legal recourse to prevent unwanted community placement. See State of Connecticut Department of Mental Retardation, Admin. Directive No. 15 (Aug. 31, 1983) (setting forth parents1 and guardians' minimum notice and hearing rights with respect to proposed transfers of their children and wards). However, even if plaintiffs' requested relief might make such conflicts more likely to occur, an increase in likelihood of conflict would not infringe on any legally protectable right or interest held by parents or guardians. Rather, parents and guardians currently have, and will continue to have, such rights and duties as the law accords them. The mere fact that the plaintiffs' litigation could force STS to fulfill its

4

The court notes that decision-making concerning a

resident's future is not a zero-sum process. That is, adding a

further source of input need not detract from the rights and

duties of those persons who already have input, and indeed cannot

detract from the rights of parents and guardians.

5

Though, under the decision-making procedures proposed

by the plaintiffs, parents and guardians would be integrally

involved in all decisions. Complaint, at 26.

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constitutional obligation accurately to assess residents1 proper future course of treatment, thus potentially leading to an increase in occasions in which parents or guardians are at odds with medical professionals, in no way "impairs or impedes" parents1 and guardians' ability to protect their legal rights, if and when such conflicts arise.
3. Right to Supervision, Training and Adequate Care The proposed intervenors lastly assert that they "have long-
term needs for, and constitutional rights to, close supervision, training and adequate and safe care." Mem. in Supp. of Mot. to •Intervene, at 6. The proposed intervenors claim that these interests may be impaired or impeded by the instant litigation, and that the plaintiffs may not adequately represent these interests. This Court disagrees.
The proposed intervenors set forth two primary arguments as /
to why the plaintiffs may not adequately represent the residents' interests in remedying conditions at STS. First, the proposed intervenors argue that the plaintiff organizations in this case count among their members relatively few STS residents, as ? compared to the intervenor organizations. Similarly, whereas the plaintiff organizations are statewide or regional organizations, the intervenor organizations focus specifically on STS. However, the Court finds no evidence that these differences make one group of organizations more qualified than the other to raise
AO72A (Rev. 8/82)

constitutional challenges to conditions at STS.6

Second, the proposed intervenors argue that the plaintiffs

may not be able adequately to challenge conditions at STS because

they actually seek to have STS shut down. This argument is premised upon a reading of the plaintiffs1 complaint with which

this Court does not concur. As discussed previously, rather than

reading the plaintiffs1 complaint as seeking closure of STS, this

Court necessarily reads the plaintiffs' complaint as seeking

equal consideration of all STS residents for community placement,

regardless of their level of disability. Moreover, plaintiffs'

complaint additionally and with equal force seeks improved

conditions at STS, and the Court finds no evidence whatsoever

that this aspect of plaintiffs' challenge is being pursued in an

inadequate manner. Thus, the proposed intervenors have failed to

make even a "minimal" showing of potentially inadequate

representation. Trbovichr 404 U.S. at 538 n.10.

,—

6

It is impossible for this Court abstractly to weigh the

importance of the intervenors1 specific focus on STS on the one

hand with the plaintiffs' breadth of experience from cases

involving other institutions on the other hand. However, in

examining the actual practices followed by plaintiffs in the

instant case, the Court finds no evidence of inadequate

representation.

8

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II. Permissive Intervention Under Rule 24(b)(2), permissive intervention may be
available, upon timely application, if "an applicant's claim or defense and the main action have a question of law or fact in common." Fed. R. Civ. Proc. 24(b)(2). It is discretionary with the court whether to allow such intervention. 7C Wright, Miller & Kane, Federal Practice and Procedure, § 1911 (Civil 2d 1986).
In the instant case, the defense that the proposed intervenors seek to assert against plaintiffs' actions, as well as the cross-claims that the proposed intervenors seek to bring against STS, are clearly related in both law and fact to the existing action. However, the circumstances of this case counsel against allowing permissive intervention.
First, as discussed previously, the proposed intervenors understand the instant litigation to seek closure of STS, an understanding which this Court does not share, and, indeed, believes to be impossible under the law. It would be unduly burdensome upon all parties, and, ultimately, wasteful of resources for this Court to grant the proposed intervenors' motion, only later to dismiss the proposed intervenors' defense as irrelevant given the limited scope of the questions at issue in this case.
Second, the Court finds the proposed intervenors' crossclaims to be so duplicative of the plaintiffs' claims as to counsel further against allowing intervention. Indeed, if allowed to intervene, the proposed intervenors would seek to
AO72A
(Rev. 8/82)

represent the same residents as plaintiffs seek to represent, and to bring substantially similar claims concerning conditions at STS. Whereas the proposed intervenors are free to file amicus curiae briefs with the Court, in the absence of inadequate representation by the plaintiffs the Court sees no rationale for allowing intervention.
SUMMARY For the foregoing reasons, the proposed intervenors1 motion [Doc. No. 13] is denied.
SO ORDERED.
ESLLILEN BREE BURNS, SENIOR JUDGE UNITED STATES DISTRICT COURT
£5
Dated at New Haven, Connecticut, this (£> day of March, 1996.
10
AO72A (Rev. 8/82)

 
 UNITED STATES DISTRICT COURT ' "~;'

v)J.J T

.•:..••-,

DISTRICT OF CONNECTICUT

" • - •••U vJ

RICHARD MESSIER, et al.

:

:.. .

,

V.

: No. 3:94-CV-1706 (EBB)

SOUTHBURY TRAINING SCHOOL, et al. :

RULING ON MOTION TO DISMISS BY DEFENDANTS DPHAS AND DSS
Plaintiffs, three advocacy organizations and seven individual residents or former residents of Southbury Training School ("STS"), bring this class action for injunctive relief against defendants STS, Connecticut Department of Mental Retardation ("DMR"), Department of Public Health and Addiction Services ("DPHAS") and Department of Social Services ("DSS") . Plaintiffs allege violations of the Due Process Clause of the Fourteenth Amendment, Section 504 of the Rehabilitation Act of 1973 ("Section 504"), the Americans with Disabilities Act (the "ADA") and the Social Security Act. This Court denied a motion to dismiss by defendants DMR and STS (the "DMR defendants") on February 9, 1996, and granted plaintiffs' motion for class certification on July 8, 1996. Defendants DPHAS and DSS now move to dismiss all claims against them for failure to state a claim upon which relief may be granted. For the following reasons, defendants' motion [Doc. No. 82] is denied.1

AO72A (Rev. 8/1

1

The following discussion presumes familiarity with the

background and procedural history of this case, as well as with

this Court's rulings of February 9, 1996, and July 8, 1996.

1
Messier v. Southbury Training Sch.

MR-CT-003-004

DISCUSSION A motion to dismiss under Fed. R. Civ. P. 12(b)(6) should be granted only if "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spaldingr 467 U.S. 69, 73 (1984). "The function of a motion to dismiss 'is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.1" Ryder gnergy Distrib. Corp. v. Merrill Lynch Commodities,. Inc.r 748 F.2d 774, 779 (2d Cir. 1984) (quoting Geisler v. Petrocellir 616 F.2d 636, 639 (2d cir. 1980)). In considering a motion to dismiss, a court must presume all factual allegations of the complaint to be true and must draw any reasonable inferences in favor of the non-moving party. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Defendants assert five primary arguments in support of their motion to dismiss. First, defendants claim that DPHAS owes no substantive due process duty to plaintiffs, because DPHAS has no custodial role with respect to plaintiffs. Second, defendants state that DPHAS cannot be found to have violated procedural due process in relation to the issuance of DNR orders at private hospitals, because no state action is involved in such issuance. Third, defendants argue that even if state action can be found with respect to the issuance of DNR orders at private hospitals, DMR clients at such hospitals are afforded sufficient protections by existing procedural safeguards. Fourth, defendants assert
AO72A (Rev. 8/82)

that plaintiffs cannot establish a legally tenable theorysupporting their claims relating to community placement, and that, in any case, DPHAS and DSS play no role in making placement determinations. Finally, defendants claim that plaintiffs have no right to sue under 42 U.S.C. § 1983 ("Section 1983") for DSS1 alleged failure to take "corrective action" to cure deficiencies, as required by federal regulations under the Social Security Act.
I. Substantive Due Process Defendants assert that no claim for violation of substantive
due process rights may be brought by plaintiffs against DPHAS, because DMR is the sole state agency retaining custody over plaintiffs, even when plaintiffs are taken away from DMR facilities for treatment at community medical centers. In support of this contention, defendants rely on Deshaney v. Winnebago County Dep't of Social Servs•. 489 U.S. 189 (1989), in which the Supreme Court found that a state's failure to protect an individual against private violence does not generally violate the Due Process Clause. Id. at 197. Specifically, the Court found that no violation may be found unless a state has custody of the individual, is in an analogous "special relationship" with the individual, or has created the danger facing the individual. Id. at 197-98, 201 n.9. The Deshaney Court explicitly distinguished the Court's earlier decisions in Estelle v. Gamblef 429 U.S. 97 (1976) and Youngbera v. Romeo. 457 U.S. 307 (1982), which establish that state prisoners and mentally retarded

residents of state institutions may sue for substantive due process violations.
The instant case falls squarely under Youngbergr as there is no dispute that the state has custody of plaintiffs. In urging this Court to distinguish among the various state agencies whose actions or inactions impact on care of plaintiffs, defendants assert a novel argument. Indeed, the parties have not cited, nor has this Court found, any other case in which such an argument has been made. In the below discussion, the Court analyzes the merits of defendants' novel attempt to extend Deshaney.
In explaining the rationale underlying Deshaney, the Supreme Court aptly explained the basis for the Estelle - Youngberg doctrine:
[W]hen the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs . . . it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause. 489 U.S. at 200. The above rationale clearly applies to plaintiffs in the instant case. The true question, however, concerns whether the phrase "custodial state agency" should properly be substituted for "State" in the above formulation, as defendants suggest. In the absence of precedent directly on point, reasoning by analogy is necessary. In this connection, the Court first takes note of the well-settled rule that an individual's substantive due process rights do not disappear merely based upon a change in

that individual's residence status. See, e.gT, Thomas S. v. Morrow. 781 F.2d 367, 374 (4th Cir.) fYounabera does not suggest that an incompetent person sheds the basic liberty interests that the Court identified when state officials and his guardian move him from one facility to another."), cert, denied, 476 U.S. 1124 (1986); Camp v. Gregoryf 67 F.3d 1286, 1293 (7th Cir. 1995) (holding that children retain substantive due process rights when the state places them with a private agency or foster family), cert, deniedf 116 U.S. 2498 (1996); Norfleet v. Arkansas Dep't of Human Servs., 989 F.2d 289, 291-93 (8th Cir. 1993) (same); Yvonne L. by & through Lewis v. New Mexico Dep't of Human Servs., 959 F.2d 883, 291-92 (10th Cir. 1992) (same); Meador v. Cabinet for Human Services, 902 F.2d 474, 476 (6th Cir.) (same), cert, deniedf 498 U.S. 867 (1990); Taylor by & through Walker v. Ledbetter. 818 F.2d 791, 794-95 (11th Cir. 1987) (same), cert, denied. 489 U.S. 1065 (1989); Doe v. New York City Dep't of Social Servs.f 649 F.2d 134 (2d Cir. 1981) (same), cert, denied, 464 U.S. 864 (1983).
The above-cited cases also clearly indicate that when a state has custody of an individual, the individual may sue under the Due Process Clause based upon inaction by the state, even when the ultimate harm alleged occurred at the hands of private actors.2 Thus, whereas defendants in the instant case assert
2 The extent of this principle is aptly illustrated by the recent case of Wana v. Renor 81 F.3d 808 (9th Cir. 1996). In Hang, the Ninth Circuit held that the federal government entered into a special custodial relationship with the plaintiff by
AO 72A

that plaintiffs complain of a privately-inflicted harm, it is

clear that a state acting in a custodial relationship can be sued for failing to prevent privately-inflicted harms.3

Most significantly, the Court notes that a state may not

avoid its constitutional obligations merely by contracting out

caretaking functions. West v. Atkins, 487 U.S. 42, 55-56 & n.14

(1988). Similarly, this Court cannot fathom that a state can

avoid constitutional obligations by splitting up functions among

state agencies, and then asserting that only the agency given

"custody" is subject to the Constitution.4

^

In the instant case, it may be that DMR is solely able to

effect the changes that plaintiffs seek with respect to issuance

of DNR orders. If so, then DPHAS is not a proper defendant in

this aspect of the litigation. Based upon plaintiff's

paroling him into the United States to testify at a drug conspiracy trial, and that the Due Process Clause therefore requires the government to protect him from harms which may be inflicted by the Chinese government upon his return, in retaliation for his testimony. 81 F.3d at 818-19.

3

Counsel for defendants suggested at oral argument that

if the instant plaintiffs may maintain their substantive due

process claim, then any private hospital patient alleging that he

or she has been mistreated may sue DPHAS for relief. However,

such a private patient, if hot in state custody, clearly cannot

sue based upon substantive due process.

4

The Court does not suggest that Connecticut has sought

to effect such a result. Indeed, the state's division of

authority may be entirely logical and appropriate. However, the

Court is acutely aware that a contrary ruling on the issue in

question might allow a state to assign different agencies

responsibility for clothing, feeding, sheltering or training

residents, while claiming that only a single custodial agency

could be sued for constitutional violations.

AO72A (Rev. 8/82)

allegations, however, it appears that, should plaintiffs in fact have a right to the relief that they seek, DPHAS's participation would be necessary to provide such relief. If so, then DPHAS does in fact have at least a marginal caretaking role with respect to plaintiffs, and is therefore not immune to suit under the Constitution.
In sum, the instant case is one in which the state not only has custody of plaintiffs, but has allegedly placed them at risk by taking them to private medical facilities and failing to require such facilities to afford plaintiffs sufficient safeguards prior to the issuance of DNR orders. To the extent that DPHAS' inaction may combine with DMR's affirmative actions and inaction to create this alleged harm, the Court finds that DPHAS may properly be sued under the Due Process Clause.
II. Procedural Due Process A. State Action
Defendants assert that plaintiffs may not pursue a procedural due process claim, because decisions by private physicians at community medical facilities do not constitute state action. In support of this contention, defendants rely primarily on Blum v. Yaretsky, 457 U.S. 991 (1982), in which the Supreme Court held that decisions by private nursing homes to transfer or discharge patients do not constitute state action, even though the state responds to such decisions by adjusting the patients' Medicaid benefits.
AO72A (Rev. 8/82)

Plaintiffs in Blum challenged the specific transfers and discharges, not the state's response thereto. 457 U.S. at 1005. In the instant case, however, plaintiffs do not challenge the specific decisions of private physicians to issue DNR orders. To the contrary, plaintiffs challenge the state's decision to place plaintiffs in medical facilities wherein there exists a risk of issuance of DNR orders absent certain safeguards, as well as the State's alleged failure to insist that such safeguards be implemented. Thus, there is no need to undertake a Blum analysis as to whether state action exists, as there is no question that the state is responsible for determining where plaintiffs receive medical treatment, nor is there any question that the state, acting in either its custodial or regulatory capacity, has the authority to require further safeguards.5

B. Adequacy of Existing Safeguards Defendants further claim that even if state action can be
found with respect to the issuance of DNR orders at private hospitals, DMR clients at such hospitals are afforded sufficient protections by existing procedural safeguards. In support of this argument, defendants point to various state and federal laws and regulations designed to assure that patients' wishes regarding medical care are honored. It is certainly possible

5

Conn. Gen. Stat. § 17a-238(g) indicates that DMR,

acting in its custodial role, may require certain safeguards

prior to the issuance of DNR orders with respect to its clients

who are treated at private medical facilities.

8

AO72A (Rev. 8/82)

that, upon summary judgment or at trial, defendants will be able to succeed in showing that existing safeguards provide sufficient protections such that plaintiffs cannot show any constitutional violation. However, for the purposes of the instant motion to dismiss, this Court must accept as true all facts alleged in plaintiffs1 complaint. Plaintiffs allege that DNR orders "are imposed as a matter of course on many STS residents who are admitted to community medical facilities for treatment." Second Am. Compl. 5 72. Thus, for the purposes of this ruling, the Court presumes that plaintiffs will be able to show that existing safeguards are, in fact, inadequate.6

III. Claims Relating to Community Placement Defendants assert that it is inappropriate to apply the
Younabera professional judgment standard to decisions concerning community placement, and, therefore, that plaintiffs cannot establish a legally tenable theory supporting their claims relating to community placement. This Court has already addressed these arguments in its Ruling on DMR Defendants• Motion to Dismiss of February 9, 1996, and in its Ruling on Plaintiffs1 Motion for Class Certification of July 8, 1996. As discussed in

6

The Court notes with some consternation that the

parties have failed to discuss the import of DMR's Revised

Protocol for Review of DNR Orders, dated March 27, 1996. Indeed,

the Court became aware of this policy only incidentally.

However, a copy of the policy has now been docketed in this case,

and the Court intends to consider at future stages of litigation

the extent to which the policy affords to plaintiffs all the

process that is due.

AO72A (Rev. 8/82)

those rulings, this Court disagrees with defendants' view of the law.7
IV. Right to Sue For Violations of the Social Security Act A. Analytic Framework
This Court has previously explained the current state of the analytic framework applicable to determinations as to whether a plaintiff may sue under Section 1983 for violations of a federal statute. See Ruling on DMR Defendants' Motion to Dismiss, Feb. 9, 1996, at 19-2 6. The framework outlined in this Court's previous ruling is summarized below.
Section 1983 generally provides a cause of action for violations of federal statutes by state and local governmental units, Maine v. Thiboutotf 448 U.S. 1, 4 (1980), unless a given action falls into one of two exceptions: (1) cases in which the statute in question does not create an enforceable "right, privilege or immunity"; and (2) cases in which such a right exists but Congress has foreclosed enforcement of the right under Section 1983. Wright v. Roanoke Redevelopment & Housing Auth.f

7

Of course, plaintiffs' claims relating to community

placement are not brought against DSS and DPHAS, except to the

extent that 42 U.S.C. § 1396a(a)(31) and 42 C.F.R. § 456.609

require inspection teams to determine whether it is "necessary

and desirable" that ICF/MR residents' remain in their current

placement, and whether it is feasible to meet their needs through

"alternative institutional or noninstitutional services." 42

C.F.R. § 456.609. In this respect, community placement issues

arise to some degree in relation to plaintiffs' claims concerning

inadequate inspections and lack of "corrective action" by DSS in

response to such inspections. These claims are addressed below.

10

AO72A

479 U.S. 418, 423 (1987). Under the first exception, the Supreme Court has held that
no enforceable right exists if: the statutory provision in question was not intended to benefit the putative plaintiffs; the provision reflects merely a "congressional preference" rather than a "binding obligation"; or the plaintiffs1 interest is "too vague and amorphous" such that it is "beyond the competence of the judiciary to enforce." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 509 (1990) (citation omitted). Moreover, in light of Suter v. Artist M.f 503 U.S. 347 (1992) and its progeny, courts should strictly enforce the requirement that statutory language must be definite and specific in order to confer an enforceable right. See Marshall v. Swifcserf 10 F.3d 925, 929 (2d Cir. 1993) (holding that Suter requires definite and specific statutory language in order for an alleged violation to be actionable); Chan v. City of New York, 1 F.3d 96, 104 (2d Cir.) (same), cert, denied. 510 U.S. 978 (1993).8
With respect to the second exception, courts "[should] not lightly conclude that Congress intended to preclude reliance on § 1983 as a remedy for the deprivation of a federally secured right." Wilder, 496 U.S. at 520 (citations omitted). Thus, defendants have the burden of showing "by express provision or other specific evidence from the statute itself that Congress
8 As noted in this Court's prior decision, this aspect of Suter survives Congress's attempt to curtail the impact of Suter by passing Pub. L. No. 103-382, 108 Stat. 4057 (codified at 42 U.S.C. § 1320a-2).
11
AO72A (Rev. 8/82)

AO72A

intended to foreclose such private enforcement." Id. at 520-21
(citation omitted). In the absence of an express provision,
private enforcement may only be deemed to be foreclosed if the
statute itself creates a remedial scheme that is "'sufficiently
comprehensive . . . to demonstrate congressional intent to
preclude the remedy of suits under § 1983.•" Id. at 521 (quoting
Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n,
453 U.S. 1, 20 (1981)).
B. Statutory Scheme
The Social Security Act requires that every state
participating in Medicaid must provide in its state plan, with
respect to each intermediate care facility for the mentally
retarded ("ICF/MR") :
(A) with respect to each patient . . . for a regular " program of independent professional review (including medical evaluation) which shall periodically review his need for [] services.
(B) with respect to each [ICF/MR] within the State, for periodic onsite inspections of the care being provided to each person receiving medical assistance, by one or more independent professional review teams (composed of a physician or registered nurse and other appropriate health and social service personnel), including with respect to each such person (i) the adequacy of the services available to meet his current health needs and promote his maximum physical well-being, (ii) the necessity and desirability of his continued placement in the facility, and (iii) the feasibility of meeting his health care needs through alternative institutional or noninstitutional services; and
(C) for full reports to the State agency by each independent professional review team of the findings of each inspection under subparagraph (B), together with any recommendations.
12

42 U.S.C. § 1396a(a) (31) . Pursuant to the statute, HHS has promulgated extensive
regulations governing such "individual review" ("IR") inspections. These regulations set forth specific requirements as to the makeup of the inspection team, 42 C.F.R. §§ 456.602-456.604; provide that inspections of each facility must be conducted at least annually, 42 C.F.R. § 456.606; provide that no facility may be notified of an inspection more than 48 hours prior to the inspection, 42 C.F.R. § 456.607; and require inspection teams to have personal contact with each ICF/MR resident and to personally review each patient's record, 42 C.F.R. § 456.608. In addition, the regulations provide that:
The team must determine in its inspection whether — (a) The services available in the facility are adequate to —
(1) Meet the health needs [] and the rehabilitative and social needs of each recipient in an ICF; and (2) Promote his maximum physical, mental and . psychological functioning. (b) It is necessary and desirable for the recipient to remain in the facility; (c) It is feasible to meet the recipient's health needs [and] rehabilitative needs through alternative institutional or noninstitutional services; and (d) Each recipient . . . is receiving active treatment as defined in § 441.154 of this subchapter. 42 C.F.R. § 456.609. In making the above-described determinations, the regulations state that an inspection team may consider patients'
13
AO72A

medical, social and psychological evaluations and plans of care; the frequency with which attending physicians review prescribed medications; the frequency with which residents are tested and observed; the consistency with which notes are recorded concerning patients; patients' cleanliness, bedsores, malnutrition, dehydration or absence thereof; residents' maintenance of physical, mental and psychosocial function; the extent to which a planned program of activities to prevent regression is implemented and the extent to which there is progress toward stated objectives; whether a resident needs any service that is not being furnished; and whether a resident requires continued placement in the ICF/MR or there exists a plan to transfer the resident elsewhere. 42 C.F.R. § 456.10.
The inspection team must promptly submit a report, 42 C.F.R. § 456.11, and DSS must then "take corrective action as needed based on the report and recommendations of the team." 42 C.F.R. § 456.13. Although the term "corrective action" is not defined under 42 C.F.R. § 456, the meaning of the term is explicated by other statutory and regulatory provisions. Specifically, 42 U.S.C. § 1396a provides in relevant part:
(i) Termination of certification for participation of and suspension of state payments to [ICF/MR units]. (1) In addition to any other authority under State
law, where a State determines that [an ICF/MR] which is certified for participation under its plan no longer substantially meets the requirements for such a facility under this subchapter and further determines that the facility's deficiencies —
(A) immediately jeopardize the health
14
AO72A (Rev. 8/82)

and safety of its patients, the State shall provide for the termination of the facility's certification for participation under the plan and may provide, or
(B) do not immediately jeopardize the health and safety of its patients, the State may, in lieu of providing for terminating the facility's certification under the plan, provide
that no payment will be made under the State plan with respect to any individual admitted to such facility after a date specified by the State.
(2) The State shall not make such a decision with respect to a facility until the facility has had..a. reasonable opportunity [] to correct its deficiencies [and] reasonable notice and opportunity for a hearing.
(3) The State's decision to deny payment may be made effective only after such notice to the public and to the facility . . .
42 U.S.C. § 1396a(i). Pursuant to this statutory provision, 42
C.F.R. §§ 442.117 - 442.119 provide as follows:
§ 442.117 Termination of certification for ICFs/MR whose deficiencies pose immediate jeopardy.
(a) A survey agency must terminate a facility's certification if it determines that —
(1) The facility no longer meets conditions of participation for ICFs/MR as specified in subpart I of part 483 of this chapter[; and]
(2) The facility's deficiencies pose immediate jeopardy to residents' health and safety.
(b) Subsequent to a certification of a facility's noncompliance, the Medicaid agency must, in terminating the provider agreement, follow the appeals process specified in part 431, subpart D of this chapter.
15
AO72A

AC 7?A

§ 442.118 Denial of payments for new admissions to an ICF/MR
(a) Basis for denial of payments. The Medicaid agency may deny payment for new admissions to an ICF/MR that no longer meets the applicable conditions of participation [in 42 C.F.R. § 483 et seq.].
(b) Agency procedures. Before denying payments for new admissions, the Medicaid agency must comply with the following requirements:
(1) Provide the facility up to 60 days to correct the cited deficiencies and comply with conditions of participation for ICFs/MR.
(2) If at the end of the specified period the facility has not achieved compliance, give the facility notice of intent to deny payment for new admissions, and opportunity for an informal hearing.
(3) If the facility requests a hearing, provide an informal hearing that includes —
(i) The opportunity for the facility to present, before a State Medicaid official who was not involved in making the initial determination, evidence or documentation, in writing or in person, to refute the decision that the facility is out of compliance with the conditions of participation for ICFs/MR.
(ii) A written decision setting forth the factual and legal bases pertinent to a resolution of the dispute.
(4) If the decision of the informal hearing is to deny payments for new admissions, provide the facility and the public, at least 15 days before the effective date of the sanction, with a notice that includes the effective date and the reasons for the denial of payments.
16

AO72A

§ 442.119 Duration of denial of payments and subsequent termination of an ICF/KR.
(a) Period of denial. The denial of payments for new admissions will continue for 11 months after the month it was imposed unless, before the end of that period, the Medicaid agency finds that —
(1) The facility has corrected the deficiencies or is making a good faith effort to achieve compliance with the conditions of participation for ICFs/MR; or
(2) The deficiencies are such that it is necessary to terminate the facility's provider agreement.
(b) Subsequent termination. The Medicaid agency must terminate a facility's provider agreement —
(1) Upon the agency's finding that the facility has been unable to achieve compliance with the conditions of participation for ICFs/MR during the period that payments for new admissions have been denied;
(2) Effective the day following the last day of the denial of payments period; and
(3) In accordance with the procedures for appeal of terminations set forth in subpart D of part 431 of this chapter.
42 C.F.R. §§ 442.117 - 442.119. Moreover, as may be inferred
from the above regulations, 42 C.F.R. §§ 431.151 - 431.154 set
forth extensive appeal procedures which a state must follow in
the course of terminating ICF/MR provider agreements.
C. Analysis
Plaintiffs contend that DSS has failed to carry out its duty
to take corrective action as set forth by the statutory scheme,
and plaintiffs seek relief for such violations under Section
17

1983. Defendants, while not admitting that any violations have occurred, challenge plaintiffs1 right to sue under Section 1983 for DSS' alleged failure to take corrective action.9 Defendants admit that plaintiffs possess a right to sue for alleged violations of DSS1 duty to carry out IR inspections.10
Defendants assert that DSS' duty to take "corrective action" falls into the first Wilder exception. This Court disagrees. First, the Court finds that those plaintiffs who are ICF/MR residents are the intended beneficiaries of the "corrective action" requirement, gilder, 496 U.S. at 509. Second, the statutory scheme clearly imposes a binding obligation upon participating states, rather than merely stating a congressional

9

The Court concurs with plaintiffs that the Second

Circuit's decision in Hillburn v. Maherf 795 F.2d 252 (2d Cir.

1986), cert, denied, 479 U.S. 1046 (1987) substantially supports

the right of plaintiffs to sue for violations of 42 C.F.R.

§ 456.613. In Hillburn, the appellate court upheld the district

court's injunction, in which the district court had relied on the

"corrective action" clause of Section 456.613 to require the

Connecticut Department of Income Maintenance (now DSS) to consult

with officials at skilled nursing facilities (SNFs) found to have

deficiencies, and to terminate provider agreements of SNFs unable

to cure the deficiencies after consultation. 795 F.2d at 260-61.

However, because Hillburn was decided prior to Wilder and Suter,

and neither the district court nor the appellate court directly

addressed plaintiffs' right to sue, this Court does not find

Hillburn to be entirely dispositive. The Court therefore

undertakes the following analysis of plaintiffs' right to sue.

10 Although defendants assert only that the statutory scheme "at best [confers] a right upon plaintiffs to have the subject inspections take place," Mem. Supp. Mot. Dismiss at 35, defendants make no arguments explicitly or implicitly tending to show that a right to sue for inspections does not exist. Moreover, this Court finds that the statutory and regulatory provisions setting forth the inspection requirements easily satisfy the requirements of Wilder and Suter.

18

AO72A (Rev. 8/82)

preference. Wilder. 496 U.S. at 509. SS& 42 C.F.R. § 456.613
("The agency must take corrective action . . .") .
Third, even if the corrective action provision is viewed
through the strict lens of Suter, it is not "too vague and
amorphous" such that it would be "beyond the competence of the
judiciary to enforce." Wilder, 496 U.S. at 509. Defendants
assert that the term "corrective action" is in fact too vague for
the judiciary to enforce, because it is not explained under 42
C.F.R. § 456.613. However, as set forth above, the statutory
scheme as a whole leaves little doubt as to the meaning of
corrective action. Most significantly, the scheme requires DSS
to terminate a facility's provider agreement upon a finding of
deficiencies, such as those alleged by plaintiffs in the instant
case, which jeopardize the health and safety of ICF/MR residents.n
Defendants point to an opinion by a federal district court
11 The statutory scheme gives DSS some discretion as to whether to deny payment for new admissions upon a finding of lesser deficiencies. See 42 C.F.R. § 442.118 ("The Medicaid agency may deny payment for new admissions . . .") . However, the obligatory language of the corrective action provision clearly indicates that DSS is required to take some enforcement action, up to and including denial of payments for new admissions, in response to less serious deficiencies. If this Court were to determine that deficiencies exist but are not so serious as to jeopardize the health and safety of ICF/MR residents, and that DSS has taken some corrective action in response to such lesser deficiencies, then the Court might very well determine that plaintiffs cannot require denial of payments for new admissions. However, recognition of this small amount of discretion in no way renders the corrective action provision too vague for judicial enforcement, particularly in a case in which plaintiffs allege deficiencies which threaten the health and safety of residents.
19
AO72A (Rev. 8/82)

AO72A

in the Southern District of Ohio, Martin v. Voinovichf 840 F.
Supp. 1175 (S.D. Ohio 1993). In that decision, apparently the
only one by any court directly considering whether plaintiffs may
sue under Section 1983 for violation of 42 C.F.R. § 456.613, the
district court found that:
Section 456.613 does not explain the meaning of "take corrective action," and there is no guidance as to the meaning of the phrase elsewhere in the code or statute. It does not explain, for instance, whether taking corrective action means the State agency must adopt to the letter every recommendation made by the team, or whether the agency is merely required to consider the team's recommendation in deciding what action to take. [] This provision also fails to give guidance as to when the corrective action must occur. Must it occur immediately, or may the State devise a long term plan of corrective action based on its limited resources? Plaintiffs do not have a claim under this provision because it offers no guidance on these basic questions.
840 F. Supp. at 1196-97. However, the district court failed to
consider the extensive regulations discussed above governing the
corrective actions that a Medicaid agency is required to and
permitted to take. For this reason, this Court disagrees with
the finding of the Voinovich court. As discussed previously, the
statutory scheme affords this Court a substantial basis for
determining whether DSS has satisfied its legal duty to take
corrective action, particularly given that plaintiffs allege
deficiencies which endanger the health and safety of ICF/MR
residents.12
12 The regulations setting forth DSS's duties and powers to take corrective action fall under 42 C.F.R. § 442, which relates to certification of ICFs/MR. In Connecticut, such certification is typically conducted via facility inspections by DPHAS. These facility inspections are separate and distinct from
20

AO72A

Having found that each of the three elements set forth under
the first Wilder exception points toward finding an enforceable
right to sue, the Court lastly examines the second exception set
forth under Wilder — whether Congress has foreclosed enforcement
of the right under Section 1983. As noted previously, a court
may only conclude -that Congress has intended to preclude suit
under Section 1983 if the statute in question either includes an
express provision to that effect or creates a remedial scheme
sufficiently comprehensive so as to indicate Congress's intent.
Wilder. 496 U.S. at 520-21.
In the instant case, the provisions of the Social Security
Act at issue contain no express provision foreclosing suit and
provide no remedial scheme by which ICF/MR residents may petition
to obtain greater services or to force a Medicaid agency to take
corrective action to cure deficiencies. Indeed, the only
remedial measure established by the statutory scheme, other than
those at issue in this case, is withdrawal of funding by HHS for
the IR inspections conducted by DSS. It is unclear to the Court whether plaintiffs assert violations by DPHAS of its facility inspection duties. Indeed, the State itself, in its briefs, conflated the IR inspection process with the facility inspection process, finally clarifying the distinction at oral argument. If plaintiffs in fact assert violations of DPHAS1 inspection duties in addition to DSS' inspection duties, then plaintiffs must promptly seek to amend their complaint to reflect this distinction. However, whether or not plaintiffs assert such violations by DPHAS, the statutory scheme clearly requires DSS to take the corrective actions outlined in 42 U.S.C. § 1396a(i) and 42 C.F.R. §§ 442.117 - 442.119 upon a finding of deficiencies found pursuant to either DPHAS1 facility inspections ox DSS's IR inspections. See § 1396a(i) (establishing corrective mechanisms applicable "where a State determines that [an ICF/MR] no longer substantially meets the requirements for such a facility") .
21

non-compliance with program conditions. 42 u.S.C. § 1396i(b). In Wilder, the Supreme Court found that an analogous remedial measure authorizing HHS to withdraw funds for non-compliance in no way indicated Congressional intent to foreclose suit under Section 1983. 496 U.S. at 521-22.
Thus, neither of the exceptions set forth under Wilder are applicable in the instant case, meaning that plaintiffs may validly sue under Section 198 3 for alleged violations of a Medicaid agency's failure to take corrective action upon a finding of deficiencies in ICF/MR units. Presuming the facts alleged in plaintiffs' complaint to be true, plaintiffs' Section 1983 action clearly states a claim upon which relief can be granted.

SUMMARY For the foregoing reasons, defendants' Motion to Dismiss [Doc. No. 82] is denied.

SO ORDERED.

*'

ELLEN BREE BURNS, SENIOR JUDGE UNITED STATES DISTRICT COURT
ft
Dated at New Haven, Connecticut, this */"day of September, 1996,
22
AO72A 'Rev fl/8?i

 
 916 F.Supp. 133 (1996)
Richard MESSIER, et al. v.
SOUTHBURY TRAINING SCHOOL, et al.
No. 3:94-CV-1706 (EBB).
United States District Court, D. Connecticut.
February 7, 1996.
1345 *134 *135 David Shaw, Hartford, CT, for Plaintiffs.
James P. Walsh, Attorney General's Office, Education/Department of Mental Retardation Department, Hartford, CT, for Defendant, Southbury Training School.
Richard T. Lynch, Henry A. Salton, Attorney General's Office, Health & Human Services, Hartford, CT, for Defendant, Patricia Giardi, Commissioner, Connecticut Department of Social Services.
David Paul Friedman, Frank J. Silvestri, Jr., Zeldes, Needle & Cooper, Bridgeport, CT, for Defendant, Home and School Association of Southbury Training School.
RULING ON MOTION TO DISMISS BY DEFENDANTS SOUTHBURY TRAINING SCHOOL, TONI RICHARDSON & THOMAS HOWLEY
BURNS, Senior District Judge.
Plaintiffs bring this action for injunctive relief against defendants Southbury Training School ("STS") and various state officials, alleging violations of the Due Process Clause of the Fourteenth Amendment, Section 504 of the 136 Rehabilitation Act of 1973 ("Section *136 504"), the Americans with Disabilities Act ("ADA") and 42 U.S.C. § 1983 ("Section 1983"). Three named defendants 0907 STS, Commissioner of Mental Retardation Toni Richardson and STS Director Thomas Howley 0907 have moved to dismiss on the grounds that plaintiffs' claims are barred under the doctrine of res judicata, and on the further grounds that plaintiffs have failed to state a claim upon which relief may be granted. For the following reasons, the defendants' motion [Doc. No. 20] is denied.
BACKGROUND
In 1986, the United States Department of Justice filed suit against the State of Connecticut under the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997 et seq. The Justice Department suit under CRIPA, United States v. Connecticut, No. N-86-252 (EBB), sought to remedy allegedly unconstitutional conditions at STS, which is an institution for persons with mental retardation operated by the Connecticut Department of Mental Retardation. In the wake of this litigation, the Justice Department and the State of Connecticut negotiated a Consent Decree which provided for a comprehensive remedial plan to ameliorate conditions at STS. This Court approved the Consent Decree on December 22, 1986.
Prior to approval of the Consent Decree, the Association for Retarded Citizens of Connecticut (ARCC) and six STS residents filed a Motion to Intervene in United States v. Connecticut. The proposed intervenors alleged, inter alia, that they had not been permitted to participate in negotiating the Consent Decree; that the terms of the Consent Decree would be inadequate to remedy conditions at STS; that the Consent Decree failed to adequately address the residents' right to be considered for community placement; and that the Consent Decree failed to require STS to provide such training to residents as is necessary to preserve the basic self-care skills that they possess when they enter STS. This Court denied the proposed intervenors' Motion to Intervene, on the grounds

that the proposed intervenors were not prejudiced by the suit brought by the Justice Department and remained free to file their own lawsuits against STS. Ruling on Pending Motions, Dec. 22, 1986.
In 1990 and 1991, this Court approved two additional Consent Orders, which were negotiated in response to continuing deficiencies found by Justice Department monitoring of STS. In November 1993, Justice Department medical experts and attorneys undertook further investigation of conditions at STS, and found severe deficiencies in care and treatment of residents. These alleged deficiencies include a systemic failure to provide residents with adequate medical care and physical therapy, as well as a near complete absence of behavioral program implementation. The Justice Department indicated its intent to pursue a further enforcement action against STS unless an agreement could be reached as to appropriate remedial steps.
In response to the Justice Department's findings, the Connecticut Department of Mental Retardation retained outside consultants to assess conditions at STS. These consultants largely concurred with the findings of the Justice Department, while also noting progress being made by STS in several areas.
The Justice Department and the State failed to reach an agreement concerning further remedial steps, and the Justice Department sought an order to show cause why the State should not be held in civil contempt. This Court held a hearing on the Justice Department's motion, which is currently pending.
The instant litigation was commenced in October 1994 by the ARCC, seven current STS residents, People First of Connecticut (an advocacy group comprising people with disabilities) and the Western Connecticut Association for Human Rights (an advocacy group comprising parents and families of people with disabilities). On behalf of a putative class of all STS residents, plaintiffs seek, inter alia, the following relief: to require STS professionals, in conjunction with each resident and his or her family and friends, to develop and implement an individualized plan of treatment and services appropriate for that resident; to have all residents evaluated for possible community 137 placement *137 regardless of the severity or nature of their disabilities; to make available to each resident an individual and independent advocate; to enjoin the use of Do Not Resuscitate (DNR) orders until procedures are developed and implemented which assure that such orders will not be issued in error; and, with respect to those residents in STS's Intermediate Care Facility for the Mentally Retarded ("ICF/MR"), to require STS to comply with all federal ICF/MR funding requirements, as set forth at 42 C.F.R. § 483.440.
DISCUSSION
A motion to dismiss under Fed. R.Civ.P. 12(b)(6) should be granted only if "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984). "The function of a motion to dismiss `is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.'" Ryder Energy Distrib. Corp. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir.1984) (quoting Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir.1980)). In considering a motion to dismiss, a court must presume all factual allegations of the complaint to be true and must draw any reasonable inferences in favor of the non-moving party. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957).
I. Res Judicata
It is well-settled that "[u]nder res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414, 66 L.Ed.2d 308 (1980). In the instant case, Defendants assert that plaintiffs' claims are barred by res judicata, because the plaintiffs are privies of the United States, the plaintiffs' causes of action were or could have been brought in the prior action by the United States, and the consent decree entered into between the United States and the State of Connecticut constitutes a final judgment on the merits. This Court disagrees. As is discussed further below, res judicata is inapplicable to the instant case, because plaintiffs in this action are able to pursue causes of action and types of relief that were unavailable to the United States in the prior action, and plaintiffs are not in fact in privity with the United States.[1]

A. Differing Causes of Action and Types of Relief Available to Plaintiffs
Prior to the enactment of CRIPA in 1980, controlling precedents dictated that the Justice Department had no authority to sue on behalf of institutionalized persons. See, e.g., United States v. Mattson, 600 F.2d 1295, 1297 (9th Cir.1979). Under CRIPA, however, the Attorney General may bring suit for equitable relief to ensure the "minimum corrective measures" necessary to remediate "egregious or flagrant conditions which deprive [institutional residents] of any [federally protected] rights, privileges, or immunities," provided the Attorney General finds that such deprivations occur "pursuant to a pattern or practice of resistance." 42 U.S.C. § 1997a. Thus, the Justice Department may only sue on behalf of institutionalized persons if the strict requirements of CRIPA are satisfied, and may only seek "minimum corrective measures."[2]
138 *138 In contrast, in order to establish a claim under the Due Process Clause, Section 504, the ADA and Section 1983, plaintiffs in this action need not meet the requirements of CRIPA and may seek more than minimum corrective measures. The Ninth Circuit has aptly summarized this difference, commenting with respect to a case brought under CRIPA that, whereas institutional residents are concerned with all aspects of conditions at their facility, "[t]he United States in this litigation is concerned only with flagrant-conditions." United States v. Oregon, 839 F.2d 635, 638-39 (9th Cir.1988); see also United States v. Michigan, 116 F.R.D. 655, 663 (W.D.Mich.1987) (noting that remedies under a CRIPA consent decree are limited to "minimum corrective measures").
This discrepancy between the causes of action and types of relief available to the Justice Department and to institutional residents is evident in the instant case. For instance, neither the Complaint filed by the Justice Department nor the Consent Decree entered into by the Justice Department and the State of Connecticut addressed the residents' right to receive such training as is necessary to preserve those self-care skills that residents possess upon entering STS. Similarly, neither the Complaint nor the Consent Decree addressed the right of residents in ICF/MR units to receive "active treatment," as is required by 42 U.S.C. § 1396d(d)(2) and 42 C.F.R. § 483.440. Moreover, neither the Complaint nor the Consent Decree sought to require STS to consider all residents for community placement. Finally, neither the Complaint nor the Consent Decree sought to enjoin STS from issuing DNR orders. Each of the above remedies is sought by plaintiffs in the instant case.
Thus, in the instant case there is manifest evidence that the statutory structure of CRIPA prevented the Justice Department from pursuing all of the causes of action and types of relief which are available to the plaintiffs. For this reason, plaintiffs' claims are not barred under res judicata. See Burka v. New York City Transit Auth., 32 F.3d 654, 658 (2nd Cir.1994) (holding that res judicata is not applicable to a claim for relief that was unavailable in the earlier action).
B. Absence of Privity
Literal privity need not exist between two parties in order for one party to be claim precluded by an action brought by the other. Alpert's Newspaper Delivery Inc. v. The New York Times Co., 876 F.2d 266, 270 (2d Cir.1989). Rather, the appropriate inquiry concerns whether the party against whom preclusion is sought was adequately represented by another party vested with authority of representation. Id.; Expert Electric, Inc. v. Levine, 554 F.2d 1227, 1233 (2d Cir.), cert. denied, 434 U.S. 903, 98 S.Ct. 300, 54 L.Ed.2d 190 (1977). This inquiry must be a "factual determination of substance, not mere form." Expert Electric, 554 F.2d at 1227.
In United States v. Connecticut, the Justice Department brought suit under CRIPA in order to protect the constitutional rights of STS residents. The Justice Department did not, of course, have any actual consent from STS residents to provide representation on their behalf. Indeed, to the contrary, the ARCC and individual STS residents sought to intervene on the grounds that the Justice Department was not adequately protecting their interests.

Thus, the only authority by which the Justice Department represented STS residents was CRIPA itself. The defendants assert that CRIPA and its legislative history indicate a congressional intent to authorize the Justice Department to represent institutionalized persons. However, any such argument must be qualified by reference to CRIPA's disclaimer respecting private litigation, which states in relevant part:
The provisions of this subchapter shall in no way expand or restrict the authority of parties other than the United States to enforce the legal rights which they may have pursuant to existing law with regard to institutionalized persons.
139 *139 42 U.S.C. § 1997j. The precise interplay between this clause and res judicata principles is not entirely clear and need not be decided in the instant case.[3] At the very least, however, § 1997j clearly undercuts any assertion that CRIPA definitively authorizes the Attorney General to serve as a binding representative of institutionalized persons.
Most significantly, whether or not the Justice Department can be said to have been authorized to represent STS residents, this Court finds that the Justice Department did not adequately represent such residents. A finding of inadequate representation is required based upon the above discussion of the limited causes of action and types of relief available to and pursued by the Justice Department in United States v. Connecticut. Since the Justice Department did not seek all of the types of relief which plaintiffs seek in this case, it follows directly that the Justice Department's representation was inadequate from a res judicata perspective, and that the plaintiffs are therefore not in privity with the United States. See Williamson v. Bethlehem Steel Corp., 468 F.2d 1201, 1203 (2d Cir.1972) (holding that six employees bringing suit under Title VII were not in privity with the United States, which had brought a previous suit against the same employer, because the employees sought a type of relief which the United States had not sought), cert. denied, 411 U.S. 931, 93 S.Ct. 1893, 1902, 36 L.Ed.2d 390 (1973).[4]
Thus, the requirements of res judicata are not satisfied, as plaintiffs have available causes of action and types of relief that were unavailable to the United States, and plaintiffs are not in privity with the United States. Plaintiffs' claims therefore are not barred by res judicata.[5]
II. Failure to State A Claim Upon Which Relief Can Be Granted
Defendants assert that plaintiffs' actions under the Due Process Clause, Section 504, the ADA and Section 1983 all fail to state a claim upon which relief may be granted. This court disagrees. As the following discussion shows, each of plaintiffs' actions states a claim upon which relief may be granted.
A. Due Process Claim
In Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982), the Supreme Court established the contours of the right of residents in state-operated institutions for the mentally retarded to sue under the Due Process Clause of the Fourteenth Amendment. The Court found unequivocally that such residents possess a constitutional right to adequate food, shelter, clothing, medical care, safe conditions of confinement and freedom 140 from unreasonable bodily restraints, as well as a right to such training and skill development as is necessary *140 to protect these constitutional guarantees. 457 U.S. at 315-18, 102 S.Ct. at 2457-59. Although the Court did not decide whether institutional residents have a right to other types of training and skill development, the Second Circuit has determined that residents have a due process right to "training sufficient to prevent basic self-care skills from deteriorating." Society for Good Will to Retarded Children, Inc. v. Cuomo, 737 F.2d 1239, 1250 (2d Cir.1984). Cf. Youngberg, 457 U.S. at 327-29, 102 S.Ct. at 2464-65 (Blackmun, J., concurring) (noting that the majority opinion leaves open the question of a right to training to preserve those self-care skills possessed by a resident upon institutionalization).
The Youngberg Court established a "professional judgment" standard for determining whether a state-operated institution has satisfied its obligations to residents under the Due Process Clause. 457 U.S. at 321-23, 102 S.Ct. at 2461-62. Under this standard, a state institution may be held liable for a decision made by a professional "only

when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment." Id., at 323, 102 S.Ct. at 2462; accord Society for Good Will to Retarded Children, 737 F.2d at 1248.
The Youngberg professional judgment standard governs claims for failure to provide community placement. Thus, whereas "there is no constitutional right to community placement," a decision to keep a resident in an institutional rather than community setting is only constitutional to the extent that it is a "rational decision based on professional judgment." Society for Good Will to Retarded Children, 737 F.2d at 1249.
In the instant case, plaintiffs allege in Count One of their complaint that defendants have failed to provide adequate shelter, clothing, nutrition and medical care; have failed to provide sufficient training to help residents maintain self-care skills and to ensure a safe environment free from unnecessary restraint; and have failed to consider all residents for possible community placement, as would be required by professional judgment. Presuming the facts alleged in plaintiffs' complaint to be true, plaintiffs' due process action clearly states a claim upon which relief can be granted.
B. Section 504 and ADA Claims
Plaintiffs assert that defendants, by failing to consider certain severely handicapped residents for community placement, have violated both Section 504 and the ADA.[6] For the purpose of plaintiffs' motion, defendants concede the applicability of both Section 504 and the ADA. Defendants' sole contention, other than the res judicata argument discussed previously, is that neither Section 504 nor the ADA confers a "right to community placement." Defendants are correct in this assertion. See, e.g., Helen L. v. DiDario, 46 F.3d 325, 336 (3d Cir.), cert. denied, ___ U.S. ___, 116 S.Ct. 64, 133 L.Ed.2d 26 (1995). However, defendants misconstrue plaintiffs' complaint. Rather than asserting an absolute right to community placement, plaintiffs allege that defendants, by failing to consider certain severely handicapped residents for community placement, have practiced discrimination on the basis of severity of disability. This Court considers whether relief may be granted based upon such a claim.
Pursuant to Section 504, the former Department of Health, Education and Welfare ("HEW"), now the Department 141 of Health and Human Services ("HHS"), promulgated enforcement *141 regulations, including the following:
(b) Discriminatory actions prohibited.
(1) A recipient [of federal funding], in providing any aid, benefit or service, may not
...
(iv) Provide different or separate aid, benefits or services to handicapped persons or to any class of handicapped persons unless such action is necessary to provide qualified handicapped persons with aid, benefits, or services that are as effective as those provided to others.
45 C.F.R. § 84.4(b)(1).
Congress drafted the ADA so as to be largely consistent with Section 504, while at the same time extending its provisions. See Helen L. v. DiDario, 46 F.3d at 329-35 (tracing the drafting of the ADA and its relation to Section 504). Accordingly, Title II of the ADA directs that the Attorney General shall promulgate enforcement regulations and that "such regulations shall be consistent with [those regulations] applicable to recipients of Federal financial assistance under [Section 504]." 42 U.S.C. § 12134(b). Pursuant to this mandate, the Department of Justice promulgated regulations under Title II mirroring those promulgated under Section 504, including the following:
35.130 General prohibitions against discrimination.
(b)(1) A public entity, in providing any aid, benefit, or service, may not ...
(iv) Provide different or separate aids, benefits, or services to individuals with disabilities or to any class of individuals with disabilities than is provided to others, unless such action is necessary to

provide qualified individuals with disabilities with aids, benefits, or services that are as effective as those provided to others.
28 C.F.R. § 35.130.
The regulations promulgated under both Section 504 and the ADA thus clearly prohibit discrimination based upon severity of disability. An interpretation of an agency charged with the administration of a statute is entitled to substantial deference, Blum v. Bacon, 457 U.S. 132, 141, 102 S.Ct. 2355, 2361, 72 L.Ed.2d 728 (1982), and should be given controlling weight unless such interpretation is arbitrary, capricious or manifestly contrary to the statute. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 844, 104 S.Ct. 2778, 2782-83, 81 L.Ed.2d 694, reh'g denied, 468 U.S. 1227, 105 S.Ct. 28, 82 L.Ed.2d 921 (1984). Additionally, when Congress, in enacting a statute, explicitly approves of prior administrative interpretations of a law, Congress is treated as having adopted such interpretations. United States v. Board of Comm'rs of Sheffield, Alabama, 435 U.S. 110, 134, 98 S.Ct. 965, 980-81, 55 L.Ed.2d 148 (1978). Thus, Congress's instruction to the Attorney General to promulgate regulations under the ADA consistent with those promulgated under Section 504 indicates congressional approval of the above-cited specific prohibitions.
Moreover, numerous courts have recognized that both Section 504 and the ADA prohibit discrimination on the basis of the severity of a person's disability. See, e.g., Helen L. v. DiDario, 46 F.3d at 336 ("[I]f Congress were only concerned with disparate treatment of the disabled as compared to their nondisabled counterparts," then the ADA's reference to the persistence of discrimination in institutionalization would constitute a "non sequitur"); Plummer v. Branstad, 731 F.2d 574, 578 (8th Cir.1984) (severity of handicap cannot be sole reason for denying Title XX funding); Martin v. Voinovich, 840 F.Supp. 1175, 1191-92 (S.D.Ohio 1993) (both Section 504 and the ADA prohibit discrimination on the basis of severity of handicap); Jackson v. Fort Stanton Hosp. & Training School, 757 F.Supp. 1243, 1299 (D.N.M.1990) ("The severity of plaintiffs' handicaps is itself a handicap which, under § 504, cannot be the sole reason for denying plaintiffs access to community programs."), rev'd on other grounds, 964 F.2d 980 (10th Cir.1992); Garrity v. Gallen, 522 F.Supp. 171, 214-15 (D.N.H. 1981) (discrimination based upon a generalized assumption concerning the abilities of a group of severely handicapped persons is actionable under Section 504); Lynch v. Maher, 507 F.Supp. 1268, 1278-79 n. 15 (D.Conn.1981) (discrimination 142 on the basis of *142 extent of handicap is actionable under Section 504).[7]
Thus, under both statutes, STS is prohibited from refusing to consider certain residents for possible community placement, merely based upon the degree of their disabilities. Plaintiffs allege in Count Two of their complaint that defendants have failed to consider certain severely disabled residents for community placement. Presuming the facts alleged in plaintiffs' complaint to be true, plaintiffs' actions under Section 504 and the ADA clearly state claims upon which relief can be granted.
C. Section 1983 Claim
As a condition of receiving funds for ICF/MR units under the Social Security Act, STS is required to provide "active treatment" to all ICF/MR residents, 42 U.S.C. § 1396d(d)(2), and to "meet such standards as may be prescribed by [HHS]." 42 U.S.C. § 1396d(d)(1). Pursuant to these provisions, HHS has promulgated requirements as to what constitutes active treatment, as well as detailed standards concerning what services must be provided to ICF/MR residents, which are set forth at 42 C.F.R. § 483.440. Plaintiffs contend that defendants have violated these requirements, and plaintiffs seek relief for such violations under Section 1983. Defendants assert that, even if violations of the ICF/MR requirements could be shown, plaintiffs have no right to sue under Section 1983.[8]
1. The Evolving Analytic Framework
In a series of cases, the Supreme Court has established a framework for determining when there exists a right to sue under Section 1983 for violation of a federal statute. In Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), the Court established that Section 1983 generally provides a cause of action for violations of

federal statutes by state and local governmental units. 448 U.S. at 4, 100 S.Ct. at 2504. Subsequently, the Court recognized two exceptions to this rule: (1) cases in which the statute in question does not create an enforceable "right, privilege or immunity"; and (2) cases in which such a right exists but Congress has foreclosed enforcement of the right under Section 1983. Wright v. Roanoke Redevelopment & Housing Auth., 479 U.S. 418, 423, 107 S.Ct. 766, 770, 93 L.Ed.2d 781 (1987).
In Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990), the Court clarified the criteria for determining whether either of the two exceptions is applicable. Under the first exception, the Court held that no enforceable right exists if: the statutory provision in question was not intended to benefit the putative plaintiffs; the provision reflects merely a "congressional preference" rather than a "binding obligation"; or the 143 plaintiffs' interest is "too vague and amorphous" such that it is "beyond the competence of the judiciary to *143 enforce." Id., at 509, 110 S.Ct. at 2517 (citing Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 106, 110 S.Ct. 444, 448-49, 107 L.Ed.2d 420 (1989)).
With respect to the second exception, courts "[should] not lightly conclude that Congress intended to preclude reliance on § 1983 as a remedy for the deprivation of a federally secured right." Id., at 520, 110 S.Ct. at 2523. (citations omitted). Thus, defendants have the burden of showing "`by express provision or other specific evidence from the statute itself that Congress intended to foreclose such private enforcement.'" Id., at 520-21, 110 S.Ct. at 2523. (quoting Wright, 479 U.S. at 423, 107 S.Ct. at 770). In the absence of an express provision, private enforcement may only be deemed to be foreclosed if the statute itself creates a remedial scheme that is "`sufficiently comprehensive ... to demonstrate congressional intent to preclude the remedy of suits under § 1983.'" Id., at 521, 110 S.Ct. at 2523 (quoting Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 20, 101 S.Ct. 2615, 2626, 69 L.Ed.2d 435 (1981)).
Two years after Wilder, in Suter v. Artist M., 503 U.S. 347, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992), the Supreme Court considered whether a class of children subject to abuse, neglect or dependency petitions had a right to sue under Section 1983 for a state's alleged violation of 42 U.S.C. § 671(a)(15). Section 671(a)(15) requires states receiving federal assistance for foster care and adoption services to devise a plan which includes both reasonable efforts to eliminate the need for removing children from their homes and, with respect to cases in which children are removed, reasonable efforts toward reunification.
The Suter Court found that the plaintiff class did not have a right to sue under Section 1983 for alleged violations of § 671(a)(15). In reaching this decision, the Court did not make explicit reference to the well-established framework which had been reaffirmed and clarified by the Court two years earlier in Wilder. The Court did, however, distinguish Suter from Wilder, based upon two principal grounds. First, the Court found that the only obligation which § 671(a)(15) unambiguously imposed upon a participating state is that it have a plan approved by HHS. 503 U.S. at 358, 112 S.Ct. at 1367-68. Thus, even if the defendant in Suter, the State of Illinois, had not in fact devised or carried out a plan involving the required "reasonable efforts," the state nevertheless would have been in full compliance with its obligations, because the state's plan had been approved by HHS. Id. Secondly, the Court found that neither § 671(a)(15) nor the regulations promulgated thereunder contain sufficient guidance concerning the meaning of the "reasonable efforts" requirement so as to allow a court to determine whether or not a state is in compliance therewith. Id., at 360, 112 S.Ct. at 1368-69.
Although the Court's decision in Suter did not explicitly adopt the Wilder framework, the Suter Court also declined to overrule Wilder. Rather, the Court cited parts of Wilder and Wright with approval, while carefully distinguishing Suter on its facts. Thus, in the wake of Suter, the circuit courts moved toward synthesizing Suter into the Wilder framework. See, e.g., Howe v. Ellenbecker, 8 F.3d 1258, 1262 n. 5 (8th Cir.1993) ("[A]lthough Suter weakened earlier precedent in vital respects, the Court was careful not to explicitly overrule the Wilder framework."), cert. denied, ___ U.S. ___, 114 S.Ct. 1373, 128 L.Ed.2d 49 (1994); Miller v. Whitburn, 10 F.3d 1315, 1319 (7th Cir.1993) ("[Suter] is not the death knell of the analytic framework established in Wilder.") (citation omitted); Chan v. City of New York, 1 F.3d 96, 104 (2d Cir.) (adopting "the Wilder analysis or, to the extent that it differs, the Suter analysis"), cert. denied, ___ U.S. ___, 114 S.Ct. 472, 126 L.Ed.2d 423 (1993); Stowell, 976 F.2d at 68 (finding it "both prudent and possible to synthesize the teachings of Suter with the Court's prior precedents").
Whereas the various circuits each sought to harmonize Suter with previous precedent, the circuits varied as to which aspect of Suter should be deemed most significant. For instance, the First Circuit found that Suter added

144 the following threshold consideration to the Wilder framework: "[W]hen a provision *144 in a statute fails to impose a direct obligation on the States, instead placing the onus of compliance with the statute's substantive provisions on the federal government, no cause of action cognizable under section 1983 can flourish." Stowell, 976 F.2d at 70. In contrast, the Second Circuit has held that "the significant point in Suter was not that the statute in question only required a state to submit a plan to the federal agency, but that the statute provided no guidance for measuring `reasonable efforts.'" Marshall v. Switzer, 10 F.3d 925, 929 (2d Cir. 1993) (citing Chan, 1. F.3d at 104). In a similar vein, the District of Columbia Circuit has held that "[t]he Suter Court's principal concern was the Act's vagueness," and that Suter therefore did not change existing precedent. LaShawn A. v. Barry, 69 F.3d 556, 569-70 (D.C.Cir.1995), vacated and reh'g in banc granted, 74 F.3d 303, (D.C.Cir.1996).[9]
In October 1994, Congress sought to overturn what it saw as the Suter Court's deviation from the established Wilder framework. Accordingly, Congress enacted the following amendment to the Social Security Act:[10]
In an action brought to enforce a provision of this chapter, such provision is not to be deemed unenforceable because of its inclusion in a section of this chapter requiring a State plan or specifying the required contents of a State plan. This section is not intended to limit or expand the grounds for determining the availability of private actions to enforce State plan requirements other than by overturning any such grounds applied in Suter v. Artist M., 112 S.Ct. 1360 (1992), but not applied in prior Supreme Court decisions respecting such enforceability; provided however that this section is not intended to alter the holding in Suter v. Artist M. that section 671(a)(15) of this title is not enforceable in a private right of action.
Pub.L. No. 103-382, 108 Stat. 4057 (codified at 42 U.S.C. § 1320a-2) ("Section 1320a-2").
The few courts that have had the opportunity to rule on the impact of Section 1320a-2 have issued somewhat conflicting interpretations. Several district courts, subscribing to the view that the Suter Court based its decision on the fact that 42 U.S.C. § 671(a)(15) required only that participating states submit a plan to HHS for approval, have taken Section 1320a-2 at its face value and have therefore reverted to applying the Wilder framework unmodified by Suter. See, e.g., Ward v. Thomas, 895 F.Supp. 406, 409 (D.Conn.1995); Harris v. James, 883 F.Supp. 1511, 1519 (M.D.Ala.1995); Jeanine B. v. Thompson, 877 F.Supp. 1268, 1283 (E.D.Wis. 1995). In contrast, however, the District of Columbia Circuit and at least one district court have taken the view that Suter did not in fact modify pre-existing law, and that, therefore, Section 1320a-2 has no effect whatsoever. LaShawn A., 69 F.3d at 570, vacated and reh'g in banc granted, 74 F.3d 303 (D.C.Cir.1996); Neal v. Ridge, 1995 WL 728589, at *3 (E.D.Pa. Dec. 7, 1995). Although divergent in methodology, both of the above interpretations lead to the same endpoint: courts should apply the Wilder framework, unmodified by Suter.
Arguably, the appropriate Second Circuit interpretation of Section 1320a-2 should be slightly different from either of the above interpretations. In Chan and Marshall, the Second Circuit found that Suter may have modified the Wilder framework, but if so only by placing renewed emphasis on the requirement that statutory language must be definite and specific in order to confer an enforceable right. Marshall, 10 F.3d at 929; Chan, 1. F.3d at 104. If Suter did in fact modify prior precedent in this way, then, arguably, Section 1320a-2 does not reverse this modification, as the fairest reading of Section 1320a-2 is that Congress was concerned only that a court should 145 not eviscerate an otherwise enforceable right merely because it appears in a statute mandating *145 that participating states include a particular provision in their state plans. According to this reasoning, it would still be appropriate for courts in the Second Circuit to apply the Wilder framework, modified slightly by Suter in that the requirement of specific statutory language should be strictly interpreted. Ultimately, however, this Court need not definitively ascertain the effect of Suter and of Section 1320a-2. As the following analysis shows, Section 1396d (d) and the regulations promulgated thereunder certainly confer an enforceable right, whether analyzed according to a straightforward Wilder analysis or, equally, according to a Wilder analysis modified slightly by Suter.[11]
2. The Analytic Framework Applied
Under either a Wilder or modified Wilder analysis, the general rule remains that violation of a federal statute is remediable under Section 1983 unless one of two exceptions applies. Under the former exception, this Court

must examine three criteria in order to determine whether the statutory scheme confers an enforceable right. First, the Court finds that those members of plaintiffs' putative class who are ICF/MR residents are clearly the intended beneficiaries of the statutory scheme. Wilder, 496 U.S. at 509, 110 S.Ct. at 2517. There can be no doubt that each of the detailed requirements set forth at 42 C.F.R. § 483.440 was drafted with the principal goal of ensuring quality care for ICF/MR residents.
Second, § 1396d(d) and the regulations promulgated thereunder clearly impose a binding obligation upon participating states, rather than merely stating a congressional preference that particular services be provided. Wilder, 496 U.S. at 509, 110 S.Ct. at 2517. Notably, the ICF/MR regulations set forth at 42 C.F.R. § 483.440 are entitled "Conditions of participation," and each subpart is written in clearly obligatory language. See, e.g., 42 C.F.R. § 483.440(a)(1) ("Each client must receive a continuous active treatment program, which includes ... generic training, treatment, health services and related services described in this subpart, that is directed toward (i) The acquisition of behaviors necessary for the client to function with as much self determination and independence as possible; and (ii) The prevention or deceleration of regression or loss of current optimal functional status.").
Third, even if the provisions at issue are viewed through the strict lens of Suter, the standards which defendants are alleged to have violated are not "too vague and amorphous" such that they would be "beyond the competence of the judiciary to enforce." Wilder, 496 U.S. at 509, 110 S.Ct. at 2517. Rather, the provisions at issue in this case are analogous to those in 29 U.S.C. §§ 721(a)(8) & (a)(9), which the Second Circuit in Marshall found to be "specific and definite, and therefore within the competence of the judiciary to enforce." 10 F.3d at 929. Compare, e.g., 29 U.S.C. § 721(a)(9) ("[Each state plan] must provide that ... (B) an individualized written rehabilitation program ... will be developed for each individual with a disability eligible for vocational services under this chapter; (C) such services will be provided under the plan in accordance with such program ...") with 42 C.F.R. § 483.440(c)(1) ("Each client must have an individual program plan developed by an interdisciplinary team that represents the professions, disciplines or service areas that are relevant to (i) Identifying the client's needs, as described [later in this section]; and (ii) Designing programs that meet the client's needs.").
Having found that each of the three criteria set forth under the first Wilder exception points toward finding an 146 enforceable right to sue, the Court lastly examines the *146 second exception set forth under Wilder 0907 whether
Congress has foreclosed enforcement of the right under Section 1983. As noted previously, a court may only conclude that Congress has intended to preclude suit under Section 1983 if the statute in question either includes an express provision to that effect or creates a remedial scheme sufficiently comprehensive so as to indicate Congress's intent. Wilder, 496 U.S. at 520-21, 110 S.Ct. at 2523-24.
In the instant case, the provisions of the Social Security Act at issue contain no express provision foreclosing suit and provide no remedial scheme by which ICF/MR residents may petition to obtain greater services. Indeed, the only remedial measure established by the statutory scheme is withdrawal of funding by HHS for non-compliance with program conditions. 42 U.S.C. § 1396i(b). In Wilder, the Supreme Court found that an analogous remedial measure authorizing HHS to withdraw funds for non-compliance in no way indicated Congressional intent to foreclose suit under Section 1983. 496 U.S. at 521-22, 110 S.Ct. at 2523-24.
Thus, neither of the exceptions set forth under Wilder are applicable in the instant case, meaning that plaintiffs may validly sue under Section 1983 for alleged violations of the federal program requirements for ICF/MR units. Presuming the facts alleged in plaintiffs' complaint to be true, plaintiffs' Section 1983 action clearly states a claim upon which relief can be granted.
SUMMARY
Defendants' Motion to Dismiss [Doc. No. 20] is denied.
SO ORDERED.

[1] The question of whether a suit brought by the United States under CRIPA bars a later suit by institutional residents is apparently one of first impression. However, one federal district court in the District of Massachusetts, in considering a motion to intervene by institutional residents in a CRIPA suit, stated in dicta that:
A court faced with a subsequent suit filed by the residents would not be able to use the doctrines of claim preclusion or issue preclusion against the residents. A judgment against the United States in this CRIPA suit could not be used against the residents to bar any claims raised or any claims that could have been raised, because the residents were not parties or privies in this suit.
United States v. Massachusetts, No. 85-0632-MA (D.Mass., Apr. 28, 1986).
[2] It is solely the province of the Attorney General to determine the existence of these extra prerequisites to suit under CRIPA. Once the Attorney General has brought suit, having determined that CRIPA's prerequisites are satisfied, The United States is treated no differently than any other litigant, and has neither a greater nor lesser burden of proof than that faced by an individual institutional resident bringing suit on his or her own behalf. U.S. v. Pennsylvania, 863 F.Supp. 217, 220 (E.D.Pa.1994).
[3] Section 1997j evinces Congress' intent that CRIPA should have no impact on the existing rights of individuals to bring suit. However, such an intent could be interpreted to mean either that Congress wished all pre-existing legal rules to apply to potential plaintiffs, including res judicata, or that Congress intended that CRIPA in no way prejudice individual plaintiffs, even by virtue of res judicata. This Court finds it unnecessary to choose between these two competing interpretations of § 1997j. Even under the former interpretation, advocated by defendants in this suit, res judicata would nevertheless be inapplicable to the instant case, because plaintiffs have different causes of action and remedies available to them, and are not in privity with the United States.
[4] There can be no dispute that the consent decree entered into by the parties in United States v. Connecticut represents a final judgment on the merits. Amalgamated Sugar Co. v. NL Indus., Inc., 825 F.2d 634, 639 (2d Cir.), cert. denied, 484 U.S. 992, 108 S.Ct. 511, 98 L.Ed.2d 511 (1987). However, the contractual nature of consent decrees reinforces this Court's finding that the plaintiffs in the instant case are not in privity with the United States. See United States v. City of Jackson, 519 F.2d 1147, 1152 (5th Cir.1975) ("A consent decree is in many respects a contract between the parties thereto ... such decrees do not purport to be definitive statements of the parties' legal rights and [courts] will accord them little or no weight in the determination of the rights of persons not party to them.").
[5] This finding is fully consistent with this Court's ruling on the ARCC's Motion to Intervene in United States v. Connecticut. In that ruling, this Court denied intervention on the grounds that the proposed intervenors would not be prejudiced by the Justice Department's CRIPA litigation, as the proposed intervenors would remain free to bring suit individually. Ruling on Pending Motions, Dec. 22, 1986.
[6] Section 504 provides that:
No otherwise qualified handicapped individual in the United States ... shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal assistance.
29 U.S.C. § 794. Title II of the ADA, which extends Section 504's coverage to state and local governments, mirrors the language of Section 504, providing that:
[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by such entity.
42 U.S.C. § 12132.
[7] The Supreme Court's decision in Traynor v. Turnage, 485 U.S. 535, 108 S.Ct. 1372, 99 L.Ed.2d 618 (1988) is inapposite to this case. The primary holding of Traynor was that the 1978 amendments to the Rehabilitation Act of 1973 should not be deemed to have repealed a 1977 statute (codified at 38 U.S.C. § 1662(a)(1)) which

allowed for an extension of time to use veterans' benefits under certain circumstances, but only on the condition that a veteran's physical or mental disorder was not a result of willful misconduct by that veteran. Id., at 548, 108 S.Ct. at 1381-82. The Court did state in dicta that "the central purpose" of Section 504 is "to assure that handicapped individuals receive `evenhanded treatment' in relation to non-handicapped individuals" (citations omitted), and that "there is nothing in [Section 504] that requires that any benefit extended to one category of handicapped persons also be extended to all other categories of handicapped persons." Id., at 548-49, 108 S.Ct. at 1382-83. However, the circumstances underlying Traynor clearly show that the Court was not considering whether discrimination based upon extent of disability is generally actionable under Section 504. Rather, the Court had no need to consider this question, because the regulations promulgated under Section 504 by HEW provide that Section 504 does not prohibit "exclusion of a specific class of handicapped persons from a program limited by federal statute or executive order to a different class of handicapped persons." 45 C.F.R. § 84.4(c). This exception to Section 504's coverage is clearly not applicable to the instant case.
[8] Defendants also assert that plaintiffs have failed to allege any violations of the ICF/MR requirements. To the contrary, however, paragraph 79 of plaintiffs' Second Amended Complaint alleges specific violations of these requirements.
[9] The District of Columbia Circuit's recent decision to grant rehearing in banc in LaShawn A. casts some doubt upon this holding. However, the circuit's original holding may yet survive, as LaShawn A. included numerous difficult issues which may have prompted the circuit's decision to grant rehearing in banc.
[10] Although Congress passed this amendment fully fifty-five days prior to the date on which defendants filed the instant Motion to Dismiss, both parties inexplicably failed to mention the amendment in their briefs.
[11] The Court also notes that Section 1320a-2 is arguably an unconstitutional attempt by Congress to impose a particular rule of decision or means of statutory interpretation upon the judiciary. See LaShawn A., 69 F.3d at 581 (Randolph, J., dissenting) (discussing questionable constitutionality of Section 1320-a). If so, then there is an argument to be made that courts should still find no enforceable right to be conferred by a statute mandating only inclusion of a particular provision in a state plan. However, even if such were the current state of the law, the outcome of the instant motion would be no different, because § 1396d(d) and the regulations promulgated thereunder require participating states to actually provide particular services rather than merely include such services in a plan.
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 Messier v. Southbury Training School, 183 F.R.D. 350 (1998)

183 F.R.D. 350 United States District Court,
D. Connecticut.
Richard MESSIER, et al., v.
SOUTHBURY TRAINING SCHOOL, et al.
No. 3:94–CV–1706 (EBB). | Nov. 5, 1998.

*350 RULING ON MOTION BY 611 STS RESIDENTS TO OPT OUT OF PLAINTIFF CLASS
BURNS, Senior District Judge.
This ruling presents the issue of whether 611 residents of Southbury Training School (“STS”) and their respective guardians (“movants”) may opt out of the plaintiff class, or in the alternative, be made a separate and distinct subclass. Four years ago, plaintiffs brought a class action seeking injunctive relief against defendants STS and three Connecticut state agencies, alleging violations of the Due Process Clause of the Fourteenth Amendment and several federal statutes. In their motion, movants request to opt out of the plaintiff class and intervene on the side of the defendants. For the following reasons, movants’ motion [Doc. No. 333] is denied.

BACKGROUND
This case began in October 1994 when seven residents of STS, People First of Connecticut, Inc., ARC/Connecticut, Inc., and Western Connecticut Association for Human *351 Rights brought a class action on behalf of all current and future STS residents against STS, the Department of Mental Retardation (“DMR”), the Department of Public Health (“DPH”), and the Department of Social Services (“DSS”).1 Plaintiffs alleged that the defendants’ administration of STS and related community placement services for persons with mental retardation violated the following federal laws: (1) the Due Process Clause of the Fourteenth Amendment; (2) the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12132 (1997); (3) Section 504 of the Rehabilitation Act of 1973 (“Section 504”), 29 U.S.C. § 794 (1997); and (4) 42 U.S.C. § 1983 for the deprivation of rights under the Social Security Act, 42 U.S.C. § 1396a (1997). (Pls.’ Third Am.Compl. ¶ 1.)

1

The defendants are involved in similar litigation

relating to STS. In a companion case brought in 1986,

the United States Department of Justice sued the State

of Connecticut under the Civil Rights of Institutionalized Persons Act (“CRIPA”), 42 U.S.C. § 1997 et seq. (1997) to remedy unconstitutional conditions at STS. The two parties negotiated a Consent Decree providing for a comprehensive remedial plan to ameliorate conditions at the institution. This Court approved the Consent Decree on December 22, 1986. See United States v. Connecticut, No. N–86–252 (EBB) (D.Conn. Dec. 22, 1986) (Order Approving Consent Decree).
In 1990 and 1991, the Court approved two additional Consent Orders, which were negotiated in response to continuing deficiencies in the care and treatment of STS residents. When more deficiencies were discovered in 1993, the Court ruled the State in contempt of its prior orders. To correct the problem, the Court appointed a special master to evaluate the State’s compliance and oversee the implementation of a remedial plan. The special master’s role continues at the present time.
Plaintiffs sought an injunction to prevent new admissions to STS; to require STS professionals in conjunction with each resident and his or her guardian to develop and implement an individualized plan of treatment appropriate for that resident; to require defendants to evaluate all residents for possible community placement regardless of the severity or nature of their disabilities; to make available to each resident an individual and independent advocate; to enjoin the use of “Do Not Resuscitate” orders (“DNR orders”) until procedures are developed and implemented which assure that such orders will not be issued in error; and to require the defendants to develop a plan to remediate environmental and program deficiencies. (Pls.’ Third Am.Compl. at 29–31.)
STS and DMR jointly moved to dismiss the action for failure to state a claim upon which relief may be granted in February 1996. In denying the motion, the Court first held that United States v. Connecticut did not preclude the plaintiffs’ suit. Next, the Court concluded that plaintiffs properly alleged claims based on due process, the ADA, and Section 504. Finally, the Court decided that plaintiffs could sue under 42 U.S.C. § 1983 for a violation of the Social Security Act. See Ruling on Mot. to Dismiss by Defs. STS and DMR. In that same year, the Court rejected a similar joint motion to dismiss by DPH and DSS. In so doing, the Court made two additional rulings. First, DPH could be liable for a substantive due process violation because its inaction may have contributed to plaintiffs’ harm. Second, plaintiffs stated a claim for a procedural due process violation based on their allegation that DNR orders were imposed as a matter of course. See Ruling on Mot. to Dismiss by Defs. DPH and DSS.
In March 1996, seven STS residents, the Home and School Association of Southbury Training School, Inc.
1

Messier v. Southbury Training School, 183 F.R.D. 350 (1998)

(“HSA”), and the Southbury Training School Foundation, Inc. (“STSF”) moved to intervene on the side of the defendants pursuant to Federal Rule of Civil Procedure 24. The applicants argued that their interests would be impaired if they were not allowed to intervene because this case might result in the closure of STS or they might be forced into community placements. Although the Court denied this motion, it attempted to allay these concerns by narrowing the type of relief that plaintiffs could seek in this case. The Court found that “plaintiffs’ complaint must be read as seeking to require STS [merely] to consider whether each resident is appropriate for community placement and to then act accordingly based upon such consideration.” Ruling *352 on Mot. to Intervene at 3–4. Thus, plaintiffs cannot obtain the following relief: (1) the ending of all new admissions to STS; (2) the transferring of all residents to community settings; and (3) the closure of STS.
Soon thereafter, the Court certified the plaintiff class under Federal Rule of Civil Procedure 23(b)(2) as including all current STS residents, those persons who may be placed at STS in the future, and those persons who were transferred from STS and remain under the custody and control of the Director of STS. See Ruling on Mot. for Class Certification at 1. In addition, the Court reaffirmed three propositions relevant to this ruling. First, plaintiffs are adept representatives of all class members’ interests in improving conditions and services at STS in accordance with constitutional safeguards. Second, plaintiffs have not stated any legal theory upon which the Court could possibly order the closure of STS. Finally, plaintiffs’ requested relief would in no way usurp or infringe upon any legally protectable rights of guardians of STS residents under state law. See id. at 14.
In June 1997, HSA and STSF moved for exclusion from the class on behalf of the same seven class members who unsuccessfully attempted to intervene. Once again, the Court denied the motion and addressed the applicants’ concerns regarding the potential outcome of this case by reiterating that
[T]he most that plaintiffs can accomplish is to require Southbury to conform with its constitutional duty to consider the appropriateness of community placement for each resident. In no way can the plaintiffs force Southbury to place in community settings those residents for whom community placement is inappropriate, or force the state of Connecticut to shut down Southbury.

Ruling and Order Regarding Application for Exclusion from Class at 2.

In the pending motion before the Court, 611 STS residents and their respective guardians seek to opt out of the plaintiff class, or in the alternative be made a separate subclass, and intervene on the side of the defendants.2 Movants contend that a strong conflict exists between the named plaintiffs, who advocate community placement and the closure of STS, and the guardians of the 611 STS residents, who vehemently oppose community placement. In addition, movants disagree with many of the allegations in plaintiffs’ complaint regarding conditions at STS.3 Finally, movants claim that this case threatens their rights as guardians to make choices concerning their wards’ care. Despite acknowledging that the Court’s prior rulings preclude the closure of STS in this case, movants insist that an unfavorable outcome will affect the broader political and social issues surrounding community placement beyond the Court’s control. Accordingly, movants argue that they should be allowed to protect these interests by opting out and intervening on the side of the defendants.

2

In total, movants represent approximately 85% of the

plaintiff class (611 out of 724 STS residents signed the

petition to opt out).

3

The Court notes that movants’ claims regarding

conditions at STS has shifted throughout this case.

When HSA, STSF, and seven STS residents moved to

intervene in February 1996, they included a

cross-complaint against DMR and STS. (Mem. in Supp.

of Mot. to Intervene at 5.) The cross-complaint alleged

that DMR and STS violated the residents’ due process

rights by maintaining inadequate staffing, medical and

nursing care, psychiatric and psychological treatment,

social work services, physical and occupational therapy

services, speech pathology and audiology services,

vocational and rehabilitation training, and recreation

services. (Proposed Cross–Complaint Against DMR

and STS.) Furthermore, the proposed intervenors

charged that the defendants failed to provide STS

residents with “minimal, professionally acceptable

levels of active programming or habilitation or

protection from harm.” (Id.)

DISCUSSION
I. Class Action Requirements Federal Rule of Civil Procedure 23(a) provides that district courts may certify class actions only when the following prerequisites are fulfilled: (1) the class is so numerous as to make joinder impracticable; (2) there are questions of law or fact common to the class; (3) the
2

Messier v. Southbury Training School, 183 F.R.D. 350 (1998)

claims or defenses of the representative parties typify those of the class; and (4) *353 the representative parties will fairly and adequately protect the interests of the class. In addition, an action must satisfy one of three provisions contained in Rule 23(b) in order to be certified as a class action. All members of a class will be bound by the judgment rendered in a class action, except those parties allowed to opt out.
Rule 23(b) creates three distinct categories of class actions: the (b)(1) action, the (b)(2) action, and the (b)(3) action. The three categories are not mutually exclusive, and a class may be certified under more than one category. See 5 James Wm. Moore et al., Moore’s Federal Practice ¶ 23.31[2], at 23–235 (3d ed.1998). This case was certified as a class action under Rule 23(b)(2). This provision allows class actions when “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed.R.Civ.P. 23(b)(2).4

4

Rule 23(b)(1) allows class actions when “the

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.”

Rule 23(b)(3) allows class actions when “the 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....”

Although Rule 23 does not provide an absolute right to opt out of a(b)(1) or (b)(2) action, the Supreme Court holds that in cases “wholly or predominantly for money judgments,” due process requires that absent plaintiffs receive notice and an opportunity to opt out, even in actions certified under (b)(1) or (b)(2). Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 811, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985). This clearly covers securities fraud and antitrust class actions because these cases primarily concern damages. However, the Court has remained silent concerning whether (b)(1) and (b)(2) class members possess a due process right to opt out of suits not predominantly for monetary judgments such as Title VII “hybrid” actions involving back pay and injunctive relief or suits merely seeking an injunction or a declaratory judgment. See infra Part II.D.
B. Discretion to Grant Opt–Outs in (b)(2) Actions [1] The Second Circuit and several other circuits recognize that district courts have discretion to permit opt-outs in (b)(1) and (b)(2) actions not predominantly for damages in proper circumstances. See County of Suffolk, 907 F.2d at 1302 (declaring that “Rule 23 does authorize a district court to allow a class member to opt out of a Rule 23(b)(1)(B) class action under some circumstances”); Eubanks v. Billington, 110 F.3d 87, 94 (D.C.Cir.1997) (holding that “the language of Rule 23 is sufficiently flexible to afford district courts discretion to grant opt-out rights in (b)(1) and (b)(2) class actions”); Crawford v. Honig, 37 F.3d 485, 487 n. 2 (9th Cir.1994) (same); Williams v. Burlington N., Inc., 832 F.2d 100, 103 (7th Cir.1987) (same); Penson v. Terminal Transp. Co., 634 F.2d 989, 994 (5th Cir.1981) (same). Commentators also *354 adhere to the position that courts may allow opt-outs in (b)(1) and (b)(2) actions using sound discretion. See Moore, supra, ¶ 23.40[4], at 23–283; 3 Herbert Newberg & Alba Conte, Newberg on Class Actions § 16.17, at 16–91 to 16–94 (3d ed.1992).

II. Opting Out of Rule 23(b)(2) Class Actions
A. Right to Opt Out Under Rule 23 and Due Process Important procedural distinctions exist between the (b)(1) and (b)(2) actions and the (b)(3) action. Class members possess an absolute right to opt out of a(b)(3) action. See Fed.R.Civ.P. 23(c)(2). However, Rule 23 does not explicitly provide a similar right to class members in (b)(1) or (b)(2) actions. As a result, most courts hold that Rule 23 does not offer class members an absolute right to opt out of a(b)(1) or (b)(2) suit. See, e.g., County of Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1303 (2d Cir.1990); In re A.H. Robins Co., 880 F.2d 709, 728 (4th Cir.1989); In re Dennis Greenman Sec. Litig., 829 F.2d 1539, 1544 (11th Cir.1987).

The authority to grant exclusion in (b)(1) and (b)(2) suits arises under Rule 23(d)(5). See County of Suffolk, 907 F.2d at 1304. Rule 23(d) provides district courts with the means to facilitate “the fair and efficient conduct of the action.” Fed.R.Civ.P. 23(d) Advisory Committee’s Note to the 1966 Amendments. The rule states in relevant part:
Orders in Conduct of Actions. In the conduct of actions to which this rule applies, the court may make appropriate orders: (1) determining the course of proceedings or prescribing measures to prevent undue repetition or complication in the presentation of evidence or argument; (2) requiring, for the
3

Messier v. Southbury Training School, 183 F.R.D. 350 (1998)

protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action; (3) imposing conditions on the representative parties or on intervenors; (4) requiring that the pleadings be amended to eliminate therefrom allegations as to representation of absent persons, and that the action proceed accordingly; (5) dealing with similar procedural matters.
Fed.R.Civ.P. 23(d). In County of Suffolk, the Second Circuit held that subsection (d)(5), which empowers courts to deal with similar procedural matters as those set out in (d)(1)–(4), provided ample authority for a district court’s decision to allow class members to opt out of a “limited fund” class action brought under Rule 23(b)(1)(B). See 907 F.2d at 1304.

relief”); Maximilian A. Grant, The Right Not to Sue: A First Amendment Rationale for Opting Out of Mandatory Class Actions, 63 U.Chi.L.Rev. 239, 245 (1996) (maintaining that Shutts does not govern Title VII(b)(2) actions). Thus, the task has fallen to lower courts to decide when, if ever, courts should grant exclusion from (b)(2) actions that do not focus primarily on damages.
Most courts granting exclusions in these types of (b)(2) suits have done so in “hybrid” cases where plaintiffs seek both monetary and equitable relief. See, e.g., Eubanks, 110 F.3d at 94–96; Holmes, 706 F.2d at 1148–52; Allen v. Isaac, 100 F.R.D. 373, 376 (N.D.Ill.1983). Hybrid cases typically involve employment discrimination claims where the class requests back pay in addition to an injunction. When a Title VII(b)(2) suit reaches the damages phase, the potential for conflicts among class members increases because back pay claims may be uniquely individual to each class member. See Holmes, 706 F.2d at 1159. At this stage “conflicts of *355 interest may emerge, and the assumptions of homogeneity and class cohesiveness that underlie (b)(2) certification can begin to break down.” Eubanks, 110 F.3d at 94; see also Allen, 100 F.R.D. at 376 (declaring that “[a]lthough back pay claims properly are characterized as equitable relief within the ambit of 23(b)(2) ... the monetary relief aspect of a back pay claim arguably draws the class members into antagonistic positions”). In fact, a Title VII(b)(2) action may resemble a(b)(3) action when it reaches the monetary phase. See Eubanks, 110 F.3d at 94.

C. Standard of Review [2] [3] The Second Circuit reviews decisions to grant or deny opt-out rights in (b)(1) and (b)(2) actions for an abuse of discretion. See id. at 1305; Holmes v. Continental Can Co., 706 F.2d 1144, 1160 (11th Cir.1983); Hervey v. City of Little Rock, 787 F.2d 1223, 1227 (8th Cir.1986); Eubanks, 110 F.3d at 96–97. Under an abuse of discretion standard, trial courts must permit class members to opt out of a(b)(1) or (b)(2) suit when it is “necessary to facilitate the fair and efficient conduct of the litigation.” Eubanks, 110 F.3d at 96–97; County of Suffolk, 907 F.2d at 1305. This formulation requires courts to accord opt-out rights only when necessary to promote the values of fairness and efficiency.
D. Opting Out of (b)(2) Suits for Injunctive Relief While the Supreme Court held in Shutts that the right to opt out exists in cases wholly or predominantly for money damages, the Court failed to address whether due process requires absent plaintiffs to receive notice and an opportunity to opt out in (b)(1) and (b)(2) suits not predominantly for money damages. See 472 U.S. at 811 n. 3, 105 S.Ct. 2965 (expressing no opinion as to “other types of class actions such as those seeking equitable

In this case, the plaintiffs only seek an injunction to order the defendants to consider all STS residents for community placement and to have STS professionals make these decisions in conjunction with each resident and his or her respective guardian. Plaintiffs do not seek damages; therefore, this case cannot be characterized as a hybrid action. Few cases have dealt with situations where (b)(2) class members sought exclusion from an action solely for injunctive relief. One case, however, proves instructive for resolving movants’ request to opt out.
Wyatt v. Poundstone, 169 F.R.D. 155 (M.D.Ala.1995) presents a strikingly similar set of facts to this case where mentally ill and mentally retarded residents of state facilities brought a(b)(2) action, alleging that state officials violated a prior consent decree, due process, and the ADA. Defendants moved for decertification, arguing that a conflict of interest existed within the plaintiff class—class members were divided between those who advocated community placement of residents and those who opposed it. See id. at 160. The Middle District of Alabama held that this conflict did not warrant class decertification for two reasons. See id. at 160–62.
First, the court concluded that “any conflict within the plaintiff class may have resulted at least in large part from misinformation disseminated by the defendants.” Id. at
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Messier v. Southbury Training School, 183 F.R.D. 350 (1998)

160. The defendants had sent letters to class members, their guardians, caregivers, and next-of-kin informing them that the plaintiffs and their attorneys were seeking to have services for all class members reduced and full deinstitutionalization of the mentally retarded by moving them into the community. The court recognized that defendants’ letter failed to state that plaintiffs merely sought to require defendants to develop more extensive community services and to offer institutionalized residents a choice between institutionalization and community placement. See id. As a result, it would be “manifestly unjust” and illogical to decertify the class when defendants may have caused the antagonism through misinformation. Id. at 161.
Second, the court found that, although some plaintiffs correctly informed still may disagree with community placement, this did not necessarily warrant decertification. See id. It reasoned that the crucial issue concerned whether the class as a whole was being adequately represented by the existing parties. In this regard, the court held that the disenchanted plaintiffs’ position against community placement was being adequately represented by the state defendants, who were vigorously litigating the same position in the case. See id. at 162. So long as the dissenters were receiving adequate representation, there could be no violation of due process in denying decertification of the class.5

5

The Court notes that one district court has taken the

opposite view. The Eastern District of Arkansas faced a

similar situation in Baldridge v. Clinton, 139 F.R.D.

119 (E.D.Ark.1991). In that case, an association

representing more than 900 parents and guardians of

disabled residents moved to intervene, contending that

they opposed the claims and objectives of the plaintiff

class. See id. at 123. As in the present suit, the proposed

intervenors supported their motion with a survey

indicating their opposition. In the wake of this motion,

the court granted defendants’ petition to decertify the

class, holding that the disenchanted plaintiffs’

opposition had destroyed the prerequisites of Rule

23(a). See id. at 128. For several reasons, Wyatt v.

Poundstone represents the better view.

[4] Three policies support this Court’s refusal to allow movants to opt out of this (b)(2) action solely for injunctive relief. First, ordering opt-outs could be counterproductive in a suit for declaratory or injunctive relief. “The fact that some class members may be satisfied with the challenged activity is irrelevant when relief would be beneficial *356 to all members of the class.” Newberg & Conte, supra, § 16.17, at 16–95. In Moss v. Lane Co., the district court addressed this policy by stating in relevant part:
I am not convinced of the

“displeasure” of the other members of the class with the present suit. If plaintiff’s allegations are true, an injunction may issue requiring an end to the discriminatory practices. Such relief would be beneficial to all members of the class.... By such dismissal, I would be saying that either there is no racial discrimination practiced by the defendant against the other members of the class or that the other Negro employees want to be racially discriminated against. Clearly the latter is unacceptable, and, certainly, the former would be an improper determination at this stage of the suit.
50 F.R.D. 122, 125–26 (W.D.Va.1970), aff’d, 471 F.2d 853 (4th Cir.1973).
Several courts have held that diversity of opinion within a class does not automatically defeat class certification. See, e.g., Lanner v. Wimmer, 662 F.2d 1349, 1357 (10th Cir.1981) (maintaining that “it is not fatal if some members of the class might prefer not to have violations of their rights remedied”); Wilder v. Bernstein, 499 F.Supp. 980, 993 (S.D.N.Y.1980) (holding that the “fact that some members of the class may be satisfied with the existing system and may prefer to leave the violation of their rights unremedied is simply not dispositive of a determination under Rule 23(a)”); Waters v. Barry, 711 F.Supp. 1125, 1131–32 (D.D.C.1989) (concluding that diversity of opinion within a(b)(2) class with regard to the constitutionality of a curfew law did not prevent certification); United States Fidelity & Guaranty Corp. v. Lord, 585 F.2d 860, 873 (8th Cir.1978) (same). Although these decisions came in the context of class certification, the principle applies to a motion to opt out with equal force.
Second, a (b)(2) class may include future members who stand to benefit from a favorable outcome in the case. These future members’ interests cannot be overlooked when faced with a motion to opt out that could potentially destroy the numerosity requirement of Rule 23(a)(1). Class actions under Rule 23(b)(2) “are useful and effective tools for the final determination of broad disputes concerning alleged discrimination.” Paddison v. Fidelity Bank, 60 F.R.D. 695, 699–700 (E.D.Pa.1973). If courts allow class members to opt out, Rule 23(b)(2)’s purpose of resolving whether a policy and practice of discrimination exists would be defeated. See id. (reasoning that “the existence of a policy of discrimination is one that demands a mechanism for final resolution in our society”). Without a final resolution in this case concerning whether the defendants are
5

Messier v. Southbury Training School, 183 F.R.D. 350 (1998)

discriminating impermissibly against STS residents, the future class members’ interests might suffer.
Finally, opting out of a(b)(2) action for injunctive relief has little practical value or effect. See Holmes, 706 F.2d at 1157. Even class members who opted out could not avoid the effects of the judgment. See Horton v. Goose Creek Ind. Sch. Dist., 690 F.2d 470, 487 n. 32 (5th Cir.1982) (reasoning that “the stare decisis effect of our decision that the sniffing procedures as they relate to the students are unconstitutional will, as a practical matter, put an end to all searches”); Rosado v. Wyman, 322 F.Supp. 1173, 1194 (E.D.N.Y.) (same), aff’d, 437 F.2d 619 (2d Cir.1970). A(b)(2) injunction would enjoin all illegal action, and all class members would necessarily be bound by its res judicata effect. See Holmes, 706 F.2d at 1157; Horton, 690 F.2d at 487 n. 32; Paddison, 60 F.R.D. at 696.
III. Movants’ Request to Opt Out Movants make several claims in support of their bid to opt out which may be summarized as follows. First, movants contend that they oppose the named plaintiffs’ goals in this suit and in the future, and also disagree with many of the allegations in the complaint concerning conditions at STS. While the plaintiffs seek the eventual closure of the institution and placement of residents in the community, movants prefer to remain at STS. (Request to Opt Out of Class ¶¶ 1, 5–8.) Second, movants argue that this case threatens their rights as individuals and guardians to be the primary decision makers regarding the services and supports they receive *357 under the Developmental Disability Assistance and Bill of Rights Act (“DDA”), 42 U.S.C. § 6000(c)(3) (1997). (Id. ¶¶ 1, 8.) Finally, even though movants acknowledge that the Court has foreclosed the possibility that it will close STS or force residents into the community, they claim that an unfavorable result in this case could lead to a diversion of state resources away from STS and an ideological shift of opinion in the legislature. (Reply Mem. in Supp. of Mot. to Opt Out of Class at 6–8; Bondy Reply Aff. in Supp. of Mot. to Opt Out of Class ¶¶ 16, 18, 20.)
As stated earlier, the proper test concerns whether the grant of movants’ request to opt out is necessary to facilitate the fair and efficient conduct of the litigation. With the values of fairness and efficiency in mind, the Court now turns to the merits of the request.
A. Proof of Federal Violations Will Benefit the Class Throughout this case, the parties have been litigating the rights of mentally retarded individuals who may otherwise have difficulty protecting their own interests. This case was brought on behalf of the present and future

residents of STS, and this motion has been filed on behalf of 611 of those residents. Under the circumstances, an independent evaluation must be made regarding whether an award of opt-out rights will serve the STS residents’ best interests. Clearly, the best interests of the STS residents demand that movants’ request be denied.
The entire purpose behind Rule 23(b)(2) is to resolve disputes concerning the existence of a policy and practice of discrimination against a broad class of individuals. See Paddison, 60 F.R.D. at 699–700. Plaintiffs charge the defendants with violating due process, the ADA, Section 504, and 42 U.S.C. § 1983 for: (1) refusing to allow STS professionals, in conjunction with STS residents and their guardians, to develop and implement an individualized treatment plan appropriate for each resident; (2) failing to consider community placement as an option for many STS residents; (3) maintaining unconstitutional conditions at STS; and (4) failing to comply with federal funding requirements.
Indeed, due process requires that a decision to keep a resident in an institution rather than a community setting must be a “rational decision based on professional judgment.” Society for Good Will to Retarded Children, Inc. v. Cuomo, 737 F.2d 1239, 1249 (2d Cir.1984) (applying the Supreme Court’s professional judgment standard in Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) to community placement issues); Hughes ex rel. David v. Cuomo, 862 F.Supp. 34, 37 (W.D.N.Y.1994); Astorino v. Lensink, 1993 WL 366513, at *11 (D.Conn. Aug. 24, 1993). In addition, the ADA and Section 504 require defendants to refrain from discriminating against STS residents on the basis of the severity of their disabilities with respect to community placement. See Martin v. Voinovich, 840 F.Supp. 1175, 1191–92 (S.D.Ohio 1993) (concluding that Section 504 and the ADA prohibit discrimination on the basis of severity of handicap); Jackson v. Fort Stanton Hosp. & Training Sch., 757 F.Supp. 1243, 1299 (D.N.M.1990) (holding that the “severity of plaintiffs’ handicaps is itself a handicap which, under § 504, cannot be the sole reason for denying plaintiffs access to community programs”), rev’d on other grounds, 964 F.2d 980 (10th Cir.1992); Conner v. Branstad, 839 F.Supp. 1346, 1356 (S.D.Iowa 1993) (same); 45 C.F.R. § 84.4(b)(1); 28 C.F.R. § 35.130.
If plaintiffs succeed in proving these violations, an injunction may issue requiring an end to the discriminatory practices. This relief would be beneficial to all members of the plaintiff class. See Moss, 50 F.R.D. at 125–26. The fact that some class members may be satisfied with the challenged activity is irrelevant when relief would be beneficial to all members of the class. See Newberg & Conte, supra, § 16.17, at 16–95; Wyatt, 169 F.R.D. at 161; Waters, 711 F.Supp. at 1131–32; Wilder, 499 F.Supp. at 993; Lanner, 662 F.2d at 1357; United States Fidelity & Guaranty, 585 F.2d at 873. Although
6

Messier v. Southbury Training School, 183 F.R.D. 350 (1998)

movants are satisfied with the challenged activity in this case, exclusion remains unwarranted where a successful suit will not alter their rights or obligations under the law. See Waters, 711 F.Supp. at 1132.
*358 The Court repeatedly has stated that plaintiffs cannot obtain: (1) the ending of all new admissions to STS; (2) the transferring of all residents to community settings; and (3) the closure of STS. See Ruling on Mot. to Intervene at 3–4; Ruling and Order Regarding Application for Exclusion from Class at 2. The most that plaintiffs can accomplish is to require STS to conform with its constitutional and statutory duty to consider the appropriateness of community placement. In no way can the plaintiffs force STS to place in community settings those for whom community placement is inappropriate. There can be little disagreement that having the right to choose between institutionalization and community placement will benefit movants and the other present and future members of the plaintiff class.
Movants’ argument that the outcome of this case could effectuate the future closure of STS by changing the social and political landscape is unavailing. The Court must follow the law free from speculation as to the legislature’s eventual reaction to the final result in this case. The operative question concerns whether the defendants violated federal law in their provision of services to STS residents, not whether a particular ideology favoring institutionalization or community placement should prevail in the legislative or executive branch.

not require that dissenters be allowed to opt out where their positions are being adequately represented by the defendants in the litigation. See Horton, 690 F.2d at 487 (ruling that although some plaintiff class members approved of school drug searches in a case challenging their constitutionality, class certification remained appropriate where the dissenters’ interests were aggressively represented by the defendant school district); Dierks v. Thompson, 414 F.2d 453, 457 (1st Cir.1969) (holding that although not all plaintiff class members agreed with every goal pursued by the named plaintiffs, class certification remained appropriate because the defendants in the litigation were adequately representing the dissenters’ interests); Wyatt, 169 F.R.D. at 161–62; Sturdevant v. Deer, 73 F.R.D. 375 (E.D.Wis.1976); Rota v. Brotherhood of Ry., Airline & S.S. Clerks, 64 F.R.D. 699 (N.D.Ill.1974).
In another type of case, the Court might hesitate to rely on the opponent of a class to represent the views of dissenting class members due to the danger of collusion. But in this case, the state defendants have presented an aggressive defense. “In such circumstances, the possibility of collusion is virtually nil, and we can rely on the defendant to present to the court the arguments supporting the contention of any dissident” STS resident. Horton, 690 F.2d at 487–88. Because movants’ opposition to community placement is being litigated vigorously by the defendants and no danger of collusion exists, the Court concludes that movants’ interests are being adequately represented as required by Rule 23(a)(4).

B. Adequacy of Representation of Movants’ Interests Courts possess an ongoing duty throughout all stages of class action litigation to ensure compliance with Rule 23(a). See, e.g., General Tele. Co. v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982); In re Asbestos Litig., 90 F.3d 963, 977 (5th Cir.1996); Hervey v. City of Little Rock, 787 F.2d 1223 (8th Cir.1986); In re Gen. Motors Engine Interchange Litig., 594 F.2d 1106 (7th Cir.1979). Rule 23(a)(4) requires that class members be adequately represented in the litigation. Movants maintain that they cannot protect their interests as members of the plaintiff class. However, their position against community placement already is being adequately represented by the state defendants.6

6

At the risk of repeating itself, the Court reminds

movants that they may file amicus curiae briefs in

connection with this case. See Ruling on Mot. to

Intervene at 10.

[5] The presence of conflicting views within a class does

C. Rights of Guardians and Individuals Movants correctly assert that the guardians of STS residents play a heavy role in determining the course of their wards’ care and treatment. In fact, state law requires all guardians to file an annual report with the *359 Connecticut Probate Court describing their wards’ care and progress. However, movants incorrectly propose that this case may hinder the guardians’ rights to participate in the placement decision making process. Movants raised this same allegation in their 1996 motion to intervene, see Ruling on Mot. to Intervene at 5, and the Court rejects it for the same reasons as before.
Parents and guardians possess legal recourse under state law to prevent unwarranted community placement. See State of Connecticut Dep’t of Mental Retardation, Admin. Directive No. 15 (Aug. 31, 1983). State law provides parents and guardians with notice and hearing rights in regard to proposed transfers of their children or wards. See id. The mere fact that this case may force STS to fulfill its constitutional obligation to make a rational decision based on professional judgment concerning the STS residents’ future care in no way impairs parents’ and
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Messier v. Southbury Training School, 183 F.R.D. 350 (1998)

guardians’ ability to assert their legal rights as guaranteed by Connecticut law.
D. Misinformation As a collateral matter, some evidence suggests that the petition movants used to solicit support for this motion presented one-sided views regarding plaintiffs’ objectives in this lawsuit. In their solicitation letter to the guardians of the 611 STS residents, HSA and STSF stated that plaintiffs’ long-announced goal is to close STS or “force many STS residents into the community who do not wish to live there.” (Bondy Aff. in Supp. of Mot. to Opt Out of Class, Ex. A ¶ 5; Ex. D at 2; Ex. E ¶ 2.) Additionally, the letter charges that “the organizations listed as plaintiffs ... wish to take away the rights of guardians.” (Id., Attach. D at 1–2; Ex. E. ¶ 2; Request to Opt Out of Class ¶ 1.) However, the letter does not refer to the Court’s prior rulings foreclosing the possibility that STS will be closed in this case, nor does it disclose that the Court will not force STS residents to live in community settings. Nowhere does the letter state that plaintiffs only can require defendants to offer institutionalized residents a choice between STS and community placement, or that guardians have rights under state law to contest any such decisions.
Simply put, one-sided statements such as these do not constitute court-approved notice to the class as envisioned by Rule 23. Rule 23(d)(2) provides that district courts may issue notice “for the protection of the members of the class” offering an opportunity “to signify whether they consider the representation fair and adequate.” This

allows courts to ensure that communications to class members about their rights present an accurate representation of the facts. The Court will not speculate as to whether movants’ one-sided communications with the guardians had an impact on their decision to support this motion. It suffices to note that the Court does not endorse such communications.
IV. Subclasses and Intervention As an alternative to opting out, movants propose that the Court designate them as a separate subclass pursuant to Rule 23(c)(4)(B). However, this would have the same effect as granting exclusion and subsequent intervention. Either way, the issues in this case would be complicated unnecessarily. In the exercise of its discretion, the Court declines to designate movants as a subclass for the same reasons that support the denial of their request to opt out. The Court also rejects any similar attempt by movants to intervene on the side of the defendants.
CONCLUSION
For the above reasons, movants’ motion to opt out, or be made a separate subclass, and to intervene as defendants [Doc. No. 333] is denied.
SO ORDERED.
	  

8

 
 Messier v. Southbury Training School, Not Reported in F.Supp.2d (1999)

1999 WL 795556 Only the Westlaw citation is currently available.
United States District Court, D. Connecticut.
Richard MESSIER, et al., Plaintiffs v.
SOUTHBURY TRAINING SCHOOL, et al., Defendants
No. 3:94CV01706 (EBB). | Sept. 14, 1999.
Opinion
RULING ON PLAINTIFFS’ MOTION FOR REIMBURSEMENT OF EXPENSES
BURNS, Senior J.
INTRODUCTION
*1 Plaintiffs have filed this motion, seeking $9,942.80 for reimbursement to expert witness Dr. Sue Gant, for time she spent in Connecticut allegedly waiting to testify at the trial of this matter. Due to the extreme poor health of defendants’ lead counsel, he was unavailable to cross-examine Dr. Gant during the week of February 21–26, 1999. She has filed a bill, seeking $1,800 per day for “trial fee” for the days of February 21–25 and miscellaneous charges for lodging, meals, and rental cars from February 21–26.
DISCUSSION
Cross-examination of Dr. Gant by lead defense counsel commenced on the afternoon of February 12, 1999. The Court had previously notified counsel that the trial of the matter would be suspended during the week of February 15 through, and including, February 19. As a matter of normal course, the cross-examination of Dr. Gant would have continued on the morning of February 22. The Court accepts defense counsel’s representation that he did not know how long his cross-examination of this expert would take.
During the week of February 15, defense counsel became very ill with severe influenza symptoms. The Court will take judicial notice of the many newspaper and medical

reports that the “flu season” was especially virulent during the winter of 1998–1999.
As a result of his illness, after several losses of consciousness and high fever, defense counsel went to the doctor, who confirmed he had a serious case of influenza. Resultingly, on the morning of February 19, defense counsel’s co-counsel placed a conference call with the Court and opposing counsel to give a status report of the health of lead defense counsel and requested a two day continuance, until February 24. The Court granted the continuance. Thus, Dr. Gant had three days warning that she would not be needed at the trial of this matter on February 22. She nevertheless came to Connecticut and has submitted a bill along with the present motion for $5,913.90 for the dates of February 21–23 for “trial time” and other miscellaneous expenses.
On the morning of February 22, lead defense counsel was forced to return to his doctor, as his illness was not getting any better. He received a medical note which indicated that he could not return to work until at least February 24, but that if lead defense counsel was not better by then, the doctor would provide a further notice of disability.
Upon receiving this report, defense co-counsel contacted the Court and opposing counsel and asked for a continuance until either February 26 or February 29. The Court granted the continuance until February 26. The continuance was granted with no penalty of any sort to the defendants.
Hence, Dr. Gant was again given notice in advance that she need not appear until February 26 and could attend to other commitments until that time. She nevertheless has submitted a bill totaling $3,942.60 for “trial fees” and other miscellaneous expenditures for the days of February 24 and 25.
*2 Plaintiffs’ counsel determined next that he would have to take a witness, one Bill Ale, out of turn on February 26 due to Ale’s vacation plans. Dr. Gant has submitted a bill for miscellaneous expenses for this date of $86.30.
LEGAL ANALYSIS
Plaintiffs’ counsel contends that defense counsel could have advised him and the Court on February 15 that Dr. Gant’s testimony would not take place during the week of February 22–26 and seeks the requested sanctions herein for the intentional obstruction of the effective and efficient administration of justice, pursuant to Local Rule 31. Counsel further argues that no requirement of willingness or bad faith exists in ordering sanctions under
1

Messier v. Southbury Training School, Not Reported in F.Supp.2d (1999)

this Local Rule. However, the Second Circuit has held that sanctions are not warranted, under a local rule or any of the federal rules for “conduct attributable to mistake, inadvertence or error of judgment .” In re Sutter, 543 F.2d 1030, 1035 (2d Cir.1976) (emphasis added). Each of the cases relied upon by plaintiffs involve: (1) a party who has failed to defend a case diligently; (2) dilatory, improper behavior on the part of counsel; (3) groundless requests for continuances; and (4) the undue burden endured by one party due to the other party’s conduct. See Plaintiffs’ Memorandum of Law at pages 5–9.
The Court declines to accept the analysis of defense counsel’s behavior as being dictated by any of these severe standards. Illness of an attorney, documented by medical notes, most assuredly does not call for the extreme sanctions requested by plaintiffs. Plaintiffs claim that “[i]t was not just once or twice that defendants failed to disclose the true length of delay to the plaintiffs and the Court. Rather, defendants engaged in an incremental practice which resulted in substantial unnecessary costs to the plaintiff.” The Court finds that it was impossible for defense counsel to give an accurate time at which he could return to trial, due to an obviously serious illness. Through no fault of his own, counsel was physically unable to give an accurate date of his ability to return to the trial of this matter. This fact was documented through

medical evidence in the form of the note from his physician. Accordingly, sanctions of any form are unavailable to plaintiffs herein. Had the plaintiffs sent Dr. Gant home until the trial could have commenced again, the Court would have given plaintiffs a concomitant extension of time for Dr. Gant to return to Connecticut. It was plaintiffs who made the incorrect decision to have Dr. Gant remain in Connecticut, when such decision was an unreasonable one, given the reasons for the extensions sought by defense counsel.
CONCLUSION
The Motion for Reimbursement of Expenses [Doc. No. 574] is DENIED. If, however, defendants have not made payment for the depositions of plaintiffs’ experts, as ordered by this Court on April 9, 1999 to be made by May 1, 1999, the payments shall be made by October 15, along with interest at 8% from May 1, 1999. If the payments are not made by October 15, the rate of interest shall rise incrementally on a monthly basis until such payments are made.
	  

2

 
 Messier v. Southbury Training School, Not Reported in F.Supp. (1998)

1998 WL 136170 Only the Westlaw citation is currently available.
United States District Court, D. Connecticut.
Richard MESSIER, et al. v.
Southbury Training School, et al.
No. 3:94–CV–1706 (EBB). | Jan. 30, 1998.
Opinion
RULING ON THE HOME AND SCHOOL ASSOCIATION’S MOTION FOR RECONSIDERATION
BURNS, Senior J.
*1 Plaintiffs, three advocacy organizations and seven individual residents or former residents of Southbury Training School (“STS”), brought this action for injunctive relief against defendants STS and Department of Mental Retardation (“DMR”), Department of Public Health & Addiction Services and Department of Social Services. Plaintiffs allege violations of the Due Process Clause of the Fourteenth Amendment, Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act and the Social Security Act. The Home and School Association of the Southbury Training School (“HSA”), a non-party subpoenaed by the plaintiffs for deposition and production of documents, moves the Court to vacate its December 22, 1997 order compelling the HSA to produce the requested documents. For the reasons set forth below, the HSA’s Motion for Reconsideration (Doc. No. 291) is granted in part and denied in part. The plaintiffs’ related Motion for Further Orders and/or Sanctions (Doc. No. 275) is denied.
I. Statement of Facts The plaintiffs served a notice of deposition and subpoena duces tecum on the HSA on November 1, 1997 which directed the HSA to designate a custodian of records, pursuant to FED.R.CIV.P. 30(b)(6). This person was instructed to attend a deposition on November 21, 1997 and to produce certain documents at that time. Sarah E. Bondy, President of the HSA, timely objected to the document production requests on November 14, 1997. During her deposition on November 21, 1997, Ms. Bondy renewed her objections, refusing to produce the requested documents. She was not represented by counsel at that

time.
On December 18, 1997, the plaintiffs moved the Court to compel production of the HSA documents. After considering the plaintiffs’ stated reasons for requesting the documents as well as the HSA’s objections to their production, the Court issued an order on December 22, 1997, ordering the HSA to produce the documents, subject to an in camera review of any documents that the HSA included in a privilege log. The Court directed all persons involved to observe all protective orders previously issued in the case. The HSA was ordered to produce the documents at a deposition to occur no later than January 9, 1998.
On December 23, 1997, the Court received a letter from Attorney Richard Scarola informing the Court that the HSA had retained him to represent it in this matter. The Court gave Mr. Scarola permission to file a Motion for Reconsideration by January 12, 1998. The motion was timely filed by the HSA. In the meantime, the plaintiffs filed a Motion for Other Orders and/or Sanctions to compel the HSA’s compliance with the December 22, 1997 order. The plaintiffs complained that Ms. Bondy had refused to attend a deposition on January 9, 1998 or to produce the requested documents by that date.
II. Discussion
A. Motion for Other Orders and/or Sanctions As to the plaintiffs’ Motion for Other Orders and/or Sanctions, the Court will not sanction the HSA for a misunderstanding caused by inconsistent court instructions. The December 22, 1997 order directed the HSA to produce the requested documents by January 9, 1998. However, the Court told the HSA’s counsel that he should file a Motion for Reconsideration by January 12, 1998. Under these circumstances, it would be patently unfair for the Court to sanction the HSA for failing to produce the documents before the Court ruled upon the Motion for Reconsideration. The plaintiffs’ Motion for Other Orders and/or Sanctions is, therefore, denied.
B. Motion for Reconsideration *2 The plaintiffs served a subpoena for a deposition and production of documents on the HSA pursuant to FED.R.CIV.P. 45. The Court granted the plaintiffs’ Motion to Compel production over the objections of the HSA. In reconsidering that order, the Court must take into account the liberal discovery policy evinced by the Federal Rules of Civil Procedure. Herbert v. Lando, 441 U.S. 153, 177, 99 S.Ct. 1635, 1649, 60 L.Ed.2d 115 (1979); Schlesinger Investment Partnership v. Fluor
1

Messier v. Southbury Training School, Not Reported in F.Supp. (1998)

Corp., 671 F.2d 739, 742 (2d Cir.1982). This policy serves many important functions, including, inter alia, enabling parties to obtain the requisite factual information to prepare for trial. Gary Plastic Packaging Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 756 F.2d 230, 236 (2d Cir.1985). On the other hand, the Court recognizes that a search for information that is purely speculative can give rise to an abuse of the discovery process. Keeping this balance in mind, the Court will consider each of the plaintiffs’ requests for production of documents seriatim.
1. All written documents in his/her possession concerning the provision of care, treatment and/or community placement to Southbury Training School residents.
The HSA objects that this request is over broad and unduly burdensome. Furthermore, the HSA argues, the information sought contains privileged information because the HSA opposes the relief the plaintiffs seek in this lawsuit against STS. Motion for Reconsideration at 8. The HSA agrees that the conditions at STS are central to the plaintiffs’ claims; however, the HSA contends that the concerns of HSA members for their relatives and friends who are residents of STS are not evidence of the conditions at the school. Motion for Reconsideration at 9.
The plaintiffs respond that the requested documents are expected to demonstrate, inter alia, that state officials knew of poor conditions at STS and that the DMR allowed the views of certain parents regarding community placement to dictate the school’s community placement policy. Memorandum in Opposition at 7–8.
The Court finds that the production of documents containing information related to the care, or treatment of STS residents or community placement is reasonably calculated to lead to the discovery of admissible evidence. See FED.R.CIV.P. 26(b)(1). Because the plaintiffs’ claims are based on allegedly poor conditions at STS and inappropriate denial of community placement, any information that the HSA has relating to the care of the STS residents or related to community placement is relevant to the plaintiffs’ cause of action. The fact that the HSA disagrees with the goals of the plaintiffs is immaterial to whether or not documents in the HSA’s possession are discoverable.
The Court orders the HSA to produce all documents responsive to this document production request. Any document that the HSA believes to be privileged may become part of the privilege log for in camera review, so that the Court can ascertain whether it is discoverable. However, the Court cautions the HSA that a document is not privileged merely because it contains information in

opposition to the plaintiffs’ goals.
*3 2. All written documents in his/her possession concerning the condition of facilities and grounds at STS and modification or upgrading of those facilities and grounds.
The HSA objects that the requested documents are irrelevant and that it would be overly burdensome to produce these documents as they lie beyond the HSA’s “core activities.” Motion for Reconsideration at 8. The plaintiffs make the same response as they did for the first document production request. Memorandum in Opposition at 7–8.
The Court agrees with the plaintiffs that the requested information is relevant as it may shed light on conditions at STS as well as the state’s knowledge of those conditions. The Court orders the HSA to produce these documents. The plaintiffs are directed to work with the HSA to devise the least burdensome method of production possible.
3. All written documents concerning the upgrading of facilities at STS to comply with ICF/MR standards.
The HSA objects to this request for the same reasons previously discussed for document production request # 2. Motion for Reconsideration at 9. The plaintiffs’ response is also identical to its rejoinder to the HSA’s objections to the first two document production requests previously discussed. See Memorandum in Opposition at 7–8.
The Court finds that information pertaining to the upgrading of facilities, for whatever purpose, is relevant to the conditions at STS, since the conditions at the school constitute an important part of the plaintiffs’ claims. The Court orders the HSA to produce all documents responsive to this request.
4. All documents in the Home and School Association’s files which have been written by its officers, board members and/or membership during the past five years to Connecticut legislators, the DMR Commissioner, the Director of STS and/or the Governor and/or his staff.
The HSA objects to this request, stating that this information is irrelevant, over broad, and may relate to private matters of STS residents and their families.
2

Messier v. Southbury Training School, Not Reported in F.Supp. (1998)

Motion for Reconsideration at 9–10. Moreover, the HSA claims that production of these documents would have a chilling effect on discussions between the family members of residents and the persons responsible for their care. Id. at 10. The plaintiffs argue that correspondence between parents/guardians of residents and key state officials will help determine why the DMR decided to repeat the family survey in 1996. Furthermore, the plaintiffs expect to discover why the DMR utilized only the survey results in its decision not to request funding for community placement in the 1998–99 budget. Memorandum in Opposition at 8–9.
The Court agrees with the plaintiffs that correspondence between family members of STS residents and certain state officials might lead to the discovery of admissible evidence regarding the DMR’s community placement decisions. However, the request for documents is over broad as stated. First, it would require the HSA to produce all documents written to state officials by HSA members, officers, or board members, when the only relevant documents in this case are those pertaining to community placement.
*4 The request is also over broad in its inclusion of correspondence to state legislators. That correspondence is irrelevant to the plaintiffs’ claims because it is the Commissioner of the DMR and, ultimately, the governor who are directly responsible for creating STS’s community placement policy.
For these two reasons, the Court is narrowing the scope of the plaintiffs’ document production request number 4. Therefore, the HSA is ordered to produce all documents in its files which have been written by officers, board members, and/or membership during the past five years to the DMR Commissioner, the Director of STS and/or the Governor and/or his staff, which relate in any way to community placement of STS residents.
5. All documents the officers, board members and/or general membership of the Home and School Association have received during the past five years from Connecticut legislators, the DMR Commissioner, the Director of STS and/or the Governor and/or his staff concerning Southbury Training School.
The HSA objects on the grounds that the requested information is irrelevant, over broad, and private. Motion for Reconsideration at 10. The plaintiffs respond that correspondence between state officials and members of the HSA may reveal why the DMR repeated the family survey in 1996 and based its decision not to request funds

for community placement on those survey results. Memorandum in Opposition at 8–9.
As in the case of document production request number 4, the Court agrees that the information sought by the plaintiffs is relevant, except with respect to the state legislators. However, the request is phrased in over broad language in that it asks for all such documents. Document production request number 5 is, therefore, revised in the following manner. The HSA is ordered to produce all documents in its files which HSA officers, board members, and/or membership have received during the past five years from the DMR Commissioner, the Director of STS and/or the Governor and/or his staff, which relate in any way to community placement of STS residents.
6. All documents relating to surveys that have been undertaken by the Department of Mental Retardation and/or the STS Foundation, Inc. to determine the views of parents, guardians and/or STS residents concerning community placement of STS residents.
The HSA protests that this request is over broad, irrelevant, and will necessitate the production of privileged and/or private information. Motion for Reconsideration at 11. The plaintiffs assert that information relating to the surveys conducted by the DMR and the Southbury Training School Foundation (“Foundation”) may shed light on why the DMR chose to essentially replicate the 1993 Foundation survey in 1996. Memorandum in Opposition at 9.
The Court believes that the plaintiffs have proffered a sufficient rationale to establish that the production of these documents is calculated to lead to admissible evidence. Information which reveals anything about why the DMR decided not to ask for funding for community placement relates to the plaintiffs’ claim that STS residents are being denied the opportunity for community placement. Despite the fact that this document production request focuses on a possible link between surveys conducted by the DMR and the Foundation, rather than the HSA, the plaintiffs may receive information from the HSA that it could not get from the Foundation. Indeed, the Foundation and the HSA have such a close relationship, sharing facilities, staff, and even key decision makers, see Memorandum in Opposition at 2, that it is altogether possible that information about the Foundation survey and its relationship to the DMR survey may be located in the HSA’s files. The Court orders the HSA to produce all documents responsive to this request.
*5 7. All documents relating to
3

Messier v. Southbury Training School, Not Reported in F.Supp. (1998)

investigations the Home and School Association has undertaken to determine the adequacy of programs and services and/or safety of residents at Southbury Training School.
The HSA represents that they have no documents responsive to this request. Motion for Reconsideration at 11. Obviously the HSA cannot turn over non-existent documents. However, if the HSA should become aware of any responsive documents, the Court orders the HSA to produce them to the plaintiffs. Documents which contain information about the adequacy of services at STS or the safety of STS residents are relevant to the plaintiffs’ claims that the conditions at STS violate certain laws or rights of residents.
8. All documents which reflect correspondence with families and/or friends of STS residents relating to improving conditions at STS and/or community placement of STS residents.
The HSA objects to this request, stating that the correspondence of its members has no bearing on the conditions at STS. Also, the HSA asserts that producing these documents would be extremely burdensome because they are not organized in a manner which makes them easy to collect. Motion for Reconsideration at 12. The plaintiffs contend that information relating to parental concerns about conditions at STS and community placement is relevant since DMR Commissioner O’Meara stated that he based his decision not to request funding for community placement on the results of surveys which were intended to reflect parental concerns about, inter alia, community placement. Memorandum in Opposition at 10. The plaintiffs expect to discover what advice the HSA gave to parents about completing the surveys. Id.
Given Commissioner O’Meara’s deposition testimony that he decided not to request funds for community placement based on the survey results and the role that the HSA, an organization openly opposed to community placement, plays in advising parents, this document production request is calculated to lead to the discovery of admissible evidence. The Court orders the HSA to produce all documents responsive to this request. The stringent protective orders already issued by the Court in this case will protect the privacy of the persons involved. The Court also notes that it is only correspondence relating to improving conditions at STS or to community placement which must be produced. This narrow focus should allay some of the HSA’s privacy concerns.
9. Complete copies of the minutes

of meetings held by the Home and School Association during the past four years.
The HSA objects to this request on the grounds that the minutes are irrelevant to the issues in the case, contain privileged information, and their production is unduly burdensome. Motion for Reconsideration at 12. The plaintiffs respond that the minutes will enable them to uncover any connection between the 1993 Foundation survey and the 1996 DMR survey. Memorandum in Opposition at 10.
*6 The Court agrees that this request, as formulated, is over broad and most resembles a discovery “fishing expedition” disfavored by courts. See e.g., United States v. Nixon, 418 U.S. 683, 699–700, 94 S.Ct. 3090, 3103, 41 L.Ed.2d 1039 (1974); Lyeth v. Chrysler Corp., 929 F.2d 891, 899 (2d Cir.1991). However, minutes containing information relating to the 1993 and 1996 surveys would be relevant to plaintiff’s investigation as to why the DMR failed to request funding for community placement in the 1998–99 budget. Therefore, the HSA is ordered to produce minutes which mention either the 1993 or the 1996 survey or which discuss community placement.
C. HSA’s Motion for Interlocutory Appeal In the event that the Court declines to vacate its December 22, 1997 order compelling production of the subpoenaed documents, the HSA moves the Court to certify its decision to the Second Circuit Court of Appeals for interlocutory appeal pursuant to 28 U.S.C. § 1292(b) and to stay the Order pending appeal. Motion for Reconsideration at 3. The plaintiffs respond that the HSA does not meet the requirements under the statute for interlocutory appeal. Memorandum in Opposition at 11.
The Court may certify an order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b) if each criterion of a three-pronged test is met. Certification is justified if the district court determines that an order “(1) involves a controlling question of law (2) as to which there is substantial ground for difference of opinion, and (3) that an immediate appeal from the order would materially advance the ultimate termination of the litigation....” Telectronics Proprietary, Ltd. v. Medtronic, Inc., 690 F.Supp. 170, 172 (S.D.N.Y.1987).
Only “exceptional circumstances” warrant departure from the general rule that appellate review should occur only after a final judgement is entered by the trial court. Klinghoffer v. Achille Lauro Lines, et al., 921 F.2d 21, 25 (2d Cir.1991)(quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 475, 98 S.Ct. 2454, 2461, 57 L.Ed.2d 351 (1978)). Indeed, the Second Circuit has admonished the
4

Messier v. Southbury Training School, Not Reported in F.Supp. (1998)

district courts to use § 1292(b) sparingly. Westwood Pharmaceuticals, Inc. v. National Fuel Gas Distribution Corp., 964 F.2d 85, 89 (2d Cir.1992).
Because the present case fails to meet each of the three requirements delineated in § 1292(b), the Court declines to certify its order for interlocutory appeal. First, there is no controlling question of law involved. It is doubtful that an incorrect refusal to vacate the order compelling the HSA to produce the subpoenaed documents would constitute grounds for reversal of a final judgment. See Telectronics Proprietary, Ltd., 690 F.Supp. at 172 (explaining that a question of law is controlling if its incorrect disposition would necessitate reversal of a final judgment for further proceedings).
Moreover, there is no substantial ground for difference of opinion as to the Court’s methodology in determining whether the requested documents are discoverable. The plaintiffs served the HSA with the subpoena for deposition with notice for production of documents in accordance with FED.R.CIV.P. 45(b). An objection was timely filed by the HSA as is their prerogative under Rule 45(c)(2)(B). This same rule gives the Court permission to compel production of the documents over the objections of the non-party. The Court must quash the subpoena if it requires the production of privileged information or places an undue burden on the non-party. FED.R.CIV.P. 45(c)(3)(A)(iii), (iv).
*7 The Court has determined that the production of the requested documents does not impose an undue burden on the HSA and has invited the HSA to create a privilege log so that any documents the HSA believes in good faith to be privileged may be reviewed in camera before they are produced. The HSA may disagree with the Court’s decision; however, there is no controversy within the Second Circuit regarding the correct technique to employ in deciding whether a non-party must produce subpoenaed documents. Cf. German v. Federal Home Loan Mortgage Corp., 896 F.Supp. 1385, 1399 (S.D.N.Y.1995)(holding that there was no “substantial ground for difference of opinion” as to the proper methodology courts should apply in determining whether a statute confers a cause of action under § 1983).
Finally, an interlocutory appeal on this issue would not advance the termination of the litigation. Even if the appellate court reversed the Court’s order requiring production of the documents, it is unlikely that the plaintiffs would withdraw from the litigation since the underlying issues would not have been resolved. Therefore, certification in this case will not “avoid

protracted and expensive litigation.” Id. at 1398.
In summary, the Court finds that its order compelling production of the subpoenaed documents is not a good candidate for certification for interlocutory appeal pursuant to § 1292(b). None of the criteria for certification established by the statute are implicated by the Court’s order. Therefore, the HSA’s request for certification for interlocutory appeal is denied.
III. Conclusion For the reasons discussed above, the HSA’s Motion for Reconsideration and to Vacate Order (Doc. No. 291) is granted to the extent that the Court’s order of December 22, 1997 compelling production of the subpoenaed documents is modified as follows:
1. As to the plaintiffs’ document production request number 4, the HSA shall produce all documents in its files which have been written by its officers, board members and/or membership during the past five years to the DMR Commissioner, the Director of STS and/or the Governor and/or his staff, which relate in any way to community placement of STS residents.
Similarly for document production request number 5, the HSA shall produce all documents in its files which its officers, board members and/or membership have received during the past five years from the DMR Commissioner, the Director of STS and/or the Governor and/or his staff, which relate in any way to community placement of STS residents.
2. As to the plaintiffs’ document production request number 9, the HSA shall produce minutes from its meetings which mention either the 1993 or the 1996 survey or which discuss community placement.
3. The HSA shall produce the documents noticed in the plaintiffs’ subpoena dated October 15, 1997, as modified by this ruling, at a deposition to be held no later than February 20, 1998.
*8 The December 22, 1997 order remains in effect in all other respects.
SO ORDERED.
	  

5

 
 Messier v. Southbury Training School, Not Reported in F.Supp. (1998)

1998 WL 422858 Only the Westlaw citation is currently available.
United States District Court, D. Connecticut.
Richard MESSIER, et al. v.
SOUTHBURY TRAINING SCHOOL, et al.
No. 3:94–CV–1706 (EBB). | June 29, 1998.
Opinion
RULING ON PLAINTIFF’S MOTION TO COMPEL AND FOR SANCTIONS
BURNS, Senior J.
*1 Plaintiffs, three advocacy organizations and seven individual residents or former residents of Southbury Training School (“STS”), bring this class action for injunctive relief against defendants STS, Connecticut Department of Mental Retardation (“DMR”), Department of Public Health and Addiction Services and Department of Social Services. Plaintiffs allege violations of the Due Process Clause of the Fourteenth Amendment, Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act and the Social Security Act. This Court denied a motion to dismiss by defendants DMR and STS on February 9, 1996, and granted plaintiffs’ motion for class certification on July 8, 1996.
Now the plaintiffs move the Court to compel production of certain documents prepared by the defendants’ experts at the request of the defendants’ counsel. For the following reasons, the plaintiffs’ Motion to Compel and for Sanctions (Doc. No. 340) is DENIED. The defendants’ related Motion for Reasonable Expenses in Opposing the Plaintiffs’ Unjustified Motion to Compel (Doc. No. 365) is also DENIED.
I. Background The current controversy relates to a request by the defendants’ counsel to the defendants’ experts to analyze the reports of the plaintiffs’ experts and indicate which points each expert believes he or she can rebut. The plaintiffs contend that the “written analyses of plaintiffs’ experts’ reports,” Plaintiffs’ Mot. to Compel at 1, which resulted from this request, are discoverable as material considered by an expert in forming his or her opinion pursuant to FED.R.CIV.P. 26(a)(2)(B). The plaintiffs also

argue that the defendants failed to assert a privilege in a timely manner and improperly directed their experts not to answer questions about the documents at issue during the defendants’ experts’ depositions.
The defendants disagree, contending that the documents in question are protected work product. The defendants claim that far from being written reports, the documents are simply questions and strategy suggestions. As such, the argument continues, they were written by the experts in a consultative role in this highly technical litigation and have nothing to do with the formation of their expert opinions about which they will testify at trial. Furthermore, the defendants assert that this claim of privilege was timely advanced, both during depositions and in writing in a letter from the defendants’ counsel to the plaintiffs’ counsel.
In order to fairly resolve this issue, the Court ordered the defendants to submit the documents for an in camera inspection. Review of the documents convinces the Court that the defendants are correct in their assertion that these papers were generated by the defendants’ experts in a consultative capacity. Accordingly, the documents are not subject to discovery by the plaintiffs.
II. Legal Analysis1
A. Discovery The 1993 amendments to FED.R.CIV.P. 26(a)(2)(B) contemplate that all materials “considered” by a testifying expert witness in forming her opinion are fully discoverable by the adverse party, notwithstanding the work product doctrine. Karn v. Ingersoll Rand, 168 F.R.D. 633, 639 (N.D.Ind.1996). This mandate of full disclosure stems from several policy concerns relating to expert testimony.2 Underlying these concerns is a recognition that expert testimony is often determinative of one or more central issues in a case. Intermedics, Inc. v. Ventritex, Inc., 139 F.R.D. 384, 394 (N.D.Cal.1991). Therefore, it is critical that an adverse party have an opportunity to explore any biases or unreliabilities that might affect an expert’s objectivity. Id. at 390.
*2 Such broad discovery does not, however, completely foreclose application of the work-product doctrine to material provided by experts to counsel.3 If an expert is retained as both a consultant and a testifying witness, the work-product doctrine may be invoked to protect work completed by the expert in her consultative capacity as long as there exists a clear distinction between the two roles. Beverage Marketing Corp. v. Ogilvy & Mather Direct Response, Inc., 563 F.Supp. 1013, 1014 (S.D.N.Y.1983). Any ambiguity about which function
1

Messier v. Southbury Training School, Not Reported in F.Supp. (1998)

was served by the expert when creating a document must be resolved in favor of discovery. B.C.F. Oil Refining, Inc. v. Consolidated Edison Co. of New York, Inc., 171 F.R.D. 57, 62 (S.D.N.Y.1997).
In B.C.F. Oil, the Court placed documents related to experts into five categories: (1) documents created by or reviewed by an expert which are unrelated to her opinion or testimony; (2) documents generated by an expert in connection with her role as an expert; (3) documents given to an expert by counsel which contain data for the expert’s review; (4) documents containing the mental impressions of attorneys presented to the expert by counsel; and (5) documents created by counsel to record oral conversations with an expert. Id. at 60–61. Only the first two categories are implicated by the present factual situation since the documents in question were generated by experts rather than counsel.
It is the Court’s task to determine whether the submitted documents fall into the first or second category. In other words, the Court must decide which role the experts were pursuing when they created these documents, that of consultant or testifying expert. The distinction is crucial because documents falling squarely within the first category are not discoverable by an adverse party, Id. at 62, whereas those documents belonging even marginally in the second category must be produced. Id. The Court finds that the submitted documents are exactly as the defendants’ counsel represented them to the plaintiffs; they were clearly created by several of the defendants’ experts in a consultative role, dealing strictly with strategy recommendations. Accordingly, the defendants are under no obligation to disclose them to the plaintiffs.

B. Sanctions Each party asks the Court to grant sanctions against the other party. These requests are inappropriate inasmuch as both parties advanced principled arguments in support of their positions. The defendants’ objections to the plaintiffs’ discovery request were “substantially justified.” FED.R.CIV.P. 37(a)(4)(A); The Bank of New York and JCPL Leasing Corp. v. Meridien BIAO Bank Tanzania Ltd., 171 F.R.D. 135, 143 (S.D.N.Y.1997) (applying Rule 37).
Similarly, the Court finds that the plaintiffs’ requests for these documents was not unreasonable given the intention of the Federal Rules of Civil Procedure to make all documents considered by an expert in the formulation of her opinion discoverable. Indeed, the application of the work-product doctrine to material created or reviewed by expert witnesses is extremely narrow as explained above. It was only after an in camera inspection of the documents in controversy that the Court could resolve this dispute fairly. Under those circumstances a grant of sanctions against either party would be unfair.
III. Conclusion *3 For the foregoing reasons, the plaintiffs’ Motion to Compel and for Sanctions (Doc. No. 340) is DENIED. The defendants’ related Motion for Reasonable Expenses in Opposing the Plaintiffs’ Unjustified Motion to Compel (Doc. No. 365) is likewise DENIED.
SO ORDERED
	  

Footnotes

1

The Court notes briefly that the defendants’ assertion of privilege was timely made. The defendants’ argument that their written

response of March 6, 1998 was within the thirty day period required under FED.R.CIV.P. 34(b) is persuasive since the documents

in question could only have been requested by the plaintiffs as part of the rebuttal deposition phase and the March 6th letter was

written within thirty days of the rebuttal deposition notices.

2

These policy issues include effective cross-examination of expert witnesses, the negligible impact on the underlying purposes of

the work-product doctrine, and the desirability of litigation certainty, i.e. counsel will know what documents reviewed by their

experts must be disclosed. Karn, 168 F.R.D. at 639.

3

The Court need not consider the application of the work-product doctrine to information provided by counsel to experts since the

defendants’ counsel provided all such material to the plaintiffs. See Defendants’ Brief in Opp’n at 2.

	  

2

 
 Messier v. Southbury Training School, Not Reported in F.Supp.2d (1998)

1998 WL 841641 Only the Westlaw citation is currently available.
United States District Court, D. Connecticut.
Richard MESSIER, et al. v.
SOUTHBURY TRAINING SCHOOL, et al.
No. 3:94–CV–1706 (EBB). | Dec. 2, 1998.
Opinion
RULING ON MOTION TO COMPEL RETURN OF DOCUMENTS
BURNS, Senior J.
*1 This ruling presents the question of what remedy, if any, should be ordered based on plaintiffs’ motion to compel the return of documents, when the defendants1 returned the requested documents two weeks after the motion was filed. On July 31, 1998, plaintiffs moved pursuant to Federal Rule of Civil Procedure 37(a) for an order requiring the defendants to return documents provided to them by the plaintiffs. In the same motion, plaintiffs sought additional relief and sanctions to remedy the prejudice allegedly caused by the delay in the return of the documents. Approximately two weeks after plaintiffs filed this motion, the defendants returned the documents sought. The only remaining matter concerns whether the Court should grant the additional relief and sanctions requested by the plaintiffs. For the following reasons, plaintiffs’ motion to compel [Doc. No. 413] is granted in part and denied in part.
BACKGROUND
The Court summarizes only those facts necessary to reach a conclusion on this motion. On December 8, 1997, the defendants deposed Robert B. Kugel, M.D., plaintiffs’ expert witness. At that time, defense counsel Thomas B. York, Esq. asked plaintiffs’ counsel David C. Shaw, Esq. to provide the documents that Dr. Kugel relied upon to reach his opinion that the level of medical and health care at STS remains significantly below average. These documents include notes from Dr. Kugel’s visits to STS, notes from his review of STS records, notes in preparation of his written report, and copies of internal documents and patient charts from STS. Plaintiffs gave the defendants these documents for the purpose of making copies. (Pls.’

Mot. Compel ¶ 1.)
On February 20, 1998, defense experts Mark Hauser, M.D. and Theodore Kastner, M.D. issued two reports critiquing Dr. Kugel’s conclusions. Plaintiffs’ counsel showed Dr. Kugel these two reports to help prepare for the depositions of Dr. Hauser and Dr. Kastner scheduled on March 20, 1998 and April 2, 1998 respectively.2 Dr. Kugel responded that he needed to review his notes to refresh his recollection regarding the original basis for his opinions. (Pls.’ Reply Mem. at 5.) Attorney Shaw wrote Attorney York demanding the return of Dr. Kugel’s notes and documents in a letter dated March 19, 1998 and sent by facsimile on March 23, 1998. (Letter from David C. Shaw, Esq. to Thomas B. York, Esq. of 3/23/98.) Defense counsel responded on March 24, 1998 by returning some documents, (Letter from Christina L. Smith to David C. Shaw, Esq. of 3/24/98), but they were not the specific documents that plaintiffs desired. (Defs’ Mem. Opp. at 1–3; Pls.’ Reply Mem. 1–3.)
It appears that two sets of documents were utilized at Dr. Kugel’s deposition. First, nine deposition exhibits were created which amounted to approximately 100 pages. Second, Dr. Kugel had examined 10,000 to 20,000 documents which formed the basis for his written report and deposition testimony. Plaintiffs had turned over each of these sets of documents to the defendants for copying after Dr. Kugel’s deposition on December 8, 1997. Defendants returned the nine deposition exhibits, but the second set of documents were not turned over. (Pls.’ Reply Mem. 1–3.)
*2 On April 1, 1998, Attorney Shaw faxed Attorney York a letter reiterating plaintiffs’ request for the Kugel documents and specifically mentioning their difficulty in preparing for Dr. Kastner’s upcoming deposition on April 2, 1998. (Letter from David C. Shaw, Esq. to Thomas B. York, Esq. of 4/1/98.) On this same day, Attorney York responded with a facsimile attaching the earlier letters, apparently believing that the documents he sent and plaintiffs’ April 1 letter had crossed in the mail. (Defs.’ Mem. Opp. at 3–4.) From this point forward, both parties vigorously dispute what transpired.
Plaintiffs’ counsel contends that he made numerous oral requests of defense counsel York between April 1998 and July 1998. (Pls.’ Mot. Compel at 1; Pls.’ Mem. Supp. Mot. Compel at 2.) On the other hand, Attorney York argues that Attorney Shaw mentioned the Kugel documents only once in a telephone call. (Defs.’ Mem. Opp. at 4.) It suffices to say that the parties could not resolve the problem without court intervention. On July 31, 1998, plaintiffs made a motion to compel the defendants to return the documents pursuant to Federal Rule of Civil Procedure 37(a). Plaintiffs also requested
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the following additional remedies: (1) an order permitting Dr. Kugel to return to STS to collect data to reconstruct the basis for his opinions; (2) an order precluding Dr. Hauser and Dr. Kastner from offering rebuttal testimony at trial; and (3) an award of attorney’s fees and costs associated with this motion. (Pls.’ Mot. Compel at 4.) Approximately two weeks later, the defendants returned the specific documents sought. (Pls.’ Reply Mem. at 1; Defs.’ Mem. Opp. at 5.)
On September 18, 1998, plaintiffs filed their reply brief which modified the relief sought in light of the return of the Kugel documents. Plaintiffs now seek an order permitting them to depose Dr. Hauser and Dr. Kastner again at defendants’ expense regarding their criticisms of Dr. Kugel’s report and deposition testimony. (Pls.’ Reply Mem. at 6.) In addition, they continue their request for an award of reasonable attorney’s fees and costs associated with this motion. (Id.) Plaintiffs claim that the delay in returning Dr. Kugel’s notes and documents prejudiced them in effectively addressing the opinions of Dr. Hauser and Dr. Kastner at their respective depositions. (Pls.’ Mot. Compel ¶¶ 8–12.) Plaintiffs deposed Dr. Hauser on March 20, 1998 and Dr. Kastner on April 2, 1998. (Pls.’ Reply Mem. at 5.) They complain that Dr. Kugel could not assist them in forming questions for the defense experts without his notes, and that they could not confront the experts with documents collected from STS by Dr. Kugel because the defendants possessed them at this time. As matters currently stand, discovery has been concluded and plaintiffs cannot further depose Dr. Hauser and Dr. Kastner again absent a court order to the contrary.
DISCUSSION
I. Fed.R.Civ.P. 30(f)(1): Procedures to Copy Documents *3 Federal Rule of Civil Procedure 30(f)(1) provides that “[d]ocuments and things produced for inspection during the examination of a witness, shall, upon the request of a party, be marked for identification and annexed to the deposition and may be inspected and copied by any party.” Rule 30(f)(1) also describes alternative procedures for the making of copies in the event that the party producing the documents wishes to retain them. Pursuant to this rule, plaintiffs gave the defendants Dr. Kugel’s notes and copies of documents taken from STS for their inspection and to make copies. Rule 30(f)(1) does not specify the procedures governing the return of documents after copying has been completed by a party. However, the rule clearly contemplates that such documents will be returned in a timely fashion so as not to facilitate prejudice to the opposing party. The defendants do not dispute that there was a significant delay in returning the Kugel documents. (Defs.’ Mem. Opp. at 9.)

II. Fed.R.Civ.P. 37(a): Motions to Compel and Sanctions Federal Rule of Civil Procedure 37 provides district courts with the authority to oversee the discovery process by issuing orders compelling discovery and sanctions against noncomplying parties. Rule 37(a)(2)(B) allows parties to compel discovery under Rules 30, 31, 33, and 34. While Rule 37(a)(2)(B) permits litigants to compel the inspection of documents in connection with a deposition as provided by Rule 30, it does not mention a corresponding right to compel the return of documents borrowed for copying to their rightful owner. However, the Court finds that Rule 37(a)(2)(B) implicitly requires that all borrowed documents must be promptly returned.
A party making a motion to compel discovery under Rule 37(a) must certify “that the movant has in good faith conferred or attempted to confer” with the opposing party “in an effort to secure the information or material without court action.” Fed.R.Civ.P. 37(a)(2)(B). Conclusory statements in an affidavit asserting that the movant fulfilled the good faith meet-and-confer requirement does not satisfy Rule 37(a). See Prescient Partners, L.P. v. Fieldcrest Cannon, Inc., 1998 WL 67672, at *2 (S.D.N.Y. Feb.18, 1998); Tri–Star Pictures, Inc. v. Unger, 171 F.R.D. 94, 99 (S.D.N.Y.1997). Instead, the meet-and-confer requirement mandates that:
[Parties must] meet, in person or by telephone, and make a genuine effort to resolve the dispute by determining ... what the requesting party is actually seeking; what the discovering party is reasonably capable of producing that is responsive to the request; and what specific genuine issues, if any, cannot be resolved without judicial intervention.
Deckon v. Chidebere, 1994 WL 494885, at *5 (S.D.N.Y. Sept.9, 1994). Movants must detail the efforts to confer and explain why they proved fruitless. Ballou v. University of Kansas Med. Ctr., 159 F.R.D. 558, 559–60 (D.Kan.1994). Plaintiffs have complied with this requirement. As a result, the Court may order the defendants to allow the plaintiffs to take the depositions of Dr. Hauser and Dr. Kastner again if it finds that plaintiffs suffered prejudice by not having Dr. Kugel’s notes and materials.
*4 Rule 37(a)(4)(A) also permits district courts to award attorney’s fees and costs associated with a motion to compel discovery. The rule states the following:
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If the motion is granted or if the disclosure or requested discovery is provided after the motion was filed, the court shall, after affording an opportunity to be heard, require the party or the deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorney’s fees, unless the court finds that the motion was filed without the movant’s first making a good faith effort to obtain the disclosure or discovery without court action, or that the opposing party’s nondisclosure, response, or objection was substantially justified, or that other circumstances make an award of expenses unjust.
Fed.R.Civ.P. 37(a)(4)(A). Under this provision, the Court must order reasonable costs and attorney’s fees unless the movant failed to attempt to solve the problem in good faith without court action, the nonmovant’s action or inaction was substantially justified, or other circumstances make an award of expenses unjust. Fed.R.Civ.P. 37 Advisory Comm. Notes to 1970 Amendments. The Supreme Court has clarified that a party’s discovery conduct is “substantially justified” if it constitutes a response to a “genuine dispute, or if reasonable people could differ as to the appropriateness of the contested action.” Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) (citations omitted).
Disciplinary sanctions under Rule 37 should serve three functions. First, sanctions should ensure that a party will not benefit from its own failure to comply with the discovery rules. See Update Art, Inc. v. Modiin Publ’g, Ltd., 843 F.2d 67, 71 (2d Cir.1988); Cine Forty–Second St. Theatre v. Allied Artists Pictures Corp., 602 F.2d 1062, 1066 (2d Cir.1979). Second, sanctions constitute specific deterrents and seek to obtain compliance with either court orders or the ordinary standards of care appropriate for parties and their attorneys. See Update Art, 843 F.2d at 71; Cine Forty–Second St., 602 F.2d at 1066; Burnett v. Venturi, 903 F.Supp. 304, 308 (N.D.N.Y.1995). Third, sanctions should serve as a general deterrent in the case at hand and in other litigation, provided that the party against whom they are imposed was in some sense at fault. See National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976) (per curiam);

Update Art, 843 F.2d at 71.
Defendants have attempted to explain their failure to return the Kugel documents as an unintentional error, partly caused by the plaintiffs. Clearly, the imposition of the harshest sanctions under Rule 37(b)-(d), such as the preclusion of evidence or the dismissal of an action, requires willful misconduct or bad faith. See, Societe Int’l v. Rogers, 357 U.S. 197, 212, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958); United States v. Certain Real Property Located at Route 1, Bryant, Ala., 126 F.3d 1314, 1317 (11th Cir.1997); Update Art, 843 F.2d at 71; cf. Taylor v. Illinois, 484 U.S. 400, 415–17, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988) (discussing the preclusion of witness testimony for willful discovery misconduct in a criminal case). Considerations of fair play dictate that courts eschew the harshest sanctions where failure to comply is due to a mere oversight of counsel amounting to no more than simple negligence. See Cine Forty–Second St., 602 F.2d at 1068; Affanato v. Merrill Bros., 547 F.2d 138, 141 (1st Cir.1977). Courts must inquire into the actual difficulties which the violation causes and must consider less drastic responses when litigants seek severe sanctions. See Outley v. City of New York, 837 F.2d 587, 591 (2d Cir.1988).
*5 In this case, the Court need not find bad faith or willful misconduct because plaintiffs filed their motion to compel pursuant to Rule 37(a), not Rule 37(b)-(d). Plaintiffs do not seek Rule 37(b)-(d)’s harshest remedies, but rather make a Rule 37(a) motion for leave to depose defendants’ experts again and an award of attorney’s fees and costs. Rule 37(a) does not require courts to make a finding of bad faith before ordering discovery or awarding attorney’s fees as a sanction. See Merritt v. International Bhd. of Boilermakers, 649 F.2d 1013, 1019 (5th Cir.1981); Devaney v. Continental Am. Ins. Co., 1154, 1162–63 (11th Cir.1993); Fed.R.Civ.P. 37 Advisory Comm. Notes to 1970 Amendments. As such, it proves unnecessary to determine whether defendants’ failure to return the documents was willful or in bad faith. The Court may order the requested relief to remedy any prejudice that plaintiffs may have suffered so long as Rule 37(a)’s requirements have been satisfied.
III. Additional Relief Requested by Plaintiffs
A. Depositions of Defense Experts The Court first denies plaintiffs’ request to depose Dr. Hauser again because they likely suffered little prejudice in not having the Kugel documents when they deposed Dr. Hauser on March 20, 1998. Plaintiffs possessed advance notice of this date. However, the facts show that plaintiffs’ counsel made his first written demand for the Kugel documents three days after the deposition took place. Plaintiffs faxed their letter dated March 19, 1998
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on March 23, 1998. (Pls.’ Reply Mem. at 3 n. 2; Shaw Aff. ¶ 6.) Furthermore, plaintiffs never requested a continuance of Dr. Hauser’s deposition at that time. (Defs.’ Mem. Opp. at 6.) Given these circumstances, the Court has little undisputed evidence that plaintiffs were prejudiced in preparing for Dr. Hauser’s deposition without the Kugel documents. Therefore, the Court denies plaintiffs’ petition to depose Dr. Hauser again at this juncture in the case.
At the same time, the Court grants plaintiffs leave to depose Dr. Kastner again because there exists undisputed written evidence validating their need for the Kugel documents prior to Dr. Kastner’s first deposition on April 2, 1998. Plaintiffs’ letters faxed on March 23, 1998 and April 1, 1998 strongly indicate the necessity of the Kugel documents. Moreover, plaintiffs’ counsel requested the Kugel documents again at Dr. Kastner’s fourth deposition on June 28, 1998. (Kastner Dep. at 256–57.) Without reaching a conclusion regarding whether the defendants’ conduct was willful, the Court finds that plaintiffs suffered prejudice in being deprived of the Kugel documents during their depositions of Dr. Kastner. Therefore, the Court grants plaintiffs’ request to depose Dr. Kastner again. In this regard, defendants shall allow the plaintiffs to depose Dr. Kastner on a date no later than December 24, 1998. The only matters that plaintiffs may address at this deposition are Dr. Kastner’s criticisms of Dr. Kugel’s written report and deposition testimony. The deposition shall last no longer than one day.
B. Attorney’s Fees and Costs *6 Under Federal Rule of Civil Procedure 37(a)(4)(A), the Court may order reasonable costs and attorney’s fees unless the movant failed to attempt to solve the problem in good faith without court action, “the opposing party’s

nondisclosure, response, or objection was substantially justified, or that other circumstances make an award of expenses unjust.” The circumstances underlying this motion render an award of attorney’s fees and costs “unjust.” First, most of the relevant factual evidence in connection with this motion remains vigorously disputed by the parties. Second, discovery has been closed. Third, plaintiffs were provided with the Kugel documents in August 1998, and thus have had almost four months to review them to prepare for trial in January 1999. Finally, the remedy of leave to depose Dr. Kastner appropriately compensates for any prejudice plaintiffs suffered. As a result, the Court denies plaintiffs’ petition for an award of attorney’s fees and costs associated with this motion.
CONCLUSION
For the foregoing reasons, plaintiffs’ motion to compel [Doc. No. 413] is granted in part and denied in part. The Court’s ruling may be summarized as follows: (1) the Court denies plaintiffs’ request for attorney’s fees and costs associated with this motion; (2) the Court denies plaintiffs’ application to depose Dr. Hauser again; and (3) the Court grants plaintiffs’ leave to depose Dr. Kastner again. In this regard, defendants shall allow the plaintiffs to depose Dr. Kastner on a date no later than December 24, 1998. The only matters that plaintiffs may address at this deposition are Dr. Kastner’s criticisms of Dr. Kugel’s written report and deposition testimony. This deposition shall last no longer than one day.
SO ORDERED.
	  

Footnotes

1

The defendants are the Commissioner of the Department of Mental Retardation, the Commissioner of the Department of Social

Services, the Commissioner of the Department of Public Health, Southbury Training School (“STS”), and the Director of STS

(collectively “defendants”).

2

The parties dispute whether Dr. Hauser and Dr. Kastner reviewed Dr. Kugel’s notes and documents to prepare for their depositions

by the plaintiffs. (Pls.’ Mem. Supp. Mot. Compel at 2; Defs.’ Mem. Opp. at 5–6.)

	  

4

 
 Messier v. Southbury Training School, Not Reported in F.Supp.2d (1999)

1999 WL 20907 Only the Westlaw citation is currently available.
United States District Court, D. Connecticut.
Richard MESSIER, et al. v.
SOUTHBURY TRAINING SCHOOL, et al.
No. 3:94–CV–1706 (EBB). | Jan. 5, 1999.
Opinion
RULING ON MOTION TO AMEND COMPLAINT
BURNS, Senior J.
*1 This ruling addresses the question of whether the plaintiffs may amend their Complaint a fourth time when they filed their Rule 15(a) motion to amend after the parties completed most discovery and the defendants1 had moved for summary judgment. Four years ago, plaintiffs brought a class action seeking injunctive relief against the defendants, alleging violations of the Due Process Clause of the Fourteenth Amendment, Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132 (1997), Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1997), and 42 U.S.C. § 1983 for the deprivation of rights under Title XIX of the Social Security Act, 42 U.S.C. § 1396a et seq. (1997). Pursuant to the Court’s scheduling orders, the parties closed discovery in March 1998, with some limited exceptions. In May 1998, all parties filed cross-motions for summary judgment. On July 8, 1998, plaintiffs moved to amend their complaint a fourth time pursuant to Federal Rule of Civil Procedure 15(a). For the following reasons, plaintiffs’ motion to amend [Doc. No. 389] is granted in part and denied in part.
BACKGROUND
I. Relevant Procedural Facts The Court summarizes only those facts necessary to reach a conclusion on this motion. This case began in October 1994. Since then, the Court has allowed plaintiffs to amend their Complaint on three occasions. Plaintiffs filed their First Amended Complaint on October 13, 1994, their Second Amended Complaint on January 4, 1996, and their Third Amended Complaint on September 20, 1996.

On November 25, 1996, the Court issued a scheduling order establishing deadlines for the completion of discovery and the filing of dispositive motions. Over the next eight months, the Court granted seven extensions of deadlines, allowing the parties more time to complete these matters. After issuing two revised scheduling orders on August 14, 1997 and November 26, 1997, the Court granted twelve more extensions of time for the completion of discovery and the filing of dispositive motions. Pursuant to these scheduling orders, the parties closed most discovery in March 1998. On May 20, 1998, plaintiffs moved for partial summary judgment pursuant to Federal Rule of Civil Procedure 56. DMR, DPH, and DSS also moved for summary judgment on this date. On July 8, 1998, plaintiffs filed this motion, seeking to amend their Complaint a fourth time.
II. Changes Made by Proposed Fourth Amended Complaint Plaintiffs’ Proposed Fourth Amended Complaint clearly makes three major changes to the Third Amended Complaint. First, the Proposed Fourth Amended Complaint adds June Woods as a new named plaintiff. (Proposed Fourth Am. Com pl. ¶¶ 36–44.) Plaintiffs argue that defendants have placed all but one of the individual named plaintiffs into the community. Because some of plaintiffs’ claims focus on community placement issues, the addition of June Woods is necessary to ensure that there are named plaintiffs with representative claims throughout this litigation.
*2 The second set of changes modifies plaintiffs’ claim for a violation of due process based on DPH’s policies governing the potential issuance of Do Not Rescussitate orders (“DNR orders”) on nonterminally ill class members. Plaintiffs’ Third Amended Complaint states in relevant part:
Do Not Rescussitate orders are imposed as a matter of course on many STS residents who are admitted to community medical facilities for treatment because DPH has developed and enforced standards which permit private physicians to write DNR orders on nonterminally ill classmembers. This policy conflicts with DMR’s policy that DNR Orders should not be written until DMR reviews the case. Many of these Do Not Rescussitate Orders needlessly subject plaintiffs to an increased risk of death.
[T]he defendant Harriman has violated the right of plaintiff classmembers to life without due process of law by developing and enforcing standards which permit community hospitals to write and implement DNR Orders on nonterminally ill classmembers
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without any process to ensure that the decision to withhold routine medical care is consistent with the wishes of the classmember.
(Third Am. Compl. ¶¶ 76, 86(j).) In contrast, plaintiffs’ Proposed Fourth Amended Complaint states the following:
[T]he defendants have violated the right of plaintiff classmembers to life without due process by developing and enforcing standards which permit private DPH-licensed providers and STS personnel to write and implement DNR Orders in a manner that is not consistent with DMR policy (Medical Advisory # 87–2). Moreover, the practice of allowing DNR Orders to be retained in the classmembers’ files for months and years prior to the terminal event exposes them to a substantial risk of harm.
(Proposed Fourth Am. Compl. ¶ 95(j).) While the Third Amended Complaint charges DPH with a due process violation based on its policies governing the issuance of DNR orders, the Proposed Fourth Amended Complaint expands this claim to include all “defendants.” In addition, the Proposed Fourth Amended Complaint expands this claim from DNR orders written on “nonterminally ill classmembers” to include orders for any class member.
The third set of changes incorporated in the Proposed Fourth Amended Complaint expands plaintiffs’ claims brought under Title XIX of the Social Security Act (“Medicaid Act”). The Proposed Fourth Amended Complaint asserts a new claim, not found in the Third Amended Complaint, that DMR, DPH, and DSS violate the Medicaid Act by “failing to provide written documentation of the policy on advance directives to classmembers and their guardians and obtain informed consent to DNR procedures when used on classmembers.” (Proposed Fourth Am. Compl. ¶ 97.)
DISCUSSION
I. Standard of Review for Rule 15(a) Motion to Amend Federal Rule of Civil Procedure 15(a) provides that a party may amend a pleading “once as a matter of course at any time before a responsive pleading is served.” After a responsive pleading has been served, litigants may amend a pleading “only by leave of court or by written

consent of the adverse party.” Id. In these situations, leave to amend pleadings “shall be freely given when justice so requires.” Id. In Foman v. Davis, 371 U.S. 178 (1962), the Supreme Court explained that district courts must evaluate Rule 15(a) motions to amend under the following standard:
*3 In the absence of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc.—the leave sought should, as the rule requires, be ‘freely given.’
Id. at 182. The propriety of granting a motion to amend remains within the sound discretion of the district court. See Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330–31 (1971); Quaker State Oil v. Garrity Oil, 884 F.2d 1510, 1517 (1st Cir.1989).
District courts may deny leave to amend where the motion is made after an inordinate delay, the movant offers no adequate excuse for the delay, and the nonmovant would suffer undue prejudice. See, e.g., Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 72 (2d Cir.1990); Tokio Marine & Fire Ins. Co. v. Employers Ins. of Wassau, 786 F.2d 101, 103 (2d Cir.1986); Manzoli v. Commissioner of Internal Revenue, 904 F.2d 101, 107 (1st Cir.1990); Johnson v. Methodist Med. Ctr. of Ill., 10 F.3d 1300, 1303–04 (7th Cir.1993). Where considerable time has elapsed between the filing of the complaint and the motion to amend, the moving party has the burden to provide a satisfactory explanation for the delay, see Evans v. Syracuse City Sch. Dist., 704 F.2d 44, 46–48 (2d Cir.1983); Grant v. News Group Boston, Inc., 55 F.3d 1, 5–6 (1st Cir.1995), and the courts may conclude that ignorance of the law is an unsatisfactory excuse. See Goss v. Revlon, Inc., 548 F.2d 405, 407 (2d Cir.1976).
“[L]ate amendments to assert new theories are not reviewed favorably when the facts and the theory have been known to the party seeking amendment since the inception of the cause of action.” Acri v. International Ass’n of Machinists & Aerospace Workers, 781 F.2d 1393, 1398 (9th Cir.1986) (affirming denial of leave to add a new claim known since the beginning of the case); accord Evans, 704 F.2d at 46–48 (affirming denial of leave to amend where defendant sought to add an affirmative defense it could have asserted over two years earlier). While mere delay, absent a showing of bad faith or undue prejudice, does not provide a basis for denial of
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leave to amend, see State Teachers Retirement Bd. v. Fluor Corp ., 654 F.2d 843, 856 (2d Cir.1981), the “longer the period of an unexplained delay, the less will be required of the nonmoving party in terms of a showing of prejudice.” Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir.1993) (quoting Evans, 704 F.2d at 47).
Perhaps the most important reason for denying leave to amend occurs when the opposing party will be unduly prejudiced by an amendment to the pleading. See Marine Midland Bank v. Keplinger & Assocs., Inc., 94 F.R.D. 101, 103 (S.D.N.Y.1982). Courts evaluate undue prejudice by considering whether the amendment would: (1) require the opponent to spend significant additional resources to conduct discovery and prepare for trial; (2) significantly delay the resolution of the dispute; or (3) prevent the plaintiff from bringing a timely action in another jurisdiction. See Block, 988 F.2d at 350; Tokio Marine & Fire Ins., 786 F.2d at 103. In this regard, courts must closely examine the nonmoving party’s time and expenses spent preparing for trial in reliance on prior pleadings and the potential expenses necessary to address issues raised by the proposed amendments. See Zenith Radio, 401 U.S. at 330–31. The burdens on the nonmoving party may be substantial where a proposed amended complaint asserts new theories of liability or “brings in additional actors” who “took alleged actions or (inactions) that are distinct from the allegations raised in the” prior complaint. Johnson, 10 F.3d at 1304.

Woods as a new named plaintiff. Since this litigation began, the defendants have transferred all but one of the individual named plaintiffs from STS into a community placement. Plaintiffs argue that this places their case in jeopardy because several of their claims focus on community placement issues. Without a new named plaintiff, the plaintiffs could be left without a named plaintiff with representative claims of the class, after over four years of litigation. The Court agrees.
Although plaintiffs filed this amendment late in the litigation, they possess a satisfactory explanation for the delay—the defendants have placed all but one of the named plaintiffs in the community, thereby jeopardizing the future certification of the plaintiff class regarding claims based on community placement issues. More importantly, the defendants will suffer little prejudice from the addition of a named plaintiff. The amendment will not cause the defendants to spend significant additional resources to conduct further discovery and prepare for trial. Moreover, the amendment will not significantly delay the resolution of this suit. Finally, the addition of a named plaintiff will have no impact on the outcome of the Court’s ruling on the parties’ cross-motions for summary judgment. As a result, the Court will allow plaintiffs to amend their Complaint for the sole purpose of adding June Woods as a named plaintiff.

*4 The classic situation where courts deny leave to amend arises when a party files a Rule 15(a) motion after discovery has been completed or the nonmoving party has filed for summary judgment. See, e.g., Cresswell, 922 F.2d at 72 (affirming denial of leave to file third amended complaint after the nonmovant had filed for summary judgment and discovery had been completed, and more than 17 months after commencement of the action); Ansam Assocs., Inc. v. Cola Petroleum, Ltd., 760 F.2d 442, 446 (2d Cir.1985) (affirming denial of leave to amend where proposed new claims were raised after discovery had been completed and nonmoving party had filed for summary judgment); Overseas Inns S.A. P.A. v. United States, 911 F.2d 1146, 1151 (5th Cir.1990) (affirming denial of leave to amend where motion was filed two and a half years after commencement of the action, after the opposing party had moved for summary judgment, and extensive pre-trial proceedings had taken place); Grant, 55 F.3d at 5–6 (affirming denial of leave where plaintiffs filed a Rule 15(a) motion after “discovery was already complete” and the defendant “had nearly completed its motion for summary judgment and undoubtably was well into its trial preparation”).2
II. New Named Plaintiff The Proposed Fourth Amended Complaint adds June

III. All Other Changes On the other hand, the Court denies plaintiffs’ motion to amend their Complaint to include any other changes made in the Proposed Fourth Amended Complaint. In this regard, the Proposed Fourth Amended Complaint contains two substantive changes from the Third Amended Complaint. First, while the Third Amended Complaint charges DPH with a violation of due process based on the agency’s policies governing the issuance of DNR orders, (Third Am. Compl. ¶¶ 76, 86(j)), the Proposed Fourth Amended Complaint expands this claim to include all “defendants.” (Proposed Fourth Am. Compl. ¶ 95(j).) In addition, the Proposed Fourth Amended Complaint expands this claim from DNR orders written on “nonterminally ill classmembers” to include an order for any class member. Second, the Proposed Fourth Amended Complaint asserts a new claim that DMR, DPH, and DSS violate the Medicaid Act by “failing to provide written documentation of the policy on advance directives to classmembers and their guardians and obtain informed consent to DNR procedures when used on classmembers.” (Proposed Fourth Am. Compl. ¶ 97.) The Court refuses to allow these amendments because they have been filed at a late stage of litigation without an adequate explanation, they would require additional discovery and would result in an unnecessary delay of trial, and they would unfairly prejudice the defendants who relied upon prior pleadings
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in constructing their motions for summary judgment.
*5 “There must be a point at which plaintiff makes a commitment to the theory of its case.” Johnson, 10 F.3d at 1304. The Proposed Fourth Amended Complaint asserts a new theory of liability based on the Medicaid Act and brings in additional actors who took alleged actions or inactions that are distinct from the allegations raised in the Third Amended Complaint. However, plaintiffs could have asserted the new legal theories and allegations contained in the Proposed Fourth Amended Complaint before all of the parties filed cross-motions for summary judgment. See Acri, 781 F.2d at 1398–99; Evans, 704 F.2d at 46–48. Plaintiffs have had over four years and the benefit of substantial discovery, as well as several extensions of time, to construct their case to be tested at trial. In sum, plaintiffs filed these amendments after the defendants moved for summary judgment and most discovery was completed, without an adequate explanation for the delay.
The changes in the Proposed Amended Complaint also would unfairly prejudice the defendants in several ways. First, discovery would have to be reopened in order to allow the defendants to respond to the new allegations that were not contained in the Third Amended Complaint. As a result, the defendants would be forced to expend significant additional resources. See Zenith Radio, 401 U.S. at 330–31; Block, 988 F.2d at 350. Furthermore, this necessarily would cause a delay in trial. See Tokio Marine & Fire Ins., 786 F.2d at 103. Second, the amendments would allow plaintiffs to avoid summary judgment when the defendants filed these motions in reliance upon prior pleadings. Indeed, courts repeatedly prevent plaintiffs from using Rule 15(a) to avoid summary judgment. See, e.g., Schlacter–Jones v. General Tele. of Cal., 936 F.2d

435, 443 (9th Cir.1991) (affirming denial of repleading more than one year after commencement of the action, where the nonmovant had filed for summary judgment and the parties had conducted discovery); Johnson, 10 F.3d at 1303–04 (affirming denial of leave to file a third amended complaint four years after suit was begun, where the defendant had moved for summary judgment and additional discovery would be required); Acri, 781 F.2d at 1398–99 (affirming denial of Rule 15(a) motion “brought to avoid the possibility of an adverse summary judgment ruling” and that would have required “further discovery”).
For these reasons, the Court denies plaintiffs’ motion to amend their Complaint to incorporate any changes made in their Proposed Fourth Amended Complaint other than the addition of a new named plaintiff.
CONCLUSION
For the foregoing reasons, plaintiffs’ motion to amend [Doc. No. 389] is granted in part and denied in part. The Court’s ruling may be summarized as follows: (1) plaintiffs may amend their Complaint to add June Woods as a new named plaintiff; and (2) plaintiffs may not amend their Complaint to incorporate any other changes made in their Proposed Fourth Amended Complaint. Hence, with the exception of the addition of June Woods, the Third Amended Complaint remains the operative document.
*6 SO ORDERED.
	  

Footnotes

1

The defendants are Southbury Training School (“STS”), the Director of STS, and the respective Commissioners of the Department

of Mental Retardation (“DMR”), the Department of Social Services (“DSS”), and the Department of Public Health (“DPH”)

(collectively “defendants”).

2

Cf. State Teachers Retirement Bd., 654 F.2d at 848, 856 (reversing denial of repleading three years after the complaint had been

filed because neither party had filed a summary judgment motion and the amendment would not create a great deal of additional

discovery).

	  

4

 
 Messier v. Southbury Training School, Not Reported in F.Supp.2d (1999)

1999 WL 20910 Only the Westlaw citation is currently available.
United States District Court, D. Connecticut.
Richard MESSIER, et al. v.
SOUTHBURY TRAINING SCHOOL, et al.
No. 3:94–CV–1706(EBB). | Jan. 5, 1999.
Opinion
RULING ON CROSS–MOTIONS FOR SUMMARY JUDGMENT
BURNS, Senior J.
*1 This ruling addresses four cross-motions for summary judgment pursuant to Federal Rule of Civil Procedure 56 filed by plaintiffs, defendant Department of Mental Retardation (“DMR”), defendant Department of Public Health (“DPH”), and defendant Department of Social Services (“DSS”). Plaintiffs have brought a class action seeking injunctive relief against defendants Southbury Training School (“STS”) and the three Connecticut state agencies named above, alleging violations of the Due Process Clause of the Fourteenth Amendment, Title II of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12132 (1997), Section 504 of the Rehabilitation Act of 1973 (“Section 504”), 29 U.S.C. § 794 (1997), and 42 U.S.C. § 1983 (1997) for the deprivation of rights under Title XIX of the Social Security Act (“Medicaid Act”), 42 U.S.C. § 1396a et seq. (1997). After careful consideration, the Court makes the following rulings.
First, the Court denies plaintiffs’ motion for partial summary judgment [Doc. No. 349] because several genuine issues of material fact exist regarding claims against DMR and STS for violations of substantive due process, the ADA, and Section 504. Second, the Court denies DMR’s motion for partial summary judgment [Doc. No. 353] on claims brought against it under the ADA and Section 504 for the same reasons. Third, the Court grants DSS’ motion for summary judgment [Doc. No. 356] regarding claims asserted against it under the ADA, Section 504, and the Medicaid Act. Finally, the Court grants DPH’s motion for summary judgment [Doc. No. 359] on plaintiffs’ claim that “Do Not Resuscitate” orders (“DNR orders”) may be imposed on nonterminally ill class members by private physicians without due process of law and on all claims brought against it under the Medicaid Act.

These rulings have the following impact on this case at this stage of litigation: (1) plaintiffs’ claims against DMR and STS for violations of substantive due process remain viable for trial; (2) plaintiffs’ claims against DMR and STS for violations of the ADA and Section 504 remain viable for trial; (3) plaintiffs’ claims against DSS for violations of the ADA and Section 504 are dismissed; (4) plaintiffs’ claims against DSS, DPH, and DMR for violations of the Medicaid Act are dismissed; and (5) plaintiffs’ claims against DPH for violations of procedural and substantive due process based on the potential issuance of DNR orders by private physicians are dismissed.
BACKGROUND
This case began in October 1994 when seven residents of STS, People First of Connecticut, Inc., ARC/Connecticut, Inc., and Western Connecticut Association for Human Rights brought a class action on behalf of all current and future STS residents against STS, DMR, DPH, and DSS.1 Plaintiffs alleged that the defendants’ administration of STS and related community placement services for persons with mental retardation violated the following federal laws: (1) the Due Process Clause of the Fourteenth Amendment; (2) Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132; (3) Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; and (4) 42 U.S.C. § 1983 for the deprivation of rights under Title XIX of the Social Security Act, 42 U.S.C. § 1396a et seq. (Third Am. Compl. ¶ 1.)
*2 Plaintiffs sought an injunction to prevent new admissions to STS; to require STS professionals in conjunction with each resident and his or her guardian to develop and implement an individualized plan of treatment appropriate for that resident; to require defendants to evaluate all residents for possible community placement regardless of the severity or nature of their disabilities; to make available to each resident an individual and independent advocate; to enjoin the use of DNR orders until procedures are developed and implemented which assure that such orders will not be issued in error; and to require the defendants to develop a plan to remediate environmental and program deficiencies. (Id. at 29–31.)
DMR and STS jointly moved to dismiss the action for failure to state a claim upon which relief may be granted in February 1996. In denying the motion, the Court held that United States v. Connecticut did not preclude the plaintiffs’ suit and concluded that plaintiffs properly alleged claims based on due process, the ADA, and
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Messier v. Southbury Training School, Not Reported in F.Supp.2d (1999)

Section 504. The Court also decided that plaintiffs could sue under 42 U.S.C. § 1983 for a violation of the Medicaid provisions of the Social Security Act. See Messier v. Southbury Training Sch., 916 F.Supp. 133 (D.Conn.1996). In that same year, the Court rejected a similar joint motion to dismiss by DPH and DSS. In so doing, the Court made two additional rulings. First, DPH could be liable for a substantive due process violation with respect to the issuance of DNR orders because its inaction may have contributed to plaintiffs’ harm. Second, plaintiffs stated a claim for a denial of procedural due process based on their allegation that DNR orders were imposed without adequate process as a matter of course. See Ruling Mot. Dismiss by DPH and DSS.
In March 1996, seven STS residents, the Home and School Association of Southbury Training School, Inc. (“HSA”), and the Southbury Training School Foundation, Inc. (“STSF”) moved to intervene on the side of the defendants pursuant to Federal Rule of Civil Procedure 24. The applicants argued that their interests would be impaired if they were not allowed to intervene because this case might result in the closure of STS or they might be forced into community placements. Although the Court denied this motion, it attempted to allay these concerns by narrowing the type of relief that plaintiffs could seek in this case. The Court found that “plaintiffs’ complaint must be read as seeking to require STS [merely] to consider whether each resident is appropriate for community placement and to then act accordingly based upon such consideration.” Ruling Mot. Intervene at 3–4. Thus, plaintiffs cannot obtain the following relief: (1) the ending of all new admissions to STS; (2) the transferring of all residents to community settings; and (3) the closure of STS.
Soon thereafter, the Court certified the plaintiff class under Federal Rule of Civil Procedure 23(b)(2) as including all current STS residents, those persons who may be placed at STS in the future, and those persons who were transferred from STS and remain under the custody and control of the Director of STS. See Ruling Mot. Class Certification. In June 1997, HSA and STSF moved for exclusion from the class on behalf of the same seven class members who unsuccessfully attempted to intervene. Once again, the Court denied the motion and addressed the applicants’ concerns regarding the potential outcome of this case by reiterating that

settings those residents for whom community placement is inappropriate, or force the state of Connecticut to shut down Southbury.
Ruling Application Exclusion. Most recently, the Court denied a motion by 611 residents of STS and their respective guardians to opt out of the plaintiff class and intervene on the side of the defendants. See Ruling Mot. Opt Out.
Pending before the Court are four cross-motions for summary judgment by each party in this litigation. Plaintiffs move the Court for partial summary judgment against DMR and STS on their claims brought under the Due Process Clause and the ADA. They assert that no genuine issues of material fact exist with regard to DMR’s and STS’ failure: (1) to consider all class members for community placement, exercise professional judgment in making placement decisions, and implement those decisions in conformity with due process; and (2) to provide services to class members in the most integrated setting appropriate to their needs in contravention of the ADA. (Pls.’ Mot. Summ. J. at 1–2.)
Defendant DMR seeks partial summary judgment on plaintiffs’ claims for violations of the ADA and Section 504. (DMR’s Mot. Summ. J. at 1.) In addition, defendant DPH moves for summary judgment on: (1) plaintiffs’ claim that the agency violated due process in refusing to adopt DMR’s Medical Advisory # 87–2 to eliminate the possibility that a DNR order might issue on a nonterminally ill class member; and (2) plaintiffs’ claim that DPH violated its facility inspection duties under the Medicaid Act. (DPH’s Mot. Summ. J. at 1–21.) Lastly, defendant DSS moves for summary judgment and asserts the following arguments: (1) that plaintiffs failed to plead that the agency violated the ADA and Section 504, and that even if properly pleaded, the plaintiffs have not produced enough evidence to withstand summary judgment; and (2) that the Balanced Budget Act of 1997 eliminated any duties that DSS previously owed under the Medicaid Act, and that even if the agency still has a legal duty, the plaintiffs have not produced sufficient evidence to warrant a trial on this claim. (DSS’ Mot. Summ. J.)

*3 [T]he most that plaintiffs can accomplish is to require Southbury to conform with its constitutional duty to consider the appropriateness of community placement for each resident. In no way can the plaintiffs force Southbury to place in community

STANDARD OF REVIEW FOR SUMMARY JUDGMENT
Summary judgment should be granted if the evidence demonstrates that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Facts are deemed material only when they might affect the
2

Messier v. Southbury Training School, Not Reported in F.Supp.2d (1999)

outcome of the case under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Irrelevant or unnecessary factual disputes will not be considered. See Anderson, 477 U.S. at 248. Moreover, the mere existence of a scintilla of evidence in support of the nonmoving party’s case or “metaphysical doubt as to the material facts” will not prohibit summary judgment. See id. at 252; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). To present a “genuine” issue of material fact, there must be contradictory evidence “such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248; First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288–89 (1968).
*4 Rule 56 mandates summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. The moving party possesses the initial burden to show the absence of a genuine issue of material fact. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Where the non-movant has the burden of proof at trial, the moving party may discharge its initial burden by merely pointing to the “absence of evidence to support the nonmoving party’s” claims or defenses.2 Celotex, 477 U.S. at 325. Once the burden shifts, the nonmoving party holding the burden of proof at trial may not rest upon the mere allegations or denials of his pleadings, but rather must “designate specific facts showing there is a genuine issue for trial.” Id. at 324; Park Ave. Tower Assocs. v. City of New York, 746 F.2d 135, 141 (2d Cir1984). If the evidence is “merely colorable” and “not significantly probative,” the court may decide the legal issue and grant summary judgment. See Anderson, 477 U.S. at 249–50; First Nat’l Bank, 391 U.S. at 290. In sum, summary judgment is proper where no reasonable jury “could find by a preponderance of the evidence” for the nonmoving party. See Anderson, 477 U.S. at 248.
In deciding a summary judgment motion, the Court must view the record as a whole and in the light most favorable to the nonmoving party. See Matsushita Elec., 475 U.S. at 587; Adickes, 398 U .S. at 158–59. Either party may submit as evidence “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits” to support or rebut a summary judgment motion. Fed.R.Civ.P. 56(e). Supporting and opposing affidavits must be based on personal knowledge and set forth facts that would be admissible in evidence. See id. General averments or conclusory allegations of an affidavit do not create specific factual disputes. See Lujan v. National Wildlife Fed’n, 497 U.S. 871, 888–89 (1990). In addition, unsworn statements and affidavits composed of hearsay and nonexpert opinion evidence “do not satisfy Rule 56(e) and must be disregarded.” Dole v. Elliott

Travel & Tours, Inc., 942 F.2d 962, 968–69 (6th Cir.1991); accord Adickes, 398 U.S. at 158 n.17. Nor may a party create a factual issue by filing an affidavit, after a motion for summary judgment has been made, which contradicts earlier deposition testimony. See Reid v. Sears Roebuck & Co., 790 F.2d 453, 460 (6th Cir.1986).
When the parties submit cross-motions for summary judgment, the court is not required to grant judgment as a matter of law for one side or the other. See Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir.1993); S Indus., Inc. v. Stone Age Equip., Inc ., 12 F.Supp.2d 796, 803 (N.D.Ill.1998). The court must evaluate each party’s motion on its own merits, resolving factual uncertainties and drawing all inferences against the party whose motion is under consideration. See id.
DISCUSSION
I. Clarification of Parties and Claims *5 Before proceeding to the substantive merits of the parties’ respective motions, the Court notes that some confusion exists regarding which of the plaintiffs’ claims apply to each defendant. The Court explicitly will clarify these issues. Plaintiffs essentially assert four claims.
The first claim alleges that DMR3 and STS violated substantive due process based on their failure: (1) to maintain adequate habilitation to help STS residents retain self-care skills and keep them free from restraints; (2) to provide adequate shelter, clothing, nutrition, and medical care; (3) to provide individual advocates to STS residents; and (4) to exercise professional judgment in making placement decisions for STS residents. (Third Am. Compl. ¶¶ 48–64, 69–75, 83, 86(a)-(i).)
Plaintiffs’ second claim charges DMR, STS, and DSS with violating the ADA and Section 504 in two distinct ways: first, by failing to implement the ADA’s “integration mandate;” second, by discriminating on the basis of severity of disability against certain profoundly and severely mentally retarded STS residents. Specifically, plaintiffs contend that DMR and STS have not integrated STS residents into the community and have not considered those residents with more severe disabilities for community placement. In addition, plaintiffs allege that DSS contravenes Section 504 by refusing to consider more severely mentally retarded STS residents for vocational services.4 (Id. ¶¶ 81, 83, 87.)
Plaintiffs’ third claim alleges that DMR, DPH, and DSS violate the Medicaid Act based on: (1) DPH’s and DMR’s failure to conduct adequate inspections of the care, treatment, and living conditions of 600 class members
3

Messier v. Southbury Training School, Not Reported in F.Supp.2d (1999)

living in buildings certified to participate in the state’s Medicaid program and report findings of noncompliance to DSS, the state Medicaid agency, pursuant to 42 C.F.R. § 456.600 et seq., (Id. ¶¶ 45, 65, 66, 88.); and (2) DSS’ failure to adequately supervise such inspections and take necessary corrective actions.5 (Id. ¶¶ 47, 66, 88.)
Plaintiffs’ final claim declares that DPH violates substantive and procedural due process by maintaining standards which permit private physicians employed by DPH-licensed hospitals to write and implement DNR orders inconsistent with the wishes of nonterminally ill class members. (Id. ¶¶ 46, 76, 86(j).) Specifically, plaintiffs complain that nonterminally ill class members may be exposed to a risk of death against their wishes unless the Court orders DPH to adopt DMR’s Medical Advisory # 87–2.6
To avoid any future complications as to the parties and claims alleged against them, the parties are hereby instructed to identify which specific defendants they are referring to in all future court filings in accordance with this ruling. With these preliminary clarifications out of the way, the Court turns to the merits of each party’s motion.

[A] decision if made by a

professional, is presumptively

valid; liability may be imposed

only when the decision by the

professional is such a substantial

departure

from

accepted

professional judgment, practice, or

standards as to demonstrate that the

person responsible actually did not

base the decision on such a

judgment.

Id. at 323. This necessarily constitutes a deferential standard. Indeed, the Third Circuit holds that negligence cannot be the basis of a constitutional violation so long as professionals made the decision in question. See Shaw v. Strackhouse, 920 F.2d 1135, 1143 (3d Cir.1990). A professional is defined as “a person competent, whether by educational training or experience, to make the particular treatment decision at issue.” Youngberg, 457 U.S. at 323 n.30. No deference will be accorded to decisions made by nonprofessionals. See Thomas S. v. Flaherty, 902 F.2d 250, 252 (4th Cir.1990); Cameron, 783 F.Supp. at 1520.

II. Substantive Due Process Claims Against DMR and STS
A. Elements of Substantive Due Process Claim *6 In Youngberg v. Romeo, 457 U.S. 307 (1982), the Supreme Court established the contours of the right of mentally retarded residents in state-operated institutions to sue under the Due Process Clause of the Fourteenth Amendment. The Court found that residents possess a constitutional right to adequate food, shelter, clothing, medical care, safe conditions of confinement and freedom from unreasonable bodily restraints, and training necessary to protect these guarantees. See id. at 315–18. Although the Court did not decide whether institutional residents have a due process right to other types of training, the Second Circuit holds that residents must receive “training sufficient to prevent basic self-care skills from deteriorating.” Society for Good Will to Retarded Children v. Cuomo, 737 F.2d 1239, 1249 (2d Cir.1984). However, patients do not have a due process right “to an ideal environment or an ideal treatment plan, or even a guarantee that the patient will be cured.” Cameron v. Tomes, 783 F.Supp. 1511, 1515 (D.Mass.1992), aff’d, 990 F.2d 14 (1st Cir.1993); accord Feagley v. Waddill, 868 F.2d 1437, 1440 (5th Cir.1989); Geiseking v. Schafer, 672 F.Supp. 1249, 1266 (W.D.Mo.1987).
Under Youngberg, state actors must utilize “professional judgment” in their provision of services to institutional residents in order to satisfy due process. See 457 U.S. at 321–22. Youngberg provides in relevant part:

Under the professional judgment standard, courts may not specify which of several professionally acceptable choices should have been made. See P.C. v. McLaughlin, 913 F.2d 1033, 1043 (2d Cir.1990) (providing that courts should not “ascertain whether in fact the best course of action was taken”); Scothorn v. Kansas, 772 F.Supp. 556, 561 (D.Kan.1991). No violation of due process may be found where a plaintiff only proves a difference of professional opinion as to which practices are appropriate and which are not. See Society for Good Will, 737 F.2d at 1248; Die v. Gaughan, 617 F.Supp. 1477, 1487 (D.Mass.1985), aff’d, 808 F.2d 871 (1st Cir.1986). In this sense, the Court may not “weigh the decisions of treating professionals against the testimony” of plaintiffs’ experts to decide which of several acceptable standards should apply. See Thomas S., 902 F.2d at 252.
*7 Although no constitutional right to community placement exists, see P.C., 913 F.2d at 1042, state actors must comply with the Youngberg professional judgment standard in deciding if mentally retarded residents should be placed at an institution or in the community. See Society for Good Will, 737 F.2d at 1249; Thomas S., 902 F.2d at 252; S.H. v. Edwards, 886 F.2d 292, 293 (11th Cir.1989); Messier, 916 F.Supp. at 140; Hughes on Behalf of David v. Cuomo, 862 F.Supp. 34, 37 (W.D.N.Y.1994). Thus, due process requires STS and DMR to make a rational decision based on professional judgment when determining placement of STS residents. Ultimately, plaintiffs must prove that either the defendants failed to exercise professional judgment, or that their professional decisions constitute such an extremely radical departure
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Messier v. Southbury Training School, Not Reported in F.Supp.2d (1999)

from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.

(Pls.’ Mem. Supp. Summ. J. at 4; O’Meara Dep. at 104–05, 147, 150; Ale Dep. at 30, 50, 53–54) with (Defs.’ State. Mat. Facts ¶¶ 59–60; Hamad Aff. ¶¶ 2, 3, 5.)

B. Material Facts in Dispute The Court denies plaintiffs’ motion for partial summary judgment on their substantive due process claim brought against DMR and STS because a genuine issue of material fact exists regarding whether defendants satisfy the Youngberg professional judgment standard when making placement decisions for STS residents. This conclusion arises from the vast amount of contrary evidence presented by the parties and the deferential nature of the professional judgment standard.
Several genuine issues of material fact preclude summary judgment. For example, plaintiffs argue that DMR has instructed STS interdisciplinary teams (“IDTs”) to stop discussing community placement at residents’ meetings, and that those teams currently do not discuss community placement. (Mulvey Dep. Ex. K at 76.) However, DMR counters that staff merely were instructed to stop routinely writing “in the community” in the vision portion of the Overall Plan of Service (“OPS”) without supporting information. (Id. at 75, 78; Mulvey Aff. Ex. A ¶¶ 1–7.) Next, plaintiffs suggest that STS maintains no formal process to determine whether residents should live in the community. (Ale Dep. Ex. C at 62.) The defendants respond that IDTs maintain a formal process which clearly identifies the needs of residents. (Mulvey Aff. ¶¶ 3–8.)
While the plaintiffs propose that STS makes “top down” decisions by administrators or “by a corporate guardian with a heavy axe to grind,” rather than relying on the consensus of case managers, (Moriarity Dep. Ex. B at 121; Moore Dep. Ex. D at 45.), DMR produces affidavits showing that it makes placement decisions on a “person by person basis evaluating the individual needs of each resident.” (Hamad Aff. Ex. B ¶¶ 1,2,5; Mulvey Aff. ¶ 9.) Plaintiffs contend that no documents report “what consideration DMR professional teams have given each STS resident for community placement,” (DMR’s Resp. Req. Admis. Ex. A ¶ 22; O’Meara Dep. Ex. E at 102, 147, 150), nor do any documents describe the STS population, their needs, and their suitability for community placement. (DMR’s Resp. Req. Admis. ¶¶ 68, 72.) Yet, this is directly contradicted by a DMR affidavit stating that STS does utilize documents that describe the needs of the STS population. (Mulvey Aff. ¶¶ 7, 8.) Both sides additionally disagree as to whether the Commissioner of DMR receives sufficient information to determine the number of community placements that should be funded, whether community placements are limited to existing service slots, and whether STS employees solely rely on guardian surveys to make placement decisions. Compare

*8 As the preceding discussion makes clear, plaintiffs’ evidence does not prove conclusively whether DMR and STS fail to utilize professional judgment in making placement decisions for each STS resident. Reasonable minds could differ on crucial issues such as the extent to which IDTs consider community placement as an option for STS residents and whether placement and funding decisions are based on professional judgment according to the needs of each individual resident. These questions have a direct bearing on the proof required to establish a substantive due process violation, and thus, preclude summary judgment.
Plaintiffs’ evidence that community placement is not specifically discussed at every resident’s meeting proves nondispositive because there is no constitutional right to community placement. See Society for Good Will, 737 F.2d at 1248–49; P.C., 913 F.2d at 1042. In addition, plaintiffs’ evidence that STS administrators participate in placement decisions does not necessarily mean that they failed to exercise professional judgment. Due process does not prevent IDTs from considering the availability of community services and the costs of providing such services when making treatment decisions. See Jackson v. Fort Stanton Hosp. and Training Sch., 964 F.2d 980, 992 (10th Cir.1992). Moreover, administrators may be professionals in their own right. (Defs.’ Br. Opp. Summ. J. at 15.) Finally, DMR correctly notes that plaintiffs have not come forward with any specific examples where a recommendation of community placement for a resident by STS treating professionals was not followed. (Id. at 17, 24.)
Given this set of facts, a reasonable trier of fact could find for either side concerning whether the Youngberg professional judgment standard has been met. See Anderson, 477 U.S. at 248. Therefore, the Court declines to award summary judgment to plaintiffs on their substantive due process claims against DMR and STS.
III. ADA and Section 504 Claims Against DMR, STS, and DSS
A. Elements of ADA and Section 504 Claims Congress enacted the ADA to remedy discrimination against people with disabilities and to end the segregation of such persons. See 42 U.S.C. § 12101(a); H.R.Rep. No. 101–485 (1990), reprinted in 1990 U.S.C.C.A.N. at 445, 449; 136 Cong. Rec. H2603, H2627 (daily ed. May 22, 1990) (statement of Rep. Dellums and statement of Rep. Collins). Title II of the ADA provides that:
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Messier v. Southbury Training School, Not Reported in F.Supp.2d (1999)

[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.
42 U.S.C. § 12132. To establish a prima facie violation of section 12132, a plaintiff must show that: (1) he or she is a “qualified individual with a disability;” (2) he or she is being excluded from participation in or being denied the benefits of some service, program, or activity by reason of his or her disability; and (3) the entity which provides the service, program, or activity is a public entity.7 See Civic Ass’n of Deaf of New York City, Inc. v. Giuliani, 915 F.Supp. 622, 634 (S.D.N.Y.1996); Clarkson v. Coughlin, 898 F.Supp. 1019, 1037 (S.D.N.Y.1995).
*9 As the following discussion illustrates, plaintiffs can prove a violation of 42 U.S.C. § 12132 in one of two ways. First, they may demonstrate that DMR and STS violated the ADA’s “integration mandate” contained in 28 C.F.R. § 35.130(d) (1997) by not treating patients in the most integrated setting appropriate to their needs. Second, plaintiffs may show that DMR, STS, and DSS refuse to consider certain severely handicapped STS residents for community placement or vocational rehabilitation services based solely on the degree of their disabilities.
1. 28 C.F.R. § 35.130(d): Integration Mandate Pursuant to 42 U.S.C. § 12134(a), the Attorney General promulgated the following enforcement regulation relating to Title II’s prohibition against discrimination: “[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d).8 Interpretive regulations by an agency charged with the administration of a statute should be given substantial deference and controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984); Blum v. Bacon, 457 U.S. 132, 141 (1982); Harris v. H & W Contracting Co., 102 F.3d 516, 521 (11th Cir.1996); Helen L. v. DiDario, 46 F.3d 325, 332 (3d Cir.1995). Because section 35.130(d) finds direct support in the ADA’s plain language, its legislative history, and the Act’s congressional findings, this Court must apply its integration mandate to this case. See L.C. by Zimring v. Olmstead, 138 F.3d 893, 899 (11th Cir.1998), cert. granted, 67 U.S.L.W. 3259 (U.S. Dec. 14, 1998), order am. by, 67 U.S.L.W. 3386 (U.S. Dec. 17, 1998) (No. 98–536).

At the outset, the Court notes that while Congress intended to decrease segregation and promote integration, neither the ADA nor Section 504 confers an absolute right to mentally retarded individuals to be placed in the community. See Olmstead, 138 F.3d at 902 (concluding that the ADA “does not mandate the deinstitutionalization of individuals with disabilities”); Helen L., 46 F.3d at 336; Conner v. Branstad, 839 F.Supp. 1346, 1357 (S.D.Iowa 1993) (reasoning that the ADA’s legislative history does not indicate an intent to require all residents of institutions be placed in the community). Instead, section 35.130(d) requires placement “in a setting that enables disabled individuals to interact with non-disabled persons to the fullest extent possible.” 35 C.F.R. Pt. 35, App. A at 450. It also prohibits states from providing services to individuals with disabilities in an unnecessarily segregated setting, even absent a showing of differential treatment between disabled and nondisabled persons. See Olmstead, 138 F.3d at 893, 897–99 (ruling that 42 U.S.C. § 12132’s “by reason of such disability language” does not alter the integration mandate); Helen L., 46 F.3d at 333–35.
*10 However, the ADA seeks to achieve a delicate balance. Cases make clear that the most integrated setting appropriate to the needs of mentally retarded individuals may be an institution or a community placement. See Olmstead, 138 F.3d at 902; Cable v. Department of Dev. Servs. of the State of Cal., 973 F.Supp. 937, 941–42 (C.D.Cal.1997). Where “a disabled individual’s treating professionals find that a community based placement is appropriate for that individual, the ADA imposes a duty to provide treatment in a community setting—the most integrated setting appropriate to that patient’s needs.” Olmstead, 138 F.3d at 902. On the other hand, where there is no such finding, “nothing in the ADA requires the deinstitutionalization of that patient.” Id.
Accordingly, plaintiffs may establish a prima facie violation of 28 C.F.R. § 35.130(d) by proving that DMR places certain residents at STS, even though the IDTs exercising professional judgment have determined previously that the most integrated setting for those residents is a community placement. Plaintiffs need not demonstrate intentional discrimination. However, they must point to specific examples where individuals currently reside at STS, despite the fact that STS professionals recommend community placement for such persons.
2. Discrimination Based on Severity of Disability Plaintiffs also may show that DMR, STS, and DSS violate the ADA and Section 504 by refusing to consider severely handicapped STS residents for community placement or vocational rehabilitation services based on the degree of their disabilities. ADA regulations state in relevant part:
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Messier v. Southbury Training School, Not Reported in F.Supp.2d (1999)

A public entity, in providing any aid, benefit, or service, may not ... [p]rovide different or separate aids, benefits, or services to individuals with disabilities or to any class of individuals with disabilities than is provided to others unless such action is necessary to provide qualified individuals with disabilities with aids, benefits, or services that are as effective as those provided to others.
28 C.F.R. § 35.130(b)(1)(iv).9 Courts hold repeatedly that the ADA and Section 504 prohibit discrimination on the basis of severity of disability. See, e.g., Martin v. Voinovich, 840 F.Supp. 1175, 1191–92 (S.D.Ohio 1993); Conner, 839 F.Supp. at 1356; Jackson v. Fort Stanton Hosp. & Training Sch., 757 F.Supp. 1243, 1299 (D.N.M.1990), rev’d on other grounds, 964 F.2d 980 (10th Cir.1992); Garrity v. Gallen, 522 F.Supp. 171, 214–15 (D .N.H.1981); Lynch v. Maher, 507 F.Supp. 1268, 1278–79 n.15 (D.Conn.1981). Defendants will violate the ADA or Section 504 if they fail to consider profoundly or severely mentally retarded STS residents for community placement or vocational services, while considering less handicapped individuals for such services, thereby discriminating solely on the degree of one’s disability.
3. Option to Decline Accommodation Nothing in the ADA “shall be construed to require an individual with a disability to accept an accommodation, aid, service, or benefit ... which such individual chooses not to accept.” 28 C.F.R. § 35.130(e)(1). While integration is fundamental to the ADA’s purposes, regulations clearly state that disabled individuals “must be provided the option of declining to accept a particular accommodation” such as community placement or vocational services. 28 C.F.R. Pt. 35, App. A at 450. Thus, if plaintiffs satisfy the elements of 42 U.S.C. § 12132 or Section 504, the defendants may rebut by producing evidence that they offered appropriate community placements or vocational services to STS residents but those residents exercised their statutory right to decline.

A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the services, program, or activity.
To establish this affirmative defense, the defendants must prove that plaintiffs’ requested relief would: (1) alter the essential nature of its program; or (2) impose an undue burden or hardship in light of the overall program. See Easley by Easley v. Snider, 36 F.3d 297, 305 (3d Cir.1994); Williams v. Wasserman, 937 F.Supp. 524, 531 (D.Md.1996); Dees v. Austin Travis County Mental Health and Mental Retardation, 860 F.Supp. 1186, 1190 n.7 (W.D.Tex.1994). The reasonableness of plaintiffs’ proposed relief must be evaluated in light of the purpose of the ADA and Section 504 to assist the handicapped and the need to impose reasonable boundaries in accomplishing this legislative goal. See Helen L., 46 F.3d at 337.
Inadequate funding ordinarily will not excuse noncompliance with the ADA or Section 504. See Olmstead, 138 F.3d at 902. “The fact that it is more convenient administratively or fiscally, to provide services in a segregated manner, does not constitute a valid justification for separate or different services.” H.R.Rep. No. 101–485 (1990), reprinted in 1990 U.S.C.C.A.N. at 473; accord Helen L., 46 F.3d at 337 (rejecting defendants’ argument that it could not transfer funds from an institution to a community placement due to a contrary state law). Yet, integration cannot be achieved at any cost. Where plaintiffs’ requested relief would be so unreasonable, given the demands of the state’s mental health budget and resources, that it would alter the essential nature of its service, defendants may avoid making an accommodation. See Conner, 839 F.Supp. 1358–59 (refusing to order a state to create or expand community programs currently in existence); Williams, 937 F.Supp. at 531 (finding that courts may not require states to transfer millions of dollars from institutions to the community); Cable, 973 F.Supp. at 941.

4. “Fundamental Alteration” Defense *11 The ADA and Section 504 provide an affirmative defense to a violation if a defendant proves that making a modification would fundamentally alter its service or program. See Alexander v. Choate, 469 U.S. 287, 300 (1985). 28 C.F.R. § 35.130(b)(7) states in relevant part:

B. Viability of Claims Alleged in the Complaint In its motion for summary judgment, DMR erroneously contends that this Court previously narrowed plaintiffs’ ADA and Section 504 claims to allow relief only if they prove discrimination on the basis of severity of disability. (DMR’s Mem. Supp. Summ. J. at 2.) Essentially, DMR argues that the Court precluded plaintiffs from demonstrating a violation of section 35.130(d)’s
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Messier v. Southbury Training School, Not Reported in F.Supp.2d (1999)

integration mandate. Additionally, DSS proposes that plaintiffs have not pleaded that it discriminated against STS residents based on severity of disability in the provision of vocational rehabilitation services. Each of these claims is without merit.
*12 Count II of the Third Amended Complaint states in relevant part:
By failing to provide residents of Southbury Training School the opportunity to receive state support in the community rather than in a segregated institution and by failing to provide the most severely handicapped residents of Southbury Training School with the same opportunity to benefit from programs and community living as are provided residents of STS with mild disabilities, defendants have violated plaintiffs’ rights secured by the Americans with Disabilities Act, 42 U.S.C. § 12132, and the Rehabilitation Act, 29 U.S.C. § 794.
(Third Am. Compl. ¶ 87.) (emphasis added). The first portion of Count II alleges that the defendants violated section 35.130(d) by unnecessarily segregating STS residents. The second portion claims that they have discriminated impermissibly on the basis of severity of disability.
In regard to DMR’s contention, the agency correctly observes that the Court stated in its ruling on defendants’ motion to dismiss that:
[P]laintiffs allege that defendants, by failing to consider certain severely handicapped residents for community placement, have practiced discrimination on the basis of severity of disability. This Court considers whether relief may be granted based upon such a claim.
Messier, 916 F.Supp. at 140. However, DMR attempts to distort this statement’s plain meaning. Clearly, the Court merely addressed whether plaintiffs could maintain ADA and Section 504 claims based upon their allegation of discrimination based on the degree of disability. Contrary to DMR’s assertion, the Court did not foreclose plaintiffs’ option to show that it violated section 35.130(d)’s integration mandate. Both of these claims remain viable at the present time.

Plaintiffs also have properly pleaded that DSS violated the ADA and Section 504 by allegedly discriminating against the most severely mentally retarded STS residents in the administration of vocational services. The Federal Rules of Civil Procedure implement the policy of notice pleading, whereby plaintiffs need only make a plain statement of their claims in the complaint. Using this as a guide, Count II can be read to include the allegation that DSS fails “to provide the most severely handicapped residents of Southbury Training School with the same opportunity to benefit from programs,” such as vocational services, “as are provided residents of STS with mild disabilities.”
C. Claims Against DMR and STS The Court denies plaintiffs’ and DMR’s motions for summary judgment on claims brought under the ADA and Section 504 because two important genuine issues of material fact remain. First, neither party’s evidence is conclusive regarding what constitutes the most integrated setting appropriate to the needs of STS residents—STS or the community. Otherwise stated, neither party’s evidence clearly establishes whether the defendants currently are providing services to STS residents in an unnecessarily segregated setting. Second, a genuine issue exists concerning whether DMR and STS refuse to consider profoundly or severely mentally retarded residents for community placement according to the degree of their disability.
*13 Regarding the first question, both sides dispute the extent to which STS enables its disabled residents to interact with non-disabled persons. In addition, both parties disagree as to whether specific cases exist where the defendants placed residents at STS, even though IDTs recommended community placement as the most appropriate placement. (Defs.’ Br. Opp. Summ. J. at 34.) If such cases exist, then issues of fact arise concerning whether DMR offered these residents a choice of moving to the community, and whether the residents accepted or refused. Furthermore, both sides dispute the reasons behind DMR’s development of fewer community placements in recent years. Compare (Pls.’ Mem. Supp. Summ. J. at 7) with (Defs.’ Br. Opp. Summ. J. at 44; DMR’s Mem. Supp. Summ. J. at 10.) (arguing that this state of affairs results naturally from the fact that only a few STS residents wish to move to the community).
Plaintiffs’ attempt to draw comparisons to Thomas S. fails because STS is an institution tailored only to the needs of mentally retarded individuals, whereas Thomas S. found discrimination where mentally retarded persons were being treated in psychiatric hospitals for the mentally ill. 699 F.Supp. at 1184. The facts establishing an ADA violation in this case prove less clear than in Thomas S.
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Messier v. Southbury Training School, Not Reported in F.Supp.2d (1999)

Plaintiffs’ comparisons with Helen L. also ring hollow. In Helen L., both parties stipulated that the plaintiff did not require institutional care, and that with attendant services, she could live with her family in her own home. See 46 F.3d at 329. In contrast, the defendants have made no such stipulation. The evidence is inconclusive concerning whether STS residents require institutional care or whether their needs could be met adequately in the community.
Similarly, DMR fails to establish its proposed “fundamental alteration” affirmative defense for two reasons. First, this Court has previously eliminated the possibility that it will order the closure of STS or the movement of all STS residents to the community in this case. See Ruling Mot. Opt Out at 4, 5, 21; Ruling Mot. Intervene at 3–4; Ruling Application Exclusion at 2. Second, DMR has produced no evidence at this juncture to show that placing STS residents in the community would impose a fundamental change to its existing programs and services.
With regard to whether DMR and STS practice discrimination on the basis of severity of handicap, DMR contends that its policy for the previous ten years has been that “no person is excluded from any particular residential placement, including community placement, solely or merely due to the severity of his or her disabilities.” (DMR’s State. Undis. Facts at 1; Moriarity Dep. at 51; Defs.’ Resp. 2nd Set Interrogs. ¶ 10.) DMR also points to prior cases and state statutes to support this proposition. See United States v. Connecticut, No. N–86–252 (EBB) (Implementation Plan at 6); Connecticut Ass’n Retarded Citizens v. Thorne, No. H–78–653 (TEC) (Consent Decree and Final Order); Conn. Gen Stat. § 17a–210 (1997). In response, plaintiffs correctly note that prior adjudications and statutory directives do not conclusively establish whether defendants currently follow these mandates.
*14 DMR’s statistical evidence10 similarly fails to prove definitively that it does not discriminate against the most severely mentally retarded STS residents. From July 1, 1994 through May 14, 1998, there were 386 total referrals for consideration for specific community placement services. Class members with: (1) profound and severe mental retardation made up 252 (65.1%) of those referrals; (2) moderate mental retardation made up 86 (22.2%); (3) mild mental retardation made up 46 (11.9%); and (4) no mental retardation made up 2 (0.5%). Out of those 386 referrals, 61 STS residents were placed in the community. Class members with: (1) profound and severe mental retardation made up 40 (65.5%) of those placements; (2) moderate mental retardation made up 11 (18.0%); (3) mild mental retardation made up 9 (14.7%); and (4) no mental retardation made up 1 (1.6%). Indeed, this evidence reveals that defendants refer and place significant numbers of STS residents with profound and

severe mental retardation in the community.
On the other hand, the evidence suggests that residents with profound and severe mental retardation possess less chance to be referred for community placement and actually placed in the community. While residents with profound and severe mental retardation constitute 78.3% of the entire STS population, they only make up 65.1% of those referred for community placement, and 65.5% of those actually placed in the community. When compared with the overall percentage of STS residents broken down by level of retardation, the percentage of residents with profound and severe mental retardation referred and placed in the community actually drops. At the same time, the percentage of STS residents with moderate and mild mental retardation rises from 21.5% to 34.1% for those referred and 32.7% for those placed.
Given the inconclusive nature of the statistical evidence, a reasonable trier of fact could find for either party on plaintiffs’ ADA and Section 504 claims. See Anderson, 477 U.S. at 248. Therefore, the Court declines to award summary judgment to plaintiffs or DMR on these claims.
D. Claims Against DSS On the other hand, the Court awards summary judgment to DSS on Count II because plaintiffs do not have standing to pursue their claim that DSS denies STS residents vocational rehabilitation services based on the severity of their disabilities. The Bureau of Rehabilitation Services (“BRS”), which is a unit of DSS, possesses responsibility to administer vocational services in the State of Connecticut. See Conn. Gen.Stat. § 17b–651 (1997); 29 U.S.C. § 721(a). BRS acts pursuant to General Statutes § 17b–650 et seq. and state agency regulations that set out bureau procedures. See Conn. Agencies Regs. § 10–102–20 et seq. (1997).
Eligible persons may apply for vocational rehabilitation services with BRS. See Conn. Gen.Stat. § 17b–653. “Any applicant for or recipient of vocational rehabilitation services may request an informal review of any decision made by the bureau pursuant to section 17b–653.” Conn. Gen.Stat. § 654(a). In addition, “any applicant for or recipient of vocational services who is aggrieved by a decision made by the bureau pursuant to section 17b–653 may request an administrative hearing, by making a written request to the director” of BRS. Conn. Gen.Stat. 17b–654(b). Finally, an “individual who is aggrieved by a final agency decision made pursuant to subsection (b) of this section may appeal therefrom in accordance with section 4–183.” Conn. Gen.Stat. § 17b–654(c). Under section 4–183, a party may seek judicial review of an administrative decision in state court when that party “has exhausted all administrative remedies” and has been “aggrieved by a final decision” by the relevant agency.
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Messier v. Southbury Training School, Not Reported in F.Supp.2d (1999)

Conn. Gen.Stat. § 4–183(a).
*15 To establish their claim, plaintiffs rely on a BRS consultant’s deposition testimony that BRS likely would not provide vocational services to profoundly retarded residents incapable of communicating above an eighteen-month-old level, (Digalbo Dep. at 132–34) (emphasis added), and point out that no STS resident currently receives vocational services. (DSS’ Resp. Req. Admis. ¶ 26.) However, state law clearly requires a person to request or apply for vocational services in order to trigger BRS’ duty to consider the applicant for those services. Plaintiffs have presented no evidence that any class member applied for vocational services with BRS and was denied them subsequently. Nor have plaintiffs come forward with evidence that they were aggrieved by any decision by BRS. Nothing in Connecticut statutes or case law requires BRS to affirmatively seek out every person in Connecticut who might need vocational services, without a prior application. This set of facts would prevent administrative review and judicial review under Connecticut state law, and it precludes judicial review in this Court.
The hypothetical and speculative possibility that BRS might deny serives to one or more plaintiffs in the future does not fulfill the constitutional standing requirement that plaintiffs suffer an injury in fact.11 In the absence of proof that plaintiffs requested vocational services and were denied them by BRS, plaintiffs do not possess standing to seek relief. As a result, the Court grants summary judgment to DSS on this claim.
IV. Social Security Act Claims Against DSS, DPH, and DMR The Court previously held that 42 U.S.C. § 1983 provided a right of action for plaintiffs to assert a violation of Title XIX of the Social Security Act, otherwise known as the Medicaid Act. See Messier, 916 F.Supp. at 142–46; Ruling Mot. Dismiss by DPH and DSS at 10–22. In this regard, plaintiffs have alleged the following:
45. The defendant, Stephen A. Harriman, is the Commissioner of the Connecticut Department of Public Health. As the Commissioner he is responsible for conducting periodic inspections of the care, treatment and living conditions of approximately 200 classmembers living in buildings certified under Title XIX of the Social Security Act. As such he is required to conduct inspections pursuant to 42 C.F.R. §§ 456.600 et seq. and report all findings of noncompliance with the program and treatment requirements of the federal regulations to the single state Medicaid Agency (the Connecticut Department of Social Services) for appropriate enforcement action under 42 C.F.R. § 456.613.

65. The defendant Harriman has failed to conduct meaningful inspections in the STS residential facilities certified under Medicaid and recommend appropriate corrective action as a result of the failure of those facilities to meet the minimum needs of classmembers living in STS residential units certified under Medicaid.
66. The minimum needs of classmembers living in Medicaid certified units to treatment and services have not been met for nearly a decade because of the failure of the Department of Public Health and DMR to conduct inspections contemplated by Medicaid and DSS’s failure to take any action on the reports as required by Medicaid.
*16 88. Defendants DMR, Department of Public Health and DSS have violated the rights of some two hundred residents of Southbury Training School by not providing active treatment as required by 42 U.S.C. [§ ] 1396 et seq. by a) failing to provide training and habilitation services to all residents regardless of the nature or severity of his or her disability; b) failing to provide the professional services to residents including physical therapy, occupational therapy, medical services and psychological services; c) failing to develop adequate activities for residents; d) failing to provide individual treatment plans; e) failing to evaluate the appropriateness of continued placement at STS; f) failing to develop meaningful discharge plans.
(Third Am. Compl. ¶¶ 45, 65, 66, 88.) Both DPH and DSS have moved for summary judgment on these claims. After describing the structure of the state’s administration of the Medicaid program, the Court will address each motion in turn.
A. Administration of the Title XIX Medicaid Program The Social Security Act and the regulations promulgated by the Department of Health and Human Services (“HHS”) that implement it “present as complex a legislative mosaic as could possibly be conceived by man.” City of New York v. Richardson, 473 F.2d 923, 926 (2d Cir.1973); accord Beverly Community Hosp. Ass’n v. Belshe, 132 F.3d 1259, 1266 (9th Cir.1997) (finding that “clarity is recognized as totally absent from the Medicare and Medicaid statutes”), cert. denied, 119 S.Ct. 334 (1998); Rehabilitation Ass’n of Va., Inc. v. Kozlowski, 42 F.3d 1444, 1450 (4th Cir.1994) (characterizing Medicaid as “among the most completely impenetrable texts within human experience” and “dense reading of the most tortuous kind”). In light of this unfortunate reality, the Court will endeavor to explain clearly how Title XIX’s
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Messier v. Southbury Training School, Not Reported in F.Supp.2d (1999)

Medicaid program operates.
Title XIX requires participating states to designate “a single state agency to administer or to supervise the administration of” its Medicaid program. 42 U.S.C. § 1396a(a)(5). DSS is the state agency responsible for administering Connecticut’s Medicaid program. See Conn. Gen.Stat. § 17b–260. In exchange for federal funds, DSS has submitted a Medicaid state plan which has been approved by HHS. (DSS’ State. Undis. Facts ¶ 5.) Under its authority, DSS determines the eligibility of applicants for medical assistance, enrolls qualified providers in the program, and pays medical assistance to enrolled providers for covered services provided to eligible recipients subject to review on questions of medical necessity. (Id. ¶ 6.); 42 U.S.C. § 1396a(a)(23). Participating states must provide medical assistance to the aged, blind, disabled, and needy individuals with children. See 42 U.S.C. § 1396a(a)(10)(A). Medicaid also allows DSS to furnish medical assistance for services provided in intermediate care facilities for the mentally retarded (“ICF/MRs”). See 42 U.S.C. § 1396d(a)(15).
*17 The Act requires the state’s Medicaid plan to provide for “the state health agency” to establish and maintain “health standards for private or public institutions in which recipients of assistance under the plan may receive care or services.” 42 U.S.C. § 1396a(a)(9)(A). DPH is the state agency responsible for determining whether ICF/MRs are qualified to participate in Medicaid. See 42 U.S.C. § 1396a(a)(33)(B). Qualifications for a facility’s participation in Medicaid include conditions relating to client rights, facility staffing and practices, active treatment services, health care services, physical environment, and dietetic services. See 42 C.F.R. §§ 483.400–483.480. If an ICF/MR satisfies these requirements, it may be certified for up to twelve months. See 42 C.F.R. §§ 442.100–442.109(a).
DPH performs the function of determining whether ICF/MRs meet the requirements for participation in Connecticut’s Medicaid plan; however, HHS retains the ultimate control over this decision. See 42 U.S.C. §§ 1396a(a)(33)(B), 1396a(i). Specifically, if HHS “has cause to question the adequacy of [DPH’s] determinations,” HHS may make “independent and binding determinations concerning the extent to which individual institutions ... meet the requirements for participation.” 42 U.S.C. § 1396a(a)(33)(B). These are commonly known as “look behind surveys.” ICF/MRs also retain the right to appeal adverse certification decisions. See 42 C.F.R. § 431.151 et seq.
When a facility no longer meets the certification qualifications, if the facility’s deficiencies immediately jeopardize the health and safety of its patients, DPH must terminate the facility’s certification and the state may refuse payments for any individuals admitted to the

facility. See 42 U.S.C. § 1396a(i)(1)(A). Where the facility’s deficiencies do not immediately jeopardize the health and safety of its patients, DPH may “establish alternative remedies if the State demonstrates to the Secretary’s satisfaction that the alternative remedies are effective in deterring noncompliance.” 42 U.S.C. § 1396a(i)(1)(B). However, DPH may not take these actions until the facility has been given an opportunity for a hearing and a reasonable chance to correct the deficiencies. See 42 U.S.C. § 1396a(i)(2).
Once DPH or HHS certifies an ICF/MR, DSS executes a Medicaid provider agreement with the facility. See 42 C.F.R. §§ 442.10, 442.12, 442.30. This allows the state to distribute federal monies to the ICF/MR on behalf of eligible recipients residing there. DPH has certified several ICF/MRs located at STS for participation in Medicaid and DSS has executed provider agreements with these facilities. (DSS’ State. Undis. Facts ¶¶ 10–14.)
In contrast to the certification and survey inspections conducted by DPH which focus on whether facilities as a whole are qualified to participate in Medicaid, Title XIX imposes administrative responsibilities on DSS which focus on the services provided to each individual Medicaid recipient. First, DSS must initially evaluate each recipient’s need for admission at an ICF/MR prior to approving Medicaid payments for treatment. See 42 C.F.R. § 456.372. This control assures that patients will not be admitted to an ICF/MR unnecessarily. Second, DSS must prescribe requirements to govern a periodic review of residents’ needs for continued stay in an ICF/MR (“utilization review” or “continued stay review”) every six months. See 42 U.S.C. § 1396a(a)(30); 42 C.F.R. §§ 456.431–456.438. The purpose of these reviews is to “safeguard against unnecessary utilization of such care and services and to assure that payments are consistent with efficiency, economy, and quality of care.” 42 U.S.C. § 1396a(a)(30)(A). Finally, DSS was formerly responsible to ensure that independent professional reviews (“IPRs”) were conducted on each resident of an ICF/MR pursuant to former 42 U.S.C. § 1396a(a)(31) and to “take corrective action as needed” based on these findings under 42 C.F.R. § 456.613. DSS formerly fulfilled these responsibilities by arranging for DMR to conduct the IPRs and make the requisite findings. However, DMR ceased conducting IPRs when Congress amended 42 U.S.C. § 1396a(a)(31) in the Balanced Budget Act of 1997. (DSS’ State. Undis. Facts ¶¶ 18–19.)
B. Certification Inspections and Surveys *18 In a prior ruling, the Court may have suggested that plaintiffs could assert claims against DPH for a violation of their certification inspection duties, and against DSS for a failure to take corrective actions based on such findings.12 Upon further consideration, the Court now
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Messier v. Southbury Training School, Not Reported in F.Supp.2d (1999)

holds that neither DPH nor DSS may be liable based on these claims.
Several reasons dictate that DPH, DSS, and DMR cannot be liable for any alleged failure to discharge their certification duties. First, the Secretary of Health and Human Services retains ultimate control over all certification decisions. See 42 U.S.C. §§ 1396a(a)(33)(B), 1396a(i)(1)(B). Where HHS “has cause to question the adequacy of [DPH’s] determinations,” HHS may make “independent and binding determinations concerning the extent to which individual institutions ... meet the requirements for participation” in Medicaid. 42 U.S.C. § 1396a(a)(33)(B). Moreover, a facility’s certification may last no longer than twelve months. See 42 C.F.R. § 442.109(a). Assuming arguendo that DPH breached its survey duties under the Medicaid Act, HHS retains complete authority to conduct look-behind surveys every twelve months to correct such problems. Plaintiffs have not brought suit against HHS in this case.
Second, several courts hold that the Medicaid Act does not afford recipients of assistance the right to seek relief against the state Medicaid agency or the state health agency based on a failure to comply with certification regulations. See, e.g., Evelyn V. v. Kings County Hosp. Ctr., 956 F.Supp. 288, 296–98 (E.D.N.Y.1997) (concluding that state agencies may not be sued in connection with their enforcement of state standards on state-operated hospitals); Evelyn V. v. Kings County Hosp. Ctr., 819 F.Supp. 183, 196–98 (E.D.N.Y.1993) (same); Graus v. Kaladjian, 2 F.Supp.2d 540, 541–44 (S.D.N.Y.1998) (denying a right to sue for a state’s failure to ensure that the city complied with Medicaid laws); Nicoletti v. Brown, 740 F.Supp. 1268, 1279–80 (N.D.Ohio 1987) (holding that the Medicaid Act does not create enforceable rights against state officials for the continued provision of services that meet the requirements for certification).
For these reasons, the Court is persuaded that plaintiffs may not succeed on their claims for violations of defendants’ certification and survey duties under Title XIX.
C. Independent Professional Reviews In its motion for summary judgment, DSS acknowledges that the Court previously ruled that plaintiffs stated a claim for DSS’ alleged failure to take corrective action based upon the findings of IPRs pursuant to 42 C.F.R. § 456.613. See Ruling Mot. Dismiss by DPH and DSS. However, DSS now contends that section 4751(b)(1) of the Balanced Budget Act of 1997 (“BBA”), which was enacted subsequent to the Court’s ruling, eliminated its legal duty to supervise IPRs and to “take corrective action as needed” based on these findings. The Court agrees.

*19 42 U.S.C. § 1396a(a)(31) formerly constituted the statutory authority pursuant to which HHS promulgated regulations in 42 C.F.R. §§ 456.600–456.613 governing IPRs. Prior to being amended by the BBA, section 1396a(a)(31) provided the following:
A state plan for medical assistance must—with respect to services in an [ICF/MR] provide—
(A) with respect to each patient receiving such services, for a written plan of care, prior to admission to or authorization of benefits in such facility, in accordance with regulations of the Secretary, and for a regular program of independent professional review (including medical evaluation) which shall periodically review his need for [ ] services;
(B) with respect to [ICFs] within the State, for periodic onsite inspections of the care being provided to each person receiving medical assistance, by one or more independent professional review teams (composed of a physician or registered nurse and other appropriate health and social service personnel), including with respect to each such person (i) the adequacy of the services available to meet his current health needs and promote his maximum physical well-being, (ii) the necessity and desirability of his continued placement in the facility, and (iii) the feasibility of meeting his health care needs through alternative institutional and noninstitutional services; and
(C) for full reports to the State agency by each independent professional review team of the findings of each inspection under subparagraph (B), together with any recommendations.
42 U.S.C. § 1396a(a)(31) (1992).
The BBA amended several provisions of the Medicaid Act. Specifically, section 4751(b)(1) of the BBA amended section 1396a(a)(31). After being amended, this provision now reads as follows:
A state plan for medical assistance must—with respect to services in an [ICF/MR] provide, with respect to each patient receiving such services, for a written plan of care, prior to admission to or authorization of benefits in such facility, in accordance with the regulations of the Secretary, and for a written program of independent professional review (including medical evaluation) which shall periodically review his need for such services.
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Messier v. Southbury Training School, Not Reported in F.Supp.2d (1999)

42 U.S.C. § 1396a(a)(31) (1998). Thus, the BBA deleted from section 1396a(a)(31) those provisions under former subsections (B) and (C) requiring IPR teams to inspect the adequacy of care provided to each recipient of assistance and report findings and recommendations to the state’s Medicaid agency.
The legislative history of the BBA indicates that Congress intended to eliminate the obligation of state Medicaid agencies to supervise IPRs and to take corrective action based on them. H.R.Rep. No. 105–149 (1997) provides the following evidence of this intent:
Section 3451. ELIMINATION OF DUPLICATIVE INSPECTION OF CARE REQUIREMENTS FOR
ICFS/MR AND MENTAL HOSPITALS
Under current law, States that provide services in mental hospitals and in intermediate care facilities for the mentally retarded (ICFs/MR) must provide for periodic inspections of care for each Medicaid beneficiary who receives services in the institution. Inspections of care have been conducted to assure that persons are receiving the appropriate level of care of adequate quality. The Department of Health and Human Services has established a new survey outcome-oriented process for mental hospitals and ICFs/MR. Section 3451 eliminates inspection of care reviews in mental hospitals and ICFs/MR and retains survey and certification reviews for the facilities. *20 H.R.Rep. No. 105–149 (emphasis added). Another piece of legislative history explains the same intent by providing:
ELIMINATION OF DUPLICATIVE INSPECTION OF CARE REQUIREMENTS FOR ICFS/MR AND
MENTAL HOSPITALS
Section 3451
HOUSE BILL
Eliminates Inspection of Care reviews in mental hospitals and ICFs/MR. Survey and certification reviews for the facilities would remain in place.
Effective on date of enactment.

SENATE AMENDMENT
No provision.
CONFERENCE AGREEMENT
The conference agreement includes the House bill. H.R. Conf. Rep. 105–217, at 891–92 (1997), reprinted in 1997 U.S.S.C.A.N. 176, 512–13.
Congress’ clear statement of its intent indicates that the BBA amended 42 U.S.C. § 1396a(a)(31) to eliminate IPRs. In the absence of statutory authority from Congress, HHS regulations embodied in 42 C.F.R. §§ 456.600–456.613 are no longer valid. Even though the Court’s prior ruling indicated otherwise, the Court remains bound to enforce Congress’ subsequent expression of its will to discontinue IPRs. The Eleventh Amendment prohibits federal courts from granting retroactive relief, whether it be for damages or an injunction, against states and state officials. See Edelman v. Jordan, 415 U .S. 651, 664–68 (1974) (holding that Ex parte Young, 209 U.S. 123 (1908) only allows for prospective injunctive relief). In addition, the Eleventh Amendment forbids federal courts from entering retroactive injunctive relief to remedy past violations of law which have been mooted by an amendment to a federal law. See Green v. Mansour, 474 U.S. 64, 73 (1975); Marbley v. Bane, 57 F.2d 224, 232 (2d Cir.1995). Even assuming that DSS breached its IPR duties under prior law, the BBA’s subsequent amendment of 42 U.S.C. § 1396a(a)(31) prohibits the Court from granting any relief for such violations.
For the foregoing reasons, the Court dismisses all of plaintiffs’ claims asserted against DPH, DSS, and DMR under Title XIX of the Social Security Act.
V. Due Process Claims Against DPH Based on DNR Orders Plaintiffs declare that DPH’s current policies relating to DNR orders violate procedural and substantive due process because private physicians may write such orders on nonterminally ill class members against their wishes. The Complaint provides in relevant part:
[T]he defendant Harriman has violated the right of plaintiff classmembers to life without due process of law by developing and enforcing standards which permit community hospitals to write and implement DNR Orders on
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Messier v. Southbury Training School, Not Reported in F.Supp.2d (1999)

nonterminally ill classmembers without any process to ensure that the decision to withhold routine medical care is consistent with the wishes of the classmember.
(Third Am. Compl. ¶ 86(j).) DMR’s Medical Advisory # 87–2 does not allow physicians to write DNR orders unless the patient is terminally ill based upon the opinion of two physicians including a specialist, the patient or guardian consents, and a DMR official reviews the order. (DPH’s Mot. Summ. J. Ex. 5.) Medical Advisory # 87–2 applies to DMR-licensed facilities, but does not bind DPH-licensed facilities. In contrast, DPH permits physicians to write DNR orders if they serve the patient’s best interests and they obtain informed consent from the patient or guardian. Thus, DPH does not require the presence of a terminal illness. Plaintiffs urge the Court to force DPH to adopt DMR’s Medical Advisory # 87–2. (Pls.’ Mem. Opp. Summ. J.)
*21 DPH makes three arguments in opposition. First, it maintains that plaintiffs do not have standing to bring this claim. Second, DPH proposes that it owes plaintiffs no duty of care. Finally, the agency submits that plaintiffs fail to show that DNR orders are written in violation of the Fourteenth Amendment. The Court does not reach these last two arguments because it holds that plaintiffs lack standing to obtain an injunction against DPH.
A. Constitutional Elements of Standing Article III provides that the jurisdiction of federal courts extends only to “cases and controversies.” The requirement of justiciability remains open throughout all stages of litigation and may be raised by the parties at any time. See National Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 255 (1994); Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 546–47 (1986). The doctrine of standing is “an essential and unchanging requirement of Article III,” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992), which along with the other justiciability doctrines “defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded.” Allen v. Wright, 468 U.S. 737, 750 (1984).
To satisfy the constitutional requirements of standing, the party invoking federal jurisdiction must demonstrate the following elements:
(1) injury in fact, by which we mean an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) a causal

relationship between the injury and the challenged conduct, by which we mean that the injury fairly can be traced to the challenged action of the defendant, and has not resulted from the independent action of some third party not before the court; and (3) a likelihood that the injury will be redressed by a favorable decision, by which we mean that the prospect of obtaining relief from the injury as a result of a favorable ruling is not too speculative.
Northeastern Fla. Chapter Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 663 (1993) (citations, footnotes, and internal quotation marks omitted); see also Lujan, 504 U.S. at 560–61. These elements are the “irreducible minimum” required by the Constitution. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982).
Because plaintiffs seek equitable relief instead of damages, they need not show actual injury, but rather must demonstrate a likelihood of imminent future injury. See City of Los Angeles v. Lyons, 461 U.S. 95, 101–02, 105 (1983); Golden v. Zwickler, 394 U.S. 103, 109–10 (1969). The threat of future injury must be real and immediate, not conjectural or hypothetical. Lyons, 461 U.S. at 102. A mere showing that the plaintiff has in the past been subject to the type of injury at issue, without anything more, is insufficient to establish a likelihood of future injury. Id. at 105–06. Litigants seeking to enjoin the activity of a government agency also must contend with “the well-established rule that the Government has traditionally been granted the widest latitude in the dispatch of its own internal affairs.” Allen, 468 U.S. at 761 (quoting Rizzo v. Goode, 423 U.S. 362, 378–79 (1976)). Parties may not use the judicial system to “seek a restructuring of the apparatus established by the Executive Branch to fulfill its legal duties.” Allen, 468 U.S. at 761. Rather, a case or controversy exists only when parties attempt to enforce specific legal obligations.
1. Standing at the Summary Judgment Stage *22 Each element of standing “must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i .e., with the manner and degree of evidence required at the successive stages of the litigation.” Lujan, 504 U.S. at 561 (citing Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 45 n.25 (1976)). When a defendant raises standing on a motion to dismiss, “general factual allegations of injury resulting from the defendant’s conduct may suffice.” Lujan, 504
14

Messier v. Southbury Training School, Not Reported in F.Supp.2d (1999)

U.S. at 561. “In response to a summary judgment motion, however, the plaintiff can no longer rest on such ‘mere allegations,’ but must ‘set forth’ by affidavit or other evidence ‘specific facts,’ Fed.R.Civ.P. 56(e), which for purposes of the summary judgment motion will be taken to be true.” Lujan, 504 U.S. at 561. As a result, the mere fact that the Court considered this issue in its prior Ruling on Motion for Class Certification13 does not prohibit reconsideration at summary judgment, since plaintiffs must meet a higher burden at this stage.
2. Standing in the Context of a Class Action Standing cannot be acquired through the back door of a class action. “[N]amed plaintiffs who represent a class must allege and show that they personally have been injured, not that injury has been suffered by other unidentifiable members of the class to which they belong and which they purport to represent.” Simon, 426 U.S. at 40 n.20; Warth v. Seldin, 422 U.S. 490, 502 (1975); accord National Org. for Women, 510 U.S. at 802; Bailey v. Patterson, 369 U.S. 31, 32–33 (1962). Thus, “if none of the named plaintiffs purporting to represent a class establishes a requisite case or controversy with the defendant, none may seek relief on behalf of herself or himself or any other member of the class.” O’Shea v. Littleton, 414 U.S. 488, 494 (1974); accord Rizzo, 423 U.S. at 371; Allee v. Medrano, 416 U.S. 802, 829 (1974) (Burger, C.J., concurring) (stating that “a named plaintiff cannot acquire standing to sue by bringing his action on behalf of others who suffered injury which would have afforded them standing had they been named plaintiffs”).
B. Application of Standing Requirements
1. Injury in Fact Plaintiffs fail to establish by affidavits or other evidence that they will suffer a likelihood of imminent future injury by being subjected to a DNR order not written in accordance with the Constitution. Instead, they set forth a scenario full of speculation insufficient to invoke federal jurisdiction. See, e.g., Lyons, 461 U.S. at 105–06; Lujan, 504 U.S. at 561; Simon, 426 U.S. at 44.
The evidence reveals that only a small percentage of STS residents were subjected to a DNR order, proper or improper, in recent years. Less than one and a half percent of current STS residents have been subjected to a DNR order. (Pls.’ Resp. Req. Admis. Ex. 1 ¶ 11.) From 1995 to 1997, a DNR order was issued by a physician in four percent of all admissions at private hospitals. (McDonald Aff. Ex. 2 ¶ 9.) While plaintiffs allege that improper DNR orders are written as a matter of course, their own expert does not subscribe to this view. (Kugel Dep. at 260.) Furthermore, plaintiffs have failed to come forward with a

single example where physicians wrote a DNR order on a nonterminally ill patient or where one issued without consent of the resident’s guardian.14 (Id. at 263.) Even assuming that plaintiffs could demonstrate that some members of the class will likely suffer injury in the future, they have not presented any named plaintiff fitting this description. See Warth, 422 U.S. at 502; O’Shea, 414 U.S. at 494. Plaintiffs concede that no named plaintiff has ever been subjected to a DNR order of any kind. (Pls.’ Resp. Req. Admis. ¶ 7 .)
*23 Just as importantly, DPH’s evidence confirms that the four hospitals which handle 97% of all hospital admissions of STS residents have adopted DMR’s Medical Advisory # 87–2 as part of their DNR protocol. (Policies of Waterbury Hosp., New Milford Hosp., Danbury Hosp., and St. Mary’s Hosp. Ex. 6.) Hence, plaintiffs’ contention that DPH’s policies result in an inconsistency with DMR’s Medical Advisory # 87–2 is inapplicable 97% of the time.
In seeking an injunction, plaintiffs must demonstrate a likelihood of imminent future injury. As City of Los Angeles v. Lyons, 461 U.S. 95 (1983) illustrates, this proves to be a high burden. In that case, the plaintiff alleged that police officers injured him by applying a chokehold without provocation or resistance. In addition to seeking damages, the plaintiff requested an injunction against the city to prevent police officers from applying chokeholds in the future. The Court reasoned that in order to establish an actual controversy
[P]laintiff would have had not only to allege that he would have another encounter with the police but also make the incredible assertion either (1) that all police officers in Los Angeles always choke any citizen with whom they happen to have an encounter ... or (2) that the City ordered or authorized police officers to act in such a manner.
Id. at 106. Accordingly, the Court denied the injunction because plaintiffs’ claim of future injury was too speculative to establish injury in fact. See id. at 108.
Given the high burden set forth in Lyons, plaintiffs cannot meet the injury requirement of standing. To credit plaintiffs’ assertion that they face a substantial likelihood that a DNR order will issue on a nonterminally ill STS resident without proper consent, the Court must assume that: (1) physicians likely will violate their hospitals’ internal policies, (Kugel Dep. at 261); (2) physicians likely will ignore federal and state regulations requiring patients or guardians to give informed consent to
15

Messier v. Southbury Training School, Not Reported in F.Supp.2d (1999)

treatment and procedures, see 42 C.F.R. § 489.102(a)(4); Conn. Agencies Regs. § 19–13–D3(d)(8); (Joint Comm’n Accreditation Health Care Orgs. Standard RI Ex. 8 1.2.); and (3) physicians likely will risk being charged with medical malpractice by issuing a DNR order without the presence of a terminal illness. See Van Steensburg v. Lawrence & Mem’l Hosp., 194 Conn. 500, 506 (1984) (holding that a violation of hospital rules constitutes direct evidence of negligence). Based on the evidence, the Court finds that plaintiffs do not fulfill Article III’s injury in fact requirement.
2. Causation Plaintiffs also have not established that their risk of harm is fairly traceable to DPH’s refusal to adopt Medical Advisory # 87–2. Instead, the class members’ alleged risk of injury results directly from the independent actions of two third parties not before the court: (1) physicians at private hospitals not subject to DMR’s policy regarding DNR orders; and (2) guardians of STS residents.
*24 DPH does not issue DNR orders. The agency merely licenses certain private hospitals that employ physicians who may someday issue a DNR order on an STS resident. No employer-employee relationship exists between DPH and the physicians. As a result, private physicians issue DNR orders without any affirmative action, coercion, consultation, or guidance of DPH. (Kugel Dep. at 261.; Pls’ Updated Resp. Interrogs. Ex. 4 1.h.)15 The evidence also indicates that DNR orders on STS residents only occur with the consent of the residents or their guardians. (Kugel Dep. at 263.) This conforms with state tort law and regulations that mandate informed consent. Even if a physician wrote an improper DNR order, it could not be carried out without the informed consent of the plaintiffs or their guardians.
Plaintiffs seek to challenge DPH’s failure to promulgate regulations to control the actions of these third parties who may cause harm to the residents. The Supreme Court utilizes a higher burden than normal to govern the standing inquiry in such cases:
When, however, as in this case, a plaintiff’s asserted injury arises from the government’s allegedly unlawful regulation (or lack of regulation) of someone else, much more is needed. In that circumstance, causation and redressability ordinarily hinge on the response of the regulated (or regulable) third party to the government action or inaction—and perhaps on the response of others as well. The existence of one or more of the essential elements of standing ‘depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict,’ and it becomes the burden of

the plaintiff to adduce facts showing that these choices have been or will be made in such manner as to produce causation and permit redressability of injury. Thus, when the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily ‘substantially more difficult’ to establish.
Lujan, 504 U.S. at 561–62 (citations omitted); accord Allen, 468 U.S. at 758; Simon, 426 U.S. at 44–45. Thus, plaintiffs must demonstrate that DPH’s action or inaction “is more than only one of the many factors whose relative influence may affect the third parties’ behavior. The facts alleged must show that the agency action is at least a substantial factor motivating the third parties’ actions.” Community for Creative Non–Violence v. Pierce, 814 F.2d 663, 669 (D.C.Cir.1987) (citations omitted).
Plaintiffs fail to show that DPH’s policies are a “substantial factor” motivating the actions of physicians at private hospitals. Plaintiffs’ expert witness acknowledges that no DNR orders “were instigated at the request or through affirmative action or coercion or pressure or guidance of” DPH. (Kugel Dep. at 261.) Nor do plaintiffs possess any basis “to allege that DNR orders on these individuals were issued at the direction or in consultation with officials or employees of the Department of Public Health.” (Pls.’ Updated Resp. Interrogs. Ex. 4 1.h.) Where a risk of injury is caused by the independent action of some third party not before the court, standing ordinarily is not satisfied. See, e.g., Whitmore v.. Arkansas, 495 U.S. 149, 155–56 (1990); Allen, 468 U.S. at 757–59; Lyons, 461 U.S. at 105; Simon, 426 U.S. at 41–42; Rizzo, 423 U.S. at 362; Warth, 422 U.S. at 504–05. Two Supreme Court cases demonstrate this principle.
*25 In Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26 (1976), plaintiffs brought a class action on behalf of residents unable to afford hospital services against the Secretary of the Treasury and the Commissioner of Internal Revenue. They claimed that a revenue ruling extending favorable tax treatment to hospitals encouraged the hospitals to deny medical care to indigents. The Supreme Court held that “injury at the hands of a hospital is insufficient by itself to establish a case or controversy in the context of this suit, for no hospital is a defendant.” Id. at 41.
Rizzo v. Goode, 423 U.S. 362 (1976) presented a similar situation. In that case, the plaintiffs alleged that the police department’s disciplinary policies resulted in unconstitutional actions of “individual police officers not named as parties to the” suit aimed at minorities and other city residents. Id. at 371 (emphasis in original). The Court stated in relevant part:
As the facts developed, there was
16

Messier v. Southbury Training School, Not Reported in F.Supp.2d (1999)

no affirmative link between the

occurrence of the various incidents

of police misconduct and the

adoption of any plan or policy by

petitioners—express

or

otherwise—showing

their

authorization or approval of such

misconduct. Instead, the sole causal

connection found by the District

Court between petitioners and the

individual respondents was that in

the absence of a change in police

disciplinary procedures, the

incidents were likely to continue to

occur, not with respect to them, but

as to members of the classes they

represented.

Id. (emphasis in original). The Court found no causation and held that plaintiffs lacked standing. Id. at 371–72.

As these cases and the evidence in this case make clear,

plaintiffs lack standing to enjoin DPH and force them to

adopt DMR’s Medical Advisory # 87–2. Rather than

enforcing a specific legal obligation of DPH, plaintiffs’

“seek a restructuring of the apparatus established by the

Executive Branch to fulfill its legal duties.” Allen, 468

Level	  of	  Retardation	   STS	  Population	  

	  	  

(April	  1996)	  

	  

	  	  

	  

Severe	  and	  Profound	   	  	   	   Moderate	   	  	   	   Mild	   	  	   	   None	   	  	   	  

78.3%	   	  	   	  
14.9%	   	  	   	  
6.6%	   	  	   	  
0.025%	   	  	   	  

U.S. at 761. In effect, plaintiffs ask the Court to decide that Medical Advisory # 87–2 is better than DPH’s policy. This decision should be left to Connecticut’s legislative and executive branches.

CONCLUSION
For the foregoing reasons, plaintiffs’ motion for partial summary judgment [Doc. No. 349] is denied, defendant DMR’s motion for summary judgment [Doc. No. 353] is denied, defendant DSS’s motion for summary judgment [Doc. No. 356] is granted, and defendant DPH’s motion for summary judgment [Doc. No. 359] is granted.
SO ORDERED.

APPENDIX

	  
Referrals	  to	   Community	   Placement	  (’94—’98)	  
	  	   	   252	  (65.1%)	   	  	   	   86	  (22.2%)	   	  	   	   46	  (11.9%)	   	  	   	   2	  (0.5%)	   	  	   	  

Community	   Placements	   (’94—’98)	  
	  	   	   40	  (65.5%)	   	  	   	   11	  (18.0%)	   	  	   	   9	  (14.7%)	   	  	   	   1	  (1.6%)	   	  	   	  

	  

Footnotes

1

The defendants are involved in similar litigation relating to STS. In 1986, the United States Department of Justice sued the State of

Connecticut under the Civil Rights of Institutionalized Persons Act (“CRIPA”), 42 U.S.C. § 1997 et seq. (1997) to remedy

unconstitutional conditions at STS. The two parties negotiated a Consent Decree providing for a comprehensive remedial plan to

17

Messier v. Southbury Training School, Not Reported in F.Supp.2d (1999)

ameliorate conditions at the institution. This Court approved the Consent Decree on December 22, 1986. See United States v. Connecticut, No. N–86–252 (EBB) (D.Conn. Dec. 22, 1986) (Order Approving Consent Decree).
In 1990 and 1991, the Court approved two additional Consent Orders, which were negotiated in response to continuing deficiencies in the care and treatment of STS residents. When more deficiencies were discovered in 1993, the Court ruled the State in contempt of its prior orders. To correct the problem, the Court appointed a special master to evaluate the State’s compliance and oversee the implementation of a remedial plan. The special master’s role continues at the present time.

2

In contrast to the usual situation where the moving party is the defendant, when a plaintiff moves for summary judgment, a higher

initial burden of going forward must be satisfied. In such cases, plaintiffs must show not only that no genuine issues of material

fact exist, but also that the evidence establishes each element of its prima facie case. Only then will the burden shift to the

defendant to rebut this showing. In moving for partial summary judgment, plaintiffs must meet this standard.

3

DSS correctly notes that a state may not be sued in federal court under the Eleventh Amendment. See Hans v. Louisiana, 134 U .S.

1 (1890). As a result, the State of Connecticut and any of its agencies are not proper defendants in this case. However, prospective

injunctive relief may be awarded against state officers in their official capacity to halt violations of federal law under the doctrine

of Ex parte Young, 209 U.S. 123 (1908). While acknowledging this reality, the Court nonetheless will refer to the defendants by

their state agency names for the sake of simplicity, with an understanding that the state officials are the true parties in the case.

4

In this ruling, the Court grants summary judgment in favor of DSS on this claim. See infra Part III.

5

The Court grants summary judgment in favor of DSS, DPH, and DMR on all claims asserted against them under the Social

Security Act. See infra Part IV. Because all claims against DSS have been dismissed, the agency is no longer a defendant in this

case.

6

The Court grants summary judgment in favor of DPH on this claim. See infra Part V. Because all claims against DPH have been

dismissed, the agency is no longer a defendant in this case.

7

The elements of a Section 504 prima facie case are virtually identical, except that Section 504 covers entities receiving federal

financial assistance, whereas Title II of the ADA covers public entities. See Rothschild v. Grottenthaler, 907 F.2d 286, 289–90 (2d

Cir.1990).

8

This regulation is almost identical to Section 504’s integration regulation.

9

Pursuant to Section 504, the former Department of Health, Education and Welfare, now the Department of Health and Human

Services, promulgated similar regulations:

A recipient [of federal funding], in providing any aid, benefit or service, may not ... [p]rovide different or separate aid,

benefits or services to handicapped persons or to any class of handicapped persons unless such action is necessary to provide

qualified handicapped persons with aid, benefits or services that are as effective as those provided to others.

45 C.F.R. § 84.4(b)(1).

10

See (Moore Aff.App. Community Referral Placement Report, 7/1/94–5/14/98) reprinted in Appendix.

11

See infra Part V for a complete discussion of the constitutional elements of standing.

12

The Court stated that:

[P]laintiffs’ claims relating to community placement are not brought against DSS and DPHAS, except to the extent that 42

U.S.C. § 1396a(a)(31) and 42 C.F.R. § 456.609 require inspection teams to determine whether it is ‘necessary and desirable’

that ICF/MR residents’ remain in their current placement, and whether it is feasible to meet their needs through ‘alternative

institutional or noninstitutional services.’ 42 C.F.R. § 456.609.

[I]t is unclear to the Court whether plaintiffs assert violations by DPHAS of its facility inspection duties .... If plaintiffs in fact

assert violations of DPHAS’ inspection duties in addition to DSS’ inspection duties, then plaintiffs must promptly seek to

amend their complaint to reflect this distinction. However, whether or not plaintiffs assert such violations by DPHAS, the

statutory scheme clearly requires DSS to take the corrective actions outlined in 42 U.S.C. § 1396a(i) and 42 C.F.R. §§

442.117–442.119 upon a finding of deficiencies found pursuant to either DPHAS’ facility inspections or DSS’ IR inspections.

Ruling Mot. Dismiss by DSS and DPH at 10 n.7, 20–21 n.12 (emphasis in original).

13

The Court previously allowed plaintiffs to establish standing based on their allegation that at some point one of the named

members of the class would be transferred to a community hospital and subjected to an improper DNR order. See Ruling Mot.

Class Certification at 4–5. Actual evidence is needed at the summary judgment stage.

14

In plaintiffs’ opposition, they “dispute” whether there has been informed consent. However, they provide no citation to any

18

Messier v. Southbury Training School, Not Reported in F.Supp.2d (1999)

evidence to support this proposition. (Pls.’ Mem. Opp. Summ. J. at 21.) While conclusory allegations may suffice earlier in the case, plaintiffs must present actual evidence at the summary judgment stage. See Lujan, 504 U.S. at 561.

15

In response to interrogatories, plaintiffs stated that they “have no basis, based on currently available information, to allege that

DNR orders on these individuals were issued at the direction or in consultation with officials or employees of the Department of

Public Health.” (Pls.’ Updated Resp. Interrogs. Ex. 4 1.h.)

	  

19

 
 UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

-----------------------------------X

RICHARD MESSIER, et al.

:

:

Plaintiffs,

:

:

v.

:

:

SOUTHBURY TRAINING SCHOOL, et al. :

:

Defendants.

:

-----------------------------------X

No. 3:94-CV-1706 (EBB)

MEMORANDUM OF DECISION AND ORDER This class action challenging the defendants’ administration of Southbury Training School (“STS”), an institution for the mentally disabled in the State of Connecticut, was brought in 1994 by residents of STS and by three advocacy organizations. The plaintiffs, who seek solely injunctive relief, allege constitutional and statutory violations relating to the conditions, services and programs at STS. On January 25, 1999, a 123-day bench trial was commenced before the court. The case is now ready for decision.
BACKGROUND On July 8, 1996, pursuant to Federal Rule of Civil Procedure 23(b), the court certified the plaintiff class to include all current STS residents, persons who might be placed at STS in the future, and persons who were transferred from STS but remain under the control of the STS Director. As of the date of the trial in

1

this case, the plaintiff class included approximately 700 residents
of STS.1 The defendants in this case are STS itself, the Director
of STS, and the Commissioner of the Connecticut Department of
Mental Retardation (“DMR”).2
First, the plaintiffs claim that STS and DMR violated the
class members’ substantive due process rights by (1) failing to
provide adequate shelter, clothing, nutrition, and medical care;
(2) failing to provide adequate habilitation and training services
to class members such that class members could retain self-care
skills and remain free from the unnecessary use of restraints; (3)
failing to provide safe conditions to class members and to protect
them from bodily harm; and (4) failing to exercise professional
judgment in making decisions about whether or not to place class
members in the community rather than at STS. (Third Am. Compl. ¶¶
1Pursuant to a consent decree, there have been no new admissions to STS since the 1980s, and as a result, the majority of STS residents are over 45 years in age. Most class members have lived at the institution since being placed there as children. In 1997, more than 600 residents had lived at STS for more than 30 years and 188 residents were older than 61. As of 1997, 158 residents were labeled as severely retarded and an additional 440 were labeled as profoundly retarded. The remaining residents have moderate or mild retardation, or, in a couple of cases, no retardation at all.
2The Commissioner of the Connecticut Department of Social Services (“DSS”) and the Commissioner of the Connecticut Department of Public Health (“DPH”) were originally named as defendants in this case. The court granted these two defendants’ motions for summary judgment and they were accordingly dismissed from the case. Messier v. Southbury Training School, No. 94-CV-1706, 1999 WL 20910 at *5 nn.5, 6 (D. Conn. Jan. 5, 1999).
2

48-64, 69-75, 83, 86(a)-(I).) Second, the plaintiffs claim that the defendants violated
Title II of the Americans with Disabilities Act of 1990 (“ADA” or “Title II”), 42 U.S.C. § 12132 (1997), and Section 504 of the Rehabilitation Act of 1973 (“Section 504”), 29 U.S.C. § 794 (1997), by failing to place class members in community-based residential settings. The plaintiffs claim that the defendants violated these statutes in two different ways. The plaintiffs first claim that STS and DMR violated the “integration mandates” of the ADA and Section 504 by failing to make sufficient efforts to place class members into integrated settings in the community. (Id. ¶ 87.) The plaintiffs’ second claim under the ADA and Section 504 is that the defendants discriminated on the basis of the severity of class members’ disabilities by failing to consider community placement for certain profoundly and severely retarded STS residents. (Id. ¶¶ 81, 83, 87.)
Third, the plaintiffs seek relief pursuant to 42 U.S.C. § 1983 for violations of Title XIX of the Social Security Act (“Title XIX”), codified at 42 U.S.C. § 1396a et seq., which governs the certification that is required by an intermediate care facility for the mentally retarded (“ICF/MR”) in order to receive certain federal funding. The plaintiffs claim that the defendant Commissioner of DMR violated Title XIX by failing to provide some class members with “active treatment” as required by § 42 U.S.C. §
3

1396d(d), as well as by failing to provide medical and other services consistent with that statute. (Third Am. Compl. ¶ 88.)
Many of the instances of inadequate medical care, security and habilitation programming at STS have been the subject of a related case, United States v. Connecticut, No. 3:86-cv-252 (D. Conn. 1986), which was, until recently, pending before this court. The United States v. Connecticut litigation was initiated in 1986, when the United States Department of Justice brought suit against the State of Connecticut seeking to remedy allegedly unconstitutional conditions at STS. Later in 1986, a consent decree was negotiated by the parties and was approved by the court. The court approved additional consent decrees in 1990 and 1991. In 1993, attorneys from the Department of Justice, along with a team of experts, investigated conditions at STS and concluded that the defendants had failed to comply with the consent decrees. See United States v. Connecticut, 931 F. Supp. 974, 975-76 (D. Conn. 1996).
After conducting a hearing, the court found by clear and convincing evidence that defendants had not complied with the terms of the consent decree and held them in contempt. Id. The contempt hearing revealed numerous deficiencies in the conditions at STS and the services and programs provided to its residents. The court found that “STS’s systemic flaws [had] caused many residents to suffer grave harm, and, in several instances, death.” Id. at 98384. The court found that STS provided inadequate medical care to
4

its residents. Id. at 980. The court found that STS had failed to implement the habilitation programs needed to train residents to avoid injury. Id. at 977-78. The court found that STS administered behavior modifying medication in cases where the institution should have provided habilitation. Id. at 979-80. The court found that physical therapy services as STS were so inadequate as to have caused “several residents who, only a few years earlier, were ambulatory, to be permanently bed-ridden.” Id. at 983.
In United States v. Connecticut, as the plaintiffs here were aware, the court appointed a Special Master to review many aspects of care and treatment at STS and to work with the parties in implementing changes to STS’s operations. Id. at 985. Following his appointment in 1997, Special Master David Ferleger and the parties created a comprehensive Remedial Plan that specified certain objectives upon which the parties had agreed. Remedial Plan, U.S. v. Conn. (April 1, 1998).3 The Remedial Plan set forth 95 Court Requirements (“CR”), thus establishing standards that the institution would be required to meet in order to purge itself of contempt. These Court Requirements covered most areas of STS’s operations including staffing, quality assessment procedures, medical treatment, administration of medication, habilitation
3In citing documents filed in United States v. Connecticut, the court will use the abbreviation “U.S. v. Conn” followed by the date on which the document was docketed.
5

programming, and case management.

In a process of evaluation lasting almost a decade, the

Special Master, with the assistance of experts commissioned by him

and the parties, measured improvements at STS against the standards

set forth in the Court Requirements. Periodically, when the

Special Master concluded that the defendants had demonstrated

compliance with a particular Court Requirement, he recommended that

the court release STS from oversight for that Court Requirement.

Finally, in 2006, after the Special Master found STS to be in

compliance with all remaining requirements of the Remedial Plan,

the court released STS from judicial oversight and purged the

defendants of contempt. See Order Purging Defendants of Contempt

and Ending Active Judicial Oversight, U.S. v. Conn., (Mar. 24,

2006).

DISCUSSION AND FINDINGS

I. The Due Process Requirements for Programs and Services at State-Run Institutions

Residents of state-operated institutions for the mentally

retarded “have a constitutional right to adequate food, shelter,

clothing and medical care.” Society for Good Will to Retarded

Children, Inc. v. Cuomo, 737 F.2d 1239, 1243 (2d Cir. 1984) (citing

Youngberg v. Romeo, 457 U.S. 307, 316 (1982), and Estelle v.

Gamble, 429 U.S. 97 (1976)).

Residents also have a

constitutionally protected interest in safe conditions and in

freedom from bodily restraint except to the extent that restraint

6

must be used to assure safety. Youngberg, 457 U.S. at 315-16, 323; see also Society for Good Will, 737 F.2d at 1245. Due process also requires that an institution provide its residents with a minimal level of training, or “habilitation.”4 Youngberg 457 U.S. at 324.
These constitutional requirements are satisfied when state actors have exercised “professional judgment” in determining what services and care should be provided to residents of state-run institutions. Youngberg, 457 U.S. at 321-22. This standard, which is highly deferential to the decisions of the state’s professionals, is intended to strike a balance between the “liberty interest of the individual” and the “legitimate interests of the State, including the fiscal and administrative burdens additional procedures would entail.” Id. at 321 (citing Parham v. J.R., 442 U.S. 584, 599-600 (1979)). Under this standard, a “decision, if made by a professional, is presumptively valid.” Id. at 323.
Plaintiffs may demonstrate a violation of the requirement that the state exercise professional judgment in at least two ways. Plaintiffs will prevail, for example, when state actors “simply failed to exercise any professional judgment.” See, e.g., Valentine v. Strange, 597 F. Supp. 1316, 1318 (D.C. Va. 1984)
4The court uses the terms “habilitation” and “training” more or less synonymously, as do the parties. See Youngberg, 457 U.S. at 309 n.1 (explaining that the “principal focus of habilitation is upon training and development of needed skills”) (quoting Brief for American Psychiatric Association as Amicus Curiae at 4, n.1).
7

(declining to dismiss complaint by patient who set fire to herself after hospital officials took no action to confiscate her cigarettes and lighter despite the fact that she had unsuccessfully attempted to burn herself earlier in the day). Deference under Youngberg is not owed to decisions made by individuals who are not qualified professionals. See, e.g., Cameron v. Tomes, 783 F. Supp. 1511, 1520-21 (D. Mass. 1992) (finding due process violation where facility’s administrator ignored recommendation of professionals and ordered a patient to be transported in shackles). For the purposes of determining whether such judgment has been exercised, a professional is defined as “a person competent, whether by education, training or experience, to make the particular decision at issue.” Youngberg, 457 U.S. at 323 n.30.
Plaintiffs may also prevail where a decision made by a qualified professional was “such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.” Id. at 323; see also Terrance v. Northville Regional Psychiatric Hosp., 286 F.3d 834, 850 (6th Cir. 2002). Plaintiffs cannot establish a violation of constitutional norms merely by showing that the state did not “follow[] . . . the optimal course of treatment.” Society for Good Will, 737 F.2d at 1248. A court cannot find a constitutional violation simply because experts testify that they would have made a different
8

treatment choice. P.C. v. McLaughlin, 913 F.2d 1033, 1043 (2d Cir. 1990) (“The requirement that professional judgment be exercised is not an invitation to a court reviewing it to ascertain whether in fact the best course of action was taken.”); Griffith v. Ledbetter, 711 F. Supp. 1108, 1110 (N.D. Ga. 1989). Generally, testimony of the plaintiffs’ experts will be relevant to show that the decisions made substantially departed from professional standards. Society for Good Will, 737 F.2d at 1248 (“Expert testimony is . . . relevant not because of the expert’s own opinions-which are likely to diverge widely-but because that testimony may shed light on what constitutes minimally acceptable standards across the profession.”); see also Youngberg, 457 at 323 n.31. II. Collateral Estoppel
In their Post-Trial Brief, the plaintiffs argue that the defendants are collaterally estopped from claiming that the conditions and services at STS satisfy the constitutional requirements established in Youngberg. (Pl.’s Post-Trial Br. at 148.) The plaintiffs argue that the defendants “resolved such issues by entering into a consent decree in United States v. Connecticut” and are therefore barred from relitigating the issues covered in the consent decree.5 (Id.)
5The plaintiffs also raised this argument in a Motion for Partial Summary Judgment filed on September 3, 1999 (Doc. No. 746). The court denied the motion on the ground that it was untimely, but allowed the plaintiffs to raise the argument again in their post-trial brief. (Doc. No. 780)
9

“Under the doctrine of offensive collateral estoppel, a plaintiff may preclude a defendant from relitigating an issue the defendant has previously litigated and lost to another plaintiff.” Faulkner v. Nat’l Geographic Enters. Inc., 409 F.3d 26, 37 (2d Cir. 2005) (citing Parklane Hosiery Co. v. Shore, 439 U.S. 322, 329 (1979)). The defendants will be estopped from rearguing the constitutionality of conditions and services at STS only if all four conditions of the following test are satisfied:
(1) the identical issue was raised in a previous proceeding; (2) the issue was actually litigated and decided in the previous proceeding; (3) the party had a full and fair opportunity to litigate the issue; and (4) the resolution of the issue was necessary to support a valid and final judgment on the merits. Boguslavsky v. Kaplan, 159 F.3d 715, 720 (2d Cir. 1998) (quotations omitted); see also Faulkner, 409 F.3d at 37 (quoting Gelb v. Royal Globe Ins. Co., 798 F.2d 38, 44 (2d Cir. 1986)). The flaw in the plaintiffs’ collateral estoppel argument is that the constitutional claims they raise in this case were not “actually litigated and decided” in United States v. Connecticut. The consent decree was a settlement, not a judgment on the merits. Even insofar as some of the constitutional issues raised by the plaintiffs in this case are identical to some of the claims raised by the Department of Justice in the earlier case, the court did not, in approving the consent decree, decide those issues.
“[S]ettlements ordinarily occasion no issue preclusion (sometimes called collateral estoppel), unless it is clear . . .
10

that the parties intend their agreement to have such an effect.” Arizona v. California, 530 U.S. 392, 414 (2000). In some instances, a consent judgment “may involve a determination of questions of fact and law by the court.” United States v. Int’l Bldg. Co., 345 U.S. 502, 505-6 (1953). However, “unless a showing is made that that was the case, the judgment has no greater dignity, so far as collateral estoppel is concerned, than any judgment entered only as a compromise of the parties.” Id.; see also Klingman v. Levinson 831 F.2d 1292, 1296 (7th Cir. 1987) (“If the parties to a consent decree ‘indicated clearly the intention that the decree to be entered shall not only terminate the litigation of claims but, also, determine finally certain issues, then their intention should be effectuated.’”) (quoting Kaspar Wire Works, Inc. v. Leco Eng’g & Mach., Inc., 575 F.2d 530, 539 (5th Cir. 1978)).
As the defendants point out, the consent decree in United States v. Connecticut explicitly disclaimed any admission of liability on the part of state officials and stated that the decree was “enforceable only by the parties.” (See Defs.’ Post-Trial Br. at 27 (quoting Consent Decree, U.S. v. Conn (Dec. 12, 1986).) In entering into the decree, the parties agreed that state officials did “not admit any violation of law” and that the Consent Decree “may not be used as evidence of liability in any other civil proceeding.” Consent Decree at 3, U.S. v. Conn (Dec. 12, 1986).
11

It is therefore obvious that the parties in United States v.
Connecticut did not intend the consent decree to act as a
determination of questions of law or fact that would preclude
future litigation of those issues in other cases involving other
parties.6
In their Reply to the Defendants’ Post-Trial Brief, the
plaintiffs offer an additional collateral estoppel argument. The
plaintiffs now argue that the court’s contempt findings in United
States v. Connecticut bar the defendants from asserting the
6The cases cited by the plaintiffs in support of their collateral estoppel argument are distinguishable or inapplicable. The court’s analysis in United States v. Int’l Bhd. of Teamsters, 931 F.2d 177 (2d Cir. 1991), involved the effect of a consent decree on affiliates of the labor union that had entered into to the decree, which is a very different question from the one presented here. Hutton Constr. Co. v. Int’l Fid., No. 97-7868, 1998 U.S. App. LEXIS 14968 (2d Cir. April 21, 1998), involved the rule that a consent decree may have issue preclusive effect only where the decree involved a determination of issues of law or fact by the court. No such determination was made by the court in United States v. Connecticut. Similarly, in United States v. Tennessee, No. 98-5108, 1999 U.S. App. LEXIS 9842 (6th Cir. May 14, 1999), the issue of collateral estoppel arose only after the district court made determinations of law and fact. The other case cited by the plaintiffs, Yachts America, Inc. v. United States, 673 F.2d 356 (Ct. Cl. 1982), is factually distinguishable because the issue of collateral estoppel was raised by the defendants, who were not parties to the consent decree at issue, against the plaintiffs, who were attempting to relitigate an issue that had been resolved against them in the consent decree. In that case, because of the “broad language contained in the consent decree precluding further suit,” the Court of Claims found that the plaintiffs intended to be bound by the terms of the consent decree even when suing a non-party to the decree.” Id. at 362. The defendants in this case indicated no comparable intent to be bound by the United States v. Connecticut Consent Decree.
12

constitutionality of the conditions and services at STS. (See Pls.’ Reply at 75-79.) However, in finding contempt in that case, the court was required only to consider whether the defendants had violated the terms of the Consent Decree. The court did not consider whether the defendants had also violated the constitution.
The plaintiffs are correct in pointing out that United States v. Connecticut arose out of claims of constitutional violations that are similar to the claims in this case. However, “[u]se of collateral estoppel ‘must be confined to situations where the matter raised in the second suit is identical in all respects with that decided in the first proceeding and where the controlling facts and applicable legal rules remain unchanged.’” Faulkner, 409 F.3d at 37 (quoting Comm’r v. Sunnen, 333 U.S. 591, 599-600 (1948)). The United States v. Connecticut Consent Decree set out in considerable detail the obligations of the defendants. The consent decree included, for example, an obligation to ensure specific staff-to-resident ratios. See Consent Decree at 8-9, U.S. v. Conn (Dec. 12, 1986).) The terms of the consent decree, therefore, do more than simply restate the defendants’ constitutional obligations. A court could find that the defendants in United States v. Connecticut had violated the terms of the Consent Decree even though they had not violated the constitution. The legal and factual issues determined by the court in its contempt finding are simply not identical to the issues in this
13

case. Therefore, neither the Consent Decree in United States v.
Connecticut nor the court’s finding of contempt based on violations of the Consent Decree preclude the defendants from arguing in this case that they have fulfilled their obligations under the Constitution. III. Conditions and Services at STS
In their Post-Trial Brief, the plaintiffs organize their claims into four subject areas. They claim that they have demonstrated at trial 1) that the defendants provided inadequate medical care to class members; 2) that the defendants failed to protect class members from physical harm; 3) that the defendants failed to provide the plaintiffs with adequate habilitation and “active treatment”; and 4) that the defendants failed adequately to consider community placement for class members.
The relief sought by the plaintiffs as a remedy for the defendants’ alleged violations relating to the first three of these areas is somewhat limited. The plaintiffs ask that deficiencies in the provision of medical care, protection from harm and habilitation programming be referred to the Special Master’s remedial process in United States v. Connecticut. (See Pls.’ PostTrial Br. at 163-65, 167-68, 170-71.) As described above, the Special Master in United States v. Connecticut has already conducted a thorough inquiry into conditions and services at STS
14

and, along with the Department of Justice, has overseen STS’s efforts to remedy deficiencies in these three areas. Much of what the plaintiffs in this case seek from the Special Master’s remedial process has already been achieved .
In many instances, there will be no need for the court to determine whether or not the defendants are liable. Insofar as the plaintiffs here have committed themselves to deferring to the Special Master and his remedial process for the resolution of any particular constitutional violation, and the Special Master has directly addressed that issue, the court need not revisit that particular violation. As indicated in the following discussion, the court declines to consider whether the defendants are, in fact, liable for almost all of the alleged violations relating to the provision of medical care, protection of STS residents from harm and provision of adequate habilitation. The court declines to consider whether the defendants are liable under these claims not because the plaintiffs have failed to present sufficient evidence to prove constitutional or statutory violations in these areas but, rather, because these claims are moot since the plaintiffs have achieved everything for which they ask. See Powell v. McCormack, 395 U.S. 486, 495-96 (1969) (noting that a court should find as moot claims in which the relief sought had already been obtained); Martin-Trigona v. Shiff, 702 F.2d 380, 386 (2d Cir. 1983) (“The hallmark of a moot case or controversy is that the relief sought
15

can no longer be given or is no longer needed.”); County Motors,

Inc. v. General Motors Corp., 278 F.3d 40, 43 (1st Cir. 2002);

Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 698-99 (3d Cir.

1996) (“If developments occur during the course of adjudication

that eliminate a plaintiff's personal stake in the outcome of a

suit or prevent a court from being able to grant the requested

relief, the case must be dismissed as moot.”) (citations omitted).

A. Medical Care

The plaintiffs point to evidence of numerous problems with the

medical care that was provided at STS prior to the trial. (Pls.’

Post-Trial Br. at 3-48; Pls.’ Proposed Findings at 69-194.) The

plaintiffs claim to have established at trial that in many cases,

the medical conditions of STS residents went completely untreated

by STS staff, and that some residents’ medical conditions worsened

as a result of the actions of STS doctors, nurses and physicians

assistants.

They claim that physicians assistants were not

properly supervised and that there was insufficient oversight and

review regarding the administration of psychotropic medication.

They claim that medical professionals failed to properly take note

of abnormal laboratory findings and failed to keep legible medical

records. They also claim that STS failed to adhere to proper

standards regarding the writing and implementation of “do not

resuscitate” orders.

To remedy these alleged instances of deficient medical care,

16

the plaintiffs ask the court to order the defendants to provide “adequate medical and nursing care to all class members.” (Pls.’ Post-Trial Br. at 164.) More specifically, the plaintiffs “request that inadequacies in medical care be referred to the remedial mechanism in” United States v. Connecticut for “resolution provided plaintiffs can participate fully in the remedial process.” (Id. at 164-65.) The plaintiffs ask the court to refer the following specific issues to the Special Master:
a. The adequacy of nursing services provided to class members.
b. The development of a process to remedy cases of inadequate nursing or medical care.
c. The development of a system of oversight over physicians assistants such that the use of physicians assistants at STS complies “at the very least” with Conn. Gen. Stat. § 20-12d.
d. The development of a system “to ensure that the ultimate oversight of all aspects of medical care rest with the treating physician” and to ensure that “laboratory testing and overall medical condition of the class member will be taken into account when psychotropic medications are administered.”
e. The need for a requirement that physicians should participate in the interdisciplinary team (“IDT”) process
17

so that the use of psychotropic medications can be adequately coordinated with other aspects of each class members’ overall plan of service. f. The need for a requirement that class members’ records should contain an explanation of why psychotropic medication was prescribed as well as a “medication reduction plan.” g. The need for systematic review of the use of medications at STS, as well as a plan to reduce the use of medications. h. A requirement that physicians comment on abnormal laboratory findings in a class member’s medical record. i. The establishment of a plan to improve the legibility of class members’ medical records. j. The creation of “memoranda of understanding” with area hospitals addressing, among other issues, the use of DNRs. k. A requirement that STS adhere to DMR 87-2, which is the regulation relating to the writing and implementation of DNRs. l. The implementation of nursing care that is “consistent with the ICF/MR regulations.” m. The need to ensure that nurses and other direct care staff receive adequate training so that they are able to
18

understand the health care needs of class members and are able to implement the class members’ “care plans[s].” Id. at 165-67. I. Medical Care Issues Addressed in United States v. Connecticut The Remedial Plan implemented by the Special Master in United States v. Connecticut addressed medical care at STS at great length. More than 30 of the 95 Court Requirements in the Remedial Plan directly addressed issues of medical care and the administration of medication. In 2006, after a final expert report commissioned by the Special Master showed sufficient improvements in medical care, he reported that STS was in compliance with all of these Court Requirements, and the court released STS from judicial oversight of all outstanding aspects of the Remedial Plan relating to medical services. Order on Medical Services Compliance, U.S. v. Conn. (March 22, 2006); see also Report to the Court No. 63: Medical Services, U.S. v. Conn. (Feb. 22, 2006). During this process, the Special Master addressed most of the plaintiffs’ specific concerns listed above. The Special Master addressed oversight over medical staff, which is the issue raised in the plaintiffs’ specific concerns b. and d. from the above list. The Remedial Plan set standards for medical care, nursing care, and specialist medical care (see CR 60, 61, 63-65), set minimum acceptable staffing levels and ratios of supervisory staff to direct care staff (see CR 13-32), and set standards for
19

communication between care-givers and other staff (see CR 34-40). The Special Master oversaw the implementation of a “Quality Assurance” system designed to monitor the care received by STS residents and to ensure that residents received an adequate level of care from all medical staff. See Consultation and Review of Medical Services: Report to the Special Master, U.S. v. Conn. (Feb. 17, 2006). Because these aspects of the relief sought by the plaintiffs have been realized, the court sees no need to determine liability related to this issue. The court will not address the issue of whether the defendants failed to provide for adequate oversight over medical staff.
Similarly, oversight over the administration of behavior modifying medication by physicians assistants, the issue raised in specific concern c. from the above list, was addressed in the Remedial Plan by CR 66, which required “that only personnel authorized by state law shall administer medication.” See Quarterly Report No. 5, U.S. v. Conn. (Dec. 2, 1998) (finding STS in compliance with CR 66).
The plaintiffs’ concern about the quality of nursing services at STS, expressed in specific concerns a. and l. in the above list, was addressed by the Remedial Plan in CR 61, which set standards for nursing care. In order to give effect to these Court Requirements, the Special Master and the parties in United States v. Connecticut developed and implemented plans to correct
20

deficiencies in the nursing services. See Report to the Court No.

42: Nursing, U.S. v. Conn. (Aug. 23, 2002).

The Remedial Plan also addressed deficiencies in the training

of staff at STS, an issue raised by the plaintiffs’ specific

concern m. from the list above.

See CR 33 (requiring the

implementation of a training plan); see also Report to the Court

No. 19: Staff Training, U.S. v. Conn. (Mar. 27, 2001) (noting the

new kinds of staff training added at STS and recommending release

from judicial oversight for CR 33).

The administration of behavior-modifying medication at STS, an

issue raised by the plaintiffs’ specific concerns d., e., f. and g.

from the list above, received considerable attention in United

States v. Connecticut. See, e.g., 931 F. Supp. at 979-80 (noting

the “[problematic] implications of unqualified (e.g., unlicensed)

personnel, in effect, making major decisions regarding

pharmacological interventions”) (quoting the report of Dr.

Volkmar). The Remedial Plan set forth several Court Requirements

intended to remedy deficiencies in the manner in which medication

was administered. The Remedial Plan established procedures for

approving the use of medication (see CR 53) and procedures

requiring physicians to systematically review the need for

behavior-modifying medication in individual cases (see CR 54). The

Remedial Plan subjected “polypharmacy” to additional scrutiny. See

CR 55. The Remedial Plan set standards for evaluation of STS

21

residents who received narcoleptic drugs and required that these individuals be screened for tardive dyskinesia. See CR 56-57. The Remedial Plan required that each resident’s primary care physician, as well as all appropriate medical records, be made available to the Program Review Committee, which is responsible for approving IDT decisions about each resident’s care and medication. See CR 58-59. In accordance with the Remedial Plan, the Special Master devoted considerable effort to correcting deficiencies in the manner in which behavior-modifying medications were administered at STS. See, e.g., Report to the Court No. 28: Compliance Review: Court Requirement 57, EC 3, U.S. v. Conn. (Sept. 11, 2001); Report to the Court No. 33: Court Requirement 54 and 56, U.S. v. Conn. (Jan. 15, 2002). The Special Master thus addressed all of the plaintiffs’ concerns related to the administration of behaviormodifying medication, and the court will not consider liability on this issue.
The United States v. Connecticut litigation also addressed STS’ record-keeping procedures. See 931 F. Supp. at 981 (finding that, as of the contempt hearing, “STS’s recordkeeping procedures [were] . . . below professional standards, causing important medical information to be obscured, and jeopardizing its residents’ health”). Several of the Court Requirements in the Remedial Plan specifically addressed record-keeping procedures (see CR 79-85), thus addressing the plaintiffs’ specific concerns h. and i. Prior
22

to STS’s release from judicial oversight for these requirements, the Special Master’s consultant reported that records at STS are now mostly typed, rather than handwritten and that STS has implemented “problem lists” to track individuals’ ongoing medical issues. See Consultation and Review of Medical Services: Report to the Special Master at 24-27, U.S. v. Conn. (Feb. 17, 2006). ii. DNR and DNI Orders
The plaintiffs’ specific concerns j. and k. relate to the use of Do Not Resuscitate (“DNR”) orders at STS. Unlike the other items in the above list, Special Master Ferleger did not address this issue in United States v. Connecticut.
In asserting their claims that DNR orders were written improperly, the plaintiffs rely on the district court’s opinion in Connecticut Ass’n for Retarded Citizens v. Thorne, Civ. A. No. H78-653, 1993 WL 765698 (D. Conn. Feb. 12, 1993), rev’d on other grounds, 30 F.3d 367 (2d. Cir. 1994), which held that when a decision to withhold potentially lifesaving treatment from an incompetent patient is made by a guardian appointed by the state, due process requires adherence to procedural safeguards to ensure that “the decision would reflect the wishes of the patient.” The court in Thorne found that implementation of the procedures set forth in DMR directive 87-2 would satisfy due process. Id. at *11. The plaintiffs argue that the defendants in this case have violated
23

due process by failing to implement DMR 87-2.7 (Pls.’ Post-Trial
Br. at 21-29.)
A DNR order allows medical professionals to withhold
cardiopulmonary resuscitation (“CPR”) from a patient who is
undergoing cardiac or respiratory arrest. DMR 87-2 allows a DNR
order to be written only with the consent of a patient or, if the
patient is not competent, with the consent of a “surrogate,” who
may be a guardian, conservator, next of kin, or close relative.
(Pls.’ Ex. 509.) DMR and its personnel cannot consent to a DNR
order on behalf of STS residents. Rather, DMR’s role is to ensure
that any DNR order is “medically acceptable.” (Id.) Under DMR 87-
2, after an attending physician has obtained consent, he or she may
write a DNR order for a patient who is in a “terminal condition,”
a state defined as “the final stage of an incurable or irreversible
medical condition which, without the administration of a life
support system, will result in death within a relatively short time
period, in the opinion of the attending physician.” (Id. (quoting
7The problem addressed by the district court in Thorne was that DNR orders where written by DMR doctors and residents’ guardians “without adherence to any mechanism or uniform procedural safeguards to determine whether the decisions comply with the wishes of the patients.” Id. at *9 (emphasis added). The court notes that the plaintiffs have not argued that the defendant failed to follow any procedure. Even if the plaintiffs were able to establish that the defendants violated DMR-87, this fact alone would not require a finding that the defendants violated due process. In order to prevail on these claims, the plaintiffs would need to show either a complete absence of any procedure for writing DNR orders or that whatever procedures were implemented did not satisfy due process.
24

Conn. Gen. Stat. § 19a-570(11).) If the patient is expected to die “during the next several days or weeks,” the signature of the attending physician is sufficient to create a valid DNR order. (Id.) When the attending physician cannot make a prediction that the patient will die within this time frame, a DNR may be written for a patient who is nonetheless in the final stage of a terminal condition, but such a DNR order is subject to certain additional procedural safeguards, which include notifying the DMR Commissioner and the Attorney General. (Id.)
DMR policy does not impose any additional procedural safeguards for the writing of a “do not intubate” (“DNI”) order, which allows medical professionals to withhold additional forms of treatment designed to assist patients undergoing respiratory arrest. (Tr. 6/30/99 at 206 (McDonald).) A DNI order may be written only for residents who have valid DNR orders. (Id.)
1. Allegations that DNR Orders Were Written for NonTerminally Ill Class Members
The plaintiffs first claim to have established that STS personnel violated the DMR’s procedures by writing DNR orders for class members for whom death was not imminent. In support of this claim, the plaintiffs cite cases in which a DNR order was written for a patient a substantial amount of time before the patient actually died. For example, class member Gloria DeBartholomew had a DNR order in her file for six years before she died (Pls.’ Ex. 301), and Agnes Vernik had a DNR order in her file for two years
25

before she died (Pls.’ Ex. 282). The plaintiffs cannot meet their
burden with this kind of evidence. The mere passage of time
between the writing of a DNR and the patient’s subsequent death
does not establish that the attending physicians signed a DNR at a
time when he or she could not have said that the patient was
expected to die within days or weeks.
Insofar as the plaintiffs have presented expert testimony
stating that DNR orders were written for patients who were not in
the final stages of a terminal condition, this testimony is no more
persuasive. The opinion of expert witness Dr. Robert Kugel that
class member Eleanor Fuchs had a DNR in her file even though she
was not terminally ill is also based merely on the passage of time
between the writing of the DNR and her death two years later; this
opinion does not seem to be based on an analysis of Ms. Fuchs’ medical condition.8 (See Tr. 3/22/99 at 132.) Similarly, Dr.
Kugel’s testimony that class member Oscar Hansen’s DNR order was
written at a time when “it would have seemed to me that he was not
8Further raising the Court’s suspicion about Dr. Kugel’s testimony is the fact that Dr. Kugel’s report, as opposed to his trial testimony, does not mention his opinion that Ms. Fuchs could not have been in a terminal condition when the DNR order was written. (See Pls.’ Ex. 423G at 30.) Furthermore, this conclusion is contradicted by the DNR order itself, which states that Ms. Fuchs was thought to have a 50% chance of mortality within one year. (Pls. Ex. 613.) While this seems to establish that the attending physician did not believe that the patient would die within days or weeks, it does establish that the physician had determined that Ms. Fuchs was in a terminal condition.
26

in imminent danger of dying” (Tr. 3/22/99 at 117) is vague and unsupported by reasoning or reference to facts. Furthermore, Mr. Hansen’s DNR order was signed in 1992, before the DMR had implemented changes in the protocol for DNR orders following the decision in Thorne. (See Pls.’ Ex. 509.)
Furthermore, the plaintiffs have not established that it would be a violation of due process for a state doctor to sign a DNR order for a patient who is in a terminal condition but who is predicted to die within months or years rather than days or weeks. On the contrary, DMR 87-2, a directive of which the plaintiffs seem to approve, explicitly provides for DNRs to be written under such circumstances, as long as certain officials are notified. Nowhere have the plaintiffs argued that failure to take these additional steps transforms an otherwise valid DNR into a due process violation. The court is unwilling to draw this legal conclusion. The court is therefore not persuaded by the plaintiffs’ claim that the defendants violated due process when an STS doctor recommended a DNR order for class member Robert Fusco, who was in the “endstage of a progressive and irreversible condition” and was expected to live for “months to years” with a feeding gastronomy tube.9
9Moreover, the plaintiffs have not established the additional procedural safeguards required by DMR 87-2 were not followed in Mr. Fusco’s case. The exhibit they cite (see Pls.’ Proposed Findings at 88-89) is merely a letter recommending a DNR order (Pls.’ Ex. 615); it does not contain any of the documentation that would accompany a complete DNR order, and it does not establish that such documentation never existed.
27

(See Pls.’ Ex. 615.) The other cases cited by the plaintiffs as evidence that the
defendants wrote DNR orders for non-terminally ill patients are also unhelpful. The plaintiffs’ reference to the case of Sandra Zukowski is odd in this context given that no DNR order was written prior to her death, apparently because her family did not consent. (Pls.’ Ex. 300.) Dr. Kugel’s testimony that an STS attending physician’s decision to recommend a DNR order for Elsie Backus was unjustified (see Tr. 3/22/99 at 134-35) is flatly contradicted by the consultation report of a speciality clinic that recommended a DNR “in view of advanced cancer” (Pls.’ Ex. 291). Dr. Kugel testified that his opinion was based on the facts that Ms. Backus was “in good spirits” and “ambulating” when the DNR order was signed. (Tr. 3/22/99 at 135.) This explanation calls into question Dr. Kugel’s helpfulness to the court as an expert witness. Similarly, Kugel’s testimony that Thomas Jasinski remained under a DNR order even though he ceased be in a terminal state seems to have no basis in fact. (See Tr. 3/22/99 at 125.) There is no evidence that Mr. Jasinski ceased to be in a terminal state at any point after the DNR order was signed. The plaintiffs themselves moved into evidence a chart showing that STS staff reviewed the DNR order multiple times in 1996.10 (Pls.’ Ex. 619.)
10The court also notes that Dr. Kugel’s testimony about Mr. Jasinski’s DNR order is very different from the relevant passage in Kugel’s report, which only says that there was “no clear
28

2. Alleged Improper Use of DNR Orders to Withhold Treatment From Class Members Suffering From Cardiac or Respiratory Arrest Resulting from Accidents
The plaintiffs’ second claim relating to DNR orders is that the defendants relied on these orders to justify withholding treatment in situations not covered by the DNR protocol. Under DMR 87-2 medical professionals may withhold CPR pursuant to a DNR order only “after respiration and cardiac function have ceased spontaneously, as a natural progression of the dying process.” (Pls.’ Ex. 509.) However, a DNR order does not allow medical professionals to withhold CPR from an STS resident who “aspirates food or fluid, or has any other accident that may result in death if left unattended.” (Id.) The plaintiffs claim that the defendants have, in violation of DMR 87-2, implemented policies under which CPR is withheld from class members with DNR orders who experience respiratory and cardiac arrest as a result of accidents or other causes that are not the “natural progression of the dying process.”
The plaintiffs contend that direct care staff and nurses, who must often make decisions about whether to perform CPR on class
documentation of [Mr. Jasinki’s DNR] status” and fails to mention that Mr. Jasinski was no longer in a terminal state when he died. (Pls.’ Ex. 423G at 23.) The court does not believe that Dr. Kugel, who reviewed 70 cases in preparing his report, left this detail out of his report but remembered it on the witness stand. Rather, this incident suggests that Dr. Kugel, while testifying, was somewhat too enthusiastic in offering opinions that supported the plaintiffs’ case.
29

members discovered in respiratory distress, are directed by STS policy to withheld CPR from every resident with a DNR bracelet without considering the cause of the resident’s distress. (Pls.’ Post-Trial Br. 23-24.)) If proved, the existence of this policy would be problematic since it would mean that there is confusion about what class members and their guardians had actually consented to when they requested DNR orders. It would be improper for STS to obtain consent from a resident to withhold CPR should the resident undergo respiratory distress as a result of the natural progress of his or her terminal condition and then to use this consent to justify withholding lifesaving treatment in other situations.
The plaintiffs claim that STS has implemented a rule that requires staff to withhold CPR from any class member wearing a DNR bracelet, regardless of the cause of the cardiac or respiratory distress. However, this claim was contradicted by STS Medical Director Dr. Robert McDonald, who unequivocally denied that there was any such rule and explained that staff are required to perform CPR on every resident who is discovered to have choked on something, even if the resident has a DNR bracelet.11 (Tr. 6/30/99
11The plaintiffs misconstrue the testimony of Dr. McDonald and cite it in support of their claim. (See Pls.’ Proposed Findings at 92.) Dr. McDonald’s testimony seems to suggest that in cases where a resident with a DNR bracelet is found in cardiac or respiratory arrest and there is no sign of choking or any other accident, and no indication of the cause of the distress, direct care staff are instructed not to perform CPR, though they are required to call for emergency medical assistance. (See Tr. 6/30/99 at 161-62.) The testimony on this point is somewhat
30

at 161-62.) The plaintiffs have not persuaded the court that Dr.
McDonald’s statement of STS policy is inaccurate. Kugel, the plaintiffs’ expert, testified somewhat uncertainly that he did not “think” that direct care staff can distinguish between respiratory arrest caused by accidents and respiratory arrest resulting from the patient’s terminal condition. (Tr. 4/5/99 at 46.) He also testified that he did not know whether nurses at STS have the necessary training to make this distinction. (Id. at 47.) Without claiming any direct knowledge, he testified that the policy at STS “seems to say” that direct care staff and nurses at STS are directed not to perform CPR on any resident with a DNR bracelet who is undergoing respiratory or cardiac arrest, regardless of whether the direct care staff involved are able to discern the cause of the emergency. (Id.) Kugel’s inability to be more definite in describing the training of STS staff and the policy they are directed to follow makes it impossible for the court to attach much weight to his opinion.
The plaintiffs also cite the testimony of Nicholas Gabriel, the fire chief at STS, who testified at his deposition that staff
muddled and therefore inconclusive. In any event, the issue of what direct care staff should do upon discovering a resident in a state of respiratory distress of which the cause is unknown and unknowable seems to be a difficult one. The parties have not addressed this question, and the court is not prepared to find that the practice described by Dr. McDonald violates due process.
31

are instructed to withhold CPR from residents wearing DNR bracelets who are discovered in either cardiopulmonary or respiratory arrest “no matter what the cause.” (Tr. 3/31/99 at 196.) While this testimony supports the plaintiffs’ claims, it is somewhat inconclusive since it was quoted from Gabriel’s deposition and lacks context. It is completely unclear whether Gabriel was considering the possibility that staff would have to make decisions about whether to perform CPR on class members who are undergoing respiratory arrest as a result of, for example, a choking accident. The court therefore finds that Dr. McDonald’s unequivocal statement of STS policy is more convincing.
3. Alleged Practice of Withholding Treatment Other Than CPR On the Basis of DNR Orders
The plaintiffs also claim that the defendants have relied on DNR orders to withhold treatment other than CPR. Because an individual’s consent to a DNR order encompasses only the withholding of CPR, and not the withholding of other kinds of medical treatment (see Pls.’ Ex. 509), the court agrees with the plaintiffs that a policy of withholding treatment other than CPR would indeed violate class members’ due process rights.
However, this claim is not supported by the evidence. The plaintiffs rely, in large part, on misconstruing the testimony of Dr. McDonald. For example, McDonald did not, as the plaintiffs claim, testify that a DNR order may be used to justify denying intubation to class members. (See Pls.’ Proposed Findings at 89.)
32

Dr. McDonald denied this claim. (See Tr. 6/30/99 at 198 (“A DNR order and intubation are two different things.”)) The plaintiffs also interpret one portion of McDonald’s testimony to mean that measures other than CPR, including transfer to a hospital, may be withheld on the basis of a DNR order. (See Pls.’ Proposed Findings at 90-91.) As the court understands his testimony, Dr. McDonald simply stated that treating professionals may exercise their professional judgment to withhold treatment that would not benefit a patient who has a DNR order. (Tr. 6/30/99 at 208-9.) Dr. McDonald explained that this is exactly the kind of “weigh[ing of] risks and benefits” that a medical professional must conduct before making any treatment decision about any patient, regardless of the presence of a DNR order. (See Tr. 7/8/99 at 57-58.)
There is no evidence to support the plaintiffs’ claims that particular class members died after treatment other than CPR was withheld. The plaintiffs claim that class member Karen Peterson died after nutrition and fluids were withheld on the basis of a DNR order. (Pls.’ Proposed Findings at 95.) However, Ms. Peterson’s mortality review indicates that the decision to withhold fluid and nutrition was made by her guardian and that this decision, not the DNR order, was the basis for the action. (Pls.’ Ex. 273.) The plaintiffs’ evidence regarding the 1993 death of class member Mark Roy is inconclusive. Dr. Kugel stated that the decision to withhold a bronchoscopy was based on a DNR order in Roy’s file.
33

(Pls. Ex. 432G at 15; Tr. 3/22/99 at 114-15.) Kugel did not explain how he knows that the DNR order was the basis for the decision, and the court is unaware of any evidence supporting this claim. Furthermore, it appears that the decision not to perform the bronchoscopy was made by Waterbury Hospital personnel rather than the defendants. (Id.) Similarly, the decision to remove an intubation tube from Janice Doyle prior to her death in 1993 was made by Waterbury Hospital, not STS. (Pls.’ Ex. 267.)
The plaintiffs also claim that DNR orders were used to justify “weaning class members from a ventilator.” (See Pls.’ Proposed Findings at 89.) However, the mortality review cited by the plaintiffs in support of this claim does not demonstrate that any such decision was made. (See Pls.’ Ex. 272.)
4. Alleged Failures to Ensure that Community Hospitals Follow DNR Protocol
The plaintiffs also claim that the defendants have violated class members’ due process rights by failing to address situations in which area community hospitals have written DNR orders for STS residents without following DMR protocol. (Pls.’ Post-Trial Br. at 26.) Most of the incidents to which the plaintiffs have drawn the Court’s attention occurred in 1994 or shortly before. During this period, DNR and DNI orders were apparently written for class members at community hospitals without notifying STS or involving STS in the process. (Pls.’ Exs. 260, 262, 621, 631.) The findings of the Mortality Review Committee indicate that some of these
34

orders were written for patients whose medical conditions were not irreversible and thus the DNR orders do not comply with DMR 87-2. (Pls.’ Exs.267, 324, 629.)
Dr. McDonald conceded that there had been problems with DNR orders written for class members at community hospitals in the past, but he testified that STS had worked to resolve these problems following his appointment as Medical Director in 1996. (Tr. 6/30/99 at 156-58; Tr. 7/8/99 at 25-27.) He testified that community hospitals are required to comply with STS policies when writing DNR orders for STS residents, and he described how STS takes action whenever it learns that a community hospital has failed to follow these policies. (Tr. 6/30/99 at 157-58, 163-68.) Dr. McDonald also conceded that there have been some problems with community hospitals in this regard since 1996. (Tr. 6/30/99 at 164.) The plaintiffs claim, however, that the defendants have not done enough to resolve these problems and point to instances after 1996 in which community hospitals apparently wrote DNR orders without following DMR protocol.
The evidence supports Dr. McDonald’s testimony that STS has taken adequate precautions to ensure that community hospitals comply with DNR protocols. The Mortality Review for STS resident Jose Masso (Pls.’ Ex. 281) indicates that the DNR order written by Danbury Hospital in 1996 was poorly documented and was not processed through DMR. Dr. McDonald agreed that the hospital had
35

failed to follow STS and DMR policy in this instance, and explained that he had addressed the issue with Danbury Hospital personnel. (Tr. 7/8/99 at 30; Pls.’ Ex. 281.) Similarly, in 1997, after Waterbury Hospital wrote a DNR for STS resident Dorothy Goldson without STS involvement, STS responded by reminding the hospital of the need to involve STS personnel when writing DNR orders for STS residents. (Pls.’ Ex. 295.) McDonald addressed this issue again with Waterbury Hospital following the 1998 death of John Cherubino, whose DNR and DNI orders were written without STS involvement. (Pls.’ Ex. 302; Tr. 7/8/99 at 60-61.)
The plaintiffs have not established that the defendants’ efforts to force community hospitals to follow DMR protocol have been constitutionally deficient. The defendants are not liable for the actions of community hospitals. Of course, insofar as the defendants are aware that community hospitals frequently fail to follow proper DNR procedures, they should work to resolve the problem. Dr. McDonald described how he informed community hospitals that they must conform to DMR policies, how he consulted with the Attorney General about the situation, and how the community hospitals are “subject to a citation” should they fail to cooperate with STS. (Tr. 6/30/99 at 166.) Furthermore, as an additional safeguard, all non-STS DNR orders are reviewed upon a class member’s discharge from a community hospital back to STS. (Tr. 7/8/99 at 61 (McDonald).) The court declines to find that the
36

defendants’ efforts in this regard deviate from professional standards.
The plaintiffs argue that the defendants must establish written “memoranda of understanding” with community hospitals that guarantee that the hospitals follow DMR procedure. (Pls.’ PostTrial Br. at 28-29.) However, the plaintiffs have not drawn to the Court’s attention any evidence – expert or otherwise – establishing that such memoranda are required by professional standards.12 5. Other Claims Regarding DNR Orders
The plaintiffs also claim that “there is no process” for writing DNI orders at STS. (Pls.’ Proposed Findings at 89.) However, the plaintiffs support their claim by mischaracterizing Dr. McDonald’s testimony. (See Pls.’ Proposed Findings at 89.) The testimony cited by the plaintiffs related to the fact that DMR protocol allows DNI orders to be written without any procedural safeguards beyond those required under DMR 87-2 for DNR orders. (See Tr. 6/30/99 at 201.) Because a DNI order may only be written for a patient who has a valid DNR order, it is simply not true that a DNI order may be written without following any procedure. The
12The plaintiffs quote, without citation, the “interpretive guidelines” for 42 U.S.C. § 483.460(a)(3), which, according to the plaintiffs, state that ICF/MRs must establish written agreements with outside providers of medical services. (Pls.’ Post-Trial Br. at 28.) The court is unable to locate any document containing this quotation. In any event, the quotation is unhelpful since guidelines issued to interpret ICF/MR regulations do not establish constitutional norms.
37

plaintiffs have not argued that the constitution requires additional procedural safeguards in order for a DNI order to be written.
The plaintiffs also claim that the defendants improperly allow physicians assistants and nurses to sign reviews of DNR orders. (Pls.’ Proposed Findings at 103.) The plaintiffs only evidence for this claim is a passage of Dr. McDonald’s cross-examination in which plaintiffs’ counsel aggressively but unsuccessfully tried to force the witness to admit that there was a deficiency in this regard. (Tr. 7/9/99 at 81-85.) Dr. McDonald explained clearly that there was “no problem” because the staff who sign DNR reviews do so under the supervision of doctors. (Id.) He testified that any previous problems in this area had been corrected. (Id.)
The court therefore finds that the plaintiffs have failed to establish that the defendants’ policies and practices for writing DNR and DNI orders for class members violate due process. B. Protection From Harm and Freedom From Unnecessary Restraint
The plaintiffs claim that the defendants have violated their constitutional duty to protect residents at STS from abuse, neglect and injury. (Pls.’ Post-Trial Br. at 48-67.) As with the plaintiffs’ claims relating to the provision of medical care, the plaintiffs set out a list in their Post-Trial Brief of specific matters for which they request a remedy. The plaintiffs state that they do not know if the Special Master has addressed all of these
38

matters and suggest that “that the appropriate course is to request orders to remedy the violations plaintiffs established at trial, and to ask that they be referred to the process established in [United States v. Connecticut] provided plaintiffs can participate fully in the process.” (Id. at 168). The plaintiffs would have the following specific orders implemented by the Special Master:
a. An order requiring the defendants to provide physical safety, freedom from restraint and programming that is sufficient to satisfy the requirements of Youngberg.
b. An order requiring the defendants to investigate abuse, neglect and injuries to class members and that STS unit staff members should be prohibited from investigating injuries of unknown origin.
c. An order requiring adequate reporting, investigation and corrective action in response to all abuse, neglect and injuries.
d. An order requiring the defendants to “take all reasonable steps” to prevent resident-to-resident sexual assaults.
e. An order requiring the defendants “to take all reasonable and necessary steps” to prevent resident-to-resident assaults.
f. An order requiring the defendants to provide prompt medical care to class members who have been injured or abused.
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g. An order requiring the defendants to maintain data regarding injuries, abuse, neglect, and the use of restraints at STS.
h. An order requiring the defendants to use this data in taking corrective action.
i. An order requiring adequate staffing of the STS Human Rights Office.
j. An order requiring the defendants to take reasonable steps to reduce the use of restraints at STS.
k. An order requiring that buildings at STS be inspected and brought into compliance with the state Fire Code.
(Id. at 168-70.) The issue of abuse and neglect at STS was an important aspect
of the litigation in United States v. Connecticut. See, e.g., 931 F. Supp. at 978 (finding that “STS [had] not only failed to protect its residents from injury to themselves, but [had] also failed to protect its residents from unreasonable risk of injury by other residents”). The Special Master accordingly devoted considerable attention to abuse and neglect at STS. Eleven of the Court Requirements in the Remedial Plan dealt with this issue. See CR 212.
The Remedial Plan focused on establishing procedures to investigate and respond to instances of abuse and neglect. Court Requirement 4 required that STS implement procedures for
40

systematically recording and tracking instances of abuse, neglect and injuries and required STS to take corrective action based on the data generated from these reports. See Special Master’s Report to the Court No. 49: Investigation of Abuse/Neglect Allegations (“Report No. 49”) at 9-10, U.S. v. Conn. (May 27, 2003) (describing use of the Connecticut Automated Mental Retardation Information System (“CAMRIS”) to track reports of abuse). The Remedial Plan required that STS set standards and establish procedures for reporting and investigating abuse committed both by staff and residents at STS. See CR 6-11; see also Report No. 49 at 2-8 (describing the emergence of a “professional,” “effective” and adequately resourced Human Rights Office tasked with investigating abuse at STS). Therefore, the Special Master has addressed the plaintiffs’ specific concerns a., b., c., f., g., h. and i.
In addition to requiring STS to investigate and respond to abuse and neglect, the Remedial Plan required STS to take steps to prevent abuse and neglect. Court Requirement 3 required STS to identify potential victims and abusers, implement programs to prevent victimization, and train staff and clients to recognize and report abuse and neglect. See, e.g., Report to the Court No. 54: Abuse/Neglect Client Training, U.S. v. Conn. (Jan. 20, 2004). Therefore, the Special Master has addressed the plaintiffs’ specific concerns d. and e.
The specific order k. from the above list of the plaintiffs’
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requests relates to an issue – fire code compliance – that has already been addressed in the United States v. Connecticut remedial process. See CR 86, 87; see also Special Master’s Report to the Court No. 59: Deletion of Several Requirements at 6-7, U.S. v. Conn. (Oct. 24, 2005) (noting that fire marshal inspections and ICF/MR inspections had been satisfactory).
Lastly, the Special Master has already addressed the issue of reducing unnecessary use of restraints on class members. See, e.g., CR 48, EC 1-6 (prohibiting use of restraints in lieu of training and requiring systematic review of use of restraints). Also, as discussed below, the Special Master oversaw the improvement of habilitation programming, thus reducing the need to use physical restraint. It is therefore apparent that the Special Master has already addressed the issue raised by the plaintiffs’ specific concerns a. and j.
The Special Master has already addressed all of the security and freedom from restraint issues that the plaintiffs would have the court refer to him. The court therefore will not consider whether the defendants are liable for having failed to protect class members from harm and unnecessary restraint. C. Habilitation and Active Treatment
The plaintiffs claim that the defendants have violated class members’ due process rights to minimally adequate habilitation and training and they claim that the defendant Commissioner of DMR
42

violated class members’ right to receive active treatment as

required by Title XIX of the Social Security Act. (Pls.’ Post-

Trial Br. at 67-69.)

Class members have a due process right to

training or habilitation that is adequate to “ensure [their] safety

and to facilitate [their] ability to function free from bodily

restraints.” Youngberg, 457 U.S. at 324. Such training must be

“sufficient to prevent basic self-care skills from deteriorating.”

Society for Good Will, 737 F.2d at 1250. State officials violate

due process when they “fail to exercise professional judgment in

devising programs that allow patients to live as humanely and

decently as when they entered the school.” Id. Class members do

not, however, have a due process right to training that will

“improve [their] . . . skills beyond those with which they entered”

STS. See Society for Good Will, 737 F.2d at 1250 (adopting Justice

Blackmun’s concurring opinion in Youngberg).

“Active treatment,” as the term is used in Title XIX, refers

to a level of training and treatment that is more intensive than

that required by due process. The regulations promulgated to

implement Title XIX explain that

[e]ach client must receive a continuous active treatment program, which includes aggressive, consistent implementation of a program of specialized and generic training, treatment, health services and related services described in this subpart, that is directed toward . . . [t]he acquisition of the behaviors necessary for the client to function with as much self determination and independence as possible [as well as] [t]he prevention or deceleration of regression or loss of current optimal functional status.

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42 C.F.R. § 483.440(a) (emphasis added). Under Title XIX, unlike the Due Process Clause, the class members enjoy a right to training and other treatment designed to do more than simply preserve basic skills.
When they submitted their Post-Trial Brief, the plaintiffs were aware that the Special Master in United States v. Connecticut had addressed or would be addressing many of the alleged deficiencies in STS’s habilitation programming. (Id. at 170.) However, because they were “uncertain as to the extent” that these alleged violations would be addressed in the remedial process in that case, they have also requested a number of specific remedial orders in this case. (Id. at 170-71.) The court construes this request for relief as a request that the court remedy any specific issues related to habilitation which the Special Master failed to address.
The plaintiffs request the following specific remedial orders to fill any gaps that may have been left in the Special Master’s oversight over reform of the habilitation services at STS:
a. An order requiring the defendants to provide each class member with “minimally adequate habilitation” that is to be monitored by a mental health professional.
b. An order requiring the defendants to provide class members with the level of habilitation that a professional would consider adequate to ensure safety and
44

to allow freedom from restraint. c. An order prohibiting STS from administering unnecessary
medication and restraint and requiring the defendants to provide habilitation to reduce the need for medication and restraint. d. An order requiring the defendants to “ensure full participation in social, religious, and community group activities.” e. An order requiring the defendants to “promote the participation of legal guardians . . . in the process of providing active treatment.” f. An order requiring the defendants to promote informal leave, vacations, and trips away from STS. g. An order requiring the defendants to provide each class member with “an active treatment program consistent with his/her needs.” h. An order requiring “professional program staff” to participate in IDT meetings relating to habilitation programming. i. An order requiring the defendants to provide sufficient, adequately trained staff to implement habilitation programs. j. An order requiring the defendants to provide active treatment designed to promote class members’ independence
45

to prevent loss of functioning, thus meeting the standards established in the relevant ICF/MR regulations. k. An order requiring the defendants to ensure that IDTs, in accordance with the relevant ICF/MR regulations, provide each class member with habilitation plans. l. An order “requiring the defendants to develop and implement [a] behavior management plan for each class member who needs one through the [IDT] process.” m. An order requiring that behavior modifying medications are “monitored closely . . . “in conjunction with [a] physician . . . and the [IDT]” and that such medications “are gradually withdrawn at least annually . . . unless clinical evidence justifies that this is contraindicated.” n. An order requiring IDTs to determine the “most integrated day program or supported work program appropriate to [each] class member’s needs.” o. An order requiring the defendants to “provide communityintegrated employment and other day time activities in the most integrated setting appropriate to the class member’s needs.” p. An order requiring the defendants to “provide opportunities for class members to participate in recreation and leisure activities in the community off
46

the grounds of [STS].” (Id. at 171-74.) As the following discussion makes clear, the Special Master has addressed all of the issues underlying these proposed orders and there is no need for the court to revisit any of them.
The Remedial Plan in United States v. Connecticut addressed habilitation programming at STS extensively. See CR 41-44, 46-52; see also United States v. Connecticut, 931 F. Supp. at 978 (citing a study finding that STS had failed to provide the “continuous, aggressive, and active treatment programs” necessary to prevent STS residents from injuring themselves); id. at 982-84 (describing STS’s failure to provide physical therapy services). In 2005, a final compliance evaluation commissioned by the Special Master found that habilitation services at STS were generally meeting residents’ needs. Report to the Court No. 60: Habilitation (“Report No. 60”) at 11-13, U.S. v. Conn. (Jan. 17, 2006) (citing the report of Dr. Edward Skarnulis). In 2006, the court released STS from judicial oversight over the Court Requirements relating to habilitation programming. Order, U.S. v. Conn. (Jan. 18, 2006).
Much of the Special Master’s work on habilitation was directed at ensuring that individualized habilitation programming was made available to each resident of STS. Court Requirements 41 to 43 required that STS create a habilitation plan for each resident and that STS review and update this plan periodically. Under the
47

Special Master’s supervision, STS implemented the Overall Plan of Service/Habilitation Initiative (“OPS Initiative”), which was designed to make individualized habilitation programming available for all STS residents. See Ruling on Case Management Plan Compliance, U.S. v. Conn. (Nov. 22, 2005) (describing the OPS Initiative as “designed to move from ‘deficit driven plans to planning from peoples’ strengths and preferences . . . , [that is] to a person-focused model’”) (quoting Report to the Court No: 52: Case Management (“Report No. 52”), vol. 8 at 27 (Oct. 29, 2003). Thus, the Special Master addressed the plaintiffs’ specific remedial orders a., g., and l.
In evaluating the training provided at STS, the Special Master and his consultants considered whether the programs provided met the requirements of the ICF/MR regulations. See Report No. 60 at 12 (explaining that Dr. Skarnulis, in his final compliance evaluation, had incorporated the active treatment standards from the ICF/MR regulations, which contemplate a more aggressive approach to training with the goal of enhancing patients’ selfsufficiency and ability to enjoy productive lives in addition to preventing patients from losing basic skills they currently possess); see also Habilitation Services at Southbury Training School at 7-9, U.S. v. Conn. (Nov. 17, 2005) (Report of Dr. Skarnulis). Thus, the Special Master addressed the concerns underlying plaintiffs’ remedial orders j. and k.
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The Special Master oversaw improvements in the procedures used

for planning and monitoring habilitation programming. The Remedial

Plan required implementation of a “case management” system in which

case managers would coordinate all aspects of the services provided

to STS residents, including habilitation programming. See CR 45.

Under the plan, Case Managers must be qualified “mental retardation

professionals,” as defined by the ICF/MR regulations and are

responsible for ensuring that each resident’s Overall Plan of

Service is prepared and implemented and that residents receive

services responsive to their needs. Report to the Court No. 52,

vol. 8 at 7-10.

Thus, the Special Master addressed the

plaintiffs’ specific concerns a., h., and k.

The Remedial Plan required that STS provide sufficient numbers

of staff who were qualified to implement the OPS Initiative, thus

addressing the plaintiffs’ specific concern i. See CR 14

(addressing qualifications for direct care staff); CR 27 (requiring

recruitment to fill positions for occupational, physical and speech

therapy specialists); see also CR 13 (setting ratios of supervisory

to direct care staff). By 2006, when the court released STS from

judicial oversight over the Court Requirements relating to

habilitation, “[i]mplementation of habilitation services [had been]

the focus of more staff at STS than any other discipline.” See

Report No. 60 at 3.

The Remedial Plan also required STS to implement policies that

49

would reduce or eliminate unnecessary use of medication and physical restraint in response to residents’ “challenging behavior.” See CR 46-52; see also Order Purging Defendants of Contempt and Ending Active Judicial Oversight at 9-11, U.S. v. Conn. (Mar. 24, 2006) (mentioning improvements in habilitation programming at STS and comparing the current state of affairs with the situation in 1996, when STS frequently used medication to modify residents behavior in lieu of habilitation). Thus, the Special Master addressed the issues underlying the plaintiffs’ specific remedial orders b. and c.
The Remedial Plan mandated the provision of day programs and vocational programs to residents, thus addressing the issues underlying the plaintiffs’ specific remedial orders n., o., p., and, to some extent d. and f. See CR 44. The court notes that the plaintiffs, in item e. from the list above, also request an order requiring that STS promote the participation of parents and guardians in the process of providing habilitation. To some extent, the Remedial Plan addressed the issue of the involvement of parents and guardians with the care of their children and wards. See CR 45 (establishing duties of case manager with respect to providing information to parents and guardians); CR 71. However, it is not clear that the plaintiffs would ever be entitled to an order like this. The constitution always requires the court to defer to the judgments of professionals, and, therefore, the court
50

cannot require the defendants to conduct habilitation programming

in any particular manner.

The remaining remedial order requested by the plaintiffs, m.

from the list above, relates to the use of behavior-modifying

medication. The court has already discussed how the Special Master

has addressed this issue and has concluded that the claims

underlying the particular relief requested have been rendered moot.

See § IIIA supra.

*

*

*

With the few exceptions indicated in the preceding discussion,

the Special Master has remedied the alleged deficiencies which the

plaintiffs would have the court refer to him. Because the

plaintiffs do not request any additional relief addressing alleged

violations in the areas of medical care, security or habilitation,

the court finds that the claims relating to these issues are moot.

The court notes, however, that the plaintiffs ask the court to

“leav[e] to a later date the question as to whether the remedial

process established in United States v. Connecticut can address all

of the violations of law established [in this case].” (Pls.’ Post-

Trial Br. at 164-65, 168.) Because the court is confident the

plaintiffs’ concerns have been fully addressed, it does not

anticipate that it will be necessary to face this question. Should

the plaintiffs seek additional relief in these areas beyond what

has been achieved in United States v. Connecticut, it remains to be

51

seen whether the plaintiffs, having elected to seek relief from the Special Master’s remedial process, will be entitled to an extensive examination by the court into the adequacy of that process.
In addition, the court notes that the plaintiffs have, in some instances, asked to be allowed to participate in the Special Masters’s efforts to resolve the deficiencies they claim to have established. (See, e.g., Pls.’ Post-Trial Br. at 164-65.) For obvious reasons, this relief is currently unavailable. IV. Community Placement
The plaintiffs claim that the defendants have failed to exercise professional judgment in determining whether class members should be placed in the community. Unlike the majority of the plaintiffs’ other claims, the issue of community placement was not addressed or resolved in the United States v. Connecticut litigation. See Ruling on Plaintiff’s Motion to Adopt the Special Master’s Findings and Recommendations Regarding Community Placement, U.S. v. Conn. (Jan. 24, 2001) (declining to adopt the Special Master’s recommendations on community placement and holding that community placement issues would be addressed in the present litigation); see also Order, U.S. v. Conn. (Jan. 7, 2003) (removing the issue of community placement from the United States v. Connecticut litigation). Therefore, the court will now consider whether the plaintiffs have established the alleged constitutional
52

and statutory violations by showing that the defendants failed adequately to place class members in the community. A. The Due Process Requirement of Professional Judgment in
Community Placement Decisions Residents of a state-run institution for the mentally retarded have no constitutional right to community placement. Society for Good Will, 737 F. 2d at 1249 (citing Phillips v. Thompson, 715 F.2d 365, 368 (7th Cir. 1983) and Garrity v. Gallen, 522 F. Supp. 171, 237-39 (D.N.H. 1981)). Nor is there a constitutional right to the “least restrictive environment.” Id. (citing cases). Community placement decisions are, however, subject to scrutiny under Youngberg. Id. Like any other decision to place restraints on a patient’s freedom, the decision to keep a resident in an institution instead of placing the resident in a community setting must be “a rational decision based on professional judgment.” Id. at 1249; see also Clark v. Cohen, 794 F.2d 79, 87 (3d Cir. 1986); Thomas S. v. Flaherty, 902 F.2d 250, 255 (4th Cir. 1990). As in any other application of the Youngberg standard, the court’s role in evaluating a decision to keep a mentally disabled individual in an institution is a “narrow one,” and the court must defer to the judgment of the state’s medical professionals. David v. Cuomo, 862 F. Supp. 34, 37 (W.D.N.Y. 1994) (suggesting that if, for example, “a patient were being held against his will contrary to all the medical evidence and expert medical opinion, there would clearly be a constitutional violation”).
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B. Community Placement Under the ADA and Section 504 The plaintiffs also claim that the defendants’ procedures for
making community placement determinations violated Section 504 of the Rehabilitation Act, codified at 29 U.S.C. § 794, and Title II of the ADA, codified at 42 U.S.C. §§ 12131-12165, both of which were enacted to prohibit discrimination against disabled persons in the provision of public services. In Olmstead v. L.C., 527 U.S. 581, 589 n.1 (1999), the Supreme Court explained that the ADA was the federal government’s “most recent and extensive endeavor to address discrimination against persons with disabilities.” In enacting the ADA, Congress recognized that “discrimination against individuals with disabilities continues to be a serious and pervasive social problem;” that such discrimination “persists in such critical areas as . . . institutionalization;” and that the forms of discrimination encountered by individuals with disabilities include “outright intentional exclusion, . . . failure to make modifications to existing facilities and practices, . . . [and] segregation.” Id., 527 U.S. at 588-869 (quoting 42 U.S.C. § 12101(a)(2), (3), (5)).
Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. To
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establish a prima facie violation of § 12132, a plaintiff must show 1) that he or she is a “qualified individual with a disability;” 2) that he or she is being excluded from participation in or being denied the benefit of some service, program or activity by reason of his or her disability; and 3) that the entity that provides the service, program or activity is a public entity. Civic Ass’n of Deaf v. Giuliani, 915 F. Supp. 622, 634 (S.D.N.Y. 1996) (citing Clarkson v. Coughlin, 898 F. Supp. 1019, 1037 (S.D.N.Y. 1995)).13
It is undisputed both that class members are qualified individuals with disabilities and that STS is a public entity. The plaintiffs argue that they have established that class members have been “excluded from participation in or denied the benefit of a service, program or activity” in two different ways. First, the plaintiffs argue that the defendants have violated the “integration mandate” set forth in the federal regulations interpreting the ADA. Second, the plaintiffs claim that defendants DMR and STS discriminated on the basis of severity of disability by refusing to consider severely disabled STS residents for community placement.
13A prima facies case under Section 504 is established in the same manner. Messier, 1999 WL 20910 at *8 n.7 (citing Rothschild v. Grottenthaler, 907 F.2d 286, 289-90 (2d Cir. 1990)); see also Frederick L. v. Dep’t of Pub. Welfare, 364 F.3d 487, 491 (3d Cir. 2004). The only relevant difference between the two statutes is that Section 504 applies to entities receiving federal financial assistance, whereas Title II of the ADA applies to all public entities. Pierce v. County of Orange, 519 F.3d 985, 1010 n.27 (9th Cir. 2008).
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I. The Integration Mandate Section 12134(a) instructed the Attorney General to issue
regulations implementing § 12132’s prohibition on discrimination. In response, the Attorney General promulgated regulations that express a preference for community-based placement over institutionalization, where appropriate. In particular, 28 C.F.R. § 35.130(d)) provides that “[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” The “most integrated setting” is defined as “a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible.” 28 C.F.R. pt. 35 app. A; quoted in Olmstead, 527 U.S. at 593. “In short, where appropriate for the patient, both the ADA and [Section 504] favor integrated, community-based treatment over institutionalization.” Frederick L., 364 F.3d at 491-92.
This court has previously held that the plaintiffs may prove discrimination by showing that the defendants keep class members at STS despite determinations by DMR professionals that community placement is appropriate. Messier, 1999 WL 20910 at *10. Further guidance as to how the court should interpret Title II of ADA and the guidelines implementing it is offered by the Supreme Court’s subsequent decision in Olmstead. In that decision, the Supreme Court considered the claims of two mentally retarded women who
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remained in an institution in Georgia despite the opinions of the women’s treating professionals that available community-based programs met their needs. Olmstead, 527 U.S. at 593. The court held that the state had violated § 13132 by keeping the women in an institution and explained that under the ADA and the guidelines interpreting it
States are required to provide community-based treatment for persons with mental disabilities when the State’s treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities. Id. at 607. The Supreme Court found that the interpretive guidelines “constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. ” Id. at 598 (quoting Bragdon v. Abbott, 524 U.S. 624, 642 (1998) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 139-140 (1944))); See also Helen L. v. DiDario, 46 F.3d 325, 331-32 (3d Cir. 1995) (giving deference under Chevron v. Natural Res. Defense Council, 467 U.S. 837 (1984), to the Attorney General’s interpretation of Title II), cert. denied, 516 U.S. 813 (1995). Importantly, the Supreme Court approved of the Attorney General’s interpretation of what constitutes unlawful discrimination under § 13132. The Court rejected the notion that proof of discrimination in this context requires a showing of unequal treatment among similarly situated
57

individuals. The Court concluded that Congress intended for the ADA to do more than simply prohibit unequal treatment, and the Court held that “[u]njustified isolation . . . is properly regarded as discrimination based on disability.” Id. at 597. The Court reasoned that the Attorney General’s interpretation of the Title II prohibition on discrimination reflected the judgment that “institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.” Id. at 600 (citing Allen v. Wright, 468 U.S. 737, 755 (1984) and Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702, 707, n.13 (1978)). The Supreme Court further noted that “confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.” Id., 527 U.S. at 601.
While the plaintiffs may establish a prima facie violation of Title II by showing that the defendants have failed to comply with the regulations’ integration mandate, “nothing in the ADA or its implementing regulations condones termination of institutional settings for persons unable to handle or benefit from community settings.” Id. at 601-602. A state “generally may rely on the reasonable assessments of its own professionals in determining whether an individual ‘meets the essential eligibility
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requirements’ for habilitation in a community-based program.” Id. at 602 (citing 28 C.F.R. § 35.130(d). In considering whether an individual has been unjustifiably isolated in an institution, the court “normally should defer to the reasonable medical judgments of public health officials.” See School Bd. v. Arline, 480 U.S. 273, 288 (1987); cited in Olmstead, 527 U.S. at 602. ii. Discrimination on the Basis of Severity of Disability in
Community Placement Decisions The plaintiffs also claim they have established a violation of the ADA by showing that the defendants have failed to consider certain severely retarded class members for community placement. The Attorney General’s regulations implementing the Title II of the ADA make it clear that a state cannot discriminate on the basis of severity of disability in providing services. 28 C.F.R. § 35.130 provides that A public entity, in providing any aid, benefit, or service, may not . . . [p]rovide different or separate aids, benefits, or services to individuals with disabilities or to any class of individuals with disabilities than is provided to others, unless such action is necessary to provide qualified individuals with disabilities with aids, benefits, or services that are as effective as those provided to others. See also Helen L., 46 F.3d at 336, (“[I]f Congress were only concerned with disparate treatment of the disabled as compared to their nondisabled counterparts,” then the ADA’s reference to the persistence of discrimination in institutionalization would constitute a “non sequitur”); Williams v. Wasserman, 937 F. Supp.
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524, 530 (D. Md. 1996) (holding that “the ADA does oblige the defendants to make [a program of community-based treatment options] available to otherwise qualified individuals without regard to the severity or particular classification . . . of their disabilities”). Hahn v. Linn Cty., 130 F. Supp.2d 1036, 1050 (N.D. Iowa 2001). See also Martin v. Voinovich, 840 F. Supp. 1175, 1191-92 (S.D. Ohio 1993); Jackson v. Fort Stanton Hosp. & Training Sch., 757 F. Supp. 1243, 1299 (D.N.M.1990) (“The severity of plaintiffs’ handicaps is itself a handicap which, under § 504, cannot be the sole reason for denying plaintiffs access to community programs”), rev’d on other grounds, 964 F.2d 980 (10th Cir. 1992); Conner v. Branstad, 839 F. Supp. 1346, 1356 (S.D. Iowa 1993); Garrity v. Gallen, 522 F. Supp. 171, 214-15 (D.N.H. 1981); Lynch v. Maher, 507 F. Supp. 1268, 1278-79 n.15 (D. Conn. 1981).
Consistent with these interpretations of the law, this court has previously held that the plaintiffs may show that the defendants “violate the ADA and Section 504 by refusing to consider severely handicapped STS residents for community placement or vocational rehabilitation on the basis of severity of disability.” Messier, 1999 WL 20910 at *10. iii. Defenses Under the ADA and Section 504
There is no “federal requirement that community-based treatment be imposed on patients who do not desire it.” Olmstead, 527 U.S. at 602 (citing 28 C.F.R. § 35.130(e)(1)). Therefore, the
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defendants may rebut a prima facie case by showing that they offered community placements to qualified STS residents and that the residents declined.
The defendants may also rebut a prima facie case by establishing that the relief sought by the plaintiffs would require a “fundamental alteration” of the state’s mental health system. Frederick L., 364 F.3d at 493-94. This defense is derived from the regulations implementing the ADA, which provide that
A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity. 28 C.F.R. § 35.130(b)(7) (1998); quoted in Olmstead, 527 U.S. at 592.14 The “fundamental alteration” defense is an affirmative defense; once the plaintiffs have established a prima facie case, the burden shifts to the defendants to establish that the remedy sought requires something more extensive than a reasonable modification of existing policies. Frederick L., 364 F.3d at 492 n. 4. Determination of whether a modification is “‘reasonable’ involves a fact-specific, case-by-case inquiry that considers,
14The Rehabilitation Act imposes the same “reasonable modifications” requirement. See Staron v. McDonald's Corp., 51 F.3d 353, 355 (2d Cir. 1995) (citing cases). For all relevant purposes, the legal analysis required by Section 504 is identical to the analysis under the ADA.
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among other factors, the effectiveness of the modification in light of the nature of the disability in question and the cost to the organization that would implement it.” Staron v. McDonald's Corp., 51 F.3d 353, 356 (2d Cir. 1995) (citing D’Amico v. New York State Bd. of Law Examiners, 813 F. Supp. 217, 221-22 (W.D.N.Y. 1993)). The state is not required to achieve integration at any cost, and the unreasonable cost to the state of implementing or expanding community-based programs may be one factor in establishing a fundamental alteration defense. See Helen L., 46 F.3d at 339; Toledo v. Sanchez, 454 F.3d 24, 39 (1st Cir. 2006); Cable v. Dept. of Developmental Servs., 973 F. Supp. 937, 942 (C.D. Cal. 1997). However, a state’s budgetary constraints alone will not excuse failure to comply with Title II or Section 504. Helen L., 46 F.3d at 339; Pennsylvania Protection and Advocacy, Inc. v. Pennsylvania Dept. of Publ. Welfare, 402 F.3d 374, 381 (3d Cir. 2005); see also Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175 (10th Cir. 2003) (“If every alteration in a program or service that required the outlay of funds were tantamount to a fundamental alteration, the ADA’s integration mandate would be hollow indeed.”); Bruggeman v. Blagojevich, 219 F.R.D. 430, 434 (N.D. Ill. 2004) (holding that a fundamental alteration defense “requires a court to weigh and to balance . . . (1) the resources available to a state; (2) the range of services a state provides those with mental disabilities; and (3) a state’s obligation to mete out those services equitably”).
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iv. Eleventh Amendment Immunity to Suit Under the ADA The defendants argue that the plaintiffs’ ADA claims are
barred by the Eleventh Amendment, which has been interpreted to preclude suits brought in federal courts under federal law against a state or its agencies. See Hans v. Louisiana, 134 U.S. 1 (1890); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). The plaintiffs contend that the ADA abrogated states’ Eleventh Amendment sovereign immunity. (Plaintiffs’ Br. Addressing the Applicability of Bd. of Trustees v. Garrett at 1-16 (Doc. No. 843).) The defendants respond that the Supreme Court’s decision in Bd. of Trustees v. Garrett, 531 U.S. 356 (2001), demonstrates that the ADA did not abrogate the state’s Eleventh Amendment sovereign immunity, and, therefore, that the plaintiffs cannot sue under the ADA.
If the defendants are correct, then their Eleventh Amendment arguments apply only to the claims against STS, which is the only state agency sued in this case. Ex parte Young, 209 U.S. 123 (1908), established an exception to Eleventh Amendment immunity that allows for federal law suits seeking prospective relief against state officials who are sued in their official capacities. Edelman v. Jordan, 415 U.S. 651 (1974); State Employees Bargaining Agent Coalition v. Rowland, 494 F.3d 71, 94 (2007). The injunctive relief sought by the plaintiffs for alleged ongoing violations of the ADA and Section 504 is properly characterized as prospective.
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See Verizon Maryland, Inc. v. Public Service Com'n of Maryland, 535
U.S. 635, 645 (2002) (“In determining whether the doctrine of Ex
parte Young avoids an Eleventh Amendment bar to suit, a court need
only conduct a ‘straightforward inquiry into whether [the]
complaint alleges an ongoing violation of federal law and seeks
relief properly characterized as prospective’”) (quoting Idaho v.
Coeur d’Alene Tribe, 521 U.S. 261, 296 (1997)). The plaintiffs’
claims against the defendants Commissioner of DMR and the Director of STS fall squarely within the Ex parte Young exception.15 See
Henrietta D. v. Bloomberg, 331 F.3d 261, 288 (2d Cir. 2003)
(holding that “an individual sued in his or her official capacity
under the doctrine of Ex parte Young is . . . subject to liability
under the ADA”); Randolph v. Rodgers, 253 F.3d 342 (8th Cir. 2001)
(allowing official-capacity claims against state officials under
ADA and Section 504); Miranda B. v. Kitzhaber, 328 F.3d 1181,
1187-88 (9th Cir. 2003).
Resolution of the question of whether or not the plaintiffs
may sue STS itself, as opposed to the STS Director and the DMR
15The plaintiffs do not specify in their Third Amended Complaint whether they have sued the defendants in their official or personal capacities, but it is clear that this suit seeking injunctive relief against STS and DMR is an official-capacity suit. See Kentucky v. Graham, 473 U.S. 159, 165 (1985) (“Personal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law [while] [o]fficial-capacity suits, in contrast, generally represent only another way of pleading an action against an entity of which an officer is an agent.”) (citations and quotations omitted).
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Commissioner, for violations of the ADA would have no practical impact on the outcome of this case. An order granting injunctive relief against the state officials responsible for operating STS would have the same practical effect as an order granting injunctive relief against STS itself. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (quotations omitted) (“Official-capacity suits . . . generally represent only another way of pleading an action against an entity of which an officer is an agent,” and “[a]s long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.”); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989); Henrietta D. v. Bloomberg, 331 F.3d 261, 288 (2d Cir. 2003) (“The real party in interest in an official-capacity suit is the government entity.”) The court therefore sees no need to reach this difficult constitutional issue. C. Community Placement at STS
The plaintiffs have devoted a significant part of their case to demonstrating that community placement has substantial benefits for mentally disabled individuals who would otherwise be confined in an institution. According to the plaintiffs’ experts, many mentally retarded individuals who leave institutional settings and are placed in the community demonstrate improvements in quality of life, improvements in health, improvements in communication and
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other skills, and decreases in challenging behavior. (See, e.g.,
Pls.’ Ex 423H at 4-14 (Conroy Report) (reviewing studies of
community placement out of other institutions); Tr. 3/8/99 at 24-25
(LaVigna).) For their part, the defendants do not dispute that
community placements may benefit many mentally disabled
individuals, but their experts dispute the notion that “movement to
the community is somehow therapeutic.” (Tr. 6/9/99 at 148 (Walsh);
see also Defs.’ Ex. 13C (Walsh’s Rebuttal Report).) The defendants
claim that the plaintiffs’ experts are unreliable16 and that
16One of the defendants’ arguments about the reliability of the plaintiffs’ experts is based on Federal Rule of Evidence 702, which governs the qualification of expert witnesses and the admissibility of their testimony at trial. Relying on Rule 702 and cases such as Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), which interpret that rule, the defendants argue that all of the plaintiffs’ witnesses are unreliable. (Defs.’ Post-Trial Br. at 7-19.) These cases are simply inapplicable here because the experts have already testified and the evidentiary phase of the trial is complete. The defendants did not object when the plaintiffs moved to qualify their experts as witnesses. (See, e.g., Tr. 2/9/99 at 148 (certifying plaintiff’s witness Dr. Sue Gant as an expert without objection by the defendants); Tr. 2/3/99 at 40; Tr. 3/8/99 at 52.). The court does not believe that the defendants raised the Daubert issue at any point before the plaintiffs rested, and they cannot raise the Daubert issue now. See, e.g., Macsenti v. Becker, 237 F.3d 1223, 1233-34 (10th Cir. 2001) (reasoning that “enforcement of the requirement for the Daubert analysis [is] premised on a party’s objection” and that such objections are waived if not raised at the proper time). Of course, the court must evaluate the testimony of all witnesses, and it will discount the testimony of any witness – expert or lay – who gives testimony that is incredible or unreliable. The defendants are free to argue that any particular witness’ testimony should not be relied upon. However, the defendants’ blanket argument that the plaintiffs’ witnesses did not satisfy the gate-keeping requirements of Rule 702 is misplaced.
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community placement may have negative effects. For example, the defendants point out that difficulties may arise in ensuring effective monitoring and oversight over the provision of services to mentally retarded individuals living in the community, (Tr. 5/28/99 at 44 (Strauss)), and that it may be more difficult for individuals living in the community to gain access to specialist medical professionals (Tr. 6/9/99 at 148 (Walsh)).
The court does not take a position in a policy debate about the virtues of deinstitutionalization. The court does not doubt that placement in the community would be beneficial for many class members, but community placement may not be a possibility or a necessity for every class member. As the court has said in a previous ruling:
The most that plaintiffs can accomplish is to require STS to conform with its constitutional and statutory duty to consider the appropriateness of community placement. In no way can the plaintiffs force STS to place in community settings those for whom community placement is inappropriate. There can be little disagreement that having the right to choose between institutionalization and community placement will benefit [class members]. Messier, 183 F.R.D. at 358. Congress, in enacting the ADA, and the Attorney General, in issuing regulations interpreting the ADA, have made the judgment that mentally retarded individuals should live in the most integrated setting that is appropriate to their needs. The court must do what it can to give effect to this statutory preference for integration, while keeping in mind that it must defer to the judgment of the defendants’ medical and mental health
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professionals in determining whether community placement is appropriate for individual class members.
STS is not an integrated setting. It is a segregated institution in which all residents are mentally disabled. Furthermore, STS is a relatively isolated campus in a rural setting. (Tr. 2/10/99 at 171 (Gant); Tr. 3/2/99 at 134 (Bondy).) With the exception of day programs, residents of STS have limited opportunities to interact with people from outside the institution or with non-disabled people. (Tr. 2/10/99 at 171-74 (Gant).)
Few STS residents were placed in the community in the years preceding the trial. According to STS Director Charles Hamad, in the fiscal years 1996, 1997 and 1998, the number of community placements for STS residents was, respectively, 19, 12, and 21. (Tr. 9/13/99 at 83.)17 The plaintiffs claim that there are many more class members who would like to live in the community and who would be found qualified for community placement if professional judgment were exercised. The defendants do not seem to dispute that many or all class members could be placed in the community
17There is some uncertainty in the record about the numbers of STS residents who have been placed. Gant’s review of STS documents indicated that 66 residents had been placed between August 1994 and the end of 1998 (Tr. 2/12/99 at 61-63.) According to Gant, the placements for each fiscal year were as follows: 11 in 1994, 19 in 1995, 12 in 1997, and 3 in 1998. (Id.) George Moore, who was an assistant director and then later a codirector at STS between 1995 and the date of the trial, testified that he believed that there had been 73 placements in the community between 1995 and the trial. (Tr. 9/27/99 at 74.)
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under the right circumstances. The defendants’ witnesses,

including officials at STS, rejected a so-called “readiness model”

and testified that anyone currently placed at STS could live in the

community if provided with the appropriate “supports and services.”

(See, e.g., Tr. 9/13/99 at 114, 134 (Hamad); Tr. 3/30/99 at 154

(Mulvey); Tr. 6/9/99 at 144-45 (Walsh) (rejecting the notion that

there is a “must stay group” of class members and taking the view

that “[i]f you spend enough money you can serve anybody

anyplace”).)

I. IDT Community Placement Recommendations From 1996 Until the Trial

The services and treatment to be provided to each STS resident

are determined by an Interdisciplinary Team (“IDT”), which is

composed of the resident and his or her relatives, guardians and

advocates, staff from the resident’s residential and day programs,

the resident’s case manager, and various medical and/or programming

specialists. (Tr. 2/26/99 at 58-59 (Ale); Pls.’ Ex. 401 (DMR-1,

DMR-11).) DMR policy dictates that IDT members are to “share all

information and recommendations” with each other, and “decisions

should be made by consensus.” (Tr. 2/26/99 at 66 (Ale) (quoting

DMR 11-5).)

The IDT records its decisions, goals and

recommendations in the resident’s Overall Plan of Service (“OPS”),18

18The OPS is a “document which specifies a strategy to guide the delivery of service to a client for up to one year.” (Pls.’ Ex. 401 (DMR 11-3).)
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which must be rewritten at least once annually. (Pls.’ Ex. 401 (DMR 11); Tr. 2/26/99 at 66 (Ale).) DMR policy requires that the OPS process should focus, among other goals, on integration of residents into “normalized settings” and into “less restrictive program alternatives.” (Pls.’ Ex. 401 (DMR 11-4); Tr. 2/26/99 at 68 (Ale).) Under DMR regulations, IDTs are responsible for considering and, where appropriate, recommending community placement for individual class members. (See Tr. 2/26/99 at 75-78 (Ale).)
Prior to October of 1996, there was a process whereby community placement recommendations by IDTs were recorded and reported to the administration and, ultimately, to the DMR. (Tr. 4/5/99 at 112-13 (Howley); see also Tr. 2/26/99 at 122 (Ale, who oversaw IDTs until 1995 as Unit Director at STS, being impeached with a statement he made in his deposition that “there was an identification of need [for community placements] coming out of the individual OPSs” in previous years).) Statistics indicating the number of individuals who were interested in community placement were reported in the Monthly Management Reports issued by the central office of the DMR. (Tr. 4/5/99 at 112-13 (Howley); Tr. 9/13/99 at 103-5 (Hamad).) The October 1996, Monthly Management Report, for example, indicated that families and guardians of 40 individuals (5% of STS residents) were “very interested” in community placement, and families and guardians of 285 individuals
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(59% of STS residents) were “willing to look” into the option. (Pls.’ Ex. 390.) Prior Monthly Management Reports contain similar figures. (Id.)
Around 1996, however, the administration at STS stopped gathering information about class members’ interest in community placement from IDTs. Most OPS documents produced after 1996 do not indicate that IDTs ever made individualized community placement decisions or recommendations. The “Future Plan” sections of these OPSs, which is where community placement recommendations would ordinarily be found, do not mention community placement. (Tr. 2/26/99 at 98-101 (Ale); Tr. 2/11/99 at 147 (Gant); Tr. 3/29/99 at 78 (Ostrum Depo.) Instead the majority of these documents make generic references to residents requiring a residential setting with 24-hour supervision, but they do not indicate whether these needs should be met in a community placement as opposed to a residence on the STS campus. (Tr. 2/26/99 at 102-6 (Ale); Pls.’ Ex. 411.) In contrast, many pre-1995 OPSs specifically indicated that community placement was appropriate. (Tr. 2/26/99 at 122-23 (Ale); Tr. 3/30/99 at 136 (Mulvey).)
The change in practice was intentional on the part of STS administrators. Judith Mulvey, an assistant director at STS, admitted that, at some point in 1995 or 1996, the STS administration instructed IDTs to stop referring to placements “in the community” in OPSs. (Tr. 3/30/99 at 137; Pls.’ Ex. 426 (Mulvey
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Depo. 2/9/98 at 74-77).) William Ale, who was Director of Family
Support Services at STS during this period, testified that, in his
view, IDTs were not required to determine what the most integrated
setting would be for a resident; instead, he directed them only to
consider whether the current placement at STS was appropriate.
(Tr. 2/26/99 at 102, 107-8.) Kathryn Hanewicz, Director of Family
Support Services at STS, testified that she believes that IDTs do
not consider whether placement at STS or somewhere else would be
the most integrated setting for residents. (Tr. 7/15/99 at 60-61).
The result of this change in policy was that there ceased to
be a formal mechanism for considering community placement for class
members. Mulvey admitted that the generic statements appearing in
OPS Future Plans sections during this period were “not based on
formal assessment” of residents’ needs. (Tr. 3/30/99 at 147.) A
number of case managers who worked at STS during this period
testified that they believed that it was not part of the OPS process specifically to consider community placement.19 (See, e.g.,
19Examination of the OPSs produced during this period of time indicates that a number of IDTs continued to discuss community placement. A substantial number of Future Plans sections state that community placement would be appropriate or that residents and their guardians would be willing to consider community placement. (Pls.’ Ex. 411.) One explanation for this is that case managers continued to include the phrase “in the community” out of habit. (Pls.’ Ex. 426 (Mulvey Depo. 2/9/98 at 75).) Whatever the reason, a large number of class members whose OPS refer to community placement had not been placed at the time of the trial. (See Pls.’ Reply to Defs.’ Post-Trial Br. at 49-51 (listing 61 class members whose OPSs refer to community placement as being appropriate).)
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Tr. 3/29/99 at 22-23 (Katlamos Depo.), 31-32 (Morgan Depo.), 37 (McGuire Depo.), 60 (Palmer Depo.); see also Tr. 2/11/99 at 148 (Gant).) One of the plaintiffs’ experts, who had reviewed the practices and conditions at STS, reported that STS was unusual – even when compared to other institutions he had observed in Connecticut and elsewhere – in that its “clinical teams [were] instructed explicitly to obfuscate clients’ appropriate level of care” in this manner. (Pls.’ Ex. 423B at 43-44 (Ray’s Report).) It is apparent that during the fiscal years 1996, 1997 and 1998, for the majority of class members, the IDTs either failed to consider community placement or, in cases where community placement was considered, did not make a record of any recommendation or decision that was made regarding community placement.
The change in policy at STS followed changes in the state government and change in the leadership at DMR. In 1993, thenGovernor Wiecker announced his intention to close STS entirely, and Toni Richardson, who was then DMR Commissioner, began to develop a plan to close STS within five years. (Tr. 9/27/99 at 47 (Moore).) The announcement of this plan angered many STS residents’ families and guardians. (Id. at 48.) After Governor Rowland took office in 1995, the state changed course. (Id.) Defendant O’Meara, the incoming DMR Commissioner, emphasized improving services at STS and took the position that residents and their guardians should be able to choose whether or not to stay at the institution. (Id.)
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Instead of trying to close STS, O’Meara worked to get additional federal funding for STS by certifying as many beds as possible under the IFC/MR program. (Id. at 52.)
Statistics relating to the number of class members whose families and guardians were willing to consider community placement are strikingly absent from Monthly Management Reports produced after November of 1996. In stark contrast to the reports from October 1996 and before, the November 1996 report states that 730 residents “wish to stay” at STS and only 25 “wish to move.” (Pls. Ex. 309.) STS Director Hamad testified that he and Commissioner O’Meara jointly agreed that STS should stop reporting numbers of class members who were “willing to look” but who had not reached a decision about community placement. (Tr. 9/13/99 at 108-9.) His explanation for the decision to exclude this category is puzzling. He testified that this data
didn’t really have any meaning to us anymore. It is like asking people whether they would be interested in considering another job. A lot of people would say yes to that, but that doesn’t mean that they are out there looking for jobs. (Tr. 9/13/99 at 108.) This statement seems to reveal a belief that STS medical professionals should be absolved of responsibility to exercise their professional judgment about recommending placement in all cases except those in which a class member, a parent, or a guardian has explicitly asked for community placement. Such an attitude is inconsistent with the integration mandate of the ADA
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and § 504. ii. Availability of Placement Resources for Class Members
Another major impediment to the exercise of professional judgment in considering community placement for class members during the period from approximately 1996 until the trial was the manner in which community placements were made available for residents of STS. STS officials testified that most placements out of the institution have been “opportune,” that is they depend on an opening in an existing community residence somewhere in the state. (See Tr. 2/26/99 at 78, 84-85 (Ale).) Under the opportune placement process, the coordinator of a regional branch of the DMR notifies STS of a vacancy in his or her region. (Tr. 2/26/99 at 78-79 (Ale).) STS then sends a description of the placement opportunity to its case managers who, together with other IDT members, consider whether the placement is appropriate for any of the residents for whom the team is responsible. (Id.) If the IDT determines that placement is appropriate for an individual, and if the individual’s guardian consents to placement, a referral is made. (Tr. 2/12/99 at 62 (Gant).)
Opportune placements become available relatively infrequently.20 The availability of an opportune placement that is
20The number of opportune placements available each year is unclear. Ale testified during his deposition that three or four opportune placements become available each year. (Tr. 2/26/99 at 79-80.) At trial, he testified that this number was too low but was unable to say how many opportune placements he believed were
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suitable for a particular STS resident depends entirely on what openings occur in the regions. (Tr. 2/26/99 at 78-79 (Ale).) STS residents must compete with other disabled individuals in Connecticut for these openings. (Id.) Furthermore, because STS residents already have a place to live, they are not considered to be a high priority for opportune placements. (Tr. 9/27/99 at 73 (Moore); see also Pls.’ Ex. 423B at 44 (Ray’s Report) (reporting that senior staff at STS believe that class members are “discriminated against in their opportunities for community placement”).)
The resulting scarcity of opportune placement for class members is highly problematic because it further restricts opportunities for professional judgment to be exercised. Ale testified that case managers and IDTs “are not supposed to make a judgment” about community placement and are only responsible for referring a resident to a community placement “if an opportunity becomes available.” (Tr. 2/26/99 at 90.) Dr. Sue Gant, one of the plaintiffs’ experts, reported that she had learned that case managers did not make referrals for community placement because there were insufficient resources with which to place class members. (Pls.’ Ex. 423C at 36.) Gant estimated that approximately 650 STS residents have never had the benefit of a referral for a community placement. (Tr. 2/12/99 at 58.) This
available each year. (Id.) 76

practice violates DMR policy, which requires that the OPS “should be built around the individual needs of each client regardless of the availability of resources.” (See Pls.’ Ex. 401 (DMR 11-4).) Kevin Walsh, one of the defendants’ experts, testified that he believes that it is improper for an institution to restrict IDTs from considering community placement and that IDTs should be allowed to “do that without consideration of availability of resources.” (Tr. 7/21/99 at 136-38.)
Even in cases in which STS determines that placement is appropriate, a resident who is referred for an opportune placement may be rejected by the regional director, who will make the ultimate determination of whether to accept a resident who has been referred by his or her IDT. (Tr. 2/26/99 at 79 (Ale).) As a result, many referrals by STS have not resulted in a placement. (Tr. 2/11/99 at 152 (Gant).) Furthermore, while it is possible to modify opportune placements to some extent in order to accommodate the needs of a resident, it is also the case that an opportune placement may simply not be appropriate for a class member who has been referred for placement. (Tr. 9/27/99 at 73-74 (Moore).) Some class members who have requested placement in the community have been referred for placement a number of times but have been rejected by the regions on each occasion. (Tr. 2/26/99 at 98 (Ale); Pls.’ Ex. 340.) According to Gant’s review of the 108 STS residents referred for placement from 1994 to 1998, only 66 were
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successfully placed. (Tr. 2/12/99 at 62 (Gant).) Another major weakness of the opportune placement process is
that STS has no control over what community placement resources become available through opportune referrals. STS and DMR therefore cannot systematically develop resources appropriate to STS residents’ placement needs. (Pls.’ Ex. 423C at 33 (Gant’s Report); Tr. 2/26/99 at 23-24 (Ale); see also id. at 89 (Ale) (testifying that there should be “some process to create resources in the regions to accommodate people at [STS]”); see also Tr. 3/29/99 at 59 (Palmer Depo.) (testifying that case managers at STS cannot do anything to ensure that there are community placement resources for class members who wish to leave STS).)
Thus, the opportune placement system severely limits the exercise of professional judgment with regard to community placements, and, even in the few cases in which STS does exercise professional judgment, such judgment may be thwarted when a class member is rejected by a regional director.
In addition to opportune placement, there also exists a procedure through which DMR may develop community placements for particular STS residents. When a resident or his or her guardian indicates a preference for community placement, the DMR Commissioner is able to request funding from the legislature for an appropriate placement for the subsequent fiscal year. (Tr. 7/15/99 at 34-35 (Hanewicz); Tr. 9/13/99 at 133 (Hamad); Tr. 10/20/99 at 62
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(Dignoti).) A limited number of STS residents were placed in the community through this process prior to 1997. (See Tr. 2/4/99 at 76; Tr. 9/27/99 (Moore) (describing the appropriation of funds for community placement of STS residents as a “rare occurrence”).) However, the Commissioner of DMR requested no additional funding for placement for class members for the fiscal years 1998 and 1999 (Tr. 10/20/99 at 63 (Dignoti). Instead, Commissioner O’Meara told a legislative appropriations committee that no funding for additional community placement for STS residents was needed because he could meet the placement needs of the few individuals who wanted to leave STS through opportune placements. (Tr. 10/20/99 at 63 (Dignoti).)
The Commissioner requested funding for community placement for a total of 14 class members for the fiscal year 2000. (Tr. 2/26/99 at 86 (Ale).) As noted above, at this point there was no process in place to gather data on IDTs’ recommendations for community placement from class members’ OPSs. Instead, the Commissioner and the STS administration based their representations to the legislature on a one-time survey conducted in 1996 (the “Family Survey”) of families and guardians of class members. (See Pls.’ Ex. 426 (O’Meara Depo. 11/17/97 at 109); Tr. 2/26/99 at 85-86 (Ale).) As discussed below, the Family Survey was deeply flawed and should not have been relied on in this manner. iii. Reliance on the 1996 Family Survey and the Wish to Leave List
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The Family Survey consisted of a one-page questionnaire and cover letter that was mailed to families and guardians of STS residents in May of 1996. (Pls.’ Ex. 370.) The cover letter informed guardians and families that the purpose of the mailing was for DMR to solicit their “input regarding living arrangements for individuals living at STS.” (Id.) The questionnaire contained three questions. Question 1A asked “Would you/your relatives like to remain at STS?” and required an answer of either “Yes” or “No.” Question 1B elicited indications of respondents’ interest in various living arrangements for their wards; this question asked respondents to indicate, on a scale of one to five, their interest in placements at a “DMR Campus/Regional Center,” at a “Community Living Arrangement or Group Home,” at a “Supported Living” arrangement, and at a “Community Training Home.” (Id.) The survey provided brief, one-sentence descriptions of each of these kinds of living arrangements. (Id.) The survey also provided respondents with an opportunity to indicate that they would like additional information about any of these options, or that they were interested in taking advantage of any of these options immediately, or that they would be willing to consider any of these options in the future. (Id.) The third question, on the back of the questionnaire, inquired after respondents’ “overall” interest in “community placement;” respondents were given the opportunity to indicate that they were “very interested,” “willing to look and
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consider,” or “not interested.” (Id.) Seven hundred and forty-one, or 97% of the parents and
guardians who responded to the survey, answered “Yes” to Question 1A, indicating that they would like their wards to “remain at STS.” (Pls.’ Ex. 371.) The families or guardians of only 28 STS residents answered “No” to this question. (Id.) The defendants interpreted the responses to the first question to mean that guardians overwhelmingly opposed community placement. The DMR Commissioner seems to have relied on these results when he took the position before the legislature that no funding was needed for community placement for STS residents for a two-year period. (See Tr. 9/13/99 at 79-80 (Hamad).) The survey results for Question 1A are suspiciously similar to the figures purporting to reflect interest in community placement in the November 1996 Monthly Management Report, the first such report to eliminate reference to the category of guardians who were undecided but “willing to look” into community placement.21
Twenty-four of the 28 STS residents who answered Question 1A
21Hamad denied that the Family Survey was used to “capture people’s interests in looking at community placement.” (Tr. 9/13/99 at 109.) However, neither Hamad nor the defendants have suggested an alternative source for the statistics in the Monthly Management Reports for November 1996 and later. Furthermore, Moore, who was the STS assistant directly responsible for community placement from 1995 to 1998, testified that the Family Survey was the “only formal tool [he] had” to determine how many STS residents were interested in community placement. (Tr. 9/27/99 at 128-29.)
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in the negative were placed on a so-called “Wish to Leave List,” and placements were actively sought for these individuals (Tr. 2/26/99 at 15-17 (Ale).) The defendants considered the class members on the Wish to Leave List to be priorities so that they would be referred for opportune placements ahead of other residents. (Tr. 2/26/99 at 81-83, 85-86 (Ale); Tr. 2/11/99 at15152 (Gant).) The 14 community placements for which the Commissioner requested funding for the fiscal year 2000 included placements for the 10 class members remaining on this list at that point.22 (Tr. 2/26/99 at 17, 85-86 (Ale); Tr. 9/27/99 at 97 (Moore); Pls.’ Ex. 371.) Moore testified that after the Family Survey, neither case managers nor IDTs had any “direct input” into the number of community placements for which funding was requested from the legislature. (Tr. 9/27/99 at 129-30.) It is therefore clear that O’Meara’s recommendation to the legislature had very little to do with the exercise of professional judgment.
The Family Survey, and Question 1A in particular, was not a reliable indicator of whether parents and guardians would consent to community placement.23 The responses to Question 1B demonstrate
22Ale testified that the remaining four placements were to be allocated to other class members according to demand. (Tr. 2/26/99 at 85-86.)
23The defendants continued to rely on the responses to Question 1A well into the trial. The report submitted by the defendants’ expert Kevin Walsh relies in part on the fact that 97% of the survey’s respondents answered “Yes” to Question 1A to demonstrate that class members, families, and guardians were
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that families and guardians were considerably more willing to consider community placement than was suggested by the responses to Question 1A and by the statistics subsequently reported in the November 1996 Monthly Management Report. For example, 108 respondents indicated that they were either “very interested” or “somewhat interested” in a “Community Living Arrangement or Group Home.” (Pls.’ Ex. 371.) An additional 72 respondents were “not sure” about this category. (Id.) Similarly, responses to the third question on the questionnaire indicate that at least 70 respondents were either “very interested” in community placement or were “willing to look.”24 (Pls.’ Ex. 383A.) That the statistics reported by the DMR did not paint a complete picture of how families and guardians felt about community placement should have been obvious to the defendants from a comparison of the responses to Question 1A with the figures reported in the pre-November 1996 Monthly Management Reports. The defendants knew that the results of Question 1A did not reflect guardians’ interest in community placement. Dr. Hamad himself testified that he believes that the guardians of “most everyone,” including the STS Foundation, would be “absolutely interested” in considering community placement for
satisfied with placement at STS. (Defs’ Ex. 13B at 50.) 24A very large number of the completed surveys show that
respondents originally indicated that they were “willing to look” but that these responses were crossed off and changed to “not interested.” (Pls. Ex. 383A.) The court is unaware of any explanation for this surprisingly large number of changes.
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their wards. (Tr. 9/13/99 at 113-14.) The Family Survey itself was misleading. The cover letter
explained that families and guardians could “change [their] mind at any time.” (Pls.’ Ex. 371.) The letter did not say that the survey presented a final opportunity to consent or withhold consent to community placement. The letter also explained that, if parents and guardians were interested in community placement, STS “would work closely with the Regions to identify and take advantage of any available opportunities or possibly to initiate development of a particular option.” (Pls.’ Ex. 370) This statement suggests – perhaps accurately – that community placement would take place mainly through the opportune placement process and that any placement would depend on coordination with the regions. Families and guardians who were informed that placements would be developed specifically for their wards might have been more willing to express an interest in community placement.
Apart from the one-sentence descriptions, neither the survey nor the cover letter gave much sense of what placement options were available. This might have encouraged respondents to “play it safe” by indicating that they preferred their wards to remain at STS, the option with which they were most familiar. (Tr. 4/7/99 at 186 (Conroy).) Expert testimony established that efforts to educate guardians about community placement are often successful in changing their attitudes. (Tr. 2/11/99 at 134 (Gant); id. at 125
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(Gant) (explaining that guardians of institutionalized wards are
generally more likely to favor community placement when faced with
concrete options for placement than when considering the abstract
possibility that their ward could live in a more integrated
setting).) James Conroy, one of the plaintiffs’ experts, who has
experience in conducting studies of deinstitutionalization, found
the Family Survey to be so flawed in this respect that he was
amazed that as many as 24 guardians and family members had the
“courage” to answer “No” to the first question. (Pls.’ Ex 423H at
10-11 (Conroy’s Rebuttal Report).)25
The Family Survey was not a substitute for the individualized
consideration of community placement that should have taken place
with mental health professionals, class members, families, and
guardians at the IDT level. The defendants’ reliance on the Family
Survey, together with the limits on availability of placements
25The 1996 Family Survey may also have been tainted by its similarity and temporal proximity to a 1993 survey conducted by the Home and School Association (“HSA”), after then-Governor Wiecker announced his intention to close STS entirely. (See Tr. 9/27/99 at 47 (Moore); Tr. 3/2/99 at 101 (Bondy).) The HSA, an independent organization, was opposed to the closure of STS, and the 1993 survey was intended to demonstrate that guardians were also opposed to the idea. The question posed in the 1993 survey – “I or we would like our STS relatives to remain at Southbury Training School” – was almost identical to Question 1A from the Family Survey. (Tr. 3/2/99 at 109 (Bondy).) The responses to this question were almost identical as well: 95% of respondents to the 1993 survey answered “Yes.” (Id.) It is therefore unclear whether families and guardians would have understood Question 1A as referring to community placement, as opposed to respondents’ general level of satisfaction with STS, at all.
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imposed by the opportune placement procedure and the failure of IDTs to systematically consider integrated settings for class members, effectively precluded the exercise of professional judgment in determining the appropriateness of community placement for most class members.
The defendants’ reliance on the responses to Question 1A of the Family Survey is particularly troubling with respect to the approximately 170 class members who are wards of the Southbury Training School Foundation (“STS Foundation”). The STS Foundation indicated on the Family Survey that it wished all of its wards to remain at STS. (Tr. 3/2/99 at 102 (Bondy).) The evidence reveals that Anne Rotzal of the STS Foundation filled out Family Survey questionnaires for all of the organizations’s wards without making any kind of individualized determination about whether community preference was desirable. (See id. at 111 (Bondy) (“[M]y understanding is that [Rotzal’s] reasoning went like this, I know what’s at Southbury, and I don’t know what the alternative is, so I’ll vote for what I know.”).)
The STS Foundation has in the past been “unenthusiastic” about community placement. (See Tr. 3/2/99 at 85-86, 117 (Bondy).) The plaintiffs admitted into evidence a series of letters from 1994 and 1995 in which Dr. Howley, who was then Director of STS, attempted to address the STS Foundation’s unwillingness to “seriously consider” community placements that had been recommended for
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particular STS Foundation wards by case managers. (Pls.’ Exs. 141151; Tr. 3/2/99 at 53-58 (Bondy).) At some point the STS Foundation entered into a compromise agreement under which IDTs would cease to mention community placement in OPSs for STS Foundation wards. (Tr. 3/2/99 at 39-41 (Bondy); Tr. 4/5/99 at 98100 (Howley).) According to Philip Bondy, Chairman of the Guardianship Committee of the STS Foundation, the organization later began to take a more favorable view of community placement and developed various lists of wards for whom the Foundation believed that community placement was appropriate. (Id. at 78-79; see also Pls.’ Ex. 141).) However, there is no evidence that the Foundation ever passed this information on to STS for inclusion in the Wish to Leave List. Nor are these lists reflected in the STS Foundation’s responses to the Family Survey. (Tr. 3/2/99 at 124 (Bondy).)
The defendants’ reliance on the Family Survey as a substitute for gathering information about community placement recommendations from IDT meetings prevented professionals from exercising their judgment about community placement recommendations and deprived class members of the opportunity to be placed in more integrated settings. As a result, community placement of class members during the period from approximately 1996 until the time of the trial was clearly not the result of long-term planning based on a careful evaluation of class members’ needs. However, the court does not
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mean to suggest that the defendants are required to ignore decisions made by guardians. Ninety-seven percent of class members live under some form of guardianship; of these, 67% have plenary guardians and 33% live under a more limited form of guardianship. (Tr. 6/2/99 at 104 (Cole).) Plenary guardians are “the primary decision maker with respect to programs needed by [their wards] and policies and practices affecting the well-being of [their wards].” Conn. Gen. Stat. § 45a-677(i). Limited guardians are granted a similar decision-making power “with respect to such duties assigned to the limited guardian by the court.” Id.
Under the ADA, the defendants are under no obligation to refer class members for community placement if class members wish not to be placed in the community. When a court has found that an individual is unable to make “informed decisions about matters related to his care” and appoints a guardian, see Conn. Gen. Stat. § 45a-676(a-b), then responsibility for making this kind of decision necessarily falls to the guardian, not the individual. It is therefore appropriate that STS officials will not refer a resident for placement in the community without the consent of a guardian.26 (See, e.g., Tr. 9/13/99 at 115-17 (Hamad); Tr. 2/26/99
26The Family Survey responses include responses from limited guardians who might not have the authority to withhold their consent to community placement. STS treated guardians’ responses in the same manner without distinguishing between different kinds of guardianship and without determining whether limited guardians had the power to withhold this consent. (Tr. 7/15/99 at 69-72 (Hanewicz).) This is an additional reason that the defendants
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at 17-19, 67 (Ale); Tr. 3/29/99 at 68 (Martin Depo.); Tr. 3/25/99 at 52 (Greusel).)
The plaintiffs dispute the notion that guardians have the power to withhold consent to community placement. They argue that “the right to refuse appropriate community alternatives . . . rests with the class member not his guardian.” (Pls.’ Post-Trial Br. at 144; see also id. at 118-19; Pls.’ Proposed Conclusions of Law at 23) The plaintiffs do not address the Connecticut guardianship statutes, which give guardians the power to refuse to consent to community placement. Instead, they argue that, as a matter of due process, a state cannot give guardians a “veto” power over community placement decisions affecting their wards.
The cases cited by the plaintiffs in support of this argument are inapposite. The majority of the cases they cite involve the rights of individuals with mental retardation and mental illness to procedural safeguards at civil commitment proceedings. E.g., Parham v. J.R., 442 U.S. 584 (1979); Sec’y of Pub. Welfare v. Institutionalized Juveniles, 442 U.S. 640, (1979); Heller v. Doe, 509 U.S. 312 (1993); Doe v. Austin, 848 F.2d 1386 (6th Cir. 1988). The plaintiffs are correct that these cases sometimes recognize that the interests of guardians and wards may diverge. See, e.g., Parham, 442 U.S. at 608 (holding that a child whose parents sought
should not have relied on the responses to the Family Survey in determining which class members would be considered for community placement.
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to have him committed to a state facility had a due process right to an inquiry by a “neutral fact-finder,” such as a doctor, though he did not have a right to a full judicial commitment proceeding). However, the context of civil commitment should be distinguished from community placement. The Supreme Court has recognized that involuntary commitment to an institution is “a massive curtailment of liberty” that requires due process protections, including the right to a hearing. See Vitek v. Jones, 445 U.S. 480, 491-492 (1980). It is for this reason that, for example, the commitment of an individual with mental retardation by his or her guardian is considered involuntary and requires a hearing. See Austin, 848 F.2d at 1392. In contrast, community placement decisions implicate due process in a much less drastic manner; there is no constitutional right to placement in the community but, instead, only a constitutional right to have professionals exercise their judgment as they must in any decision regarding treatment, programming or the use of restraints at a state institution. Society for Good Will, 737 F.2d at 1249. Cases involving the rights of guardians and wards at civil commitment proceedings are therefore inapplicable here.
The plaintiffs’ reference to Planned Parenthood v. Danforth, 428 U.S. 52 (1976), a case in which the Supreme Court struck down a parental consent requirement for abortions performed on minors, is similarly unpersuasive. In holding that a requirement that all
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minors obtain consent before undergoing an abortion was overbroad, the Court in Danforth “emphasize[d] that [its] holding [did] . . . not suggest that every minor, regardless of age or maturity, may give effective consent for termination of her pregnancy.” Id. at 75 (citing Bellotti v. Baird, 428 U.S. 132 (1976)). Even if this case were applicable in the present context,27 its reasoning is consistent with the kind of decisions that are made by guardians about community placement. Under the Connecticut guardianship statute, guardians are only appointed for individuals who are determined by a court to be incapable of making informed decisions. Wards therefore fall into an exception that is analogous to the exception recognized in Danforth. Another case cited by the plaintiffs, Milonas v. Williams, 691 F.2d 931, 943 (10th Cir. 1982), which involved parental consent to certain disciplinary practices at a school for youths with behavioral problems, relied on this same reasoning from Danforth and Bellotti and is therefore unhelpful to the plaintiffs.
In Thomas S. v. Morrow, 601 F. Supp. 1055, 1060-61 (D.C.N.C. 1984), the issue of guardians’ control over community placement decisions was raised, but the court declined to rule on the issue, and, therefore, the plaintiffs’ reliance on the case is misplaced.
27Bellotti, 428 U.S. at 148-50 held that consent procedure for abortions were distinguishable from consent procedures for other kinds of medical procedures. It would therefore most likely be incorrect to apply these cases to community placement decisions.
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Id. The issue of a so-called “guardian veto” did not arise in Clark v. Cohen, 613 F. Supp. 684 (D.C. Pa. 1985), and so the plaintiffs’ citation to that case is mysterious. The plaintiffs also refer to Richard S. v. Dep’t of Developmental Servs., No. CV 97-219 at *18 (C.D. Ca. 2000), an unpublished opinion in which the court stated that it was “not appropriate” to give “parents, conservators, and other legal representatives veto authority to overrule . . . residents’ preferences and/or best interests.” The court’s reasoning seems to have been based on interpretations of California law rather than the United States Constitution. This court is not persuaded that the quotation is a correct statement of the law applicable to this case. Furthermore, it seems obvious that guardians may, in fact, override a ward’s preferences in many situations; they may do so, for example, when a ward’s preference is for something that is not in his or her best interest.
However, the power of guardians to make decisions affecting their wards’ treatment does not excuse the defendants’ failure to make community placement available or their failure to exercise professional judgment in the overwhelming majority of cases. Guardianship does not completely divest a mentally retarded individual of the right to participate in decisions. In making decisions affecting the “well-being” of a ward, a guardian “must consult with the ward and appropriate members of the ward’s family, where possible.” Conn. Gen. Stat. § 45a-677(i). See also Oller v.
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Oller-Chiang, 230 Conn. 828, 848-853 (1994) (reviewing scholarship

about the importance of including wards in the decision-making

process and holding that a court must consider a ward’s preference

in selecting a guardian). Furthermore, a guardian should not be

allowed simply to ignore the advice of medical professionals. See

Conn. Gen. Stat. § 45a-678 (providing for the appointment of a new

guardian where a court finds it to be in the best interest of the

ward).

In addition, professional standards require that the opinion

of an individual with mental retardation be taken into account in

making community placement decisions. (Tr. 2/9/99 at 157 (Gant);

Tr. 4/7/99 at 192 (Conroy); Pls.’ Ex. 423H (Conroy’s Rebuttal

Report) at 11.) Conroy testified that many mentally disabled

individuals like the class members are capable of indicating that

they have an opinion about where they wish to live. (Tr. 4/7/99 at

192.) Gant estimated, based on her study of the institution, that

between 80 and 100 class members were interested in community

placement. (Tr. 2/11/99 at 172.) Ale admitted that he knew of

class members who had expressed a desire to be placed in the

community and who had not been placed because their guardians

withheld consent

(Tr. 2/26/99 at 18-19.) The defendants’

procedures encouraged guardians to make a final decision about

community placement in their responses to the Family Survey before

wards had an opportunity to be consulted.

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When professional judgment indicates that a mentally retarded individual should be placed in the community, or when such an individual wishes to be placed in the community, it may be appropriate to challenge the decision of a guardian who refuses to consent to community placement. STS officials agree that it is appropriate to challenge a guardian who insists that his or her ward remain at STS even after professionals have determined that the ward’s needs would be better met in the community. (See Tr. 9/13/99 at 116 (Hamad) (“[W]e would not place someone over the objection of the guardian unless we had an issue relative to meeting that person’s needs.”); Tr. 7/14/99 at 122-24 (Hanewicz); Tr. 3/29/99 at 70-71 (Martin Depo.); Tr. 6/1/99 at 93-94 (Foxx).)
DMR regulations allow the agency to transfer STS residents to other residential settings against the wishes of guardians. (See Pls.’ Ex. 410 (DMR Administrative Directive 15) (providing for an administrative hearing at which DMR may show by clear and convincing evidence that transfer is in the best interests of the resident and that the new placement “provides a greater opportunity for personal development” than the resident’s current placement).) In some cases, it may also be appropriate to petition a court to remove a guardian who refuses to consent to community placement. See Conn. Gen. Stat. 45a-678. The problem with the defendants’ policy is that, in cases in which the guardian’s response to the Family Survey had “vetoed” community placement, the opportunity to
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challenge a guardian’s refusal to consent to community placement would never arise because IDTs were prevented from determining whether community placement was appropriate.
The ADA’s preference for integrated settings is not consistent with a procedure in which remaining at STS is the default option for residents. The defendants cannot establish compliance with the integration mandate by showing that class members never requested community placement. The Supreme Court’s reasoning in Olmstead makes it clear that a state must do more than wait until the residents of its facilities have affirmatively asked to be placed in the state’s integrated residential settings; the state’s failing in Olmstead was that it did not place the residents even after its “own professionals had determined that community-based treatment would be appropriate for [the two residents] and neither woman opposed such treatment.” Olmstead, 527 U.S. at 603. The regulations do not conceive of a resident’s option to decline community placement as a right that is to be exercised before any professional judgment has been brought to bear. Rather, the regulations state that “persons with disabilities must be provided the option of declining to accept a particular accommodation.” 28 C.F.R. pt. 35, App. A, p. 350 (1998) (emphasis added); quoted in Olmstead, 527 U.S. at 603.
An opportunity to discuss the possibility of community placement with guardians could make a substantial difference in the
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number of referrals for placement. Ale agreed that “the availability of resources is extraordinarily important in working with parents and educating them about the benefits of community placement.” (Tr. 2/26/99 at 94; see also Tr. 4/6/99 at 95-96 (Moore). Richard Foxx, one of the defendants’ experts, testified that he believes the role of the IDT is to make recommendations to which guardians should listen before making a decision about community placement or any other aspect of a ward’s treatment. (Tr. 6/1/99 at 93-94.) By concluding from the results of the Family Survey that there is no demand for community placements, the defendants may have prevented guardians and families from making informed choices.
There is a significant difference between, on one hand, a procedure in which a guardian’s response to a somewhat misleading question on a survey determines whether or not the ward will ever be considered for community placement and, on the other hand, a process in which guardians are allowed to consider community placement during an IDT meeting at which the guardian has an opportunity to consult with professionals and with the ward. The former procedure deprives class members of their constitutional right to the exercise of professional judgment and undermines the integration mandate of the ADA and Section 504. The latter procedure appears to the court to be consistent with these laws and does not interfere with a guardian’s right to withhold consent.
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The evidence shows that the defendants have not reached a
satisfactory balance between respecting the rights of guardians to
withhold consent for community placement and the requirements that
state officials exercise professional judgment in considering
community placement and that they give effect to the integration
mandate of the ADA and Section 504.28 The defendants should not
have waited until a resident or guardian affirmatively asked for
community placement. They should have given class members and
their guardians an opportunity to consider community placement
before declining the option. Instead, the defendants failed to
discuss community placement at IDT meetings. They failed to gather
information about the number of class members for whom community
placement was appropriate. Having failed to learn how many class
members could or should be placed in the community, the defendants
failed to develop resources for placing class members. Instead,
the defendant Commissioner of DMR told the legislature that there
28Another example of the defendants’ deference to guardians is Mulvey’s explanation that IDTs were instructed to cease mentioning community placement on OPSs because the STS administrations wanted to avoid conflicts between guardians who opposed community placement and members of the IDTs who recommended community placement. (Pls.’ Ex. 426 (Mulvey 2/9/98 Depo. at 76); Tr. 3/30/99 at 136-37 (Mulvey).) This explanation is undermined by the fact that the Monthly Management Reports issued before November 1996 indicated that there were some 285 class members whose families and guardians were relatively openminded about community placement. It is difficult to believe that these family members and guardians would find themselves in conflict with a case manager who inquired about their preference for community placement. Mulvey’s explanation also demonstrates an unwillingness to comply with the integration mandate.
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was no demand for community placement. Class members, or at least class members who were not included on the Wish to Leave List, were thus deprived of the right to have a professional determine whether it would be appropriate to place them in a more integrated setting. iii. Community Placement Under EMPOWER
In May 1999, after the plaintiffs’ case in chief was complete, DMR issued a document in which it set forth its policy on community placement for STS residents. This document (Pls. Ex. 1132) was titled “Expanding Meaningful Placement Options With Equity and Respect: Refining and Enhancing the ‘Choice’ Model for Residential Placement, Support, and Service Decision-Making for STS Residents” and is commonly referred to as “EMPOWER.” The EMPOWER policy applies solely to STS residents. (Tr. 9/27/99 at 133 (Moore).) The timing of the issuance of this document suggests that the promulgation of the EMPOWER policy was at least in part a response to criticism of the community placement procedures at STS by the plaintiffs and Special Master Ferleger. See Report to the Court No. 7: Community Placement: A Preliminary Study, U.S. v. Conn. (Feb. 23, 1999). Moore admitted that the document was created in recognition of the fact that the Family Survey was three years old at that point. (Tr. 9/27/99 at 182.)
EMPOWER is premised on a model of “choice;” the policy assumes that “[a]ny person with mental retardation . . . may be served in any setting – any site – as long as appropriate supports and
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services are available.” (Pls.’ Ex 1132.) The defendants have indicated that, under the policy, limitations on resources will not restrict placement of class members in the community. (Tr. 9/27/99 at 74 (Moore); Tr. 10/21/99 at 42 (Sterns).) As part of the EMPOWER policy, the defendants have established a “community reserve fund” which is intended to function as a third way, in addition to opportune placement and appropriations from the legislature, to fund placements for STS residents. (Tr. 9/27/99 at 74-78 (Moore).
EMPOWER is intended to implement a “continuous assessment of choice” to determine class members and guardians’ interest in community placement. Under the policy, each guardian is to receive a “Quarterly Assessment of Choice” form which asks, “Do you want the Department to actively pursue and plan an alternative placement for [the STS resident]?” (Pls.’ Exs. 663, 1132.) Guardians may answer “Yes” or “No” to this question. (Pls’ Ex. 1132.) This question must also be posed to guardians at each IDT meeting, and, if the guardian is not present at the meeting, the guardian can be contacted by telephone or mail. (Pls.’ Ex. 663; Tr. 9/27/99 at 150, 176 (Moore).) The guardian may respond before, during or after the IDT meeting. (Tr. 7/15/99 at 50 (Hanewicz).) The guardian’s response is then included in the resident’s OPS. (Pls.’ Ex. 663.)
EMPOWER requires IDTs to consider community placement only
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when guardians answer ‘Yes.” (7/15/99 at 55-56 (Hanewicz); Tr. 9/27/99 at 141-42, 172-73 (Moore).) The policy states that “as a general rule, alternative residential placements, supports and services shall be actively pursued and planned when the resident or his or her guardian, as appropriate, chooses to pursue and plan such alternatives.” (Pls.’ Ex. 1132.) However, residents whose guardians have not answered “Yes” to the quarterly form may still be considered for opportune placements as they arise. (Tr. 7/15/99 at 55-56 (Hanewicz).) The purported reasoning behind a procedure in which consideration of community placement may only be initiated by a guardian’s request is that IDTs should not “need to engage in an unnecessary assessment process to determine who may be ‘eligible’ or ‘ready’ for [community placement] because all STS residents are ‘eligible’ and ‘ready.’” (Id.) The policy requires that STS attempt to override a guardian’s choice only when the IDT finds that placement at STS is not meeting the resident’s needs, or when there is a conflict between the guardian and the resident. (Id.; Pls’ Ex. 663.) When STS recommends placement in either of these scenarios, a guardian may challenge the decision through an administrative process or in court under Conn. Gen. Stat. § 17a210.29 (Pls. Exs. 663, 1132.)
According to the compiled responses to Quarterly Assessment of
29Conn. Gen. Stat. § 17a-210 provides for procedures to challenge the decision by the DMR Commissioner to transfer an individual from one state facility to another.
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Choice forms that were admitted into evidence at trial, 28
guardians indicated that they wished to actively pursue community
placement. (Pls’ Proposed Findings at 220.) It is therefore
apparent that community placement is being considered for some
additional class members than was the case under the old
procedures. In many ways, EMPOWER appears to conform more closely
with the requirements of the due process and the integration
mandate than previous procedures. EMPOWER makes community
placement resources more readily available, though as of the time
of trial the usefulness of the Community Resources Fund had yet to
be tested. The defendants have implemented a somewhat more
reliable system for ascertaining guardians’ choices regarding
community placement. Because the process of assessing choice is
intended to be continuous, class members are less likely to be
totally deprived of the opportunity to have a professional exercise judgment about his or her possible placement in the community.30
The plaintiffs object to the EMPOWER policy because it allows
IDTs to refrain from considering community placement for all class
30The court notes that some class members seem again to have been arbitrarily deprived of this opportunity. Examination of the compiled Quarterly Assessment of Choice forms indicates that case managers sometimes completed the forms without consulting guardians. For example, the form for William B. indicates that DMR is not to actively pursue community placement even though the case manager explains that she was unable to reach William’s guardian. (Pls.’ Ex. 1134; see also Quarterly Assessment of Choice forms for Wendy C. and Anthony D.) Case managers should not treat “No” as the default answer to the Quarterly Assessment of Choice.
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members whose guardians do not answer “Yes” to the single question posed by the Quarterly Assessment form. (Pls.’ Post-Trial Br. at 129-30.) As discussed above, the plaintiffs are incorrect insofar as they claim that allowing guardians to make choices about community placement always constitutes a denial of due process. Many of the responses to the Quarterly Assessment of Choice forms indicate that guardians are adamantly opposed to community placement and feel that their wards are happy and receive excellent care and programming at STS. (E.g., Pls.’ Ex 1134 (Quarterly Assessment of Choice for Helen G.).) Assuming that a professional has considered community placement and has not determined that the guardian’s perception is inaccurate, STS has no duty to attempt to override the guardian’s decision in a case such as this.
However, the court is concerned, for example, about what happens after a guardian checks “No” on the form even though he or she is somewhat open to considering placement. Many guardians indicated on their Quarterly Assessment of Choice forms that they did not want to “actively” pursue community placement but also indicated in the “Comments” section of the form that they would consider community placement if an opportunity arose. (Pls.’ Ex. 1134; see, e.g. Quarterly Assessment of Choice for Catherine A.) The plaintiffs claim that out of 693 completed forms there were 34 such responses. (Pls.’ Proposed Findings at 513 ¶ 220.) There could well be additional guardians with similar feelings who failed
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to note their willingness to consider community placement on the forms. The wards of these guardians should not be deprived of an opportunity for an IDT to consider whether community placement would be appropriate for them.
Furthermore, a number of responses also indicate that some guardians are not familiar with what resources would be available for their wards in a community placement. For example, the guardian for Thomas D. answered “No” to the Quarterly Assessment question but then indicated that she would consider a community placement if “it would have everything STS has, including 24 hour medical care.” (Pls.’ Ex. 1134.) Similarly, Sandra G.’s guardian answered “No” and indicated that “placement can only be allowed if it meets Sandra’s specific need.” (Id.) The guardian for Richard D. said that “there was no reason to develop another home” but that she would “consider alternatives if presented and they offer Richard an improvement from what he has now.” (Id.) It is possible that guardians like these would consent to community placement should they be presented with a concrete opportunity. Furthermore, guardians can choose not to have IDTs consider community placement even without being present at the IDT meeting. As a result there is a danger that guardians who are not involved in their wards lives will select “No” on the Quarterly Assessment of Choice without seriously considering community placement, thus depriving their wards of the opportunity for professional judgment
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to be exercised.31
As discussed above, a policy of failing to consider community
placement unless a guardian affirmatively requests it violates the
integration mandate. Such a procedure also prevents IDTs from
exercising professional judgment in determining whether the class
member could benefit from community placement. DMR policy, which
requires that the OPS process focus on integrating residents into
“normalized settings” and into “less restrictive program
alternatives” (Pls.’ Ex. 401 (DMR 11-4)), would suggest that the
31The court is particularly concerned about what information is available to guardians and families in light of some of the completed Quarterly Assessment of Choice forms contained in Plaintiffs’ Exhibit 1132. Two of these forms are identical to the usual forms except that they contain an additional note that reads
HOME & SCHOOL ASSOC. NOTE: This is the new form STS is asking guardians to sign – If you say yes to actively pursue alternative placement your name goes on a placement list. DMR sets aside money and a home is developed for the resident – But you don’t know who the provider will be, what supports are available or what services the person will receive.
(Pls.’ Ex. 1132 (Quarterly Assessments of Choice for Mary B. H and Alec M.W.).) This note would discourage many guardians from answering yes to the question on the form. Moore testified that the note was misleading and that he did not know how or why these forms were sent to guardians. (Tr. 9/27/99 at 177-81.) One possibility is that the Home and School Association mailed this version of the form to guardians and that the guardians for these two class members returned this version to STS instead of the official version. In any event, there is a grave danger that guardians who receive forms like this did not make an informed choice. The danger of uninformed choices would be diminished if IDTs had a practice of considering community placement in every case and, if appropriate, discussing options with guardians and their wards.
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professionals on IDTs should raise the issue of community placement for all class members, and in particular for those class members whose guardians are undecided about the idea of placing their wards in the community. (See also Pls. Ex. 663 (letter of April 15, 1999) (explaining to guardians that community placement will be “formally discuss[ed] within the [IDT] process”).) However, the EMPOWER policy allows IDTs to refrain from considering community placement for these class members. Thus, the court is unable to conclude that the EMPOWER policy satisfies Youngberg or the integration mandates of Title II and Section 504. The court sees no reason why STS professionals should not be required to consider the appropriateness of community placement in every case. See, e.g., Thomas S., 902 F.2d at 254 (approving of the actions of the district court in “set[ting] up a process in which the [community placement] needs of each class member will be evaluated by professionals on a case-by-case basis.”) Once professional judgment has been exercised, residents and their guardians may choose to decline the option.
It is conceivable that opportune placements are now sufficiently numerous to allow IDTs to present concrete placement options for the consideration of guardians who are open to placement. Hanewicz testified that, as of July 15, 1999, five guardians who had checked “No” on the Quarterly Assessment of Choice were actively considering opportune community placements.
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(Tr. 7/15/99 at 59.) However, the court does not have sufficient information about how many placement opportunities are made available to residents whose guardians have answered “No” on the Quarterly Assessment of Choice. The EMPOWER policy was new when evidence about it was presented, and, therefore, the court is not in a position to determine the extent to which it has corrected for the deficiencies in the old community placement procedures.
Finally, there is an additional reason to be concerned about whether the EMPOWER policy has cured all of the deficiencies in the community placement procedures at STS. Administrators at STS who were responsible for creating and implementing EMPOWER testified that it is not a new policy but, rather, that it reflected polices and practices that had been in place at STS for years. (Tr. 9/27/99 at 127 (Moore); Tr. 7/14/99 at 105-6 (Hanewicz); Tr. 7/15/99 at 39 (Hanewicz).) Given that the old community placement procedures at STS were inadequate under both the constitution and the statutory integration mandates, it is hardly encouraging that STS officials believe that the situation has not changed.
The court cannot conclude that the defendants’ community placement procedures have come into compliance with the law. iv. Discrimination on the Basis of Disability
The plaintiffs claim to have established that the defendants discriminated on the basis of disability by refusing to consider severely retarded class members for community placement. (Pls.’
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Post-Trial Brief at 137-39.) In the fiscal year 1995-96, 78% percent of class members were
either severely or profoundly retarded. (Pls.’ Ex. 423C at 34 (Gant’s Report).) In the same fiscal year, 65% percent of the placements made out of STS were of severely or profoundly retarded class members. (Id.) In the following fiscal year, 50% of the placements made were of severely or profoundly retarded class members. (Id.) The plaintiffs claim that these numbers show that STS placed class members with severe disabilities at disproportionately lower rates than class members with less severe disabilities. (Pls’ Post-Trial Br. at 139) However, Gant based these calculations on a very small number of actual placements: according to her, in fiscal year 1995-96 only 18 STS residents were placed, and in fiscal year 1996-97 there were only 12 placements. (Pls.’ Ex. 423C at 37.) The court cannot conclude, based on this small sample size, that defendants have discriminated on the basis of severity of disability.
The defendants have no obligation under the ADA to place severely disabled individuals at the same rates as they place less severely disabled individuals. The defendants are obligated only to consider severely disabled class members for placement, just as they do less severely disabled individuals, and cannot discriminate solely on the basis of severity of disability. See Messier, 1999 WL 20910 at * 10. The defendants did indeed consider severely and
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profoundly retarded class members for community placement. In fact, the majority of the referrals for community placement have been STS residents with severe disabilities. (Tr. 2/12/99 at 71 (Gant).) The evidence indicates that the defendants generally failed to exercise professional judgment in considering community placement for a large number of class members regardless of the degree of their disability, but the plaintiffs have not established that the defendants failed to consider more severely disabled class members for community placement.
However, the plaintiffs have established that many severely and profoundly retarded class members referred for placement were not successfully placed in the community. In the fiscal year 199596, only 16% of the STS residents labeled severely retarded who were referred for placement were successfully placed in the community. (Pls.’ Ex. 423C at 36 (Gant’s Report).) In the same fiscal year, only 36% of those labeled profoundly retarded and referred for placement were successfully placed in the community.32 (Id.)
Gant concluded that the failure to place so many of the
32In their Post-Trial Brief , the plaintiffs confuse some of the figures reported by Gant. The plaintiffs claim, for example, that in the fiscal year 1995-96 “only 16% of the class members labeled severely retarded were referred and only 36% of those labeled profound were placed.” (Pls.’ Post-Trial Br. at 139 (emphasis added).) The plaintiffs thus incorrectly suggest that these numbers demonstrate a failure even to consider placing severely retarded individuals in the community.
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severely and profoundly retarded individuals who were referred was a result of a lack of available placement opportunities. (Pls.’ Ex. 423C at 35-37.) The difficulty in placing severely disabled individuals appears to have been the result of the “opportune” system of placement in conjunction with the failure on the part of the DMR to develop additional placement resources that were suitable for class members for whom placement is appropriate. (See Tr. 2/26/99 at 117-18 (Ale) (testifying that he found it difficult to place senior residents and residents with “psychosocial problems” because the resources needed to provide services to these residents in a community setting are not in place).) DMR failed in particular to provide placements for severely disabled class members. For example, there was a shortage of placements for individuals with multiple handicaps, maladaptive behavior conditions, and other medical problems. (Tr. 2/30/99 at 134 (Mulvey); Tr. 2/11/99 at 131-32 (Gant); Tr. 3/2/99 at 55 (Bondy).) The defendants’ failure to provide resources for class members with more severe handicaps constitutes discrimination within the meaning of the ADA and Section 504. Jackson v. Fort Stanton Hosp. and Training Sch., 757 F. Supp. 1243, 1299 (D.N.M. 1990) (finding discrimination on the basis of severity of disability where “severely handicapped residents are precluded from living in community settings because the programs lack amenities, that could reasonably be furnished without substantial program changes,
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necessary to accommodate the needs of the severely handicapped”), rev’d on other grounds, 964 F.2d 980 (10th Cir. 1992).
The defendants have attempted to correct for the inadequate community placement resources. Under the EMPOWER policy, the defendants have committed themselves to making resources available for class members who wish to be placed in more integrated settings. However, the EMPOWER policy had only recently been implemented at the close of the trial in this case, and the court is therefore unable to determine whether or not the defendants have ceased to discriminate on the basis of severity of disability. v. Fundamental Alteration Defense
The defendants argue that the remedy sought by the plaintiffs would constitute a fundamental alteration of Connecticut’s programs for the mentally disabled. (Def.’s Post-Trial Br. at 24.) Specifically, the defendants claim that the remedy sought would entail a “massive movement of money from STS to community programs” and would require a “gigantic appropriation of funds.” (Id. at 2425.)
The defendants’ characterization of the remedy sought by the plaintiffs is misleading since what is at stake in this case is somewhat limited. The court has previously stated that, to the extent that the plaintiffs seek “to end all admissions to STS, transfer all residents to community settings or otherwise shut down STS, this court has effectively narrowed the complaint, as mandated
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by prevailing precedent, to exclude any such relief.” (Ruling on Motion to Intervene (March 7, 1996) at 4 (Doc. No. 78.) Based on this narrow reading of the relief sought, it is unlikely that “massive” or “gigantic” changes will be required as a result of ordering the defendants to exercise professional judgment in considering whether class members are qualified for community placement and ordering them to make reasonable modifications to Connecticut’s programs in order to make placement possible in cases where it is appropriate.
Furthermore, the evidence does not support the defendants’ fundamental alteration defense. The defendants have not presented evidence that allocating the resources needed to place qualified class members in the community would result in a fundamental alteration. To the contrary, the EMPOWER document issued by the defendant DMR, claims that “Connecticut has developed one of the finest community service systems in the nation.” (Pls Ex. 1132.) In the document, the DMR claims that the community placement program in Connecticut is continuing to grow. (Id.) Even when the document was issued in May 1999, “[r]esidential placement, support and services [were] available in an array of program models” and community placement options were already “many, varied and real.” (Id.) The DMR’s fundamental alteration claim in this case is entirely inconsistent with its public commitment to further enhancing a system of community placement programming which, it
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claims, was already robust in early 1999. The defendants argue that they cannot, under the ADA, be
required to create entirely new programs for the disabled. (See Defs.’ Post-Trial Br. 26 (quoting Rodriguez v. City of New York, 197 F.3d 611, 619 (2d Cir. 1999).) The defendants do not explain, however, why fulfilling their obligation under the ADA to properly assess whether class members should be placed in the community would necessitate the creation of new programs. It is clear from the evidence that, where appropriate, community placement could be achieved through existing programs. Placing class members in the community might result in some additional expense to the state, but, as discussed above, courts have held that minimal additional expense incurred as a result of a defendant’s compliance with the integration mandate does not, alone, support a fundamental alteration defense. The defendants therefore have not met their burden of establishing this affirmative defense.
CONCLUSION AND ORDER The plaintiffs’ request for injunctive relief to remedy alleged constitutional and statutory violations relating to conditions, services and programs at STS is moot as resolved by the actions taken in United States v. Connecticut, No. 3:86-cv-252 (D. Conn. 1986). The plaintiffs have established that the defendants, as of the time of the trial in this case, had failed adequately to provide
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for the evaluation of all class members for community placement and had failed to place in the community class members for whom such placement was found to be appropriate by the defendants’ treatment professionals and who had consented to or requested such placement either through their guardians or, where appropriate, themselves.
Accordingly, to ensure the fashioning of an appropriate remedy for addressing the deficiencies found, the court will conduct a status conference on June 13, 2008, at 11 a.m., to establish a schedule for a hearing on the issue of remedy at which hearing the defendants shall present data as to placements made by them since the date of the trial and procedures to be implemented to assure placements are made in the future where appropriate. Participation in the conference may be by telephone if requested.
SO ORDERED. /s/
ELLEN BREE BURNS SENIOR U.S. DISTRICT JUDGE Dated at New Haven, Connecticut this 4th day of June, 2008.
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 Case 3:94-cv-01706-EBB Document 1036-1 Filed 07/12/10 Page 1 of 7

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

RICHARD MESSIER, ET AL. v.

No. 3 :94-CV-1706(EBB)

SOUTHBURY TRAINING SCHOOL

May 25,2010

SETTLEMENT AGREEMENT

INTRODUCTION

This Settlement Agreement is created to address the Memorandum of Decision and Order issued by the Court in this case on June 5, 2008. The Settlement Agreement consists of five components: ( 1) The Frameworkstatements ofpurpose, principle and policy which were developed by the parties to this case; (2) Benchmarks - the objective and measureable activities and obligations of the Defendants which are the substance of the remedy requested by the Court; (3) The Role of Remedial Expert- an individual mutually selected by the parties to facilitate and monitor implementation ofthe benchmarks, to have a primary role in dispute resolution, and to serve a "gatekeeper" function related to any future necessity of Court involvement or intervention; (4) Jurisdiction and Sunset; and (5) Attorneys' Fees and Costs - establishing a process to reach agreement of decision based upon the Memorandum ofDecision and Order.

I. THE FRAMEWORK

A. Purpose

The purpose of this Settlement Agreement is to assure that the department and its staff commit that each class member has the opportunity to have an assessment of the supports that would be needed to live successfully in a community setting; to assure that the class member, guardian, involved family member, or other personal representative, has sufficient information to make an informed decision about the merits of community placement to meet the particular needs of the class member including the status ofprograms and services at STS and to ensure that

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information will be provided to each class member and his/her guardian to enable them to make an informed choice as to an integrated setting and transition to an appropriate community setting within a reasonable time after professional judgment has been exercised by the IDT. It is recognized that the ultimate decision about residence rests with the guardian unless the department believes that this legal representative is not making decisions in the best interest of the class member.
B. Policy
The department shall discontinue the use of the policy EMPOWER, to guide community transition decisions for STS residents. The use of the quarterly assessment of choice shall also be discontinued.
All current policies in the area ofLevel ofneed (LON) assessment, Individual Plan (IP) planning, case management, safeguards, guardian involvement, portability, placement planning and transition activities apply to all class members who reside at STS. Once a class member transfers to a community setting, which is not an ICFIMR, all DDS waiver policies, procedures and guidelines are applicable. The only additional procedure to be issued by the department, in accordance with this Settlement Agreement, will articulate the department's commitment to professional judgment being rendered by each team for each STS class member, including recommendations for a "most integrated setting" as appropriate to class member needs. The team will assure the active involvement of class members, guardians, advocates, and other personal representatives, and will schedule meetings at convenient times and locations to encourage such participation.
The Defendants will transition class members to the most integrated setting, in accordance with the professional judgment exercised by the IDT, with individualized support services, provided the class member and guardian, as applicable, makes an informed choice not to oppose such determination. For purposes ofthis agreement the "most integrated setting" is defined as "a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible." 28 C.F.R. pt. 35 app. A at page 571 (2009); Olmstead, 527 U.S. at 592. Parties acknowledge and accept the Court's finding that STS is a segregated institution. Messier v. Southbury Training School, 562 F. Supp. 2d 294, 326 (D. Conn. 2008).
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C. Professional Judgment
DDS will assure that professional judgment is made by each Interdisciplinary Team (IDT) as to the most integrated setting appropriate to meet the needs of each class member. When the team determines that community services and supports can reasonably meet the needs of the class member, and is the most integrated setting, this recommendation will be made in the OPS (IP) and will be discussed with the guardian and the class member at the IDT meeting and documented in the OPS (IP). The team will determine the individualized services, supports and accommodations the class member needs to transition to an integrated community setting and how these supports can be provided in an integrated community setting. Once a class member or guardian, as applicable, has voiced an interest to pursue community transition, a DDS regional case manager will be assigned to join the team.
The team, assisted by the Remedial Expert, will identify record and address guardian, advocate, family and class member concerns and offer suggestions to overcome any identified concerns that create a barrier to successful community placement. Transition from STS to an integrated community setting shall be considered individually for each class member and pursued unless the guardian exercises informed choice not to pursue community placement as described in Benchmark #8 below.
D. Resource Development
The Level of Need (LON) assessment and Individual Plan (IP) will be used to determine the level of resources the class member will need to transition to the community, including having employment, day service, medical, dental, health and clinical supports.
The parties agree that DDS has the ways and means to make resources available for each and every class member who wishes to transition from STS to an integrated community setting with appropriate individualized services and supports. There is no financial or resource barrier to community placement for any class member who desires to transition. STS class members will not be in competition for resources allocated for any other individual or target group served by DDS.
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DDS will revise its portability policies and procedures to explicitly include and be applicable to all STS class members.
E. Informed Choice
The Department commits itselfto taking actions and putting processes in place to make sure that guardians, family members, advocates, and class members have sufficient information about community options to make an informed choice about team members' recommendations for the most integrated setting to meet the class member's needs.
Prior to a class member or guardian making an informed choice, all interested guardians, advocates, class members and family members will be offered opportunities to visit day and residential programs and services that would be appropriate to meet the individual needs of the class member. Class members shall have the opportunity to spend time in community residential homes prior to transition from STS.
II. BENCHMARKS
The parties agree that the following benchmarks and other requirements of this settlement agreement shall be used by the parties, the remedial expert and the Court to assess and determine Defendants' compliance with this agreement. The Defendants shall implement these benchmarks within the time frames set forth herein:
1. Complete the development of a training curriculum for Case Managers and IDT members regarding the exercise of "professional judgment" in recommending transition to the most integrated setting appropriate to meet the needs of class members. The training curriculum shall include:
• The ADA, as interpreted in Olmstead and related cases;
• DDS policies and procedures regarding community placement, transfer requirements and individual rights;
• HCBS waivers;
• Access to community services and supports;
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• Exercising professional judgment regarding most integrated setting and community inclusion;
• Other areas deemed necessary by the remedial expert.
(Within six (6) months COS- Commencement of Settlement').
2. Complete implementation of competency-based training for Case Managers and IDT members in accordance with the established curriculum. (Within twelve (12) months COS), and establish schedule for such training for new Case Managers and IDT members.
3. Complete community education plan setting forth strategies and approaches, and any necessary policy/procedures, which provide opportunities for information/education and exposure to community placement, services and support for class members, guardians, family, advocates, and personal representatives(within six (6) to twelve (12) months COS). The education plan shall include the following:
a) Defendants shall provide to all class members, advocates, families and their guardians informational material that describes the revised portability policies that explains in plain language how portability allows anyone in the DDS system to utilize their resources to receive supports and services in another location and from another provider or through hiring their own staff.
b) Methods to assure that information is available upon which informed choice can be made will include:
• Ongoing information for team members about current service options in the community so they can be a resource for families, class members, advocates and guardians
• Written information and presentations to families, advocates, class members and guardians about community services and providers. Information sessions will be offered to small groups of guardians, advocates and families or on an individual basis
1 The Commencement of Settlement occurs when the Settlement Agreement is signed by the parties, approved by the Court and the Remedial Expert is retained. This must occur within thirty days of court approval of the Settlement Agreement.
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• Information provided by the Remedial Expert at individual team meetings
• STS will invite providers to make presentations to groups of interested guardians, advocates, class members and family members
• STS will offer provider fairs twice a year which will be open to class members, advocates, families, guardians and staff
• Regional staff will be available to attend any individual or group meetings to discuss community services, HCBS waivers and transition planning
4. Complete implementation of community education plan for class members, guardians, family, advocates, and personal representatives (within twelve (12) to eighteen (18) months COS, and on-going).
5. For each class member at STS, complete and document assessment evaluation, and recommendations, in the exercise ofprofessional judgment as to whether the individual can be supported in an integrated community setting, documented by IDTs, regarding community transition, services and support. (Within thirty (30) months COS). Professional judgment shall identify the most integrated setting appropriate to the needs of the class member regardless of severity of disability, in accordance with the ADA, its regulations and the Memorandum ofDecision and Order of the Court in this case. See section I. B above.
6. Complete transition planning and resource identification/development for class members for whom there is a professional judgment/recommendation that the individual can be supported in a more integrated setting than the current placement, and the informed class member or guardian does not oppose such placement. (Within three (3) months ofthe determination). Where class member or guardian raises concerns about the community transition, options to address such concerns are presented at each succeeding IDT meeting and the class member or guardian are offered ways to address concerns with the involvement of the expert, as needed. The planning and community transition process shall provide for the transition to the community in accordance with the
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Benchmark# 7 below, and provide equal opportunity regardless of severity of disability.
7. Community transition for class members identified through the IDT determinations and redeterminations will occur within six (6) to eighteen (18) months from determination (or annual redetermination), or as indicated in the class member's transition plan, with reasonable accommodation to the specific needs, desires and circumstances of the class member. Resources will be made available to implement the class member's transition plan.
8. Exercise of informed choice about community placement by a guardian and/or class member only after they have been informed ofthe benefits of community placement and have had an opportunity to visit a community and day program that is appropriate to meet their needs. Visits to community settings appropriate to meet the needs of the class member, in the judgment ofthe team, must occur within three (3) months of a decision that the class member can live in an integrated community setting.
9. The Remedial Expert will identify, record and evaluate the Department's response to concerns of family, advocates, guardians and class members, and to identified systemic barriers to the implementation of professional judgments for community transition. The Department will develop a plan to address such concerns or barriers within thirty (30) days of identification. Such plans will be shared with the Remedial Expert and the Plaintiffs.
10. Issues raised by the expert or the Plaintiffs in quarterly meetings are to be addressed by the Remedial Expert in accordance with the processes set forth in this Settlement Agreement, which relies upon the Defendants to respond to issues to the satisfaction ofthe Remedial Expert.
11. All class members recommended for community transition through the exercise ofprofessional judgment will be disclosed to both parties and the Remedial expert at quarterly meetings of the parties.
12. Advocates, independent from the department, will be sought and obtained for each class member who requests one and who does not have a guardian who is willing and able to obtain information relative to making informed choice or to participate in the community placement process, including team meetings and community visitations, and for whom no other
7

Case 3:94-cv-01706-EBB Document 1036-2 Filed 07/12/10 Page 1 of 7
arrangements have been made for family, advocate, or personal representative involvement. These independent advocates should be individuals who are open to the recommendations of the team, in the exercise ofprofessional judgment, and who will seriously consider what is the most appropriate integrated setting in which the class member can be supported.
13. Quarterly for the first year and semi annually thereafter, the Department will identify and report on class members for whom community transitions are being planned, as a result of the exercise ofprofessional judgment and guardian support. This written report will identity the nature and severity of disability of the class members being placed, the types of support/programs being planned, any capacity issues or barriers related to community transition, and, as applicable specify how such capacity issues or barriers will be addressed and resolved.
14. DDS will negotiate a contract/agreement with the Remedial Expert within 30 days of COS to secure his services as set forth under Section III ofthis Agreement. Systemic issues identified by the Remedial Expert as presenting barriers to implementation of any benchmark, whether raised by Plaintiffs or not, shall be addressed and resolved by Defendants within the time frame specified by the Remedial Expert unless addressed in a benchmark.
15. All new or revised rules, regulations, policies, plans, guidelines, directives, instructions, protocols, and other material proposed by Defendants pursuant to this Agreement shall be made available to Plaintiffs for comment. Defendants shall respond to the Plaintiffs' comments within the time frame established by the Remedial Expert.
16. The DDS will proceed in accordance with the final transfer process and hearing rights set forth in Section 17a-210 of the Connecticut General Statutes if the guardian's objection to community placement is not consistent with what the team believes is in the class member's best interest to move, after all reasonable measures to address the guardian's concerns have been taken. The parties acknowledge that the informed opposition of a guardian to transition the class member to a community setting, by itself, is not a basis to propose and commence the transfer hearing process, in accordance with Section 17a-210 ofthe Connecticut general Statutes, nor a basis to challenge or seek review of the guardianship in the Probate Court.
8

Case 3:94-cv-01706-EBB Document 1036-2 Filed 07/12/10 Page 2 of 7
III. ROLE OF REMEDIAL EXPERT AND DISPUTE RESOLUTION
The parties agree to the appointment ofMr. Tony Records as the Remedial Expert under this Agreement.
The Remedial Expert shall serve as long as the Court maintains jurisdiction in Messier v Southbury Training School, and shall undertake the tasks described herein. The Remedial Expert shall have the following duties and responsibilities:
1. Parties Meetings. The Remedial Expert shall convene and chair parties meetings and disseminate a written summary of each meeting. The summary shall include action steps and agreements ofthe parties including timeframes for follow-up activities. Meetings would be held monthly for the first six months and quarterly thereafter. The Remedial Expert shall also assist DDS in developing reporting protocols, class member data and formats for updating the parties on settlement agreement activities.
2. Evaluation of Compliance: The Remedial Expert shall independently review the Defendants' compliance with this Agreement.
3. Written Reports. The Remedial Expert shall provide quarterly reports on each of the areas addressed in the benchmarks of this Settlement Agreement. Reports shall describe progress in each area, barriers to implementation and recommendations to address cited problems. These reports will be distributed to the parties and, at the discretion of the Remedial Expert, to the Court. It would be expected that these reports would also be presented and discussed at the parties' meetings. DDS shall be responsible to respond to the issues and recommendations offered by the Remedial Expert to secure implementation ofthe benchmarks.
4. Dispute Resolution. The Remedial Expert will respond to complaints concerning compliance with benchmarks and other requirements set forth in this Agreement. The Remedial Expert will assist the parties in dispute resolutions through problem solving exercises, written proposals to correct the cited area of concern, and mediation. In the event disputes appear to be not resolvable, the Remedial Expert will memorialize the issues with proposed recommendations to the parties and, if necessary, to the court. The Remedial Expert will also establish dispute resolution processes
9

Case 3:94-cv-01706-EBB Document 1036-2 Filed 07/12/10 Page 3 of 7
as appropriate to resolve concerns of families, guardians, advocates and class members relating to the implementation of the benchmarks.
5. Professional Judgment. The Remedial Expert shall assist DDS in developing the training curriculum, protocol and format for teams' exercise of "professional judgment" regarding the most integrated setting appropriate for each class member. The Remedial Expert shall also attend and observe a reasonable number of annual planning meetings to evaluate the effectiveness of the decision-making process and deliberations about the most integrated setting.
6. Informed Consent. The Remedial Expert shall assist DDS in working with the STS Teams, community professionals, guardians, families, advocates and class members in exercising informed choice in accordance with the benchmarks.
7. Training and Education. The Remedial Expert shall assist DDS in developing a plan to provide competency-based training and education. The Remedial Expert, in his discretion, may also provide some training directly regarding Olmstead and the benefits of community living. The Remedial Expert shall assist DDS in developing the community education plan and its implementation as required under the benchmarks.
8. Family Education and Training. The Remedial Expert shall be available to meet directly with the families, guardians and advocates regarding community services, community transition recommendation and requirements ofthe Settlement Agreement. The Remedial Expert shall assist DDS in meeting with small groups of families regarding the benefits of community living and community options.
9. Community Transition. The Remedial Expert shall review and evaluate all individual community transition plans for their thoroughness, appropriateness and established timetables. The Remedial Expert shall also conduct site visits to new community living programs within 30 days of a class member's move.
10. Budget: The Remedial Expert shall be compensated by the Defendants in accordance with a contract/agreement, and a budget negotiated by the Defendants and the Remedial Expert, which shall include and be based upon the scope of work called for in the Settlement Agreement,
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and shall provide for the performance of all ofthe work required by the role of the Remedial Expert under this Agreement. The contract/agreement shall address the entire time period for which the Remedial Expert may be retained under this Agreement, and the Remedial Expert may submit proposed modifications to the budget to the Defendants annually based upon the scope ofwork.
11. Access. The Remedial Expert shall have access to all documents and data relating to class members, their agents, contractors, evaluators, and providers necessary to perform his functions, including access to the class members themselves, their guardians, advocates and their programs. The Remedial Expert shall have the authority to receive information relevant to the Defendants' obligations under this Agreement. The Expert shall also be free to meet with any ofthe parties or their agents on an informal basis to discuss issues relating to settlement agreement activities. The Remedial Expert shall have access to all STS staff and team members. All rules, regulations, policies, plans, guidelines, directives, instructions, protocols and other material proposed by Defendants pursuant to this Agreement shall be made available to Plaintiffs and to the Remedial Expert.
12. Enforcement. The Remedial Expert shall have the authority to take actions necessary to fully implement this Agreement including seeking resolution of disputes with the court when necessary. The Remedial Expert shall attempt to resolve disputes with the parties and allow the Defendants an opportunity to address the issue before referring the matter to the court in accordance with the procedures set forth herein.
13. Replacement of the Expert. In the event Mr. Records cannot or will not continue to serve as the Remedial Expert for any reason, the Plaintiffs and Defendants shall attempt to agree on a successor Remedial Expert with relevant experience; in the event that they are unable to reach agreement, the parties will attempt to agree on candidates for Remedial Expert and shall submit the list of candidates to the Court for appointment. The Defendants will use the same methods and procedures for contracting with a replacement remedial expert as set forth in Benchmark 10.
14. Dispute Resolution and Enforcement. This Agreement shall be subject to the approval ofthe Court, and. if so approved, shall be entered as a court order. This Agreement and any obligations thereunder shall be enforceable only as follows:
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Case 3:94-cv-01706-EBB Document 1036-2 Filed 07/12/10 Page 5 of 7
Plaintiffs shall notify Defendants and the Remedial Expert of any alleged noncompliance with this Agreement and request a meeting with the Remedial Expert for the purpose of attempting to resolve the problems identified by the Plaintiffs regarding the Defendants' alleged noncompliance.
Should the parties fail to resolve, through said informal means, the problems identified by the Plaintiffs, then only the following process (hereinafter Compliance Process) shall be utilized. Plaintiffs shall identify the alleged noncompliance with this Agreement in a written Petition sent to the Remedial Expert and the Defendants, who respond in writing within three weeks of its receipt. The Remedial Expert may meet further with the parties or other persons, shall in writing make findings and render a compliance determination and as appropriate issue recommendations for compliance with timelines for compliance. The compliance determinations of the Remedial Expert are final.
The Remedial Expert shall make a determination within 30 days of the submission of the written statements by the Defendants. If Defendants fail in the written opinion of the Remedial Expert to fully implement the recommendations for compliance issued by the Remedial Expert, Plaintiffs may request in writing that the Remedial Expert certify compliance issues to the Court which shall be granted in the sole discretion of the Remedial Expert. Upon such certification, Plaintiffs may file a motion with the Court seeking a judicial determination that Defendants are not complying with the Agreement and an order to the Defendants to comply with recommendations ofthe Remedial Expert.
Plaintiffs may petition the court for an award of attorneys' fees and costs incurred in connection with the Compliance Process and any Court proceeding authorized by the certification granted by the Remedial Expert, including any proceedings to enforce the order in accordance with or resulting from this process. Plaintiffs will be considered prevailing parties only if the Court orders the Defendants to comply with recommendation(s) of the Remedial Expert or the Defendants comply voluntarily after certification is granted.
Plaintiffs are also entitled to reasonable attorneys' fees and costs for securing approval and defending the Settlement Agreement.
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Case 3:94-cv-01706-EBB Document 1036-2 Filed 07/12/10 Page 6 of 7
The parties agree that one hundred (100) hours per year is a reasonable estimate of the hours that will be necessary for Plaintiffs' counsel to monitor implementation of this Agreement. Any future petition for attorneys' fees and costs for routine monitoring activities by Plaintiffs' counsel will not exceed 100 hours per year unless Plaintiffs, upon a written application to the Court in advance of incurring such fees and/or costs, show exceptional circumstances that justify an award of fees for monitoring activities that exceed 100 hours. The Plaintiffs shall submit a request for fees related to monitoring on or before December 31 each year. If the parties cannot resolve their differences over the claim for fees and costs for monitoring within two weeks of submission, Plaintiffs may file a Motion for Attorneys' Fees and Costs with the Court. The parties agree that the issue of hourly rates for activities related to this provision is reserved for future negotiation or resolution by the Court. The Parties agree that the Plaintiffs are entitled to reimbursement of attorneys' fees and costs associated with the successful litigation of their fee claim. The parties hereby waive any objection to the resolution of such application by the Magistrate Judge.
IV. JURISDICTION AND SUNSET
When in the judgment of the Remedial Expert, the Defendants have fully implemented and accomplished each and every benchmark within the timelines specified, the Remedial Expert shall report to the Court and certify to the Court that Defendants are in compliance and class members are receiving the full benefits of the settlement agreement. The Court shall retain jurisdiction over this matter to resolve disputes and enter appropriate orders during the term ofthis Agreement and for all remedial purposes for 36 months after the receipt ofthe Remedial Expert's compliance certification. Any dispute occurring during this "sunset" period will be addressed in accordance with paragraph 14 under the Role of the Remedial Expert and Dispute Resolution. Jurisdiction may be extended or terminated by the Court upon the recommendation ofthe Remedial Expert or upon good cause shown by either party.
V. ATTORNEYS' FEES AND COSTS
Claims for attorneys' fees and costs generated prior to approval of this Settlement Agreement shall be addressed separately from approval ofthis
13

Case 3:94-cv-01706-EBB Document 1036-2 Filed 07/12/10 Page 7 of 7

Settlement Agreement, either through negotiations supervised by the Magistrate Judge or through proceedings before the Court.

The Plaintiffs shall file a Motion for attorneys' fees and costs with the Court for attorneys' fees and costs incurred up to Court approval ofthis Settlement Agreement. The Parties shall attempt to resolve this claim for retrospective fees and costs through the Magistrate Judge before the Motion for attorneys' fees and costs is filed. If the Parties cannot resolve their differences through negotiations by the date the Court approves the Settlement Agreement, the Plaintiffs may file a Motion for attorneys' fees with the Court. Said Motion shall be filed within sixty days of the Court's final approval ofthis Settlement Agreement. The Court shall have jurisdiction to hear and decide Plaintiffs' Motion for retrospective fees and costs.

The Court retains jurisdiction over this case in accordance with the terms of this Settlement Agreement.

FOR THE PLAINTIFFS

FOR THE DEFENDANTS

t ""'~:· -cftw
David C. Shaw, Esq. Law Office of David C. Shaw, LLC 34 Jerome Ave., Suite 210 Bloomfield, CT 06002

RICHARD BLUMENTHAL ATTORNEY GENERAL
BY: ~ f '£1Jg/.___
James !WelSh
Special Assistant Attorney General 460 Capitol Avenue Hartford, CT 06106

Frank J. Laski, Esq. Judith Gran, Esq.

Henry Salton Assistant Attorney General Thomas York, Esq.
14

 
 . ~

Case 3:94-cv-01706-EBB Document 1038 Filed 07/15/10 Page 1 of 5

1 ,- .:;'11 :'1

ZJ.O ~JL I 5 A 9: 2q

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

RICHARD MESSIER, ET. AL., v.

CASE NUMBER 3:94CV01706 (EBB)

SOUTHBURY TRAINING SCHOOL, ET AL.

2010

• ORDER The Court, after reviewing the Settlement Agreement negotiated by the parties as well as the Notice of Settlement that has been agreed upon by the parties, finds preliminarily that the Settlement Agreement is a fair and reasonable resolution ofthe issues raised by this lawsuit which were not resolved by Court's Ruling of June 4, 2008. The Court also enters the following orders relating to providing notice ofthe Settlement to the class and of the process through which a final determination will be made as to whether the Settlement Agreement will be approved and entered by the Court: 1. The content of the Notice of Settlement agreed to by the parties is hereby approved. 2. Defendants are ordered to notify each class member of the Settlement by: 1) mailing a copy of the attached Notice of Settlement to each Southbury Training School resident and hislher parent or guardian; and 2) publishing the attached Notice of Settlement on one occasion in the Hartford Courant, New Haven Register, Waterbury Republican, New

5

Case 3:94-cv-01706-EBB Document 1038 Filed 07/15/10 Page 2 of 5
."

London Day, Connecticut Post, Danbury News Times, and Stamford Advocate.

3. Defendants are ordered to certify to the Court as to the manner in which the

notification process was completed.

The District Court will receive written comments from interested persons until

-( Il~. ~ 2010. Written comments should be addressed to:

r

I

The Honorable Ellen Bree Bums United States District Judge United States District Court, District of Connecticut 141 Church Street New Haven, CT 06505

A., . A fairness hearing will be held on

...lP,'" I~ at 10:00 a.m. in Courtroom 3,

United States District Court, 141 Church St., New Haven, Connecticut to consider comments

and objections to the Settlement Agreement and to determine whether the Settlement will be

approved and entered as a fair and reasonable resolution of the lawsuit for the class.

BY THE COURT,
r,s! "n Bree Bums.' U .1 ;Hon. Ellen BreiBurn{ 'j _ • • - - --;J United States District Judge

6

Case 3:94-cv-01706-EBB Document 1038 Filed 07/15/10 Page 3 of 5

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

RICHARD MESSIER, ET AL. PLAINTIFFS
v. SOUTHBURY TRAINING SCHOOL, ET AL.
DEFENDANTS

NO.3:94-CV-1706(EBB)

NOTICE OF SETTLEMENT AGREEMENT RESOLVING PENDING REMEDIAL PHASE OF CLASS ACTION
ATTENTION: RESIDENTS OF THE SOUTHBURY TRAINING SCHOOL, THEIR GUARDIANS, FAMILIES AND OTHER PERSONAL AND LEGAL
REPRESENTATIVES
The United States District Court has received a Settlement Agreement negotiated by the parties to this class action civil rights lawsuit concerning a remedy in accordance with the Court's Memorandum ofDecision and Order of June 4, 2008.
The Court requested that the parties submit procedures to be implemented to address the Court's finding that the process of considering Southbury Training School (STS) residents for community placement did not comply with the Americans with Disabilities Act. Following both litigation activities and negotiations regarding a remedy, the parties have reached a Settlement Agreement for which this Notice is issued.
By Ruling dated July 8, 1996 the District Court certified a "plaintiff class to include all current STS residents, persons who might be placed at STS in the future, and persons who were transferred from STS but remain under the control of the STS Director." Memorandum, at 1. Since new admissions to STS were closed via District Court Order in 1986, and via state statute in 1997, and since no person transferred from STS remains "under the control of the STS Director", this Settlement Agreement is directed toward the individuals who are residents of STS at the time of approval by the District Court.
The major components of the Settlement Agreement include the following:

-.

Case 3:94-cv-01706-EBB Document 1038 Filed 07/15/10 Page 4 of 5

1. The training of relevant Interdisciplinary Team (IDT) staff regarding the exercise of "professional judgment" in recommending the "most integrated setting" commensurate with a class member's needs.
2. The implementation, following training, of the process for recommending the "most integrated setting", based upon the professional judgment of the IDT.
3. The provision of infonnation to residents, guardians and families, about, and exposure to, community-based alternatives to assure that infonned choices are made.
4. The recognition in DDS policy that the concept of "portability" - the re-allocation of funding from STS, and from any publicly operated ICFIMR, to the DDS Regions to support community-based alternatives - applies to STS residents, and residents of publicly operated ICF/MR facilities.
5. Assessment, evaluation and recommendations in the exercise of professional judgment regarding community transition services and support.
6. Transition planning and resource identification and development for STS residents for whom there is a professional judgment/recommendation that the individual can be supported in a more integrated setting and for whom infonned consent to community placement has been provided by the resident or guardian, as applicable.
7. Community transition for such STS residents identified in accordance with the Settlement Agreement, including timelines for effecting such transition.
8. The retention of a "Remedial Expert" to assist in the training curriculum, the IDT process, the infonnational efforts, and in effecting the community placement of STS residents for whom the IDT has recommended community placement and the resident or guardian, as applicable, does not oppose such recommendation.
9. Regular meetings of the parties and the Remedial Expert to assess progress under the tenns of this Settlement Agreement and resolve disputes associated with this Settlement Agreement.
The complete text of the Settlement Agreement is posted on the DDS website (www.ct.gov/dds) and copies may be obtained by calling the DDS Division of Legal & Government Affairs ((860 418-6085). The District Court will receive written comments from
interested persons until I . l., 2010. Written comments should be addressed to:
The Honorable Ellen Bree Bums United States District Judge United States District Court District of Connecticut 141 Church Street New Haven, CT 06505
A hearing \vill be held before the Honorable Ellen Bree Bums, United States District Judge, on A.-I , J.l!> .7~ I ~t 10:00 a.m., nited States District Court, 141 Church Street, New Haven, Connecticut rela'ting to the fairness of the Settlement Agreement to the class.

,'""'t,.

Case 3:94-cv-01706-EBB Document 1038 Filed 07/15/10 Page 5 of 5

..:r...-;
If you have any questions about the Settlement Agreement or about the process for reviewing the fairness of the Settlement Agreement, you may contact David C. Shaw, Esq., Attorney for the Plaintiff Class, at (860) 242-1238.

SO ORDERED

Honorable Ellen Bree Bums

United States District Judge

lsi Lj4!10

_

~

rNeren Br88aums:SUSDJ

 
 Case 3:94-cv-01706-EBB

Document 1054

Filed

11/18U/1n0·itePda.r.g',+~e..;..,"+1co"..f 28 L •.•I"~';J'"I' .

~ourt
J

District of Connect"cut

FILED AT EW HAVEN

UNITED STATES DISTRICT COURT -~:o--~~~~-Ft~ DISTRICT OF CONNECTICUT

RICHARD MESSIER, et al. Plaintiffs,
v.
SOUTHBURY TRAINING SCHOOL, et al. Defendants.

No. 3:94-CV-1706 (EBB)

L , IMPLEME
Pending before the Court in this class action is a motion pursuant to Fed.R.Civ.P. 23(e)
for an order approving the proposed settlement agreement filed by the parties on July 12, 2010. In addition, the parties have moved for an order requiring the plaintiffs to file their claims for
costs and fees within sixty days of this Order. For the following reasons, the Court finds that the proposed settlement agreement is fair,
adequate and reasonable and accordingly grants the motion.
Background On July 8, 1996, pursuant to Federal Rule of Civil Procedure 23(b), the court certified the plaintiff class to include all current residents of Southbury Training School ("STS"), persons who might be placed at STS in the future, and persons who were transferred from STS, but remain under the control of the STS Director. 1 The defendants are STS, the Director of STS, and the Commissioner of the Connecticut Department of Developmental Services ("DDS") (formerly
(Because new admissions to STS were closed by court order in 1986 and thereafter by state statute in 1997, and because there is no longer any person transferred from STS who remains under the control of the STS Director, the class members who are bound by the settlement agreement are the individuals who are residents of STS at the time the Court enters this order approving the settlement agreement. Currently there are approximately 445 class members residing at STS.

Case 3:94-cv-01706-EBB Document 1054 Filed 11/18/10 Page 2 of 28
known as the Department of Mental Retardation).} In their class action complaint, the plaintiffs' alleged, inter alia, that STS and DDS
violated their constitutional and statutory rights by failing to exercise professional judgment in making decisions about whether class members should be placed in the community rather than at STS.
After a lengthy trial, the Court, on June 5, 2008, issued an order resolving the case on the issue of liability. See generally, Me ier. uthbury Training chool , 562 F. Supp.2d 294 (D. Conn. 2008). Specifically, the Court found the plaintiffs had established that the defendants "failed adequately to provide for the evaluation of all class members for community placement and had failed to place in the community class members for whom such placement was found to be appropriate by the defendants' treatment professionals and who had consented to or requested
such placement either through their guardians or, where appropriate, themselves." !1L at 335-45.
In order to fashion an appropriate remedy to address the deficiencies identified by the Court, a hearing on remedies was ordered at which the defendants were to present data as to placements made by them since the date of the trial and set forth the procedures they would implement to assure future placements would be appropriately made. Id.. at 345.
After a lengthy discovery period, a hearing on remedies commenced on February 16, 2010. After five days of evidence, the parties began earnest and extensive settlement discussions under the supervision of the Hon. Joan Margolis, U.S.MJ., and the hearing on remedies was adjourned. The negotiation process was often difficult and contentious. Nonetheless, during the
2In 2007, the Department of Mental Retardation was renamed the Department of Developmental Services.
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Case 3:94-cv-01706-EBB Document 1054 Filed 11/18/10 Page 3 of 28
discussions the parties exchanged numerous drafts of proposed settlement agreements and were ultimately successful in their efforts to resolve the issues. On May 12,2010 they jointly filed their proposed settlement agreement along with a motion seeking its preliminary approval, an order requiring notice to the class, and for a fairness hearing. On July 15, 2010, the Court entered an order preliminarily approving the proposed settlement agreement, directed notice of the settlement be given to the class, and scheduled a fairness hearing. The Court also authorized interested persons to file comments by September 20,2010.
A Fairness Hearing was held on October 4, 2010. 3 Summary of the Proposed Settlement
The settlement agreement requires the defendants to address the constitutional and statutory violations that the Court identified in its ruling on liability. In particular, it adequately addresses the defendants' duty to exercise professional judgment in determining the most integrated setting for class members and the appropriateness of community placement for each of them as well as the defendants' obligation to ensure that class members, guardians and family members have sufficient information to make informed decisions. Quite properly, it makes no provision regarding the closing or possible closing of STS, it does not contain any provision calling for the transfer of all STS residents to community settings and it does not provide for the automatic return of class members to STS, as none of these issues were before the Court in this action.
As the agreement states, its purpose "is to assure that the department and its staff commit
3Familiarity with the underlying proceedings, facts and issues is presumed. For a full account, reference may be had to the numerous rulings, opinions and orders issued by this Court over the course of this lengthy litigation.
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Case 3:94-cv-01706-EBB Document 1054 Filed 11/18/10 Page 4 of 28
that each class member has the opportunity to have an assessment of the supports that would be needed to live successfully in a community setting; to assure that the class member, guardian, involved family member, or other personal representative, has sufficient infonnation to make an infonned decision about the merits of community placement to meet the particular needs of the class member including the status of programs and services at STS and to ensure that infonnation will be provided to each class member and hislher guardian to enable them to make an infonned choice as to an integrated setting and transition to an appropriate community setting within a reasonable time after professional judgment has been exercised by the IDT. It is recognized that the ultimate decision about residence rests with the guardian unless the department believes that this legal representative is not making decisions in the best interest of the class member."
More specifically, the salient provisions of the settlement agreement4provide for (1 ) training of Interdisciplinary Team (IDT) staff members regarding the exercise of "professional judgment" that they must use in recommending the "most integrated setting" commensurate with each class member's needs; (2) implementing, after training, the process for recommending the "most integrated setting" based on the professional judgment of the IDT; (3) providing infonnation to residents, guardians and families about, and exposure to, community-based alternatives to assure that infonned choices are made; (4) recognizing in DDS policy that the concept of "portabililty" - the re-allocation of funding from STS and from any publicly operated ICF/MR to the DDS Regions to support community-based alternatives - applies to STS residents and residents of publicly operated ICF/MR facilities; (5) exercising professional judgment in
4All of the provisions of the settlement agreement, which is attached hereto as Attachment A, are fully incorporated herein and are made part of this Order.
4

Case 3:94-cv-01706-EBB Document 1054 Filed 11/18/10 Page 5 of 28
assessing, evaluating and recommending community transition services and support; (6) planning for transition and identifying and developing resources for STS residents for whom there is a professional judgment/recommendation that the individual can be supported in a more integrated setting and for whom informed consent to community placement has been provided by the resident or guardian; (7) transitioning STS residents to the community placement including establishing time lines for effecting transition; (8) retaining a "Remedial Expert" to assist in the training curriculum, the lOT process, the informational efforts and in effecting the community placement of STS residents for whom the lOT has recommended community placement and the resident or guardian does not oppose such recommendation; and (9) providing for regular meetings of the parties and the Remedial Expert to assess progress under the terms of the settlement agreement and for resolving disputes associated with the settlement agreement.
In addition, the settlement agreement requires the defendants to discontinue the use of the EMPOWER policy and the Quarterly Assessment of Choice Process. Further, it emphasizes that lOTs and STS residents and their families or guardians must discuss and determine the "most integrated setting"S for each class member as well as the community services and supports that would be needed to enable them to live successfully in the community. It also provides for the appointment of advocates for STS residents who request them as well as in situations where the family or guardian is not willing to participate in the community placement process. Overall, the provisions of the settlement agreement are designed to ensure that guardians, family members, advocates and class members will have the necessary information about community placements
SThe term "most integrated setting" is defined in a manner consistent with federal law and the ruling of this Court as the setting that enables individuals with disabilities to interact with non-disabled persons to "the fullest extent possible."
5

Case 3:94-cv-01706-EBB Document 1054 Filed 11/18/10 Page 6 of 28
(including the option to visit potential placements) they will need to be fully infonned and able to make an infonned choice to ensure that the needs of class members will be fully addressed in community placements.
In sum, the settlement agreement fully addresses the violations of law that the Court iterated in its ruling on liability and its implementation will bring the defendants into compliance with the law.
Standard for Evaluating the Proposed Settlement Pursuant to Rule 23(e), Fed.R.Civ.P., a class action cannot be dismissed or compromised without court approval. Consequently, this Court is charged with the responsibility of closely and carefully scrutinizing the settlement agreement to detennine its fairness, adequacy and reasonableness. County of Suffolk v. Long Is. Lighting Co., 907 F.2d 1295, 1323 (2d Cir. 1990); Plummer v. Chern. Bank, 668 F.2d 654,658 (2d Cir.1982). A class action settlement must be both procedurally and substantively fair and reasonable. D' Amato v. Deutsche Bank, 236 F.3d 78, 85 (2d Cir. 2001). Rule 23(e)(I) requires the Court to find that appropriate notice was provided to the class members who will be bound by the settlement. The court also must consider (1) the substantive tenns of the settlement compared to the likely result of a trial and (2) the negotiating process, examined in light of the experience of counsel, the vigor with which the case was litigated and the coercion or collusion that may have marred the negotiations. Malchman v. Davis, 706 F.2d 426,433 (2d Cir. 1983). In conducting that analysis, there are nine Grinnell factors that are commonly considered: (1) the complexity, expense and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of
6

Case 3:94-cv-01706-EBB Document 1054 Filed 11/18/10 Page 7 of 28
discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining the class action through the trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement in light of the best possible recovery; and (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks oflitigation. City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir. 1974). Here, the Court will only consider the relevant Grinnell factors and not those that concern maintenance of class certification, the risks of establishing liability and damages, the defendants' ability to withstand a greater judgment, and the reasonableness of the settlement fund, as they are not relevant in the current posture of this case.
Finally, the Court notes that "Rule 23(e) does not give a district court the power to modify a proposed settlement agreement or require parties to accept a settlement to which they all have not agreed." Evans v. Jeff D., 475 U.S. 717, 726 (1986). A court "should approve or disapprove a proposed agreement as it is placed before [her] and should not take it upon [herself] to modify its terms." In re Warner Commc'ns Sec. Litig., 798 F.2d 35, 37 (2d Cir. 1986). In other words, the "settlement must stand or fall as a whole." =Bc:...ro=o=k~~=-=-:.=-=.;:=-=:..=-===:..:",-=. 59 F.3d 1114, 1119 (11th Cir. 1995).
Reasons for the Court's Approval of the Settlement As noted, the Court has given due consideration to the relevant factors and finds the settlement agreement to be procedurally and substantively fair, adequate and reasonable in all respects. A. Notice Adequate notice, in the manner directed by the Court in its preliminary order and in full
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compliance with the requirements of Rule 23, was given to the class members who would be bound. The form and manner of the notice was the best notice practicable under the circumstances. It precisely defined the class, clearly informed class members of the nature of the case, explained the material terms of the settlement such as "professional judgment," "community placement," and "informed consent," and fairly apprised the class members of the substance ofthe proposed settlement and the options open to them to present their objections and concerns. In sum, the notice clearly comported with due process.
The notice was mailed to class members on July 23,2010 and copies of it were published in six newspapers on July 23,2010, fourteen days before the comment period was initially scheduled to close and twenty-eight days before the original date of the fairness hearing. At the request of several guardians, the Court extended the deadline for submitting comments to September 28, 2010, and the date of the fairness hearing to October 4, 2010. Defendants provided notice to the class of these changes and class members had sufficient time to prepare for the hearing.
The Court has received proof of the mailing of the notice and all class members and other interested parties have been given an opportunity to be heard. No person or organization has challenged the adequacy of the form and content of the notice
B. The Negotiation Process The settlement agreement is the result of arms-length negotiations conducted by experienced, competent and zealous counsel with the assistance of an experienced and able mediator who helped ensure that the proceedings were free of conflicts of interest and undue pressure.

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Plaintiffs' lead counsel has a great deal of experience in similar federal class action
litigation. U , C.A.R.C. v. Thome, No. H-78-653(TEC); P.J. v. State of Conn., No.
2:91cvI80(RNC); ARC/CT v. O'Meara, 3:01cvI871(JBA); Hillburn v. Maher, 795 F.2d 252 (2d Cir. 1986). Counsel for the organizational plaintiffs also have considerable experience litigating and resolving complex civil rights cases on behalf of individuals with severe disabilities.
The settlement was reached after sufficient discovery had been completed, including an expert tour of STS, depositions of defendants' experts and administrators and examination of the files of STS residents who had been referred for community placement, all of which enabled the plaintiffs to evaluate the strengths and weaknesses of their positions.
The Court is satisfied that the settlement agreement is the product of arm's length negotiations that were aimed at providing effective relief to class members and was free from collusion or other factors that might taint the fairness of the settlement to the class as a whole.
C. Complexity, Expense & Likely Duration of the Litigation To date, the litigation has been especially costly. If the settlement had not been reached, the costs would only escalate. As noted, the action involved complex factual and legal issues and was actively prosecuted over many years. The parties invested considerable resources in the case through data collection, litigation efforts, and settlement negotiations. The trial on liability alone took 123 days and there was extensive post-trial briefing after the close of evidence. As the docket reflects, after the Court ruled on liability and prior to the commencement of the hearing on remedies, the parties engaged in extensive discovery and motion practice. Completing the hearing on damages would have added considerable costs, especially when considering the
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necessary post-hearing briefing and argument. Moreover, in the absence of settlement, it is likely that appeals would be taken from the Court's remedial orders, and this would further delay relief to the class members and would increase the costs substantially.
It is clear that, by negotiating and reaching the settlement, counsel avoided the likelihood of further complex, lengthy and expensive proceedings. Given this, acceptance of the settlement at this stage is appropriate.
D. Reaction of the Class After dissemination of the notice to the class, the Court received comments from families or guardians of seventy-one of the 445 current residents of STS. There were no specific objections to the actual terms of the settlement agreement. The majority ofthe comments expressed concern that STS may be closed and that class members may be forced to move out of STS over the objection of their guardians or family members. At the fairness hearing, many guardians and family members addressed the Court and voiced these concerns. More specifically, comments made by the families or guardians of six current STS residents approved the settlement agreement and/or stated that they would consider community placement. Comments made on behalfofforty-nine class members either opposed community placement in general, opposed community placement if the class member's guardian or family objected, opposed closing STS, and wanted the settlement agreement to provide for automatic readmission to STS if community placement for class members did not work out. Comments made on behalf of sixteen class members expressed similar concerns, i.e., opposing the closing of STS; the necessity for including a provision in the agreement providing that guardians or family members would have unfettered discretion to have their wards readmitted to STS if community
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placement did not work out; the necessity for including a provision in the settlement agreement clarifying and specifying that guardians or family members would make the final decision about community placement; the necessity for including a provision in the settlement agreement that specifically provides that STS may be designated as the most integrated setting; and the necessity for including a provision in the settlement agreement requiring that the health needs of each class member be appropriately addressed during the placement process. In addition to these comments, the family of one class member objected to the settlement agreement as being too vague and another family strongly objected to the agreement because they did not want their relative to leave STS.
None of these comments, concerns, or omissions detract from the reasonableness, adequacy and overall fairness of the settlement agreement vis-a-vis the majority of class members and thus do not require the Court to disapprove the settlement agreement.
Specifically, the comments concerning the need for additions or modifications to the terms of the settlement agreement are untenable because the Court does not have the power or authority to make changes or additions to the parties' agreement. Evans, 475 U.S. at 726-27. In other words, the Court cannot order the settlement agreement be amended to provide, for example, that STS may be designated "the most integrated setting" for a class member6 or that STS will remain open. In sum, the concerns about, inter alia, closing STS, returning class members to STS if community placement does not work out and mandating community
6Indeed, such a provision would run counter to the Court's specific finding that STS is not an integrated setting, but "is a segregated institution in which all residents are mentally disabled." Messier, 562 F. Supp.2d at 326. In any event, such a provision is not necessary because the agreement provides that an IDT may determine that community placement is not an appropriate placement for a particular individual.
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placement over the objection of guardians or family members are unfounded and specific language in the settlement agreement addressing these issues is not necessary.
First, there is nothing in the settlement agreement that expressly or impliedly provides for the closing of STS. Closing STS was never an issue in this case.
Second, there are a number of provisions in the settlement agreement which will ensure that class members will not be placed in the community over the objection of guardians or family members. The agreement expressly makes it clear that guardians and family members are the primary decision makers with regard to community placement and are the ones who will decide whether to accept or reject a proposed community placement. Only in exceptional cases will a guardian'S ultimate control over the decision be challenged, i.e., where a guardian is not involved in the decision making or where the views of class members and/or the medical judgments of STS professionals are ignored. But these exceptions would apply only in rare cases and thus the absence of such a specific provision does not warrant disapproval of the settlement agreement.
Third, it is also unnecessary for the settlement agreement to include a provision requiring the community placement plan to contain specific identification of and access to comparable medical care for each class member in the community placement. The agreement has numerous provisions requiring identification and development of resources that will be needed to meet the class members' needs and allowing guardians or family members to oppose community placement if the medical and other needs of class members are not adequately addressed.
Fourth, the absence of a provision guaranteeing the automatic return of class members to STS from an unsuccessful community placement does not require disapproval of the settlement agreement. Although the settlement agreement is silent on the issue of readmission, it contains
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numerous provisions that would adequately address the issue in the rare event it were to arise, not to mention the existing DOS policies7and state laws that could come into play, e. g., Conn. Gen. Stat. § 17a-210 (providing for a formal hearing process when necessary to address transfer issues). The Court is satisfied that the agreement's provisions requiring the defendants to identify and meet the needs of class members during the transition to community living will be sufficient to ensure that this issue will rarely, if ever, arise, but in the unlikely event it should, the Remedial Expert will be there to take appropriate action to remedy the situation.
Finally, the appointment of a Remedial Expert is an important safeguard of the rights of class members. That individual will be responsible for determining whether the concerns of family members, guardians, advocates and class members are addressed and met and he is expressly authorized to take appropriate action to ensure that the defendants meet those needs, including resort to the Court. The Remedial Expert will ensure full implementation of the settlement agreement, including proper training and education for STS staff and professionals; the exercise of professional judgment and informed choices and consent in the placement process; the appropriate transition to community settings; and implementation of dispute resolution procedures.
In sum, the settlement agreement requires the defendants to fully address the violations of the rights of class members that the Court identified in its decision of the merits. See Messier v. Southbury Training School, 562 F. Supp.2d 294 (D. Conn. 2008). Accordingly, the Court orders that the Settlement Agreement be implemented in accordance with its terms and provisions.
7While not part of the settlement agreement, the Court understands that DDS has a policy providing for readmission in such circumstances.
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Continuing Court Jurisdiction As stipulated by the parties, the Court will retain jurisdiction over this case to resolve disputes and enter appropriate orders to insure the implement of all provisions of the settlement agreement.
Application for Fees and Costs The Court orders the plaintiffs to file their motion for costs and attorneys' fees within sixty days of this order approving the settlement agreement. See Fed. R. Civ. P. 23(h) & S4(d). The parties shall take advantage of the additional time to engage in further negotiations to reach an agreement on this issue.
Conclusion For the foregoing reasons, the Court finds that the Notice to the Class of the Proposed Settlement Agreement meets the requirements of Rule 23 and that the proposed settlement agreement is a fair, reasonable and adequate resolution to the dispute over appropriate remedial orders. Accordingly, the Court hereby approves the settlement agreement (attached hereto as Attachment A) in its entirety and ORDERS that it be implemented in accordance with its provisions. The Court also ORDERS that, in the absence of an agreement as to costs and fees, the plaintiffs shall file their motion for fees and costs within sixty days of the date of this order. SO ORDERED.

Dated this

ELii& B-REE BURNS'" ., SENIOR UNITED STATES DISTRICT JUDGE
l~
I ~ day of November, 2010 at New Haven, Connecticut.

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

RICHARD MESSIER, ET AL. v.

No.3 :94-CY-1706(EBB)

SOUTHBURY TRAINING SCHOOL

May 25, 2010

SETTLEMENT AGREEMENT

INTRODUCTION

This Settlement Agreement is created to address the Memorandum of Decision and Order issued by the Court in this case on June 5, 2008. The Settlement Agreement consists of five components: (I) The Framework statements of purpose, principle and policy which were developed by the parties to this case; (2) Benchmarks - the objective and measureable activities and obligations of the Defendants which are the substance of the remedy requested by the Court~ (3) The Role of Remedial Expert - an individual mutually selected by the parties to facilitate and monitor implementation of the benchmarks, to have a primary role in dispute resolution, and to serve a "gatekeeper" function related to any future necessity of Court involvement or intervention; (4) Jurisdiction and Sunset; and (5) Attorneys' Fees and Costs - establishing a process to reach agreement of decision based upon the Memorandum ofDecision and Order.

I. THE FRAMEWORK

A. Purpose

The purpose of this Settlement Agreement is to assure that the department and its staff commit that each class member has the opportunity to have an assessment of the supports that would be needed to live successfully in a community setting; to assure that the class member, guardian, involved family member, or other personal representative, has sufficient information to make an informed decision about the merits of community placement to meet the particular needs of the class member including the status of programs and services at STS and to ensure that

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information will be provided to each class member and his/her guardian to enable them to make an infonned choice as to an integrated setting and transition to an appropriate community setting within a reasonable time after professional judgment has been exercised by the lOT. It is recognized that the ultimate decision about residence rests with the guardian unless the department believes that this legal representative is not making decisions in the best interest of the class member.
B. Policy
The department shall discontinue the use of the policy EMPOWER, to guide community transition decisions for STS residents. The use of the quarterly assessment of choice shall also be discontinued.
All current policies in the area of Level of need (LON) assessment, Individual Plan (IP) planning, case management, safeguards, guardian involvement, portability, placement planning and transition activities apply to all class members who reside at STS. Once a class member transfers to a community setting, which is not an ICF/MR, all DDS waiver policies, procedures and guidelines are applicable. The only additional procedure to be issued by the department, in accordance with this Settlement Agreement, will articulate the department's commitment to professional judgment being rendered by each team for each STS class member, including recommendations for a "most integrated setting" as appropriate to class member needs. The team will assure the active involvement of class members, guardians, advocates, and other personal representatives, and will schedule meetings at convenient times and locations to encourage such participation.
The Defendants will transition class members to the most integrated setting, in accordance with the professional jUdgment exercised by the lOT, with individualized support services, provided the class member and guardian, as applicable, makes an informed choice not to oppose such determination. For purposes of this agreement the "most integrated setting" is defined as "a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible." 28 C.F.R. pt. 35 app. A at page 571 (2009); Olmstead, 527 U.S. at 592. Parties acknowledge and accept the Court's finding that STS is a segregated institution. Messier v. Southbury Training School, 562 F. Supp. 2d 294, 326 (D. Conn. 2008).

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c. Professional Judgment
DDS will assure that professional judgment is made by each Interdisciplinary Team (IDT) as to the most integrated setting appropriate to meet the needs of each class member. When the team determines that community services and supports can reasonably meet the needs of the class member, and is the most integrated setting, this recommendation will be made in the OPS (lP) and will be discussed with the guardian and the class
member at the IDT meeting and documented in the OPS (IP). The team will
determine the individualized services, supports and accommodations the class member needs to transition to an integrated community setting and how these supports can be provided in an integrated community setting. Once a class member or guardian, as applicable, has voiced an interest to pursue community transition, a DDS regional case manager will be assigned to join the team.
The team, assisted by the Remedial Expert, will identifY record and address guardian, advocate, family and class member concerns and offer suggestions to overcome any identified concerns that create a barrier to successful community placement. Transition from STS to an integrated community setting shall be considered individually for each class member and pursued unless the guardian exercises informed choice not to pursue community placement as described in Benchmark #8 below.
D. Resource Development
The Level of Need (LON) assessment and Individual Plan (lP) will be used to detennine the level of resources the class member will need to transition to the community, including having employment, day service, medical, dental, health and clinical supports.
The parties agree that DDS has the ways and means to make resources available for each and every class member who wishes to transition from STS to an integrated community setting with appropriate individualized services and supports. There is no financial or resource barrier to community placement for any class member who desires to transition. STS class members will not be in competition for resources allocated for any other individual or target group served by DDS.
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DDS will revise its portability policies and procedures to explicitly include and be applicable to all STS class members.
E. Informed Choice
The Department commits itself to taking actions and putting processes in place to make sure that guardians, family members, advocates, and class members have sufficient information about community options to make an informed choice about team members' recommendations for the most integrated setting to meet the class member's needs.
Prior to a class member or guardian making an intonned choice, all interested guardians, advocates, class members and family members will be offered opportunities to visit day and residential programs and services that would be appropriate to meet the individual needs of the class member. Class members shall have the opportunity to spend time in community residential homes prior to transition from STS.
II. BENCHMARKS
The parties agree that the following benchmarks and other requirements of this settlement agreement shall be used by the parties, the remedial expert and the Court to assess and determine Defendants' compliance with this agreement. The Defendants shall implement these benchmarks within the time frames set forth herein:
1. Complete the development of a training curriculum for Case Managers and IDT members regarding the exercise of "professional judgment" in recommending transition to the most integrated setting appropriate to meet the needs of class members. The training curriculum shall include:
• The ADA, as interpreted in Olmstead and related cases;
• DDS policies and procedures regarding community placement, transfer requirements and individual rights;
• HCBS waivers;
• Access to community services and supports;
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• Exercising professional judgment regarding most integrated setting and community inclusion;
• Other areas deemed necessary by the remedial expert.
(Within six (6) months COS - Commencement of Settlementl ).
2. Complete implementation of competency-based training for Case Managers and IDT members in accordance with the established curriculum. (Within twelve (12) months COS), and establish schedule for such training for new Case Managers and lOT members.
3. Complete community education plan setting forth strategies and approaches, and any necessary policy/procedures, which provide opportunities for information/education and exposure to community placement, services and support for class members, guardians, family, advocates, and personal representatives(within six (6) to twelve (I 2) months COS). The education plan shall include the following:
a) Defendants shall provide to all class members, advocates, families and their guardians infonnational material that describes the revised portability policies that explains in plain language how portability allows anyone in the DDS system to utilize their resources to receive supports and services in another location and from another provider or through hiring their own staff.
b) Methods to assure that information is available upon which informed choice can be made will include:
• Ongoing information for team members about current service options in the community so they can be a resource for families, class members, advocates and guardians
• Written information and presentations to families, advocates, class members and guardians about community services and providers. Infonnation sessions will be otTered to small groups of guardians, advocates and families or on an individual basis
I The Commencement of Settlement occurs when the Settlement Agreement is signed by the parties. approved by the Coun and the Remedial Expert is retained. This must occur within thirty days of court approval of the Settlement Agreement.
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• Information provided by the Remedial Expert at individual team meetings
• STS will invite providers to make presentations to groups of interested guardians, advocates, class members and family members
• STS will offer provider fairs twice a year which will be open to class members, advocates, families, guardians and staff
• Regional staff will be available to attend any individual or group meetings to discuss community services, HeBS waivers and transition planning
4. Complete implementation of community education plan for class members, guardians, family, advocates, and personal representatives (within twelve (12) to eighteen (18) months COS, and on-going).
5. For each class member at STS, complete and document assessment evaluation, and recommendations, in the exercise of professional judgment as to whether the individual can be supported in an integrated community setting, documented by IDTs, regarding community transition, services and support. (Within thirty (30) months COS). Professional judgment shall identifY the most integrated setting appropriate to the needs of the class member regardless of severity of disability, in accordance with the ADA, its regulations and the Memorandum a/Decision and Order of the Court in this case. See section 1. B above.
6. Complete transition planning and resource identification/development for class members for whom there is a professional jUdgment/recommendation that the individual can be supported in a more integrated setting than the current placement, and the infonned class member or guardian does not oppose such placement. (Within three (3) months of the detennination). Where class member or guardian raises concerns about the community transition, options to address such concerns are presented at each succeeding IDT meeting and the class member or guardian are offered ways to address concerns with the involvement of the expert, as needed. The planning and community transition process shall provide for the transition to the community in accordance with the
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Benchmark # 7 below, and provide equal opportunity regardless of severity of disability.
7. Community transition for class members identified through the TOT determinations and redeterminations will occur within six (6) to eighteen (18) months from determination (or annual redetermination), or as indicated in the class member's transition plan, with reasonable accommodation to the specific needs, desires and circumstances of the class member. Resources will be made available to implement the class member's transition plan.
8. Exercise of informed choice about community placement by a guardian and/or class member only after they have been informed of the benefits of community placement and have had an opportunity to visit a community and day program that is appropriate to meet their needs. Visits to community settings appropriate to meet the needs of the class member, in the judgment of the team, must occur within three (3) months of a decision that the class member can live in an integrated community setting.
9. The Remedial Expert will identify, record and evaluate the Department's response to concerns of family, advocates, guardians and class members, and to identified systemic barriers to the implementation of professional judgments for community transition. The Department will develop a plan to address such concerns or barriers within thirty (30) days of identification. Such plans will be shared with the Remedial Expert and the Plaintiffs.
10. Issues raised by the expert or the Plaintiffs in quarterly meetings are to be addressed by the Remedial Expert in accordance with the processes set forth in this Settlement Agreement, which relies upon the Defendants to respond to issues to the satisfaction of the Remedial Expert.
11. All class members recommended for community transition through the exercise of professional judgment will be disclosed to both parties and the Remedial expert at quarterly meetings of the parties.
12. Advocates, independent from the department, will be sought and obtained for each class member who requests one and who does not have a guardian who is willing and able to obtain information relative to making informed choice or to participate in the community placement process, including team meetings and community visitations, and for whom no other
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arrangements have been made for family, advocate, or personal representative involvement. These independent advocates should be individuals who are open to the recommendations of the team, in the exercise of professional judgment, and who will seriously consider what is the most appropriate integrated setting in which the class member can be supported.
J3. Quarterly for the first year and semi annually thereafter, the Department will identify and report on class members for whom community transitions are being planned, as a result of the exercise of professional judgment and guardian support. This written report will identity the nature and severity of disability of the class members being placed, the types of support/programs being planned, any capacity issues or barriers related to community transition, and, as applicable specify how such capacity issues or barriers will be addressed and resolved.
14. DDS will negotiate a contract/agreement with the Remedial Expert within 30 days of COS to secure his services as set forth under Section III of this Agreement. Systemic issues identified by the Remedial Expert as presenting barriers to implementation of any benchmark, whether raised by Plaintiffs or not, shall be addressed and resolved by Defendants within the time frame specified by the Remedial Expert unless addressed in a benchmark.
15. All new or revised rules, regulations, policies, plans, guidelines, directives, instructions, protocols, and other material proposed by Defendants pursuant to this Agreement shall be made available to Plaintiffs for comment. Defendants shall respond to the Plaintiffs' comments within the time frame established by the Remedial Expert.
16. The DDS will proceed in accordance with the final transfer process and hearing rights set forth in Section 17a-210 of the Connecticut General Statutes if the guardian's objection to community placement is not consistent with what the team believes is in the class member's best interest to move, after all reasonable measures to address the guardian's concerns have been taken. The parties acknowledge that the informed opposition of a guardian to transition the class member to a community setting, by itself, is not a basis to propose and commence the transfer hearing process, in accordance with Section 17a-210 of the Connecticut general Statutes, nor a basis to challenge or seek review of the guardianship in the Probate Court.

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Case 3:94-cv-01706-EBB Document 1054 Filed 11/18/10 Page 23 of 28

III. ROLE OF REMEDIAL EXPERT AND DISPUTE RESOLUTION
The parties agree to the appointment of Mr. Tony Records as the Remedial Expert under this Agreement.
The Remedial Expert shall serve as long as the Court maintains jurisdiction in Messier v Southbury Training School, and shall undertake the tasks described herein. The Remedial Expert shall have the following duties and responsibilities:
1. Parties Meetings. The Remedial Expert shall convene and chair parties meetings and disseminate a written summary of each meeting. The summary shall include action steps and agreements of the parties including timeframes for follow-up activities. Meetings would be held monthly for the first six months and quarterly thereafter. The Remedial Expert shall also assist DDS in developing reporting protocols, class member data and formats for updating the parties on settlement agreement activities.
2. Evaluation of Compliance: The Remedial Expert shall independently review the Defendants' compliance with this Agreement.
3. Written Reports. The Remedial Expert shall provide quarterly reports on each of the areas addressed in the benchmarks of this Settlement Agreement. Reports shall describe progress in each area, barriers to implementation and recommendations to address cited problems. These reports will be distributed to the parties and, at the discretion of the Remedial Expert, to the Court. It would be expected that these reports would also be presented and discussed at the parties' meetings. DDS shall be responsible to respond to the issues and recommendations offered by the Remedial Expert to secure implementation of the benchmarks.
4. Dispute Resolution. The Remedial Expert will respond to complaints concerning compliance with benchmarks and other requirements set forth in this Agreement. The Remedial Expert wil1 assist the parties in dispute resolutions through problem solving exercises, written proposals to correct the cited area of concern, and mediation. In the event disputes appear to be not resolvable, the Remedial Expert will memorialize the issues with proposed recommendations to the parties and, if necessary, to the court. The Remedial Expert will also establish dispute resolution processes
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Case 3:94-cv-01706-EBB Document 1054 Filed 11/18/10 Page 24 of 28

as appropriate to resolve concerns of families, guardians, advocates and class members relating to the implementation of the benchmarks.
5. Professional Judgment. The Remedial Expert shall assist DDS in developing the training curriculum, protocol and fonnat for teams' exercise of "professional judgment" regarding the most integrated setting appropriate for each class member. The Remedial Expert shall also attend and observe a reasonable number of annual planning meetings to evaluate the effectiveness of the decision-making process and deliberations about the most integrated setting.
6. Informed Consent. The Remedial Expert shall assist DDS in working with the STS Teams, community professionals, guardians, families, advocates and class members in exercising infonned choice in accordance with the benchmarks.
7. Training and Education. The Remedial Expert shall assist DDS in developing a plan to provide competency-based training and education. The Remedial Expert, in his discretion, may also provide some training directly regarding Olmstead and the benefits of community living. The Remedial Expert shall assist DDS in developing the community education plan and its implementation as required under the benchmarks.
8. Family Education and Training. The Remedial Expert shall be available to meet directly with the families, guardians and advocates regarding community services, community transition recommendation and requirements of the Settlement Agreement. The Remedial Expert shall assist DDS in meeting with small groups of families regarding the benefits of community living and community options.
9. Community Transition. The Remedial Expert shall review and evaluate all individual community transition plans for their thoroughness, appropriateness and established timetables. The Remedial Expert shall also conduct site visits to new community living programs within 30 days of a class member's move.
10. Budget: The Remedial Expert shall be compensated by the Defendants in accordance with a contract/agreement, and a budget negotiated by the Defendants and the Remedial Expert, which shall include and be based upon the scope of work called for in the Settlement Agreement.
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" .
and shall provide for the perfonnance of all of the work required by the role of the Remedial Expert under this Agreement. The contract/agreement shall address the entire time period for which the Remedial Expert may be retained under this Agreement, and the Remedial Expert may submit proposed modifications to the budget to the Defendants annually based upon the scope of work.
11. Access. The Remedial Expert shall have access to all documents and data relating to class members, their agents, contractors, evaluators, and providers necessary to perfonn his functions, including access to the class members themselves, their guardians, advocates and their programs. The Remedial Expert shall have the authority to receive inJormation relevant to the Defendants' obligations under this Agreement. The Expert shall also be free to meet with any of the parties or their agents on an infonnal basis to discuss issues relating to settlement agreement activities. The Remedial Expert shall have access to all STS staff and team members. All rules, regulations, policies, plans, guidelines, directives, instructions, protocols and other material proposed by Defendants pursuant to this Agreement shall be made available to Plaintiffs and to the Remedial Expert.
12. Enforcement. The Remedial Expert shall have the authority to take actions necessary to fully implement this Agreement including seeking resolution of disputes with the court when necessary. The Remedial Expert shall attempt to resolve disputes with the parties and allow the Defendants an opportunity to address the issue before referring the matter to the court in accordance with the procedures set forth herein.
13. Replacement of the Expert. In the event Mr. Records cannot or will not continue to serve as the Remedial Expert for any reason, the Plaintiffs and Defendants shall attempt to agree on a successor Remedial Expert with relevant experience; in the event that they are unable to reach agreement, the parties will attempt to agree on candidates for Remedial Expert and shall submit the list of candidates to the Court for appointment. The Defendants will use the same methods and procedures for contracting with a replacement remedial expert as set forth in Benchmark 10.
14. Dispute Resolution and Enforcement. This Agreement shall be subject to the approval of the Court, and. if so approved, shall be entered as a court order. This Agreement and any obligations thereunder shall be enforceable only as follows:
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Plaintiffs shall notify Defendants and the Remedial Expert of any alleged noncompliance with this Agreement and request a meeting with the Remedial Expert for the purpose of attempting to resolve the problems identified by the Plaintiffs regarding the Defendants' alleged noncompliance.
Should the parties fail to resolve, through said infonnal means, the problems identified by the Plaintiffs, then only the following process (hereinafter Compliance Process) shall be utilized. Plaintiffs shall identify the alleged noncompliance with this Agreement in a written Petition sent to the Remedial Expert and the Defendants, who respond in writing within three weeks of its receipt. The Remedial Expert may meet further with the parties or other persons, shall in writing make findings and render a compliance detennination and as appropriate issue recommendations for compliance with timelines for compliance. The compliance determinations of the Remedial Expert are final.
The Remedial Expert shall make a detennination within 30 days of the submission of the written statements by the Defendants. If Defendants fail in the written opinion of the Remedial Expert to fully implement the recommendations for compliance issued by the Remedial Expert, Plaintiffs may request in writing that the Remedial Expert certify compliance issues to the Court which shall be granted in the sole discretion of the Remedial Expert. Upon such certification, Plaintiffs may file a motion with the Court seeking a judicial detennination that Defendants are not complying with the Agreement and an order to the Defendants to comply with recommendations of the Remedial Expert.
Plaintiffs may petition the court for an award of attomeys' fees and costs incurred in connection with the Compliance Process and any Court proceeding authorized by the certification granted by the Remedial Expert, including any proceedings to enforce the order in accordance with or resulting from this process. Plaintiffs will be considered prevailing parties only if the Court orders the Defendants to comply with recommendation(s) of the Remedial Expert or the Defendants comply voluntarily after certification is granted.
Plaintiffs are also entitled to reasonable attorneys' fees and costs for securing approval and defending the Settlement Agreement.
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Case 3:94-cv-01706-EBB Document 1054 Filed 11/18/10 Page 27 of 28

The parties agree that one hundred (100) hours per year is a reasonable estimate of the hours that will be necessary for Plaintiffs' counsel to monitor implementation of this Agreement. Any future petition for attorneys' fees and costs for routine monitoring activities by Plaintiffs' counsel will not exceed 100 hours per year unless Plaintiffs, upon a written application to the Court in advance of incurring such fees and/or costs, show exceptional circumstances that justify an award of fees for monitoring activities that exceed 100 hours. The Plaintiffs shall submit a request for fees related to monitoring on or before December 31 each year. If the parties cannot resolve their differences over the claim for fees and costs for monitoring within two weeks of submission, Plaintiffs may file a Motion for Attorneys' Fees and Costs with the Court. The parties agree that the issue of hourly rates for activities related to this provision is reserved for future negotiation or resolution by the Court. The Parties agree that the Plaintiffs are entitled to reimbursement of attorneys' fees and costs associated with the successful litigation of their fee claim. The parties hereby waive any objection to the resolution of such application by the Magistrate Judge.
IV. JURISDICTION AND SUNSET
\Vhen in the judgment of the Remedial Expert, the Defendants have fully implemented and accomplished each and every benchmark within the timelines specified, the Remedial Expert shall report to the Court and certify to the Court that Defendants are in compliance and class members are receiving the full benefits of the settlement agreement. The Court shall retain jurisdiction over this matter to resolve disputes and enter appropriate orders during the term of this Agreement and for all remedial purposes for 36 months after the receipt of the Remedial Expert's compliance certification. Any dispute occurring during this "sunset" period will be addressed in accordance with paragraph 14 under the Role of the Remedial Expert and Dispute Resolution. Jurisdiction may be extended or terminated by the Court upon the recommendation of the Remedial Expert or upon good cause shown by either party.
V. ATTORNEYS' FEES AND COSTS
Claims for attorneys' fees and costs generated prior to approval of this Settlement Agreement shall be addressed separately from approval of this
13

. ., .-

•

a. L ,.

Case 3:94-cv-01706-EBB Document 1054 Filed 11/18/10 Page 28 of 28

Settlement Agreement, either through negotiations supervised by the Magistrate Judge or through proceedings before the Court.

The Plaintiffs shall file a Motion for attorneys' fees and costs with the Court for attorneys' fees and costs incurred up to Court approval of this Settlement Agreement. The Parties shall attempt to resolve this claim for retrospective fees and costs through the Magistrate Judge before the Motion for attorneys' fees and costs is filed. If the Parties cannot resolve their differences through negotiations by the date the Court approves the Settlement Agreement, the Plaintiffs may file a Motion for attorneys' fees with the Court. Said Motion shall be filed within sixty days of the Court's final approval of this Settlement Agreement. The Court shall have jurisdiction to hear and decide Plaintiffs' Motion for retrospective fees and costs.

The Court retains jurisdiction over this case in accordance with the terms of this Settlement Agreement.

FOR THE PLAINTIFFS

FOR THE DEFENDANTS

David C. Shaw, Esq. Law Office of David C. Shaw, LLC 34 Jerome Ave., Suite 210 Bloomfield, CT 06002
Frank J. Laski, Esq. Judith Gran, Esq.

RICHARD BLUMENTHAL ATTORNEY GENERAL
BY: ~ flW~
I James Welsh
Special Assistant Attorney General 460 Capitol Avenue Hartford, CT 06106
Henry Salton Assistant Attorney General Thomas York, Esq.
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 Case 3:94-cv-01706-EBB Document 1146 Filed 01/23/13 Page 1 of 23
UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

RICHARD MESSIER, et al.

:

Plaintiffs,

:

:

:

v.

:

:

:

SOUTHBURY TRAINING SCHOOL, et al.

:

Defendants.

:

No. 3:94-CV-1706(EBB)

RULING ON THAT PART OF PLAINTIFFS' MOTION FOR ATTORNEYS' FEES, COSTS AND EXPENSES CONCERNING THEIR "DEGREE OF SUCCESS" IN THE LITIGATION
The plaintiffs -- residents of Southbury Training School ("STS"), an institution for the mentally disabled in the State of Connecticut, and three advocacy groups -- filed the instant motion [doc. #s 1067, 1083, 1100 & 1101] for attorneys' fees, costs and expenses in an amount exceeding $6.8 million. This class action litigation was brought in 1994 seeking injunctive relief for alleged constitutional and statutory violations relating to the conditions, services and programs at STS, as well as the continued placement of residents there. The plaintiffs ultimately prevailed on their claims relating to community placement.
Following a 123-day bench trial in 1999, the Court ruled that the defendants -- who are STS, the Director of STS and the Commissioner of the Connecticut Department of Mental Retardation -- had deprived class members of their procedural due process and statutory rights to professional judgment regarding the appropriateness of individual placements in a more integrated setting ("community placement"), as well as their statutory right to be free of

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discrimination with respect to having such placements made. Messier v. Southbury Training Sch., 562 F. Supp. 2d 294, 338-39, 343-44 (D. Conn. 2008). The plaintiffs did not prevail on any of their other claims, principally because those claims were moot by reason of the thenongoing litigation in United States v. Connecticut, No. 3:86-cv-252 (D. Conn. 1986) (“Connecticut litigation”). Messier, 562 F. Supp. 2d at 303-04. Based on the Court's finding of liability on the plaintiffs' community placement claims, the parties reached a settlement on the issue of remedies, which required "the defendants to fully address the violations of rights of class members that the Court identified in its decision on the merits." Order Re: Approval & Implemen't of Settl't Agreem't [doc. # 1054] at 13. The instant motion for attorneys' fees, costs and expenses followed. By agreement of the parties, this ruling is limited to addressing a specific subset of the attorneys' fees component of that motion: the "degree of success" the plaintiffs achieved in the litigation. The Court will address the other part of the attorneys' fees component -- i.e., calculation of the lodestar -- as well as the costs and expenses components in a subsequent ruling.
As discussed, infra, the plaintiffs maintain that their "degree of success" was excellent, i.e., that they obtained "excellent results" and so are entitled to a full award of attorneys' fees. The defendants, on the other hand, contend that the plaintiffs' award should be significantly reduced because they succeeded on only a fraction of their claims. For the reasons that follow, the Court finds that the plaintiffs achieved "excellent results" with respect to the claims on which they prevailed (i.e., the community placement claims), but, because those claims are both factually and legally distinct from the plaintiffs' unsuccessful claims (i.e., medical care, protection and habilitation), the lodestar calculation must be limited to the time the plaintiffs'
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counsel expended on the successful claims. That is, the plaintiffs are not entitled to an award of fees, costs and expenses incurred in connection with their unsuccessful claims.
DISCUSSION I. The Plaintiffs' Prevailing Party Status
A plaintiff in a civil rights case may recover attorneys' fees pursuant to, inter alia, 42 U.S.C. § 19881 if he or she is a "prevailing party . . . [that is,] one who achieves a material alteration of the legal relationship of the parties . . . [through] a judicially sanctioned change." Grievson v. Rochester Psychiatric Cent., 746 F. Supp. 2d 454, 460 (W.D.N.Y. 2010) (quoting Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 604 (2001)). In this case the Court ruled that "the defendants . . . had failed . . . [both] to provide for the evaluation of all class members for community placement and had failed to place in the community class members for whom such placement was found to be appropriate . . . ." Messier, 562 F. Supp. 2d at 345. Even though the plaintiffs did not prevail on their claims alleging constitutional and statutory violations relating to medical care, protection and habilitation, the plaintiffs nevertheless meet § 1988's threshold requirement by virtue of the Court's finding of liability on the issue of community placement and the Settlement Agreement's provision requiring the defendants to take remedial action in that regard. See Farrar v. Hobby,
1 The plaintiffs base their motion for attorneys' fees, costs and expenses on two additional fee-shifting statutes: 42 U.S.C.A. § 12205 and 29 U.S.C. § 794a(b). These statutes pertain specifically to their ADA and Rehabilitation Act claims, respectively. See Pls.' Mem. in Supp. [doc. # 1067] at 15-16. Because fee-shifting statutes generally contain similar key language, the case law pertaining to what constitutes a reasonable fee applies uniformly to them all. See Perdue v. Kenny A., 130 S.Ct. 1662, 1671 n.3 (2010); Buckhannon Bd. & Care Home, Inc., v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 603, n.4 (2001) (citing Hensley v. Eckerhart, 461 U.S. 424, 433, n.7 (1983)). Thus, for purposes of this ruling, the Court cites only to § 1988.
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506 U.S. 103, 111-12 (1992) (stating that a civil rights plaintiff "prevails" when, inter alia, the relief obtained in the litigation requires the defendant to modify its behavior in a way that directly benefits the plaintiff). II. Calculating the Amount of the Attorneys' Fees Award
Having found that the plaintiffs meet the threshold statutory requirement for an award of attorneys' fees, the Court must determine what fee is "reasonable." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); see also LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 757 (2d Cir. 1998) ("The question of whether a plaintiff is a 'prevailing party' . . . is separate from the question of the degree to which the plaintiff prevailed."). Hensley instructs that "[t]he most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley, 461 U.S. at 433. This calculation is otherwise known as the lodestar figure. See Perdue v. Kenny A., 130 S.Ct. 1662, 1672 (2010) (reaffirming use of the "lodestar method" post-Arbor Hill Concerned Citizens Neighborhood Assn. v. County of Albany, 522 F.3d 182, 190 (2d Cir. 2008), which proposed use of a modified method it termed the "presumptively reasonable fee" in place of lodestar).2 But where, as here, "a plaintiff is deemed 'prevailing' even though he succeeded on only some of his claims," the Court may make downward adjustments to the lodestar figure -- principally by considering the "results obtained" in the litigation -- in order to arrive at a reasonable fee.
2 The plaintiffs at times make reference to use of the "Johnson factors" in place of, or in addition to, the lodestar approach as a method for determining the fee award. See Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-719 (5th Cir. 1974). But as the Supreme Court recently reaffirmed in Perdue, the lodestar calculation displaced Johnson in the federal courts some time ago. Perdue, 130 S.Ct. at 1671-72. This Court's prior rulings in this case reflect the same. See Order Re: Pending Mots. [doc. # 1099]; Ruling Re: The Legal Standard for Calculating Attorneys' Fees [doc. # 1124].
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Hensley, 461 U.S. at 434. As previously stated, the Court will make the lodestar calculation in a subsequent ruling. But first it must address the downward adjustment question by determining what "degree of success" is reflected in the "results obtained" by the plaintiffs. In other words, the Court must first decide whether the plaintiffs achieved "excellent results."
A. The "Results Obtained" In order to make the "results obtained" determination, Hensley instructs the Court to address "two questions." Hensley, 461 U.S. at 434. "First, did the plaintiff fail to prevail on claims that were unrelated to the claims on which he succeeded?" Id. "Second, did the plaintiff achieve a level of success that makes the hours reasonably expended [on the litigation as whole] a satisfactory basis for making a fee award?" Id. As discussed below, the Court answers both questions "yes."
1. Relatedness of the Unsuccessful Claims to the Successful Ones Answering the first Hensley question requires the Court to determine if any of the plaintiffs' unsuccessful claims were related to the successful ones. Because § 1988 only authorizes attorneys' fees to prevailing parties, no fee may be awarded for unsuccessful claims that are not related to the successful ones. Instead, any unrelated claims must be "treated as if they had been raised in separate lawsuits" and so must be disregarded for the purpose of the fee calculation. Hensley, 461 U.S. at 435; Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999) (stating that courts should subtract any hours dedicated to severable unsuccessful claims). Here, the plaintiffs' three-count complaint alleged that the defendants: (1) violated the class members' Fourteenth Amendment Due Process rights by failing to provide them with adequate medical care, protection from harm, habilitation and community placement ("Count
5

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I");3 (2) discriminated against the class members in violation of Title II of the Americans with
Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12132 (1997), and Section 504 of the
Rehabilitation Act of 1973 ("Section 504"), 29 U.S.C. § 794 (1997) ("Count II"); and (3) failed
to provide the class members with "active treatment" as required by Title XIX of the Social Security Act ("SSA"), 42 U.S.C. § 1396a et seq. ("Count III").4 As the Court previously
determined, these three counts fall into four subject areas: (1) medical care; (2) failure to protect; (3) habilitation/active treatment;5 and (4) community placement. Messier, 562 F. Supp.
2d at 303. As noted, the Court found the defendants liable only on the community placement
claims. Id. at 304, 313, 319, 345 (finding that the other three claims were either moot as
resolved by the actions taken in the Connecticut litigation or without merit).
The question now is whether the three unsuccessful claims (pertaining to medical care,
protection and habilitation) are related to the plaintiffs' successful community placement claims,
3 Count I of the complaint only cites the Fourteenth Amendment as the source of the plaintiffs' due process claims. It does not reference, as is common with respect to such claims, 42 U.S.C. § 1983, which is one of the enumerated actions for which attorneys' fees may be awarded under § 1988. See 42 U.S.C. § 1988 (2000). Nevertheless, since such Fourteenth Amendment claims are virtually synonymous with § 1983, and because excluding the successful claims in Count I on this basis would not change the result (as those claims are nevertheless related to the claims in Count II, see infra pp. 15-17), nor have the defendants raised an objection on this ground, the Court construes Count I as implicitly invoking § 1983 and thus coming within the explicit ambit of § 1988.
4 The last section of the plaintiffs' complaint, entitled "Relief," is merely another iteration of the claims for relief the plaintiffs make in Counts I-III; thus, for purposes of this ruling, the Court does not give them additional, separate consideration. The one exception to this is the plaintiffs' demand for class certification. See infra n.9.
5 Generally speaking, habilitation refers to teaching and training a person with significant disabilities to function as fully and as independently as possible. Pls.' Prop. Findings of Fact [doc. # 497] at ¶ 262. Active treatment refers to a specific, customized habilitation regimen. Id. at ¶ 264. For purposes of this ruling, the Court uses the term habilitation to refer to both.
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"such that [counsel's] time spent on the failed claims [substantively overlaps with time spent on the winning claims and thus] should be compensated." Tatum v. City of New York, No. 06CV4290, 2010 WL 334975, at *10 (S.D.N.Y. Jan. 28, 2010) (internal quotations and citations omitted).
Under Hensely, claims for relief, even when brought against the same defendant, are not related if they are based on different facts and different legal theories. Hensley, 461 U.S. at 43435; see also Green v. Torres, 361 F.3d 96, 98 (2d Cir. 2004). As discussed below, based on the facts and legal theories in this case, the plaintiffs' unsuccessful claims cannot be deemed related to the successful community placement claims because they were based on different factual proof and legal theories. Accordingly, for purposes of calculating the lodestar amount, the hours expended by the plaintiffs' counsel on the unsuccessful medical care, protection and habilitation claims are severable and thus will be disregarded. See Hensley, 461 U.S. at 434-35; see also Green, 361 F.3d at 98.
a. The unsuccessful claims do not share a common core of facts with the successful claims
A claim is related to another claim if it is based on a common core of facts. Hensley, 461 U.S. at 434-35. Here, the four subject areas, which, broadly speaking, challenged and sought remedies for alleged deficiencies at STS, were each based on different facts and required different proof.
For instance, the plaintiffs' claims that STS provided inadequate medical care was supported by various factual allegations including that STS personnel had used DNR orders that had been written for class members for whom death was not imminent. For example, the evidence showed that the file of one patient contained a DNR order written six years before her
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death, and the file of another patient contained a DNR order written two years prior to her death. Messier, 562 F. Supp. 2d at 308-09. The plaintiffs also adduced evidence showing that the defendants improperly used DNR orders to withhold nutrition, fluids and treatment, such as a bronchoscopy, allegedly causing the deaths of at least two STS residents. Id. at 308-12.6
In contrast, the plaintiffs' allegations that the defendants failed to protect class members from physical harm and unnecessarily restrained them were drawn from an altogether different set of facts. For example, in support of this claim they cited to an incident where an STS staff member left residents unattended on a bus, which allegedly led one STS resident to punch and fracture the nose of another resident, and to another incident where a STS resident was weaned off "one-to-one staffing" by being secluded in a "separation room" on more than 100 occasions in three months without proper authorization.
Still another set of facts supported their habilitation claims. In this regard, the plaintiffs alleged that "[STS residents] receiv[ed] little attention from staff, and rarely interact[ed] with anyone other than a paid staff member," that "[m]ost of the[ ] [residents'] time is 'dead time,'" and that the habilitation at STS was "meaningless" and failed "to support [residents] toward independence." These assertions were buttressed by various factual examples, including that, in one instance, "music activity . . . consisted [merely] of seven residents watching a music videotape" and, in another instance, that "the staff donned gloves, went from resident to resident and brushed their teeth right out in the open."
6 In addition to their allegations regarding DNR orders, the plaintiffs also asserted that medical care at STS was inadequate due to, inter alia, lack of planning and poor administration of medication, infection control and nursing services. See Pls.' Post-Trial Br. [doc. # 832] at 69188.
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In connection with the community placement claims, the plaintiffs drew from still a different set of facts, which demonstrated that STS lacked a "formal mechanism for considering community placement for class members." Messier, 562 F. Supp. 2d at 328. In particular, the evidence supporting the community placement claims included various statements and statistical information gleaned from STS reports and testimony of STS officials, which demonstrated that STS had failed to exercise professional judgment regarding community placement. See id. at 325-42. Other factual evidence the plaintiffs proffered with respect to the community placement claims included STS's defective "opportune placement process" and its use of a flawed 1996 questionnaire mailed to the parents and guardians of STS residents, as well as factual evidence showing that the defendants had instructed the Interdisciplinary Teams ("IDTs") not to discuss community placement during team meetings and to cease making references to community placement in the Overall Plan of Service ("OPS"). Id. at 329, 331-34, 338-39.
Not only did the four subject areas fail to share a common core of underlying facts, the evidence pertaining to the three unsuccessful claims was of a different character than the evidence required for the successful claims. While the plaintiffs offered evidence consisting of individual patient information and conditions at STS, in support of their claims of inadequate medical care, failure to protect and lack of habilitation, they used mostly statistical data and institutional and departmental records to show the nature of the STS residents' confinement in order to prove the community placement claims. Thus, even if conditions at STS were as the plaintiffs claimed, community placement (as opposed to, say, remediation of the conditions or transfer of residents to another institution) would not have been mandated because such community placement must be medically appropriate for and personally desired by each
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individual.7 The converse is also true. Had the plaintiffs relied solely on the facts supporting the
community placement claims, the Court would not have been persuaded to find the defendants
liable on the medical care, protection and habilitation claims since even an outright refusal by the
defendants to consider community placement of medically eligible and willing STS residents,
absent other evidence, would have proved little, if anything, about the institutional conditions at
STS.8 Accordingly, because the unsuccessful claims were largely predicated on factual evidence
that was different in kind and character from the evidence on which the successful claims were
predicated, the unsuccessful claims are severable from the community placement claims. Cf.
Serrichio v. Wachovia Sec., LLC, 706 F. Supp. 2d 237, 260-61 (D. Conn. 2010) (finding
7 This point is further illustrated by the ADA's integration mandate, which expresses a preference for community placement even when other institutional conditions (i.e., medical care, protection and habilitation) are as they should be. See Messier, 562 F. Supp. 2d at 326. As the Court noted in its liability ruling, "STS is not an integrated setting." Id. Thus, even if proper medical care were being provided by an institution like STS, and its residents were properly protected and habilitated, the integration mandate would still require community placement (or the closest thing to it) whenever medically appropriate and consented to by the resident. See id. In other words, the statute on which the plaintiffs based some of their community placement claims presupposes that community placement is independent of other institutional conditions. Accord Soc'y for Good Will to Retarded Children, Inc. v. Cuomo, 902 F.2d 1085, 1087, 1090-91 (2d Cir. 1990) (reaffirming that "community placement . . . cannot be justified as a remedy to correct [ ] unconstitutional conditions found at [state-operated school for the mentally retarded]") (emphasis added).
8 Given these distinctions, and as further explained, infra p. 14, the Court rejects the plaintiffs' implication that the "conditions" claims constitute an alternative legal ground for the community placement claims. For a claim to be an alternative legal ground of another claim, some factual or legal relatedness between the claims is presupposed. See Hensley, 461 U.S. at 435. But for the reasons given, supra pp. 7-10 and infra pp. 11-17, the "conditions" claims are neither factually nor legally related to the community placement claims. Thus, the Court's decision to disregard the time that counsel for the plaintiffs spent on the "conditions" claims does not contravene Hensley's proviso that the plaintiffs may "in good faith [ ] raise alternative legal grounds for a desired outcome, and the court's rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee." Hensley, 461 U.S. at 435.
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plaintiff's unsuccessful state law claims were not severable as they were "largely predicated on" some of the same facts underlying his successful claims).
Further underscoring the severability of the unsuccessful claims from the community placement claims is the Court's finding early in this litigation that almost all of the plaintiffs' claims pertaining to medical care, protection and habilitation were moot as a result of the Connecticut litigation. The Court's mootness finding was premised on the conclusion that the unsuccessful claims shared a common core of facts with the issues in that other litigation, which involved the conditions at STS. See Messier, 562 F. Supp. 2d at 303. The community placement claims, however, as they arose from different facts, were not mooted. Were the community placement claims based on the same core of facts as the plaintiffs' unsuccessful claims -- as the plaintiffs now contend -- the Court likely would have found that they too were mooted by the Connecticut litigation, with the result that the plaintiffs would have prevailed on none of the claims in this litigation, and, under Hensley, would not be entitled to any fees, costs or expenses.
The one thread of factual commonality among the plaintiffs' claims is that each subject area alleged a different way in which the defendants failed to act. Commonality at such a broad level, however, is too tenuous a connection to justify awarding attorneys' fees on the unsuccessful claims. As noted, under Hensley, fees are awarded for time spent by counsel on unsuccessful claims only when such claims are inextricably intertwined with a prevailing claim so that counsel's time is presumed to have overlapped between the two -- making it, as courts have noted, an exercise in futility to try to separate out the legal services rendered as to each claim. E.g., Hensley, 461 U.S. at 435; Munson v. Milwaukee Bd. of Sch. Dirs., 969 F.2d 266,
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272 (7th Cir. 1992). But factual claims pertaining to the different ways in which a defendant failed to act -- which is what the plaintiffs alleged -- does not, without more, marry otherwise separate facts, at least not for Hensley purposes. For example, if an employee were to bring a single suit against her employer for both a slip and fall in the office lobby and a hostile work environment arising from her supervisor's continued sexual advances, the employer's implicit failure to act in each instance would not mean the two claims arose from a common core of facts, even though all of the claims involve, in some sense, the employer's failure to act.
For similar reasons, the fact that the Court certified the plaintiffs as a class pursuant to Federal Rules of Civil Procedure 23(a) and (b)(2) does not mean that the plaintiffs' unsuccessful claims are factually related to the community placement claims. Among its prerequisites, Rule 23 requires "questions of law or fact common to the class" and a showing that "the party opposing the class has acted or refused to act on grounds that apply generally to the class." Fed. R. Civ. P. 23(a) & (b)(2) (emphasis added). But whether questions of law or fact are common or apply generally to a class says nothing of the commonality of law or fact underlying each substantive claim. Thus, drawing on the previous example, a group of employees alleging multiple instances of slip and falls and sexual harassment might obtain class certification and yet, absent additional, specific evidence, their underlying claims would not, per se, be factually related for Hensley purposes, i.e., the slip and falls still would arise from different factual and legal allegations than the sexual harassment claims. See, e.g., Freid v. Nat'l Action Fin. Servs., Inc., No. 10-2870 (ES)(CLW), 2011 WL 6934845, at *4 (D.N.J. Dec. 29, 2011) (finding that the lodestar amount could be reduced where the underlying substantive claim, on which the individual plaintiff succeeded, was not sufficiently intertwined with his unsuccessful effort to
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achieve class action certification since certification of a class under Rule 23 is a separate
question from the substantive merits of a case; that is, "a putative class must first be certified
before the merits of the class action claims can be reached").9
Based on the foregoing, it is clear that the plaintiffs relied on wholly different facts --
different in both type and character -- to challenge the conditions and services at STS as opposed
to the defendants' practices with regard to community placement. The plaintiffs' assertion that
proof of the alleged deficient conditions at STS was necessary to demonstrate that "community
placement is an appropriate option for STS residents," is not correct, and, in any event, does not
alone provide the requisite factual relatedness for purposes of awarding attorneys' fees. As
noted, the plaintiffs' success on the community placement claims -- despite the Court's refusal to
adjudicate virtually any of the claims relating to medical care, protection and habilitation --
demonstrates that the unsuccessful claims were not factual predicates of the community
9 The defendants make a separate but related assertion: that "certification of a class is not substantive relief . . . and so should not be considered an area in which the [p]laintiffs prevailed for purposes of awarding attorneys' fees." This argument is unavailing. While the defendants are correct that class certification is not a substantive claim, it is nevertheless clear that the plaintiffs used class certification as a method of pursuing relief on all of their claims. See O'Neal v. City of Seattle, 66 F.3d 1064, 1069 (9th Cir. 1995) ("motion [for class certification]. . . not a separate claim, but rather a method for pursuing [the] ultimately successful claims"). That class certification might have tangentially benefitted the unsuccessful claims as well, see Messier v. Southbury Training Sch., 183 F.R.D. 350 (D. Conn. 1998) (ruling on motion to opt out), does not necessarily mean that counsel's time must be reduced for its work in this area; after all, such time was expended on a successful claim. Moreover, since the plaintiffs qualify as "prevailing parties," the catalyst theory rejected by the Supreme Court is not implicated here either. See Buckhannon, 532 U.S. at 602-10. Thus, it is only if the defendants are able to identify specific blocks of time pertaining solely to class certification and one or more of the unsuccessful claims that the Court will deduct time, on the rationale that such time "cannot [then] be deemed to have been 'expended in pursuit of the ultimate result achieved.'" Hensley, 461 U.S. at 435. The defendants may identify and raise objections to any such blocks of time in the subsequent lodestar calculation phase. See infra pp. 22-23. The plaintiffs may respond if the defendants identify any such time; otherwise, the plaintiffs should not address this issue.
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placement claims. See supra p. 11 & n.7. And, although parts of the defendants' deposition and
trial testimonies state, in effect, that consideration of community placement had been
discontinued at STS because the defendants believed that the same level of care was not
available in the community (thereby, according to the plaintiffs, putting the conditions at STS in
dispute), this does not by itself mean that there was any significant overlap of the plaintiffs'
counsel's time and effort between the winning and losing claims. A review of the complaint and
the overall record clearly shows that counsel for the plaintiffs intended and pursued medical
care, protection and habilitation as claims in their own right. Thus, for the reasons stated, and because the plaintiffs have not demonstrated otherwise,10 the Court finds that the plaintiffs'
unsuccessful claims concerning medical care, protection and habilitation are not factually related
to the community placement claims. The Court must now determine whether any of the
unsuccessful claims were based on a legal theory that was related to the legal theory on which
the community placement claims were based. See Hensley, 461 U.S. at 435; Green v. Torres,
10 That is, the plaintiffs have not shown -- especially given the factual differences the Court has highlighted between the winning and losing claims in this case -- that courts have generally and necessarily found in this context that claims for medical care, protection and habilitation arise from the same core of facts as the community placement claims. Cf. Parrish v. Sollecito, 280 F. Supp. 2d 145, 172 (S.D.N.Y. 2003) (citing cases and awarding attorneys' fees based on district courts having regularly found that unsuccessful sexual harassment discrimination claims are sufficiently related to retaliation claims to warrant inclusion of time spent on both for attorneys' fees purposes); Garrity v. Sununu, 752 F.2d 727, 734-35 (1st Cir. 1984) (holding, based on specific claims made by plaintiffs in the underlying case, Garrity v. Gallen, 522 F.Supp. 171, (D.N.H. 1981), in which plaintiffs lost on community placement claims but succeeded on some claims relating to institutional conditions, and which involved more expansive -- but not necessarily warranted -- reading of plaintiffs' § 504 claims (compare 752 F.2d at 734-35, with 522 F.Supp. at 209-10, 213-15), that district court "could reasonably find" unsuccessful community placement claims were related to successful conditions claims for fee award purposes) (emphasis added).
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361 F.3d at 98. b. The unsuccessful claims were not based on a related legal theory
Claims can also be related if they are based on a similar legal theory. See Hensley, 461 U.S. at 435; Green v. Torres, 361 F.3d at 98. A legal theory is the principle on which a litigant bases or proceeds with its claims. Black's Law Dictionary 907 (7th ed. 1999). Here, the plaintiffs' complaint avers: (1) denial of Fourteenth Amendment Due Process (Count I); (2) unlawful discrimination pertaining to community placement in violation of the ADA and Section 504 (Count II); and (3) failure to habilitate as required by the SSA (Count III). Each count references separate constitutional or statutory provisions and relates to one or more of the aforementioned subject areas: medical care, protection, habilitation and community placement. As noted, the plaintiffs prevailed on the community placement claims alleged in both Counts I and II. But because Count I also contains due process claims relating to the unsuccessful subject areas, the Court must determine whether this means that the community placement claims in Count I are based on a similar due process legal theory as the unsuccessful claims in that count.11
i.) The due process claims in Count I In Count I, the plaintiffs allege that the defendants deprived class members of their Fourteenth Amendment Due Process rights with respect to medical care, protection, habilitation
11 Counts II and III do not possess this hybrid nature. That is, the claims asserted in Count II deal only with community placement and violations of the ADA and § 504, and the claims asserted in Count III deal only with habilitation and violations of the SSA. The Court notes that while the word "programs" in Count II and subparts (e) and (f) of Count III could be viewed, in the most general sense, as implicating habilitation and community placement, respectively, the substance of the plaintiffs' arguments and assertions during the pendency of this case did not reflect that in any meaningful way. The plaintiffs did not advance a legal theory connecting community placement with the other subject areas, and the Court did not interpret Counts II and III in this manner, either. See, e.g., Messier, 562 F. Supp. 2d at 298-99.
15

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and community placement. While Count I only asserted a general denial of due process, the
Court construed it as advancing claims for violations of both substantive and procedural due
process. See Messier, 562 F. Supp. 2d at 298. The Court found that while residents of a state-
operated institution for the mentally disabled have a substantive due process right to medical
care, protection and habilitation, they do not have a substantive due process right to community
placement. Id. at 300, 319. Rather, community placement is subject to due process scrutiny only
to the extent that "the decision to keep a resident in an institution [rather than] placing the
resident in a community setting must be 'a rational decision based on professional judgment.'"
Id. at 319. In other words, a decision to keep a mentally disabled individual in an institution may
be attacked on procedural due process grounds, but not substantive ones. Because procedural and substantive due process are very different12 it cannot be said that the community placement
claims in Count I are based on a similar legal theory as the unsuccessful claims, which assert
substantive due process violations. Due process does not constitute a single legal theory so
much as a platform from which a litigant may trigger liability by asserting and proving certain
12 The Due Process Clause of the Fourteenth Amendment has both a procedural and a substantive component. See, e.g., Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992). Procedural due process ensures that the government utilizes "fair procedure[s] in connection with any deprivation of life, liberty, or property by a State." Id. Substantive due process, on the other hand, "forbids the government to infringe certain 'fundamental' liberty interests . . . no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest." Reno v. Flores, 507 U.S. 292, 302 (1993) (citing Collins, 503 U.S. at 125). Moreover, "the fundamental interests that [ ] have been viewed as implicitly protected by the Constitution," and which implicate substantive due process, are not generally viewed to be the same ones that implicate procedural due process. See Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 229-30 (1985) (Powell, J.,concurring); Smith v. Twp. of East Greenwich, 519 F. Supp. 2d 493, 502 (D.N.J. 2007) (recognizing that "while property rights for procedural due process purposes are created by state law, substantive due process rights are created by the Constitution”) (citing cases).
16

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other factual and legal claims. See County of Sacramento v. Lewis, 523 U.S. 833, 850-51 (1998). Indeed, absent some additional and independent commonality, different claims alleging denial of due process, even of the same type, are not correctly characterized as being based on a similar legal theory because the inherent fluidity of due process renders "[t]hat which may, in one setting, constitute a denial [of due process], . . . in other circumstances, and in light of other considerations, [cause it to] fall short of such denial." Id. at 850.
For these reasons, it cannot be said that the plaintiffs' unsuccessful claims in Count I are based on a similar legal theory as the successful community placement claims. Due process is too fluid a concept to provide the requisite relatedness for Hensley purposes.
2. The Degree of Success Achieved on the Successful Claims The next step is to analyze the degree of success the plaintiffs obtained with regard to their successful community placement claims. Hensley, 461 U.S. at 435, 440. Ascertaining the "degree of success" requires the Court to compare the "results obtained" by the plaintiffs with the scope of "the litigation as a whole." Id. Effectively, the Court must construct a fraction: if comparison of the "results obtained" with "the litigation as a whole" yields "excellent results," (i.e., a fraction equaling a percent near 100), then the plaintiffs "should recover a fully compensatory fee." Id. at 435. But if the comparison shows that the results obtained were limited, the amount of the fee should be reduced. Id. The plaintiffs’ failure to prevail on "every contention" or "alternative legal ground[ ]," however, is not a sufficient reason for reducing the fee. The results are what matter.13
13 The Court notes that utilizing a fraction for purposes of determining whether an adjustment to the lodestar is required, as opposed to the amount of the adjustment, does not violate the rule against strict proportionality. See Lunday v. City of Albany, 42 F.3d 131, 134-
17

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a. Comparison of the "results obtained" with "the litigation as a whole" The results obtained in this litigation are the finding that the defendants failed to provide for the evaluation of all class members for community placement and they failed to place in the community class members for whom such placement was appropriate.14 Messier, 562 F. Supp. 2d at 345. While this is not the exact result the plaintiffs sought to achieve -- community placements for all class members -- it is sufficient relief to qualify them as a prevailing party. The question now is whether the results obtained are almost the same as the results the plaintiffs sought in "the litigation as a whole." Hensley, 461 U.S. at 435, 440. In other words, the Court must determine if there is an appreciable difference between what the plaintiffs sought and what they achieved so that a fully compensatory fee for all time expended in "the litigation as a whole" is not excessive, i.e., whether the degree of success is close to 100% and as such may be found to constitute "excellent results." After discarding the severable claims pursuant to the first Hensley question, the community placement claims constitute "the litigation as a whole." This serves as the denominator in the "degree of success" fraction. The "results obtained" on the community placement claims serves as the numerator. Id. If the resulting fraction is close to 100, the results are considered "excellent." See supra n.13.
35 (2d Cir. 1994) (rejecting contention that lodestar amount should have been reduced by a specific percentage to reflect plaintiff's limited success at trial on rationale that the Second Circuit has consistently resisted strict proportionality of this kind in civil rights cases, but reaffirming that "determination of whether such a lodestar adjustment need be made is left largely to the discretion of the trial court") (emphasis added).
14 Based on the Court's liability ruling, the parties reached a settlement agreement that requires the defendants to take specific, remedial actions. But see infra n.18.
18

Case 3:94-cv-01706-EBB Document 1146 Filed 01/23/13 Page 19 of 23
i.) The "results obtained" in Count I The parts of Count I pertaining to community placement consist of subparagraphs (e), (f), and (g). In subparagraph (e) the plaintiffs asked "to have community placements that are integrated in society." (Emphasis added.) In subparagraph (g) the plaintiffs asked "to have community placements provided when . . . transfer to the community is necessary to protect classmembers' [sic] rights . . . ." (Emphasis added.) With regard to these two subparagraphs, the Court ruled only that the defendants must evaluate all class members for community placement and, thus, strictly speaking, the results "actually obtained" are not identical to the results sought. On the other hand, with regard to subparagraph (f), the result sought -- that all community placement decisions be made on an individual basis and implemented in accordance with the recommendations of placement teams -- corresponds closely with the results obtained. In sum, the Court concludes that as to the community placement claims in Count I, the results obtained, while not identical, closely correlate with the results sought.
ii.) The "results obtained" in Count II The plaintiffs also sought community placement as relief for the unlawful discrimination alleged in Count II (alleging that the defendants have violated class members' rights "[b]y failing to provide residents of [STS] the opportunity to receive state support in the community . . . and by failing to provide the most severely handicapped residents of [STS] with the same opportunity to benefit from programs and community living . . . ."). In connection with this count the Court found that the defendants had engaged in discrimination because they "failed to place in the community class members for whom such placement was found to be appropriate
19

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. . . ." Id. at 345. Thus, the plaintiffs achieved the precise results they sought in Count II.15 b. Does the comparison yield "excellent results"?
After concluding that the "results obtained" by the plaintiffs differ only in a minor degree from the results they sought "in the litigation as a whole," the Court must now determine whether that difference is nevertheless appreciable enough to preclude a finding of "excellent results," considering both the quantity and the quality of the results. See Barfield v. N.Y. City Health and Hosps. Corp., 537 F.3d 132, 151-52 (2d Cir. 2008). As an initial matter, however, the Court must affix a meaning to the term “excellent.” Neither the case law nor either party provides a specialized definition. As such, the Court must use its common meaning. Stenberg v. Carhart, 530 U.S. 914, 993 n.9 (2000) (recognizing that undefined terms are construed in accordance with their ordinary and plain meaning). Webster's Dictionary defines "excellent" as "near the standard or model," which is to say almost but not exactly perfect.16 Webster's New International Dictionary 888 (William A. Nielsen et al. eds., 2d ed. 1960). In other words, "excellent results" are achieved when the "fraction" is close to, but not precisely, 100.
From a purely quantitative standpoint one might say that the results obtained by the plaintiffs fall short of excellent since they did not wholly succeed on the community placement claims. But qualitatively the results obtained are a near-proxy for community placement. As the Court noted in its liability ruling, the exercise of professional judgment is but one of three factors
15 Proof of discrimination in this context does not require a showing of unequal treatment of similarly situated individuals, but only a showing that class members who were referred for community placement were not in fact so placed. Messier, 562 F. Supp. 2d at 321, 343.
16 Webster's defines "perfect" as "conforming completely to . . . [a] standard . . . flawless . . . [i.e., 100%.]" Id. at 1817.
20

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that must be considered in deciding the appropriateness of community placement; the other two being medical appropriateness and consent of the STS resident, both of which were beyond the scope of relief that could be ordered by the Court.17 See Messier, 562 F. Supp. 2d at 319, 323, 326. Nevertheless, because of the results obtained in the litigation, STS residents are now ensured that they will receive community placements when, in the exercise of professional judgment, such placement is deemed to be both medically appropriate and desired. This result is far different from the situation that existed prior to the litigation. Id. at 327 (finding that "[m]ost OPS documents produced after 1996 do not indicate that IDTs ever made individualized community placement decisions or recommendations").
Thus, not only is the exercise of professional judgment a necessary component of and antecedent to community placement, the assurance that such judgment will be exercised on behalf of all class members is all that the plaintiffs could have achieved in the litigation since the two other requirements for community placement are outside the scope of relief available from the Court. Accordingly, although the results are not per se the precise relief the plaintiffs sought "in the litigation as whole," the results are the maximal relief the plaintiffs could have been awarded under the circumstances. Hence, the results obtained constitute "excellent results." 18
17 For these purposes, the Court treats professional judgment as an additional factor since medical appropriateness and consent, though required, may not necessarily be sufficient for community placement in all circumstances.
18 To this end, the plaintiffs urge the Court to consider the Settlement Agreement and related interim progress reports submitted by the Remedial Expert as independent, additional evidence of the "excellent results" they obtained. But the Settlement Agreement and progress reports simply implement the Court's liability ruling; they do not, and cannot, provide additional bases of relief. See Order Re: Approval & Implemen't of Settl't Agreem't [doc. # 1054] at 13 (stating that "the settlement agreement requires the defendants to fully address the violations of the rights of class members that the Court identified in its decision of the merits"). Thus, while
21

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See Barfield, 537 F.3d at 152 (reaffirming that "'the most critical factor' in a district court's determination of what constitutes reasonable attorney's fees . . . 'is the degree of success obtained' by the plaintiff" and that "[a] district court's assessment of the 'degree of success' achieved . . . is not limited to inquiring whether a plaintiff prevailed on individual claims . . . [rather] [b]oth 'the quantity and quality of relief obtained[ ]' . . . are key factors in . . . 'assessment of what is a reasonable fee under the circumstances of the case’”) (internal citations omitted).
For these reasons, the Court finds the defendants have not sustained their burden of proving that the results obtained by the plaintiffs cannot be deemed excellent because they obtained only a fraction of the relief they sought in the complaint. Indeed, that assertion is not only factually incorrect, but is contrary to the logic and teaching of the Supreme Court in Hensley. Consistent with Hensley, the Court has disregarded the plaintiffs' severable claims and has deemed the scope of the "litigation as a whole" to be comprised only of the community placement claims. And, pursuant to Hensley's second prong, the Court has compared the "results obtained" (i.e., the requirement that the defendants employ professional judgment to evaluate the appropriateness of community placement for all class members and to place in the community the class members for whom such placement is appropriate) with the results sought in "the litigation as a whole" (i.e., community placement for all class members). Based on that comparison, the Court has concluded that the plaintiffs obtained all the relief that could appropriately be awarded and thus achieved "excellent results." See U.S. Football League v. Nat'l Football League, 887 F.2d 408, 413 (2d Cir. 1989) (noting that the party advocating a
the Court GRANTS the plaintiffs' Motion to Supplement Reply [doc. # 1127], doing so does not change the result. Accordingly, the defendants' related Motion in Limine to Exclude [doc. # 1130] and the plaintiffs' Motion to Strike [doc. # 1144] are both DENIED.
22

Case 3:94-cv-01706-EBB Document 1146 Filed 01/23/13 Page 23 of 23
reduction in the calculation of attorneys' fees bears the burden of proof). CONCLUSION
For the foregoing reasons, the Court finds that the plaintiffs obtained "excellent results" with respect to the claims on which they prevailed (i.e., the community placement claims). Because those claims are both factually and legally distinct from the plaintiffs' unsuccessful claims (i.e., medical care, protection and habilitation), calculation of the lodestar shall be limited to the time expended by the plaintiffs' counsel on the successful claims (i.e., community placement), with no fees awarded for the time the plaintiffs' counsel expended on the severable claims.
A scheduling order shall be issued setting forth the final steps in this litigation.
SO ORDERED.
/s/ ELLEN BREE BURNS SENIOR UNITED STATES DISTRICT JUDGE
Dated this 22nd day of January, 2013 at New Haven, Connecticut.
23

 
 CLOSED,EFILE
U.S. District Court District of Connecticut (New Haven) CIVIL DOCKET FOR CASE #: 3:94-cv-01706-VAB

Messier, et al v. Southbury Training, et al Assigned to: Judge Victor A. Bolden Demand: $0 Case in other court: 98-09608 Cause: 42:1983 Civil Rights Act

Date Filed: 10/06/1994 Date Terminated: 11/18/2010 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
Richard Messier by guardian, Thomas Nerney

represented by David C. Shaw Law Office of David C. Shaw, LLC 533 Firetown Rd. Simsbury, CT 06070 860-796-8598 Email: davidshawctatty@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frank J. Laski Mental Health Legal Advisors Committee 294 Washington St. Suite 320 Boston, MA 02108 617-338-2345 x23 Fax: 617-338-2347 Email: flaski@mhlac.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard T. Roznoy 59 Rainbow Rd. PO Box 210 E. Granby, CT 06026 TERMINATED: 10/24/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David N. Rosen David N. Rosen & Associates, P.C.

Plaintiff Thomas Maloney by guardian and sister, Kate Clinton
Plaintiff Carole Ann Carr by guardian, Ted Bergeron

400 Orange St New Haven, CT 06511 203-787-3513 Fax: 203-789-1605 Email: drosen@davidrosenlaw.com ATTORNEY TO BE NOTICED
David Hunter Smith David Rosen & Associates 400 Orange Street New Haven, CT 06511 203-787-3513 Fax: 203-789-1605 Email: hsmith@robbinsrussell.com TERMINATED: 05/31/2017 ATTORNEY TO BE NOTICED
represented by David C. Shaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank J. Laski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard T. Roznoy (See above for address) TERMINATED: 10/24/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David N. Rosen (See above for address) ATTORNEY TO BE NOTICED
David Hunter Smith (See above for address) TERMINATED: 05/31/2017 ATTORNEY TO BE NOTICED
represented by David C. Shaw (See above for address)

Plaintiff
Leon Horton by mother and guardian, Emma Debiase

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank J. Laski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard T. Roznoy (See above for address) TERMINATED: 10/24/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David N. Rosen (See above for address) ATTORNEY TO BE NOTICED
David Hunter Smith (See above for address) TERMINATED: 05/31/2017 ATTORNEY TO BE NOTICED
represented by David C. Shaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank J. Laski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard T. Roznoy (See above for address) TERMINATED: 10/24/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David N. Rosen (See above for address) ATTORNEY TO BE NOTICED
David Hunter Smith (See above for address)

Plaintiff Raymond Mitchell by guardian, Frank Wargo
Plaintiff Leonard Haversat by guardian, Mary Tracy

TERMINATED: 05/31/2017 ATTORNEY TO BE NOTICED
represented by David C. Shaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank J. Laski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard T. Roznoy (See above for address) TERMINATED: 10/24/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David N. Rosen (See above for address) ATTORNEY TO BE NOTICED
David Hunter Smith (See above for address) TERMINATED: 05/31/2017 ATTORNEY TO BE NOTICED
represented by David C. Shaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank J. Laski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard T. Roznoy (See above for address) TERMINATED: 10/24/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Gregory Kabbai by guardian, Jane Williams
Plaintiff David Yeske by sister and guardian, Joyce Yeske Rooney TERMINATED: 09/20/1996

David N. Rosen (See above for address) ATTORNEY TO BE NOTICED
David Hunter Smith (See above for address) TERMINATED: 05/31/2017 ATTORNEY TO BE NOTICED
represented by David C. Shaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank J. Laski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard T. Roznoy (See above for address) TERMINATED: 10/24/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David N. Rosen (See above for address) ATTORNEY TO BE NOTICED
David Hunter Smith (See above for address) TERMINATED: 05/31/2017 ATTORNEY TO BE NOTICED
represented by David C. Shaw (See above for address) TERMINATED: 09/20/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank J. Laski (See above for address) TERMINATED: 09/20/1996 LEAD ATTORNEY

Plaintiff People First of Connecticut, Inc.
Plaintiff ARC/Connecticut, Inc

ATTORNEY TO BE NOTICED
David N. Rosen (See above for address) ATTORNEY TO BE NOTICED
David Hunter Smith (See above for address) TERMINATED: 05/31/2017 ATTORNEY TO BE NOTICED
represented by David C. Shaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank J. Laski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard T. Roznoy (See above for address) TERMINATED: 10/24/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David N. Rosen (See above for address) ATTORNEY TO BE NOTICED
David Hunter Smith (See above for address) TERMINATED: 05/31/2017 ATTORNEY TO BE NOTICED
represented by Barbara E. Ransom Public Interest Law Center of Philadelphia 125 S. 9th St. Suite 700 Philadelphia, PA 19107 Email: general@pilcop.org LEAD ATTORNEY

Plaintiff
Western Connecticut Association for Human Rights

ATTORNEY TO BE NOTICED
David C. Shaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank J. Laski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Judith A. Gran Public Interest Law Center of Philadelphia 125 S. 9th St. Suite 700 Philadelphia, PA 19107 Email: general@pilcop.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard T. Roznoy (See above for address) TERMINATED: 10/24/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Barbara E. Ransom Public Interest Law Center of Philadelphia 125 S. 9th St. Suite 700 Philadelphia, PA 19107 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David C. Shaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank J. Laski (See above for address) LEAD ATTORNEY

Plaintiff all plaintiffs
V. Defendant Southbury Training School TERMINATED: 01/05/1999

ATTORNEY TO BE NOTICED
Judith A. Gran Public Interest Law Center of Philadelphia 125 S. 9th St. Suite 700 Philadelphia, PA 19107 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard T. Roznoy (See above for address) TERMINATED: 10/24/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David C. Shaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Martha M. Dwyer Novack Burnbaum Crystal LLP 300 East 42nd St. New York, NY 10017 212-682-4002 Fax: 212-986-2907 Email: mdwyer@nbclaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Paul Friedman Murtha Cullina, LLP - Stmfd 177 Broad Street, 4th Floor Stamford, CT 06901 203-653-5400 Fax: 203-653-5444 Email: dfriedman@Murthalaw.com TERMINATED: 01/05/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Toni Richardson Connecticut Department of Mental Retardation

James P. Welsh Director-Legal & Govt Affairs Dept. of Mental Retardation 460 Capitol Ave. Hartford, CT 06106 860-418-6085 Fax: 860-418-6009 Email: james.welsh@po.state.ct.us TERMINATED: 01/05/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert M. Frost , Jr. Frost Bussert LLC 350 Orange Street, Suite 100 New Haven, CT 06511 203-495-9790 Fax: 203-495-9795 Email: rmf@frostbussert.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas B. York York Law 1205 Argus Road Kill Devil Hills, NC 27948 717-495-4555 Email: tyork@yorklaw.us TERMINATED: 01/05/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Paul Friedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily V. Melendez State of Connecticut Office of the Attorney General 165 Capitol Avenue Suite 4000 Hartford, CT 06106 860-808-5210

Defendant
Director Thomas Howley Southbury Training School

Fax: 860-808-5385 Email: emily.melendez@ct.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
James P. Welsh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas B. York (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Henry A. Salton Office of the Attorney General Health & Human Services 165 Capitol Avenue PO Box 120 Hartford, CT 06106 860-808-5210 Fax: 860-808-5385 Email: Henry.Salton@ct.gov TERMINATED: 09/23/2020 ATTORNEY TO BE NOTICED
represented by David Paul Friedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily V. Melendez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James P. Welsh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas B. York (See above for address) LEAD ATTORNEY

Defendant
Commissioner Patricia Giardi Connecticut Department of Social Services

ATTORNEY TO BE NOTICED
Henry A. Salton (See above for address) TERMINATED: 09/23/2020 ATTORNEY TO BE NOTICED
represented by David Paul Friedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily V. Melendez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Henry A. Salton (See above for address) TERMINATED: 09/23/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hugh Barber Attorney General's Office Health & Human Services 55 Elm St., Po Box 120 Hartford, CT 06141-0120 860-808-5210 Fax: 860-808-5385 Email: hugh.barber@ct.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jane D. Comerford Attorney General's Office Health & Education 55 Elm Street -5th Floor P.O. Box 120 Hartford, CT 06141-0120 860-808-5210 Fax: 860-808-5385 Email: jane.comerford@ct.gov TERMINATED: 08/06/1997 LEAD ATTORNEY

Defendant
Commissioner Susan S. Addiss Connecticut Department of Public Health and Addiction Services

ATTORNEY TO BE NOTICED
Richard J. Lynch Attorney General's Office Health & Human Services 55 Elm St., Po Box 120 Hartford, CT 06101 860-808-5210 Fax: 860-808-5385 Email: richard.lynch@ct.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Paul Friedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily V. Melendez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Henry A. Salton (See above for address) TERMINATED: 09/23/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jane D. Comerford (See above for address) TERMINATED: 08/06/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marianne Horn Attorney General's Office-DPH Department of Public Health 410 Capitol Ave Hartford, CT 06134 860-509-7107 Email: marianne.horn@ct.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant Home & School Association of Southbury Training School
Movant Southbury Training School Foundation, Inc.

Richard J. Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Paul Friedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank J. Silvestri , Jr. Verrill Dana LLP 355 Riverside Avenue Westport, CT 06880 203-222-0885 Fax: 203-226-8025 Email: fsilvestri@verrill-law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard J. Scarola 888 Seventh Ave., 45th Fl. New York, NY 10019 212-757-0007 Email: rjjs@selaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Paul Friedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank J. Silvestri , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Martha M. Dwyer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Movant James C. Walen by his parent and guardian, Edward D. Walen
Movant Steven M. Bondy by his parents and guardians, Philip K. Bondy, M.D. and Sarah E. Bondy
Movant Michael Dougherty by his sister and guardian, Ann Dougherty
Movant Rebecca Benson by her parents and guardians, Carleton J. Benson and Gloria P. Benson

Robert M. Frost , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Paul Friedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank J. Silvestri , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Paul Friedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank J. Silvestri , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Paul Friedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank J. Silvestri , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Paul Friedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank J. Silvestri , Jr. (See above for address)

Movant Susan Hendricks by her parents and guardians, Marylyn Hendricks and Laurence Hendricks
Movant Alan Rotzal by her sister and co-guardian, Carol A. Revere
Movant Steven B. Gorski by his parents and guardians, Henry P. Gorski and Bernadetta Gorski
Movant Edward D. Walen

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Paul Friedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank J. Silvestri , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Paul Friedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank J. Silvestri , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Paul Friedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank J. Silvestri , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Paul Friedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank J. Silvestri , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant M.D. Philip K. Bondy
Movant Sarah E. Bondy
Movant Ann Dougherty
Movant Carleton J. Benson
Movant

represented by David Paul Friedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank J. Silvestri , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Paul Friedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank J. Silvestri , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Paul Friedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank J. Silvestri , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Paul Friedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank J. Silvestri , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gloria P. Benson
Movant Marylyn Hendricks
Movant Laurence Hendricks
Movant Carol A. Revere
Movant Henry P. Gorski

represented by David Paul Friedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank J. Silvestri , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Paul Friedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank J. Silvestri , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Paul Friedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank J. Silvestri , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Paul Friedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank J. Silvestri , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Paul Friedman (See above for address) LEAD ATTORNEY

Movant Bernadetta Gorski
Movant Toni Richardson Connecticut Department of Mental Retardation
Movant Director Thomas Howley Southbury Training School
Movant Home and School Association of the Southbury Training School, Inc. Movant

ATTORNEY TO BE NOTICED
Frank J. Silvestri , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Paul Friedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank J. Silvestri , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Paul Friedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank J. Silvestri , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Paul Friedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank J. Silvestri , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Richard J. Scarola (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

611 Residents of Southbury Training School
Movant Public Interest Law Center of Philadelphia

represented by Richard J. Scarola (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Richman Pepper Hamilton - Ph, PA 3000 Two Logan Square Eighteenth & Arch Streets Philadelphia, PA 19103-2799 215-981-4000 Fax: 215-981-4750 Email: richmand@pepperlaw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Eric Rothschild Pepper Hamilton - Ph, PA 3000 Two Logan Square Eighteenth & Arch Streets Philadelphia, PA 19103-2799 215-981-4813 Fax: 215-981-4750 Email: rothschilde@pepperlaw.com TERMINATED: 05/31/2017 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Hedya Aryani Pepper Hamilton - Ph, PA 3000 Two Logan Square Eighteenth & Arch Streets Philadelphia, PA 19103-2799 215-981-4011 Fax: 215-981-4750 Email: aryanih@pepperlaw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Dennis Mark Carnelli Neubert Pepe & Monteith, PC 195 Church Street

Movant Attorney David C. Shaw
Interested Party USA

13th Floor New Haven, CT 06510 203-821-2000 Fax: 203-821-2008 Email: dcarnelli@npmlaw.com ATTORNEY TO BE NOTICED
Robert B. Flynn Neubert, Pepe & Monteith, P.C. 195 Church Street 13th floor New Haven, CT 06510 203-821-2000 Fax: 203-821-2009 Email: rflynn@npmlaw.com ATTORNEY TO BE NOTICED
represented by David N. Rosen (See above for address) ATTORNEY TO BE NOTICED
represented by Laurie J. Weinstein United States Attorney's Office - DC 555 4th Street N.W. E4820 Washington, DC 20530 202-514-7133 Email: laurie.weinstein2@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 10/06/1994 10/06/1994 10/06/1994
10/06/1994

# Docket Text
1 COMPLAINT Filing Fee $ 120.00 Receipt # 137967 (D'Onofrio, B.) (Entered: 10/11/1994)
SUMMONS(ES) issued for Southbury Training , Toni Richardson, Thomas Howley, Patricia Giardi, Susan S. Addiss (D'Onofrio, B.) Modified on 10/13/1994 (Entered: 10/11/1994)
2 ORDER on Pretrial Deadlines handed to counsel. Discovery cutoff 4/7/95 ; Dispositive Motions due 5/14/95 Amended Pleadings due 12/16/94 Motions to Dismiss due 1/16/95 (D'Onofrio, B.) (Entered: 10/11/1994)
3 MOTION by Richard Messier, Thomas Maloney, Carole Ann Carr, Leon Horton, Raymond Mitchell, Leonard Haversat, Gregory Kabbai, David Yeske, People First, ARC/Connecticut, Inc, Western CT Assoc to

10/06/1994
10/11/1994
10/14/1994 10/18/1994 10/20/1994 10/21/1994 10/21/1994 10/24/1994 10/31/1994 11/08/1994 11/29/1994

Consolidate Case with docket number(s): N86-252(EBB) (Brief Due 10/27/94 ) (D'Onofrio, B.) (Entered: 10/11/1994)
4 MEMORANDUM by Richard Messier, Thomas Maloney, Carole Ann Carr, Leon Horton, Raymond Mitchell, Leonard Haversat, Gregory Kabbai, David Yeske, People First, ARC/Connecticut, Inc, Western CT Assoc in support of [3-1] motion to Consolidate Case with docket number(s): N86-252(EBB) by plaintiffs (D'Onofrio, B.) Modified on 10/13/1994 (Entered: 10/11/1994)
5 MOTION by Richard Messier, Thomas Maloney, Carole Ann Carr, Leon Horton, Raymond Mitchell, Leonard Haversat, Gregory Kabbai, David Yeske, People First, ARC/Connecticut, Inc, Western CT Assoc to Transfer Case (Brief Due 11/1/94 ) (D'Onofrio, B.) (Entered: 10/11/1994)
7 Return of Service of summons by Richard Messier, Thomas Maloney, Carole Ann Carr, Leon Horton, Raymond Mitchell, Leonard Haversat, Gregory Kabbai, David Yeske, People First, ARC/Connecticut, Inc, Western CT Assoc (Johnson, D.) (Entered: 10/20/1994)
6 APPEARANCE of Attorney for Patricia Giardi, Susan S. Addiss -Richard J. Lynch, Henry A. Salton (Gothers, M.) (Entered: 10/19/1994)
11 MEMORANDUM by USA in support of [3-1] motion to Consolidate Case with docket number(s): N86-252(EBB) by plaintiffs, [5-1] motion to Transfer Case by plaintiffs (Johnson, D.) (Entered: 10/25/1994)
8 OBJECTION by Southbury Training, Toni Richardson, Thomas Howley, Patricia Giardi, Susan S. Addiss re: [2-1] order (Gothers, M.) (Entered: 10/21/1994)
9 APPEARANCE of Attorney for Southbury Training, Toni Richardson, Thomas Howley -- James P. Welsh (Gothers, M.) (Entered: 10/21/1994)
10 MOTION by Richard Messier, Thomas Maloney, Carole Ann Carr, Leon Horton, Raymond Mitchell, Leonard Haversat, Gregory Kabbai, David Yeske, People First, ARC/Connecticut, Inc, Western CT Assoc to Amend [1-1] complaint (Gothers, M.) (Entered: 10/24/1994)
12 MOTION by Southbury Training, Toni Richardson, Thomas Howley, Patricia Giardi, Susan S. Addiss to Extend Time 12/15/94 to respond to the complaint & the Motion for Consolidation (Gothers, M.) (Entered: 11/03/1994)
ENDORSEMENT granting [12-1] motion to Extend Time 12/15/94 to respond to the complaint & the Motion for Consolidation ( signed by Judge Alfred V. Covello ) (Blue,A.) (Entered: 11/10/1994)
38 MOTION by Southbury Training, Toni Richardson, Thomas Howley for Reconsideration of [0-0] order granting Plaintiff's Motion to Transfer (Brief Due 12/20/94 ) (Gothers, M.) (Entered: 01/20/1995)

11/29/1994 12/07/1994
12/07/1994
12/12/1994 12/12/1994 12/13/1994 12/13/1994 12/15/1994 12/15/1994

39 MEMORANDUM by Southbury Training, Toni Richardson, Thomas Howley in support of [38-1] motion for Reconsideration of [0-0] order granting Plaintiff's Motion to Transfer by Thomas Howley, Toni Richardson, Southbury Training (Gothers, M.) (Entered: 01/20/1995)
13 MOTION by Home & School Assoc., Southbury Foundation, James C. Walen, Steven M. Bondy, Michael Dougherty, Rebecca Benson, Susan Hendricks, Alan Rotzal, Steven B. Gorski, Edward D. Walen, Philip K. Bondy, Sarah E. Bondy, Ann Dougherty, Carleton J. Benson, Gloria P. Benson, Marylyn Hendricks, Laurence Hendricks, Carol A. Revere, Henry P. Gorski, Bernadetta Gorski, Toni Richardson, Thomas Howley to Intervene (Brief Due 12/28/94 ) (D'Onofrio, B.) (Entered: 12/12/1994)
14 MEMORANDUM by Home & School Assoc., Southbury Foundation, James C. Walen, Steven M. Bondy, Michael Dougherty, Rebecca Benson, Susan Hendricks, Alan Rotzal, Steven B. Gorski, Edward D. Walen, Philip K. Bondy, Sarah E. Bondy, Ann Dougherty, Carleton J. Benson, Gloria P. Benson, Marylyn Hendricks, Laurence Hendricks, Carol A. Revere, Henry P. Gorski, Bernadetta Gorski, Toni Richardson, Thomas Howley in support of [13-1] motion to Intervene by movant by defendant, movant, defendant, movant (D'Onofrio, B.) (Entered: 12/12/1994)
ENDORSEMENT granting [10-1] motion to Amend [1-1] complaint ( signed by Judge Alfred V. Covello ) (Former Employee) (Entered: 12/13/1994)
15 AMENDED COMPLAINT by Richard Messier, Thomas Maloney, Carole Ann Carr, Leon Horton, Raymond Mitchell, Leonard Haversat, Gregory Kabbai, People First, ARC/Connecticut, Inc, Western CT Assoc amending [1-1] complaint (Former Employee) (Entered: 12/13/1994)
16 MOTION by Patricia Giardi, Susan S. Addiss to Dismiss the amended complaint for failure to state a claim upon which relief may be granted (Brief Due 1/3/95 ) (Gothers, M.) (Entered: 12/13/1994)
17 MEMORANDUM by Patricia Giardi, Susan S. Addiss in support of [161] motion to Dismiss the amended complaint for failure to state a claim upon which relief may be granted by Susan S. Addiss, Patricia Giardi (Gothers, M.) (Entered: 12/13/1994)
18 MOTION by Southbury Training, Toni Richardson, Thomas Howley to Extend Time until for one week to respond to motion for consolidation (Gothers, M.) (Entered: 12/19/1994)
19 SECOND MOTION by Patricia Giardi, Susan S. Addiss to Extend Time to respond to the motion for consolidation until one week after final

12/15/1994 12/15/1994 12/16/1994 12/16/1994 12/27/1994 12/27/1994
12/27/1994
12/27/1994 12/28/1994

resolution of the defendants motion to dismiss (Gothers, M.) (Entered: 12/19/1994)
20 MOTION by Southbury Training, Toni Richardson, Thomas Howley, Patricia Giardi, Susan S. Addiss to Dismiss (Brief Due 1/5/95 ) (D'Onofrio, B.) (Entered: 12/20/1994)
21 MEMORANDUM by Southbury Training, Toni Richardson, Thomas Howley, Patricia Giardi, Susan S. Addiss in support of [20-1] motion to Dismiss by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training (D'Onofrio, B.) (Entered: 12/20/1994)
ENDORSEMENT granting [5-1] motion to Transfer Case to Senior Judge Ellen B. Burns ( signed by Judge Alfred V. Covello ) (Kunofsky, L.) (Entered: 12/21/1994)
CASE reassigned to Senior Judge Ellen Bree Burns (D'Onofrio, B.) (Entered: 12/23/1994)
22 MOTION by Richard Messier, Thomas Maloney, Carole Ann Carr, Leon Horton, Raymond Mitchell, Leonard Haversat, Gregory Kabbai, David Yeske, People First, ARC/Connecticut, Inc, Western CT Assoc to Amend [15-1] amended complaint by plaintiffssssssssss (Former Employee) (Entered: 12/27/1994)
23 MEMORANDUM by Richard Messier, Thomas Maloney, Carole Ann Carr, Leon Horton, Raymond Mitchell, Leonard Haversat, Gregory Kabbai, David Yeske, People First, ARC/Connecticut, Inc, Western CT Assoc in support of [22-1] motion to Amend [15-1] amended complaint by plaintiffssssssssss by plaintiffssssssssss (Former Employee) (Entered: 12/27/1994)
25 OBJECTIONS by Richard Messier, Thomas Maloney, Carole Ann Carr, Leon Horton, Raymond Mitchell, Leonard Haversat, Gregory Kabbai, David Yeske, People First, ARC/Connecticut, Inc, Western CT Assoc to [19-1] motion to Extend Time to respond to the motion for consolidation until one week after final resolution of the defendants motion to dismiss by Susan S. Addiss, Patricia Giardi (Former Employee) (Entered: 12/29/1994)
26 OBJECTIONS by Richard Messier, Thomas Maloney, Carole Ann Carr, Leon Horton, Raymond Mitchell, Leonard Haversat, Gregory Kabbai, David Yeske, People First, ARC/Connecticut, Inc, Western CT Assoc to [24-1] motion to Extend Time by plaintiffssssssssss (Former Employee) (Entered: 12/29/1994)
24 MOTION by Richard Messier, Thomas Maloney, Carole Ann Carr, Leon Horton, Raymond Mitchell, Leonard Haversat, Gregory Kabbai, David Yeske, People First, ARC/Connecticut, Inc, Western CT Assoc to Extend Time (Collins, S.) (Entered: 12/28/1994)

12/28/1994 12/29/1994 12/29/1994 12/29/1994 01/03/1995 01/03/1995 01/04/1995
01/04/1995 01/05/1995 01/06/1995 01/06/1995

30 MOTION by Patricia Giardi, Susan S. Addiss to Extend Time to 1/31/95 to respond to Motion to Intervene (D'Onofrio, B.) (Entered: 12/30/1994)
27 MOTION by Patricia Giardi, Susan S. Addiss for Reconsideration of [51] motion to Transfer Case by plaintiffs, re: order of 12/16/94, (Brief Due 1/19/95 ) (Former Employee) Modified on 01/04/1995 (Entered: 12/29/1994)
28 MEMORANDUM by Patricia Giardi, Susan S. Addiss in support of [271] motion for Reconsideration of [5-1] motion to Transfer Case by plaintiffs, [0-0] order, [0-0] judge by Susan S. Addiss, Patricia Giardi (Former Employee) (Entered: 12/29/1994)
29 MOTION by Toni Richardson, Thomas Howley to Extend Time to 1/31/95 to respond to motion to intervene (D'Onofrio, B.) (Entered: 12/30/1994)
ENDORSEMENT granted [24-1] motion to Extend Time until 01/10/95 to respond to the Motion to Intervene ( signed by Senior Judge Ellen Bree Burns ) (Grady, B.) (Entered: 01/03/1995)
32 MEMORANDUM by all plaintiffs in opposition to [20-1] motion to Dismiss by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training (Grady, B.) Modified on 03/09/1995 (Entered: 01/10/1995)
31 MOTION by Richard Messier, Thomas Maloney, Carole Ann Carr, Leon Horton, Raymond Mitchell, Leonard Haversat, Gregory Kabbai, David Yeske, People First, ARC/Connecticut, Inc, Western CT Assoc to Extend Time to 1/18/95 to respond to Motion to Dismiss (D'Onofrio, B.) (Entered: 01/05/1995)
ENDORSEMENT granted absent objection [30-1] motion to Extend Time to 1/31/95 to respond to Motion to Intervene ( signed by Senior Judge Ellen Bree Burns ) (Grady, B.) (Entered: 01/05/1995)
ENDORSEMENT granting [29-1] motion to Extend Time to 1/31/95 to respond to motion to intervene, Brief Deadline set for 1/31/95 [13-1] motion to Intervene ( signed by Judge Alfred V. Covello ) (Blue,A.) (Entered: 01/06/1995)
MEMORANDUM by Patricia Giardi, Susan S. Addiss in opposition to [27-1] motion for Reconsideration of [5-1] motion to Transfer Case by plaintiffs, re: order of 12/16/94, by Susan S. Addiss, Patricia Giardi (Gothers, M.) (Entered: 01/20/1995)
MEMORANDUM by Richard Messier, Thomas Maloney, Carole Ann Carr, Leon Horton, Raymond Mitchell, Leonard Haversat, Gregory Kabbai, David Yeske, People First, ARC/Connecticut, Inc, Western CT Assoc, all plaintiffs in opposition to [27-1] motion for Reconsideration of [5-1] motion to Transfer Case by plaintiffs, re: order of 12/16/94, by

01/06/1995
01/06/1995
01/10/1995 01/11/1995 01/11/1995 01/11/1995 01/12/1995 01/17/1995
01/18/1995

Susan S. Addiss, Patricia Giardi (Gothers, M.) Modified on 03/09/1995 (Entered: 01/20/1995)
40 MEMORANDUM by Thomas Maloney, Carole Ann Carr, Leon Horton, Raymond Mitchell, Leonard Haversat, Gregory Kabbai, David Yeske, People First, ARC/Connecticut, Inc, Western CT Assoc, all plaintiffs in opposition to [27-1] motion for Reconsideration of [5-1] motion to Transfer Case by plaintiffs, re: order of 12/16/94, by Susan S. Addiss, Patricia Giardi (Gothers, M.) Modified on 03/09/1995 (Entered: 01/20/1995)
41 MEMORANDUM by Thomas Maloney, Carole Ann Carr, Leon Horton, Raymond Mitchell, Leonard Haversat, Gregory Kabbai, David Yeske, People First, ARC/Connecticut, Inc, Western CT Assoc, all plaintiffs in opposition to [38-1] motion for Reconsideration of [0-0] order granting Plaintiff's Motion to Transfer by Thomas Howley, Toni Richardson, Southbury Training (Gothers, M.) Modified on 03/09/1995 (Entered: 01/20/1995)
33 OBJECTIONS by People First, ARC/Connecticut, Inc, Western CT Assoc to [13-1] motion to Intervene by movant (Grady, B.) (Entered: 03/08/1995)
34 MOTION by Patricia Giardi, Susan S. Addiss to Strike [32-1] opposition memorandum by Pall (Brief Due 2/1/95 ) (Grady, B.) (Entered: 01/12/1995)
35 MEMORANDUM by Patricia Giardi, Susan S. Addiss in support of [341] motion to Strike [32-1] opposition memorandum by Pall by Susan S. Addiss, Patricia Giardi (Grady, B.) (Entered: 01/12/1995)
ENDORSEMENT granted absent objection [31-1] motion to Extend Time to 1/18/95 to respond to Motion to Dismiss. Plaintiffs shall respond to the Motion to Dismiss on or before 01/18/95 ( signed by Senior Judge Ellen Bree Burns ) (Grady, B.) (Entered: 01/12/1995)
36 REPLY by Patricia Giardi, Susan S. Addiss to memorandum in opposition [27-1] motion for Reconsideration of [5-1] motion to Transfer Case by plaintiffs, re: order of 12/16/94, by Susan S. Addiss, Patricia Giardi (Grady, B.) (Entered: 01/13/1995)
37 MOTION by Home & School Assoc., Southbury Foundation, James C. Walen, Steven M. Bondy, Michael Dougherty, Rebecca Benson, Susan Hendricks, Alan Rotzal, Steven B. Gorski, Edward D. Walen, Philip K. Bondy, Sarah E. Bondy, Ann Dougherty, Carleton J. Benson, Gloria P. Benson, Marylyn Hendricks, Laurence Hendricks, Carol A. Revere, Henry P. Gorski, Bernadetta Gorski, Toni Richardson, Thomas Howley for Permission to File Reply Brief (Grady, B.) (Entered: 01/18/1995)
42 MEMORANDUM by Richard Messier, Thomas Maloney, Carole Ann Carr, Leon Horton, Raymond Mitchell, Leonard Haversat, Gregory

01/20/1995 01/26/1995
01/31/1995 02/03/1995 02/03/1995 02/06/1995 02/09/1995 02/21/1995 02/21/1995 03/10/1995 03/16/1995 03/16/1995 03/23/1995

Kabbai, David Yeske, People First, ARC/Connecticut, Inc, Western CT Assoc, all plaintiffs in opposition to [20-1] motion to Dismiss by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training (Former Employee) Modified on 03/09/1995 (Entered: 01/23/1995)
ENDORSEMENT granting [37-1] motion for Permission to File Reply Brief ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 02/08/1996)
43 MEMORANDUM by all plaintiffs in opposition to [34-1] motion to Strike [32-1] opposition memorandum by all plaintiffs by Susan S. Addiss, Patricia Giardi (Grady, B.) Modified on 03/09/1995 (Entered: 01/26/1995)
ENDORSEMENT denying [27-1] motion for Reconsideration of [5-1] motion to Transfer Case by plaintiffs, re: order of 12/16/94, ( signed by Judge Alfred V. Covello ) (Former Employee) (Entered: 02/02/1995)
44 RESPONSE by Southbury Training, Toni Richardson, Thomas Howley to [13-1] motion to Intervene (Grady, B.) (Entered: 02/06/1995)
45 RESPONSE by Southbury Training, Toni Richardson, Thomas Howley to [13-1] motion to Intervene by movant by defendant, movant, defendant, movant (Former Employee) (Entered: 02/07/1995)
ENDORSEMENT denying [38-1] motion for Reconsideration of [0-0] order granting Plaintiff's Motion to Transfer ( signed by Judge Alfred V. Covello ) (Former Employee) (Entered: 02/08/1995)
46 RESPONSE by Patricia Giardi, Susan S. Addiss to [13-1] motion to Intervene (Lopez, B.) (Entered: 02/10/1995)
47 REPLY by Home & School Assoc. to response to [13-1] motion to Intervene by movant by defendant, movant, defendant, movant (Former Employee) (Entered: 02/22/1995)
48 AFFIDAVIT of Sarah E. Bondy by Home & School Assoc. Re [13-1] motion to Intervene by movant by defendant, movant, defendant, movant (Former Employee) (Entered: 02/22/1995)
49 RESPONSE by all plaintiffs to reply to [13-1] motion to Intervene movant (Grady, B.) (Entered: 03/14/1995)
50 MOTION by all plaintiffs for Class Certification (Grady, B.) (Entered: 03/16/1995)
51 MEMORANDUM by all plaintiffs in support of [50-1] motion for Class Certification by all plaintiffs (Grady, B.) (Entered: 03/16/1995)
52 MOTION by Home & School Assoc., Southbury Foundation, James C. Walen, Steven M. Bondy, Michael Dougherty, Rebecca Benson, Susan Hendricks, Alan Rotzal, Steven B. Gorski, Edward D. Walen, Philip K.

03/23/1995
03/24/1995 03/27/1995 03/28/1995 03/28/1995 03/30/1995 03/30/1995

Bondy, Sarah E. Bondy, Ann Dougherty, Carleton J. Benson, Gloria P. Benson, Marylyn Hendricks, Laurence Hendricks, Carol A. Revere, Henry P. Gorski, Bernadetta Gorski, Toni Richardson, Thomas Howley to Stay Proceedings with Respect to Plaintiffs' Motion for Class Certification (Brief Due 4/13/95 ) (Grady, B.) (Entered: 03/23/1995)
53 MEMORANDUM by Home & School Assoc., Southbury Foundation, James C. Walen, Steven M. Bondy, Michael Dougherty, Rebecca Benson, Susan Hendricks, Alan Rotzal, Steven B. Gorski, Edward D. Walen, Philip K. Bondy, Sarah E. Bondy, Ann Dougherty, Carleton J. Benson, Gloria P. Benson, Marylyn Hendricks, Laurence Hendricks, Carol A. Revere, Henry P. Gorski, Bernadetta Gorski, Toni Richardson, Thomas Howley in support of [52-1] Motion to Stay Proceedings with Respect to Plaintiffs' Motion for Class Certification by movants (Grady, B.) (Entered: 03/23/1995)
54 MOTION by Patricia Giardi, Susan S. Addiss to Extend Time for 30 days to respond to the plaintiff's motion for class certification 30 days after resolution of the pending motion to intervene and defendant's motions to dismiss whichever is later (Former Employee) (Entered: 03/28/1995)
55 MOTION by Southbury Training, Toni Richardson, Thomas Howley to Extend Time until 30 days to respond to the plaintiff's motion for class certification 30 days after resolution of the pending motion to intervene and defendant's motions to dismiss whichever is later (Former Employee) (Entered: 03/28/1995)
56 OBJECTIONS by all plaintiffs to [54-1] motion to Extend Time to respond to the plaintiff's motion for class certification, filed by defendant, Ct. Department of Mental Retardation (Jefferson, V.) (Entered: 03/30/1995)
57 OBJECTIONS by all plaintiffs to [54-1] motion to Extend Time to respond to the plaintiff's motion for class certification, filed by Ct. Department of Public Health and Addiction Services (Jefferson, V.) (Entered: 03/30/1995)
ENDORSEMENT granting [54-1] motion to Extend Time for 30 days to respond to the plaintiff's motion for class certification 30 days after resolution of the pending motion to intervene and defendant's motions to dismiss whichever is later ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 03/30/1995)
ENDORSEMENT granting [55-1] motion to Extend Time until 30 days to respond to the plaintiff's motion for class certification 30 days after resolution of the pending motion to intervene and defendant's motions to dismiss whichever is later ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 03/30/1995)

03/31/1995
03/31/1995
04/05/1995 04/06/1995 04/06/1995 04/06/1995
04/06/1995
04/07/1995 04/07/1995 04/07/1995

ENDORSEMENT granting over objection, [55-1] motion to Extend Time until 30 days to respond to the plaintiff's motion for class certification 30 days after resolution of the pending motion to intervene and defendant's motions to dismiss whichever is later ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 03/31/1995)
ENDORSEMENT granting over objection [54-1] motion to Extend Time for 30 days to respond to the plaintiff's motion for class certification 30 days after resolution of the pending motion to intervene and defendant's motions to dismiss whichever is later ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 03/31/1995)
58 MEMORANDUM by all plaintiffs in opposition to [52-1] motion to Stay Proceedings with Respect to Plaintiffs' Motion for Class Certification by movant by defendant, (Jefferson, V.) (Entered: 04/06/1995)
59 RESPONSE by Patricia Giardi, Susan S. Addiss to [52-1] motion to Stay Proceedings with Respect to Plaintiffs' Motion for Class Certification by movant by defendant, movant, defendant, movant (Jefferson, V.) (Entered: 04/07/1995)
60 MOTION by Southbury Training, Toni Richardson, Thomas Howley for Protective Order from discovery, pending resolution of the certification of this class action (Jefferson, V.) (Entered: 04/07/1995)
61 MEMORANDUM by Southbury Training, Toni Richardson, Thomas Howley in support of [60-1] motion for Protective Order from discovery, pending resolution of the certification of this class action by Thomas Howley, Toni Richardson, Southbury Training (Jefferson, V.) (Entered: 04/07/1995)
62 AFFIDAVIT of James P. Welsh by Southbury Training, Toni Richardson, Thomas Howley Re [60-1] motion for Protective Order from discovery, pending resolution of the certification of this class action by Thomas Howley, Toni Richardson, Southbury Training (Jefferson, V.) (Entered: 04/07/1995)
63 MOTION by Patricia Giardi, Susan S. Addiss for Protective Order (Brief Due 4/28/95 ) (Former Employee) (Entered: 04/10/1995)
64 MEMORANDUM by Patricia Giardi, Susan S. Addiss in support of [631] motion for Protective Order by Susan S. Addiss, Patricia Giardi (Former Employee) (Entered: 04/10/1995)
65 AFFIDAVIT of Henry A. Salton Assistant Attorney General for Patricia Giardi, Susan S. Addiss Re [63-1] motion for Protective Order by Susan S. Addiss, Patricia Giardi (Former Employee) (Entered: 04/10/1995)

04/27/1995 04/27/1995 04/27/1995 04/27/1995
05/04/1995 05/04/1995 05/05/1995 05/17/1995 09/28/1995 09/28/1995 01/04/1996 01/04/1996

66 MOTION by all plaintiffs to Extend Time to August 1, 1995 to complete discovery (Former Employee) Modified on 04/28/1995 (Entered: 04/28/1995)
67 MOTION by all plaintiffs to Compel response to Motion for Disclosure dated 3/7/95 (Brief Due 5/18/95 ) (Jefferson, V.) (Entered: 05/01/1995)
68 MEMORANDUM by all plaintiffs in support of [67-1] motion to Compel response to Motion for Disclosure dated 3/7/95 by all plaintiffs (Jefferson, V.) (Entered: 05/01/1995)
68 MEMORANDUM by all plaintiffs in opposition to [60-1] motion for Protective Order from discovery, pending resolution of the certification of this class action by Thomas Howley, Toni Richardson, Southbury Training (included with pleading, memo in support of Motion to Compel) (Jefferson, V.) (Entered: 05/01/1995)
69 OBJECTIONS by Patricia Giardi, Susan S. Addiss to [67-1] motion to Compel response to Motion for Disclosure dated 3/7/95 by all plaintiffs (Lopez, B.) (Entered: 05/05/1995)
69 REPLY by Patricia Giardi, Susan S. Addiss to response to [60-1] motion for Protective Order from discovery, pending resolution of the certification of this class action by Thomas Howley, Toni Richardson, Southbury Training (Lopez, B.) (Entered: 05/05/1995)
ENDORSEMENT granting [66-1] motion to Extend Time to August 1, 1995 to complete discovery, reset Discovery deadline to 8/1/95 ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 05/05/1995)
70 REPLY by all plaintiffs to response to [67-1] motion to Compel response to Motion for Disclosure dated 3/7/95 by all plaintiffs (Jefferson, V.) (Entered: 05/19/1995)
ENDORSEMENT granting [18-1] motion to Extend Time for one week to respond to motion for consolidation after final resolution of the defendants' motion to dismiss ( signed by Senior Judge Ellen Bree Burns ) (Lopez, B.) (Entered: 09/28/1995)
ENDORSEMENT granting [19-1] motion to Extend Time to respond to the motion for consolidation until one week after final resolution of the defendants motion to dismiss ( signed by Senior Judge Ellen Bree Burns ) (Lopez, B.) (Entered: 09/28/1995)
ENDORSEMENT mooting [16-1] motion to Dismiss the amended complaint; second amended complaint filed ( signed by Senior Judge Ellen Bree Burns ) (Former Employee) (Entered: 01/05/1996)
ENDORSEMENT denying [34-1] motion to Strike [32-1] opposition memorandum by Pall ( signed by Senior Judge Ellen Bree Burns ) (Former Employee) (Entered: 01/05/1996)

01/04/1996 01/04/1996
01/18/1996 01/26/1996
02/01/1996
02/08/1996 02/21/1996 02/27/1996 02/29/1996 03/05/1996 03/07/1996

ENDORSEMENT granting [22-1] motion to Amend [15-1] amended complaint by plaintiffs ( signed by Senior Judge Ellen Bree Burns ) (Former Employee) (Entered: 01/05/1996)
77 SECOND AMENDED COMPLAINT by Richard Messier, Thomas Maloney, Carole Ann Carr, Leon Horton, Raymond Mitchell, Leonard Haversat, Gregory Kabbai, David Yeske, People First, ARC/Connecticut, Inc, Western CT Assoc amending [15-1] amended complaint (Former Employee) Modified on 04/01/1996 (Entered: 03/07/1996)
71 MOTION by Patricia Giardi, Susan S. Addiss to Extend Time to respond to Second Amended Complaint until 30 days after resolution of motion to Intervene and defendant Dept. of Mental Retardation's motion to dismiss. (Jefferson, V.) (Entered: 01/18/1996)
72 OBJECTIONS by plaintiffs to [71-1] motion to Extend Time to respond to Second Amended Complaint until 30 days after resolution of motion to Intervene and defendant Dept. of Mental Retardation's motion to dismiss. by Susan S. Addiss, Patricia Giardi (Jefferson, V.) (Entered: 01/26/1996)
ENDORSEMENT denying [71-1] motion to Extend Time to respond to Second Amended Complaint until 30 days after resolution of motion to Intervene and defendant Dept. of Mental Retardation's motion to dismiss. Defendants shall file their responses on or before 2/22/96. ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 02/01/1996)
73 RULING on Motion to Dismiss by Defendants Southbury Training School, Toni Richardson & Thomas Howley: denying [20-1] motion to Dismiss. SEE for details ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 02/08/1996)
74 ANSWER to Complaint by Patricia Giardi, Susan S. Addiss (Jefferson, V.) (Entered: 02/22/1996)
75 MOTION by Southbury Training to Extend Time to respond to Amended complaint, to 3/25/96 (Jefferson, V.) (Entered: 02/28/1996)
ENDORSEMENT granting [75-1] motion to Extend Time to respond to Amended complaint, to 3/25/96 ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 02/29/1996)
76 RULING on Motion for Consolidation: denying [3-1] motion to Consolidate Case with docket number(s): N86-252(EBB) ( signed by Senior Judge Ellen Burns ) (Jefferson, V.) (Entered: 03/06/1996)
78 RULING on Motion to Intervene: denying [13-1] motion to Intervene. SEE for details ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 03/07/1996)

03/15/1996 03/25/1996 04/02/1996 04/09/1996 04/09/1996 04/09/1996 04/10/1996
04/11/1996
04/11/1996 04/12/1996
04/26/1996 04/26/1996 04/26/1996

ENDORSEMENT denying as moot [52-1] motion to Stay Proceedings with Respect to Plaintiffs' Motion for Class Certification ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 03/15/1996)
79 ANSWER by Southbury Training, Toni Richardson, Thomas Howley to amended complaint (Jefferson, V.) (Entered: 03/26/1996)
80 APPEARANCE of Attorney for Patricia Giardi, Susan S. Addiss, official capacities -- Jane D. Comerford and Richard Lynch (Jefferson, V.) (Entered: 04/02/1996)
81 MOTION by Patricia Giardi, Susan S. Addiss to Extend Time to respond to Motion for Class Certification until 30 days after resolution of pending Motion to Dismiss (Jefferson, V.) (Entered: 04/10/1996)
82 MOTION by Patricia Giardi, Susan S. Addiss to Dismiss Second Amended Complaint (Brief Due 4/30/96 ) (Jefferson, V.) (Entered: 04/10/1996)
83 MEMORANDUM by Patricia Giardi, Susan S. Addiss in support of [821] motion to Dismiss Second Amended Complaint by Susan S. Addiss, Patricia Giardi (Jefferson, V.) (Entered: 04/10/1996)
ENDORSEMENT granting [81-1] motion to Extend Time to respond to Motion for Class Certification to 4/26/96 Brief Deadline set for 4/26/96 [50-1] motion for Class Certification ( by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 04/10/1996)
84 RESPONSE by all plaintiffs to [81-1] motion to Extend Time to respond to Motion for Class Certification until 30 days after resolution of pending Motion to Dismiss by Susan S. Addiss, Patricia Giardi (Jefferson, V.) (Entered: 04/11/1996)
85 MOTION by Southbury Training, Toni Richardson, Thomas Howley to Extend Time to respond to Motion for Class Certification to 5/3/96 (Jefferson, V.) (Entered: 04/12/1996)
ENDORSEMENT granting [85-1] motion to Extend Time to respond to Motion for Class Certification Brief Deadline set for 4/26/96 [50-1] motion for Class Certification ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 04/15/1996)
86 MOTION by all plaintiffs to Extend Time to respond to Motion to Dismiss dated 4/9/96, to 5/15/96 (Jefferson, V.) (Entered: 04/26/1996)
87 MEMORANDUM by Southbury Training, Toni Richardson, Thomas Howley in opposition to [50-1] motion for Class Certification by all plaintiffs (Jefferson, V.) (Entered: 04/29/1996)
88 OBJECTIONS by Patricia Giardi, Susan S. Addiss to [50-1] motion for Class Certification by all plaintiffs (Jefferson, V.) (Entered: 04/29/1996)

04/29/1996
05/07/1996 05/08/1996
05/15/1996 05/15/1996 05/15/1996 05/15/1996 05/16/1996 05/16/1996 05/16/1996 05/16/1996 05/17/1996 05/20/1996 05/20/1996

ENDORSEMENT granting [86-1] motion to Extend Time to respond to Motion to Dismiss dated 4/9/96 Brief Deadline set for 5/15/96 [82-1] motion to Dismiss Second Amended Complaint ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 04/29/1996)
89 MOTION by all plaintiffs to Extend Time to respond to Motion for Class Certification, 8 days (Jefferson, V.) (Entered: 05/07/1996)
ENDORSEMENT granting [89-1] motion to Extend Time, Brief Deadline set for 5/15/96 [50-1] motion for Class Certification ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 05/08/1996)
90 MOTION by Patricia Giardi, Susan S. Addiss for Oral Argument re Motion for Class Certification (Jefferson, V.) (Entered: 05/16/1996)
91 MEMORANDUM by all plaintiffs in opposition to [82-1] motion to Dismiss Second Amended Complaint by Susan S. Addiss, Patricia Giardi (Jefferson, V.) (Entered: 05/16/1996)
92 MOTION by all plaintiffs for Leave to File Reply Brief in Excess of 10 pages (Jefferson, V.) (Entered: 05/16/1996)
93 REPLY by all plaintiffs to response to [50-1] motion for Class Certification by all plaintiffs (Jefferson, V.) (Entered: 05/16/1996)
ENDORSEMENT granting [92-1] motion for Leave to File Reply Brief in Excess of 10 pages ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 05/16/1996)
94 REPLY by all plaintiffs to response by DPHAS and DSS to [50-1] motion for Class Certification by all plaintiffs (Jefferson, V.) (Entered: 05/16/1996)
ENDORSEMENT granting [90-1] motion for Oral Argument re Motion for Class Certification. Hearing set for 5/20/96 @ 3:00 ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 05/17/1996)
95 MOTION by Southbury Training, Toni Richardson, Thomas Howley for Oral Argument re Motion for Class Certification (Jefferson, V.) (Entered: 05/17/1996)
Motion hearing re: [50-1] motion for Class Certification by all plaintiffs set at 3:00 5/20/96 ( EBB) (Jefferson, V.) (Entered: 05/17/1996)
ENDORSEMENT granting [95-1] motion for Oral Argument re Motion for Class Certification to be held 5/20/96 @ 3:00 ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 05/20/1996)
96 Motion hearing held re: [50-1] motion for Class Certification by all plaintiffs, under advisement ( EBB) (Jefferson, V.) (Entered: 05/20/1996)

05/20/1996 05/22/1996 05/22/1996 05/22/1996 05/24/1996
05/24/1996 05/28/1996
05/28/1996 05/29/1996 06/03/1996 06/07/1996 06/07/1996 06/07/1996 06/12/1996

MINUTE Entry: [50-1] motion for Class Certification under advisement ( EBB) (Jefferson, V.) (Entered: 05/20/1996)
97 MOTION by Patricia Giardi, Susan S. Addiss to Extend Time to respond re Motion to Dismiss, to 6/3/96 (Jefferson, V.) (Entered: 05/22/1996)
98 MOTION by Patricia Giardi, Susan S. Addiss to Strike [91-1] opposition memorandum re Motion to Dismiss by all plaintiffs (Brief Due 6/12/96 ) (Jefferson, V.) (Entered: 05/22/1996)
99 MEMORANDUM by Patricia Giardi, Susan S. Addiss in support of [981] motion to Strike [91-1] opposition memorandum re Motion to Dismiss by all plaintiffs (Jefferson, V.) (Entered: 05/22/1996)
ENDORSEMENT granting [97-1] motion to Extend Time to respond re Motion to Dismiss, to 6/3/96, Brief Deadline set for 6/3/96 [82-1] motion to Dismiss Second Amended Complaint ( signed by Senior Judge Ellen Bree Burns ) (Former Employee) (Entered: 05/24/1996)
ENDORSEMENT denying [98-1] motion to Strike [91-1] opposition memorandum re Motion to Dismiss by all plaintiffs ( signed by Senior Judge Ellen Bree Burns ) (Former Employee) (Entered: 05/24/1996)
100 MEMORANDUM by all plaintiffs in opposition to [98-1] motion to Strike [91-1] opposition memorandum re Motion to Dismiss by all plaintiffs by Susan S. Addiss, Patricia Giardi (Jefferson, V.) (Entered: 05/28/1996)
101 MOTION by all plaintiffs for Frank J. Laski to Appear Pro Hac Vice (Jefferson, V.) (Entered: 05/28/1996)
ENDORSEMENT granting [101-1] motion for Frank J. Laski to Appear Pro Hac Vice ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 05/29/1996)
102 MOTION by Patricia Giardi, Susan S. Addiss for Leave to File Reply Brief re Motion to Dismiss (Jefferson, V.) (Entered: 06/07/1996)
ENDORSEMENT granting [102-1] motion for Leave to File Reply Brief re Motion to Dismiss ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 06/07/1996)
103 REPLY by Patricia Giardi, Susan S. Addiss to response to [82-1] motion to Dismiss Second Amended Complaint by Susan S. Addiss, Patricia Giardi (Jefferson, V.) (Entered: 06/07/1996)
104 SUPPLEMENTAL MEMORANDUM by Patricia Giardi, Susan S. Addiss in support of [82-1] motion to Dismiss Second Amended Complaint (Jefferson, V.) (Entered: 06/10/1996)
105 MOTION by all plaintiffs for Leave to File reply re Motion to Dismiss (Jefferson, V.) (Entered: 06/12/1996)

06/13/1996 06/26/1996 07/03/1996 07/08/1996
07/08/1996 07/22/1996 07/22/1996 07/29/1996 08/02/1996 08/08/1996 08/08/1996 08/14/1996

ENDORSEMENT granting [105-1] motion for Leave to File reply re Motion to Dismiss, Brief Deadline set for 7/8/96 [82-1] motion to Dismiss Second Amended Complaint ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 06/14/1996)
106 MOTION by all plaintiffs to Extend Time to 7/29/96 to respond re Motion to Dismiss (Jefferson, V.) (Entered: 06/28/1996)
ENDORSEMENT granting [106-1] motion to Extend Time to 7/29/96 to respond re Motion to Dismiss, Brief Deadline set for 7/29/96 [82-1] motion to Dismiss Second Amended Complaint ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 07/05/1996)
107 ORDER denying [67-1] motion to Compel response to Motion for Disclosure dated 3/7/95, denying [63-1] motion for Protective Order, denying [60-1] motion for Protective Order from discovery, pending resolution of the certification of this class action ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 07/08/1996)
108 RULING granting [50-1] motion for Class Certification. SEE for details ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 07/08/1996)
109 MOTION by Patricia Giardi, Susan S. Addiss for Reconsideration of [108-1] order dated 7/8/96 re: [50-1] motion for Class Certification (Brief Due 8/12/96 ) (Former Employee) (Entered: 07/23/1996)
110 MEMORANDUM by Patricia Giardi, Susan S. Addiss in support of [109-1] motion for Reconsideration of [108-1] order dated 7/8/96 re: [50-1] motion for Class Certification (Former Employee) (Entered: 07/23/1996)
111 RESPONSE by all plaintiffs to [82-1] motion to Dismiss Second Amended Complaint by Susan S. Addiss, Patricia Giardi (Jefferson, V.) (Entered: 08/01/1996)
112 MOTION by Patricia Giardi, Susan S. Addiss for Oral Argument re Motion to Dismiss (Jefferson, V.) (Entered: 08/02/1996)
ENDORSEMENT granting [112-1] motion for Oral Argument re Motion to Dismiss. Argument is scheduled for 8/14/96 @ 10:00 ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 08/08/1996)
113 OBJECTIONS by all plaintiffs to [109-1] motion for Reconsideration of [108-1] order dated 7/8/96 re: [50-1] motion for Class Certification by Susan S. Addiss, Patricia Giardi (Jefferson, V.) (Entered: 08/08/1996)
114 Motion hearing held re: [82-1] motion to Dismiss Second Amended Complaint by Susan S. Addiss, Patricia Giardi. Under Advisement. ( EBB) (Jefferson, V.) (Entered: 08/15/1996)

08/14/1996 08/16/1996 08/16/1996 08/16/1996 08/19/1996 08/21/1996
08/22/1996 09/04/1996
09/06/1996 09/09/1996
09/17/1996 09/20/1996 09/20/1996

MINUTE Entry: [82-1] motion to Dismiss Second Amended Complaint under advisement ( EBB) (Jefferson, V.) (Entered: 08/15/1996)
116 MOTION by all plaintiffs to Amend [77-1] amended complaint by plaintiffs (Brief Due 9/6/96 ) (Jefferson, V.) (Entered: 08/19/1996)
117 MEMORANDUM by all plaintiffs in support of [116-1] motion to Amend [77-1] amended complaint by plaintiffs (Jefferson, V.) (Entered: 08/19/1996)
118 MOTION by all plaintiffs to Substitute Parties, currently named public officials, Peter O'Meara, Charles Hamad, Stephen Harriman and Joyce Thomas (Jefferson, V.) (Entered: 08/19/1996)
115 RULING denying [109-1] motion for Reconsideration of [108-1] order dated 7/8/96 re: [50-1] motion for Class Certification ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 08/19/1996)
ENDORSEMENT granting [118-1] motion to Substitute Parties, currently named public officials, Peter O'Meara, Charles Hamad, Stephen Harriman and Joyce Thomas ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 08/21/1996)
119 LETTER dated 8/20/96 Regarding: DNR issues by Southbury Training (docketed per EBB's Chambers) (Jefferson, V.) (Entered: 08/23/1996)
120 RULING on Motion to Dismiss by DPHAS and DSS: denying [82-1] motion to Dismiss Second Amended Complaint. SEE for details ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 09/04/1996)
121 Settlement Conference held ( JGM) (Jefferson, V.) (Entered: 09/06/1996)
122 MEMORANDUM of Settlement Conference held on 9/6/96. ORDERED that counsel will report back to JGM re progress of settlement discussions by 9/27/96. ( signed by Mag. Judge Joan G. Margolis ) (Jefferson, V.) (Entered: 09/09/1996)
ENDORSEMENT granting [116-1] motion to Amend [77-1] amended complaint by plaintiffs ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 09/17/1996)
123 NOTICE of filing Third Amended Complaint by all plaintiffs (Jefferson, V.) (Entered: 09/20/1996)
124 THIRD AMENDED COMPLAINT by Richard Messier, Thomas Maloney, Carole Ann Carr, Leon Horton, Raymond Mitchell, Leonard Haversat, Gregory Kabbai, People First, ARC/Connecticut, Inc, Western CT Assoc amending [77-1] amended complaint by plaintiffs (Jefferson, V.) (Entered: 10/17/1996)

11/25/1996 12/18/1996 01/06/1997 01/06/1997 01/06/1997 01/06/1997 01/22/1997 01/22/1997 02/03/1997 02/04/1997 02/11/1997
02/12/1997

125 SCHEDULING ORDER setting Discovery cutoff 2/25/97 ; Dispositive Motions due 3/27/97 ; ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 11/25/1996)
126 MOTION by Richard Messier to Modify [125-1] Scheduling order: discovery to 8/1/97; dispositive motion to 4/22/97 (Jefferson, V.) (Entered: 12/19/1996)
127 MOTION by all plaintiffs to Compel discovery (Brief Due 1/27/97 ) (Jefferson, V.) (Entered: 01/06/1997)
128 MEMORANDUM by all plaintiffs in support of [127-1] motion to Compel discovery (Jefferson, V.) (Entered: 01/06/1997)
129 MOTION by Toni Richardson, Patricia Giardi, Susan S. Addiss to Modify [125-1] Scheduling order. Dispositive Motions filed by 7/1/97; SEE for other dates (Jefferson, V.) (Entered: 01/07/1997)
130 MEMORANDUM by Toni Richardson, Patricia Giardi, Susan S. Addiss in support of [129-1] motion to Modify [125-1] Scheduling order. Dispositive Motions filed by 7/1/97; SEE for other dates (Jefferson, V.) (Entered: 01/07/1997)
131 MOTION by all plaintiffs for Orders Concerning Discovery (Brief Due 2/12/97) (Lopez, B.) (Entered: 01/22/1997)
132 MEMORANDUM by all plaintiffs in support of [131-1] motion for Orders Concerning Discovery (Lopez, B.) (Entered: 01/22/1997)
133 APPEARANCE of Attorney for Patricia Giardi -- Hugh Barber (Gothers, M.) (Entered: 02/05/1997)
134 OBJECTIONS by Thomas Howley, Toni Richardson, Southbury Training to [127-1] motion to Compel discovery by all plaintiffs (Jefferson, V.) (Entered: 02/05/1997)
135 RULING and Order re Plaintiffs' Motion to Compel: granting in part [127-1] motion to Compel discovery. GRANTING in re to defendants Commissioner of Ct. Dept of Public Health and Addiction Services and Commissioner of Ct. Dept of Social Services, and GRANTED in part as to Commissioner of Ct. Dept. of Mental Retardation. Defendant DMR shall provide plaintiffs and Court with log listing all documents claimed to be privileged. By 2/26/97 defendant DMR shall provide a memo re availability of documents older than 5 years. Defendants shall pay all costs and attorney's fee re Motion to Compel. By 2/26/97 plaintiffs shall file affidavit re fees. ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 02/11/1997)
136 MOTION by all plaintiffs to Extend Time to respond to Motions for Disclosure and Production, to 3/10/97 (Jefferson, V.) (Entered: 02/12/1997)

02/14/1997 02/14/1997 02/14/1997 02/14/1997 02/14/1997 02/14/1997
02/21/1997 02/21/1997 02/25/1997 02/25/1997 02/25/1997 02/25/1997

137 RULING granting [131-1] motion for Orders Concerning Discovery and Protective Order: see for details. ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 02/14/1997)
ENDORSEMENT denying [126-1] motion to Modify [125-1] Scheduling order: discovery to 8/1/97; dispositive motion to 4/22/97. SEE REvised Scheduling Order issued this date. ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 02/14/1997)
ENDORSEMENT granting in part, denying in part [129-1] motion to Modify [125-1] Scheduling order. Dispositive Motions filed by 7/1/97; SEE Revised Scheduling Order issued this date( signed by Senior Judge Ellen Bree Burns (Jefferson, V.) (Entered: 02/14/1997)
ENDORSEMENT granting [136-1] motion to Extend Time to respond to Motions for Disclosure and Production, to 3/10/97, Brief Deadline: No Motions Pending ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 02/14/1997)
138 DISCOVERY ORDER AND RULING granting [131-1] motion for Orders Concerning Discovery: SEE for details ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 02/14/1997)
139 REVISED SCHEDULING ORDER setting Dispositive Motions due 6/2/97 ; Interrogatories & req. for prodution served by 2/28/97. Responses to int. & production served by 3/11/97; Request for admissions served by 5/5/97. Expert witnesses by 6/2/97;SEE for details ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 02/14/1997)
140 MOTION by Susan S. Addiss, Patricia Giardi for Reconsideration of [135-1] ruling dated 02/11/97 re: [127-1] motion to Compel discovery and to Vacate ruling doc. # 135 (Brief Due 3/14/97) (Lopez, B.) (Entered: 02/21/1997)
141 MEMORANDUM by Susan S. Addiss, Patricia Giardi in support of [140-1] motion for Reconsideration of [135-1] ruling dated 02/11/97 re: [127-1] motion to Compel discovery, [140-2] motion to Vacate ruling doc. # 135 (Lopez, B.) (Entered: 02/21/1997)
146 MOTION by Thomas Howley, Toni Richardson to exceed Interrogatory Limits (Jefferson, V.) (Entered: 03/12/1997)
147 MEMORANDUM by Thomas Howley, Toni Richardson in support of [146-1] motion to exceed Interrogatory Limits (Jefferson, V.) (Entered: 03/12/1997)
148 DMR Defendants' Privilege Log (Jefferson, V.) (Entered: 03/12/1997)
149 DMR Defendants' Memorandum Concerning Documents Older than 5 Years (Jefferson, V.) (Entered: 03/12/1997)

02/26/1997 03/03/1997 03/03/1997 03/07/1997 03/10/1997 03/12/1997 03/12/1997 03/12/1997 03/26/1997 03/27/1997
03/31/1997 04/04/1997

142 AFFIDAVIT of David C. Shaw by all plaintiffs Relating to Work on Motion to Compel re [135-1] ruling and order (Inferrera, L.) (Entered: 03/03/1997)
143 MOTION by People First, Gregory Kabbai, Leonard Haversat, Raymond Mitchell, Leon Horton, Carole Ann Carr, Thomas Maloney, Richard Messier for Leave to File more than 25 interrogatories (Lopez, B.) (Entered: 03/03/1997)
144 OBJECTION by People First to [140-1] motion for Reconsideration of [135-1] ruling dated 02/11/97 re: [127-1] motion to Compel discovery by Patricia Giardi, Susan S. Addiss (Lopez, B.) (Entered: 03/03/1997)
150 REPLY by Susan S. Addiss, Patricia Giardi to response to [140-1] motion for Reconsideration of [135-1] ruling dated 02/11/97 re: [127-1] motion to Compel discovery by Patricia Giardi, Susan S. Addiss (Jefferson, V.) (Entered: 03/18/1997)
145 MOTION by all plaintiffs to Extend Time to respond to Motions for Disclosure & Production, to 3/20/97 (Jefferson, V.) (Entered: 03/10/1997)
ENDORSEMENT granting [143-1] motion for Leave to File more than 25 interrogatories ( signed by Mag. Judge Joan G. Margolis ) (Jefferson, V.) (Entered: 03/13/1997)
ENDORSEMENT granting [146-1] motion to exceed Interrogatory Limits ( signed by Mag. Judge Joan G. Margolis ) (Jefferson, V.) (Entered: 03/13/1997)
151 OBJECTIONS by Susan S. Addiss to [145-1] motion to Extend Time to respond to Motions for Disclosure & Production, to 3/20/97 by all plaintiffs (Jefferson, V.) (Entered: 03/18/1997)
ENDORSEMENT granting nunc pro tunc [145-1] motion to Extend Time to respond to Motions for Disclosure & Production, to 3/20/97 ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 03/26/1997)
152 MOTION by Steven B. Gorski, Bernadetta Gorski, Henry P. Gorski, Edward D. Walen, James C. Walen, Steven M. Bondy, Sarah E. Bondy, Philip K. Bondy, Ann Dougherty, Michael Dougherty, Rebecca Benson, Gloria P. Benson, Carleton J. Benson, Laurence Hendricks, Marylyn Hendricks, Alan Rotzal for Exclusion from Class (Brief Due 4/17/97 ) (Inferrera, L.) (Entered: 03/31/1997)
153 MOTION by Thomas Howley, Toni Richardson to Extend Time to respond to discovery, to 4/4/97 (Jefferson, V.) (Entered: 04/02/1997)
ENDORSEMENT granting [153-1] motion to Extend Time to respond to discovery, to 4/4/97 ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 04/04/1997)

04/15/1997 04/16/1997 04/25/1997 04/25/1997
04/28/1997
05/05/1997 05/06/1997 05/09/1997 05/09/1997 05/09/1997 05/09/1997 05/12/1997 05/15/1997

154 MEMORANDUM by DMR defendants in support of Claim of Privilege in Accordance with Section 19a-17b of the CT. General Statues (Jefferson, V.) (Entered: 04/16/1997)
155 MEMORANDUM by all plaintiffs in opposition to [152-1] motion for Exclusion from Class by movants (Inferrera, L.) (Entered: 04/16/1997)
156 MEMORANDUM by all plaintiffs in opposition to Claim of Privilege (#148) (Jefferson, V.) (Entered: 05/02/1997)
157 REPLY by Thomas Howley, Toni Richardson, Bernadetta Gorski, Henry P. Gorski, Carol A. Revere, Laurence Hendricks, Marylyn Hendricks, Gloria P. Benson, Carleton J. Benson, Ann Dougherty, Sarah E. Bondy, Philip K. Bondy, Edward D. Walen, Steven B. Gorski, Alan Rotzal, Susan Hendricks, Rebecca Benson, Michael Dougherty, Steven M. Bondy, James C. Walen, Southbury Foundation, Home & School Assoc. to response to [152-1] motion for Exclusion from Class by movantsssssssssssssss (Jefferson, V.) (Entered: 05/02/1997)
ENDORSEMENT granting [337-1] joint motion to Extend Time for filing of dispositive motions, reset Dispositive Motions due by 5/15/98 ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 04/28/1998)
158 MOTION by all plaintiffs to Extend Time to 5/12/97 to serve requests for admission (Jefferson, V.) (Entered: 05/05/1997)
ENDORSEMENT granting [158-1] motion to Extend Time to 5/12/97 to serve requests for admission ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 05/06/1997)
159 MOTION by Toni Richardson to Extend Time to serve Requests for Admission, to 5/12/97 (Jefferson, V.) (Entered: 05/09/1997)
160 MOTION by Susan S. Addiss to Extend Time to serve Requests for Admission, to 5/12/97 (Jefferson, V.) (Entered: 05/09/1997)
ENDORSEMENT granting, absent objection, [159-1] motion to Extend Time to serve Requests for Admission, to 5/12/97 ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 05/12/1997)
ENDORSEMENT granting, absent objection, [160-1] motion to Extend Time to serve Requests for Admission, to 5/12/97 ( signed by Senior Ellen Bree Burns ) (Jefferson, V.) (Entered: 05/12/1997)
161 MOTION by Thomas Howley, Southbury Training for T. York to Appear Pro Hac Vice (Jefferson, V.) (Entered: 05/13/1997)
162 MOTION by Susan S. Addiss, Patricia Giardi, Toni Richardson to Extend Time re dispositive motions, to 6/18/97 (Jefferson, V.) (Entered: 05/15/1997)

05/16/1997
05/16/1997 05/27/1997 05/27/1997 05/27/1997 05/28/1997
05/29/1997
05/30/1997
06/02/1997
06/03/1997 06/04/1997 06/04/1997

ENDORSEMENT granting [162-1] motion to Extend Time re dispositive motions, to 6/18/97, reset Dispositive Motions due by 6/18/97 ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 05/16/1997)
ENDORSEMENT granting [161-1] motion for T. York to Appear Pro Hac Vice ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 05/19/1997)
163 MOTION by Susan S. Addiss to Compel discovery (Brief Due 6/17/97 ) (Jefferson, V.) (Entered: 05/28/1997)
164 MEMORANDUM by Susan S. Addiss in support of [163-1] motion to Compel discovery (Jefferson, V.) (Entered: 05/28/1997)
165 AFFIDAVIT of Henry A. Salton by Susan S. Addiss Re [163-1] motion to Compel discovery by Susan S. Addiss (Jefferson, V.) (Entered: 05/28/1997)
166 MOTION by Susan S. Addiss to Extend Time re identification of expert witnesses and dispositive motions: 30 days after receiving complete responses to discovery requests or if Court denies Motion to Compel, 30 days after ruling (Jefferson, V.) (Entered: 05/29/1997)
167 RULING denying [140-1] motion for Reconsideration of [135-1] ruling dated 02/11/97 re: [127-1] motion to Compel discovery, denying [140-2] motion to Vacate ruling doc. # 135 ( signed by Senior Judge Ellen Bree Burns ) 3 Page(s) (Jefferson, V.) (Entered: 05/30/1997)
168 FURTHER RULING and Order re Plaintiffs' Motion to Compel: re: [127-1] motion to Compel discovery: SEE for details. ( signed by Senior Judge Ellen Bree Burns ) 7 Page(s) (Jefferson, V.) (Entered: 05/30/1997)
169 RULING and Order re Application for Exclusion from Class: denying [152-1] motion for Exclusion from Class; modifying: [137-1] order re Protective Order--SEE for details ( signed by Senior Judge Ellen Bree Burns ) Page(s) 3 (Jefferson, V.) (Entered: 06/02/1997)
171 OBJECTIONS by all plaintiffs to [170-1] motion to Extend Time to 6/6/97 to id expert witnesses by Toni Richardson (Jefferson, V.) (Entered: 06/04/1997)
170 MOTION by Toni Richardson to Extend Time to 6/6/97 to id expert witnesses (Jefferson, V.) (Entered: 06/04/1997)
172 MOTION by Susan S. Addiss, Patricia Giardi for Protective Order Regarding Quashing Plaintiffs' Request for Admissions (Brief Due 6/25/97 ) (Inferrera, L.) (Entered: 06/05/1997)

06/04/1997 06/04/1997 06/04/1997
06/05/1997
06/06/1997 06/06/1997
06/06/1997 06/16/1997 06/18/1997 06/19/1997
06/20/1997 06/20/1997 06/20/1997

173 MEMORANDUM by Susan S. Addiss, Patricia Giardi in support of [172-1] motion for Protective Order Regarding Quashing Plaintiffs' Request for Admissions (Inferrera, L.) (Entered: 06/05/1997)
174 MOTION by Thomas Howley, Toni Richardson, Southbury Training School for Protective Order Regarding Quashing Plaintiffs' Request for Admissions (Brief Due 6/25/97 ) (Inferrera, L.) (Entered: 06/05/1997)
175 MEMORANDUM by Thomas Howley, Toni Richardson, Southbury Training School in support of [174-1] motion for Protective Order Regarding Quashing Plaintiffs' Request for Admissions (Inferrera, L.) (Entered: 06/05/1997)
176 AFFIDAVIT of Henry A. Salton by Susan S. Addiss, Patricia Giardi Re [172-1] motion for Protective Order Regarding Quashing Plaintiffs' Request for Admissions by Patricia Giardi, Susan S. Addiss (Inferrera, L.) (Entered: 06/06/1997)
ENDORSEMENT granting [170-1] motion to Extend Time to 6/6/97 to id expert witnesses ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 06/06/1997)
177 AFFIDAVIT of James Welsh by Toni Richardson Re [174-1] motion for Protective Order Regarding Quashing Plaintiffs' Request for Admissions by Southbury Training, Toni Richardson, Thomas Howley (Jefferson, V.) (Entered: 06/06/1997)
178 MOTION by all plaintiffs to Extend Time to file dispositive motions until 2 weeks from defendants' responses to plaintiffs' request for admission (Inferrera, L.) (Entered: 06/06/1997)
179 MOTION by all plaintiffs to Extend Time to 6/20/97 to respond to Motion to Compel dated 5/23/97 (Jefferson, V.) (Entered: 06/16/1997)
180 APPEARANCE of Attorney for Thomas Howley, Toni Richardson, Southbury Training -- Thomas B. York (Former Employee) (Entered: 06/18/1997)
181 ORDER Scheduling a Status Conference re Discovery: ex parte reports to PJO Cousins by 12:00 6/23/97. Status conference set 11:00 on 6/25/97, chambers of PCD ( signed by Mag. Judge Joan G. Margolis ) (Jefferson, V.) (Entered: 06/20/1997)
status Conference set for 11:00 6/25/97 ( PJO Cousins) (Jefferson, V.) (Entered: 06/20/1997)
182 MEMORANDUM by Richard Messier in opposition to [163-1] motion to Compel discovery by Susan S. Addiss (Jefferson, V.) (Entered: 06/20/1997)
183 STATUS REPORT by all plaintiffs (Jefferson, V.) (Entered: 06/20/1997)

06/20/1997 06/20/1997
06/23/1997 07/03/1997
07/03/1997 07/03/1997 07/08/1997 07/09/1997 07/21/1997
07/22/1997 07/25/1997 07/25/1997

184 MOTION by all plaintiffs for Order Deeming Matters raised in Req.for Admission Admitted (Jefferson, V.) (Entered: 06/23/1997)
185 RESPONSE by all plaintiffs to [184-1] motion for Order Deeming Matters raised in Req.for Admission Admitted by all plaintiffs, [174-1] motion for Protective Order Regarding Quashing Plaintiffs' Request for Admissions by Southbury Training, Toni Richardson, Thomas Howley (Jefferson, V.) (Entered: 06/24/1997)
186 MEMORANDUM by all plaintiffs in opposition to [163-1] motion to Compel discovery by Susan S. Addiss (Jefferson, V.) (Entered: 06/24/1997)
ENDORSEMENT granting nunc pro tunc [179-1] motion to Extend Time to 6/20/97 to respond to Motion to Compel dated 5/23/97, Brief Deadline set for 6/20/97 [163-1] motion to Compel discovery ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 07/03/1997)
187 MOTION by all plaintiffs in Limine to permit plaintiffs' counsel to be present during meetings between defendants' experts and defendants' employees or officials (Brief Due 7/24/97 ) (Cody, C.) (Entered: 07/14/1997)
188 MEMORANDUM by all plaintiffs in support of [187-1] motion in Limine to permit plaintiffs' counsel to be present during meetings between defendants' experts and defendants' employees or officials (Cody, C.) (Entered: 07/14/1997)
189 MOTION by Susan S. Addiss, Patricia Giardi for Jane D. Comerford to Withdraw as Attorney (Cody, C.) (Entered: 07/14/1997)
190 MEMORANDUM by all plaintiffs in support of [187-1] motion in Limine to permit plaintiffs' counsel to be present during meetings between defendants' experts and defendants' employees or officials (Cody, C.) (Entered: 07/14/1997)
191 MEMORANDUM by Thomas Howley, Southbury Training in opposition to [187-1] motion in Limine to permit plaintiffs' counsel to be present during meetings between defendants' experts and defendants' employees or officials by all plaintiffs (Jefferson, V.) (Entered: 07/22/1997)
192 APPEARANCE of Attorney for Susan S. Addiss -- Marianne Horn (Former Employee) (Entered: 07/22/1997)
ENDORSEMENT denying [163-1] motion to Compel discovery ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 07/25/1997)
193 RULING denying [187-1] motion in Limine to permit plaintiffs' counsel to be present during meetings between defendants' experts and

07/29/1997 07/29/1997 07/31/1997 08/01/1997 08/01/1997 08/01/1997
08/01/1997
08/04/1997 08/04/1997 08/06/1997

defendants' employees or officials ( signed by Senior Judge Ellen Bree Burns ) 5 Page(s) (Jefferson, V.) (Entered: 07/25/1997)
194 MOTION by all plaintiffs to Prohibit the Tour of Previously Undisclosed Expert Marsha Parsons (Brief Due 8/19/97 ) (Inferrera, L.) (Entered: 07/29/1997)
195 MOTION by all plaintiffs to Extend Time until 8/13/97 for an Additional Plaintiffs' Expert to Tour Southbury Training School (Inferrera, L.) (Entered: 07/29/1997)
ENDORSEMENT denying [194-1] motion to Prohibit the Tour of Previously Undisclosed Expert Marsha Parsons ( signed by Senior Judge Ellen Bree Burns ) (Inferrera, L.) (Entered: 08/04/1997)
196 MOTION by all plaintiffs to Extend Time to 8/22/97 to complete expert tours re experts (Jefferson, V.) (Entered: 08/01/1997)
197 MOTION by all plaintiffs for Substitution of Expert Witness, Gerald Provencal (Jefferson, V.) (Entered: 08/01/1997)
198 ORDER denying as moot [195-1] motion to Extend Time until 8/13/97 for an Additional Plaintiffs' Expert to Tour Southbury Training School, denying as moot [178-1] motion to Extend Time to file dispositive motions until 2 weeks from defendants' responses to plaintiffs' request for admission, denying as moot [166-1] motion to Extend Time re identification of expert witnesses and dispositive motions: 30 days after receiving complete responses to discovery requests or if Court denies Motion to Compel, 30 days after ruling, and resetting Discovery deadline to 1/30/98 Proposed Joint Scheduling Order shall be submitted by 8/12/97 ( signed by Senior Judge Ellen Bree Burns ) (Inferrera, L.) (Entered: 08/04/1997)
199 RULING denying [184-1] motion for Order Deeming Matters raised in Req.for Admission Admitted, denying [174-1] motion for Protective Order Regarding Quashing Plaintiffs' Request for Admissions, denying [172-1] motion for Protective Order Regarding Quashing Plaintiffs' Request for Admissions ( signed by Senior Judge Ellen Bree Burns ) 6 Page(s) (Inferrera, L.) (Entered: 08/04/1997)
200 MOTION by all plaintiffs for two proposed Supplemental Ordrss re Scheduling and Protective Order re Discovery (Brief Due 8/25/97 ) (Jefferson, V.) Modified on 08/11/1997 (Entered: 08/05/1997)
201 MEMORANDUM by all plaintiffs in support of [200-1] motion for Supplemental Ordrss re Discoveryr (Jefferson, V.) (Entered: 08/05/1997)
ENDORSEMENT denying as moot,[196-1] motion to Extend Time to 8/22/97 to complete expert tours re experts ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 08/06/1997)

08/06/1997 08/08/1997 08/11/1997
08/11/1997 08/11/1997 08/12/1997 08/14/1997 08/14/1997 08/15/1997 08/26/1997

ENDORSEMENT granting [189-1] motion for Jane D. Comerford to Withdraw as Attorney (Terminated attorney Jane D. Comerford for Patricia Giardi, attorney Jane D. Comerford for Susan S. Addiss ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 08/06/1997)
204 MEMORANDUM by Southbury Training, Thomas Howley in opposition to the Belated Identification of Experts by Plaintiffs and in Opposition to the Belated Scheduling of Tours for Plaintiffs' Experts (Jefferson, V.) (Entered: 08/12/1997)
202 RULING denying [195-1] motion to Extend Time until 8/13/97 for an Additional Plaintiffs' Expert to Tour Southbury Training School, granting [197-1] motion for Substitution of Expert Witness, Gerald Provencal, granting in part, denying in part [200-1] motion for two proposed Supplemental Ordrss re Scheduling and Protective Order re Discovey: denied as to the proposed Supplemental Discovery Order and granted as to the Supplemental Protective Order ( signed by Senior Judge Ellen Bree Burns ) 4 Page(s) (Jefferson, V.) (Entered: 08/11/1997)
203 SUPPLEMENTAL PROTECTIVE ORDER re Discovery: discovery shall also be subject to the Protective Order entered on 2/14/97, and Court's Ruling re Application for Exclusion from Clall dated 6/2/97. SEE for further details (signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 08/11/1997)
205 MEMORANDUM by all plaintiffs in support of [197-1] motion for Substitution of Expert Witness, Gerald Provencal, [196-1] motion to Extend Time to 8/22/97 to complete expert tours re experts (Jefferson, V.) (Entered: 08/14/1997)
207 Response by Commissioner of Public Health to [139-1] Scheduling order (Jefferson, V.) (Entered: 08/15/1997)
206 ORDER re: Schedule and Testimony: replaces [139-1] Scheduling order, dated 2/13/97: SEE for list of dates and schedules reset Discovery deadline to 2/28/98 , and reset Dispositive Motions due 11/15/97 ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 08/15/1997)
208 REPLY by Commissioner of Public Health to response to [200-1] motion for two proposed Supplemental Ordrss re Scheduling and Protective Order re Discovery by all plaintiffs (Jefferson, V.) (Entered: 08/18/1997)
209 Reply by all plaintiffs to [207-1] response by Susan S. Addiss (Jefferson, V.) (Entered: 08/19/1997)
210 MOTION by all plaintiffs to Compel Discovery (Brief Due 9/16/97) (Lopez, B.) (Entered: 08/26/1997)

08/26/1997 08/26/1997 09/15/1997
09/15/1997 09/19/1997 09/23/1997
09/25/1997
09/26/1997
09/26/1997 09/26/1997 09/26/1997 10/02/1997

211 MEMORANDUM by all plaintiffs in support of [210-1] motion to Compel Discovery (Lopez, B.) (Entered: 08/26/1997)
212 AFFIDAVIT of David C. Shaw o/b/o all plaintiffs Re [210-1] motion to Compel Discovery by all plaintiffs (Lopez, B.) (Entered: 08/26/1997)
213 MOTION by Southbury Training for Protective Order Regarding the protections afforded by Court's 6/2/97 Order be extended to all class members on whose behalf the Foundation serves as guardian. (Jefferson, V.) (Entered: 09/16/1997)
214 MOTION by all plaintiffs to Amend The Reports of Experts after the Deadline for Disclosing Expert Opinions (Jefferson, V.) (Entered: 09/16/1997)
ENDORSEMENT denying as moot [210-1] motion to Compel Discovery ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 09/22/1997)
215 MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training to Extend Time until 9/29/97 within which to respond to plaintiffs' revised requests for admissions. (Former Employee) (Entered: 09/24/1997)
ENDORSEMENT granting [215-1] motion to Extend Time until 9/29/97 within which to respond to plaintiffs' revised requests for admissions. ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 09/26/1997)
216 APPEARANCE of Attorney for Western CT Assoc, ARC/Connecticut, Inc, People First, Gregory Kabbai, Leonard Haversat, Raymond Mitchell, Leon Horton, Carole Ann Carr, Thomas Maloney, Richard Messier -- Richard T. Roznoy (Jefferson, V.) (Entered: 09/26/1997)
217 MOTION by all plaintiffs to Compel discovery , and for Attorney Fees (Brief Due 10/17/97 ) (Jefferson, V.) (Entered: 09/26/1997)
218 MEMORANDUM by all plaintiffs in support of [217-1] motion to Compel discovery, [217-2] motion for Attorney Fees (Jefferson, V.) (Entered: 09/26/1997)
219 AFFIDAVIT of Richard Roznoy by all plaintiffs Re [217-1] motion to Compel discovery by all plaintiffs, [217-2] motion for Attorney Fees by all plaintiffs (Jefferson, V.) (Entered: 09/26/1997)
220 MEMORANDUM by all plaintiffs in opposition to [213-1] motion for Protective Order Regarding the protections afforded by Court's 6/2/97 Order be extended to all class members on whose behalf the Foundation serves as guardian by Southbury Training (Inferrera, L.) (Entered: 10/08/1997)

10/02/1997 10/02/1997 10/06/1997
10/08/1997
10/15/1997 10/17/1997
10/17/1997
10/17/1997 10/17/1997 10/17/1997 10/17/1997
10/17/1997

222 APPEARANCE of Attorney for Public Safety -- Henri Alexandre (Jefferson, V.) (Entered: 10/08/1997)
223 OBJECTIONS by Public Safety to [217-1] motion to Compel discovery by all plaintiffs (Jefferson, V.) (Entered: 10/08/1997)
221 MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training to Extend Time until 10/13/97 to respond to plaintiffs' motion for permission to amend the reports of plaintiffs' experts after the deadline for disclosing expert opinions (Sherman, M.) (Entered: 10/08/1997)
224 ORDER granting [221-1] motion to Extend Time to respond to plaintiffs' motion for permission to amend the reports of plaintiffs' experts after the deadline for disclosing expert opinions, until 10/14/97 ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 10/08/1997)
226 APPEARANCE of Attorney -- for State of Connecticut, Department of Public Safety, Henri Alexandre (Brown, S.) (Entered: 10/17/1997)
225 MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training to Extend Time to respond to Motion for Permission to Amend Reports, to 10/22/97 (Jefferson, V.) (Entered: 10/17/1997)
ENDORSEMENT granting [225-1] motion to Extend Time to respond to Motion for Permission to Amend Reports, to 10/22/97, Brief Deadline set for 10/22/97 [214-1] motion to Amend The Reports of Experts after the Deadline for Disclosing Expert Opinions ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 10/17/1997)
227 MOTION by all plaintiffs to Expedite determination of Plaintiffs' Motion to Compel dated 10/15/97 (Jefferson, V.) (Entered: 10/17/1997)
228 MOTION by all plaintiffs to Compel production of documents (Brief Due 11/7/97 ) (Jefferson, V.) (Entered: 10/17/1997)
229 MEMORANDUM by all plaintiffs in support of [228-1] motion to Compel production of documents (Jefferson, V.) (Entered: 10/17/1997)
230 MOTION by all plaintiffs to Extend Time within which they must complete the depositions of Drs. Reid, Walsh and Foxx be extended until two weeks after the documents covered by plaintiffs' motion to compel are provided (Sherman, M.) (Entered: 10/20/1997)
231 REPLY by all plaintiffs to response to [217-1] motion to Compel discovery by all plaintiffs, [217-2] motion for Attorney Fees by all plaintiffs (Jefferson, V.) (Entered: 10/20/1997)

10/20/1997 10/21/1997 10/21/1997 10/22/1997 10/23/1997 10/23/1997
10/28/1997 10/28/1997 11/06/1997 11/06/1997 11/12/1997 11/13/1997

232 ORDER re: [169-1] order re Protective Order: modified. SEE for details ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 10/20/1997)
233 MOTION by all plaintiffs to Extend Time to complete the deposition of defendants' expert Theodore Kastner, M.D. (Sherman, M.) (Entered: 10/21/1997)
234 MOTION by all plaintiffs to Extend Time until 11/22/97 within which depositions of State employees nad others, not designated as expert witnesses, must be taken (Sherman, M.) (Entered: 10/21/1997)
236 AMEENDMENT to MOTION by Richard Messier to Compel production of documents referring to: [228-1] motion to Compel production of documents by all plaintiffs (Jefferson, V.) (Entered: 10/23/1997)
235 MOTION by all defendants to Extend Time until 10/27/97 to file their response to the plaintiffs' motion for permission to amend the reports of plaintiffs' experts after the deadline for disclosing expert opinions (Sherman, M.) Modified on 10/29/1997 (Entered: 10/23/1997)
ENDORSEMENT granting [235-1] motion to Extend Time until 10/27/97 to file their response to the plaintiffs' motion for permission to amend the reports of plaintiffs' experts after the deadline for disclosing expert opinions, Brief Deadline set for 10/27/97 [214-1] motion to Amend The Reports of Experts after the Deadline for Disclosing Expert Opinions ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 10/23/1997)
237 MEMORANDUM by Thomas Howley in opposition to [214-1] motion to Amend The Reports of Experts after the Deadline for Disclosing Expert Opinions by all plaintiffs (Jefferson, V.) (Entered: 10/28/1997)
238 RULING granting in part, denying in part [217-1] motion to Compel discovery, granting in part, denying in part [217-2] motion for Attorney Fees. SEE for details ( signed by Senior Judge Ellen Bree Burns ) 14 Page(s) (Jefferson, V.) (Entered: 10/29/1997)
239 MOTION by all plaintiffs for Sanctions for failure to comply with court order (Brief Due 11/27/97 ) (Jefferson, V.) (Entered: 11/07/1997)
240 MEMORANDUM by all plaintiffs in support of [239-1] motion for Sanctions for failure to comply with court order (Jefferson, V.) (Entered: 11/07/1997)
241 MOTION by all plaintiffs for Leave to File Reply re Objection to Amend Expert Report UNDER SEAL (Jefferson, V.) (Entered: 11/13/1997)
243 MOTION by all plaintiffs to Compel production of documents (Brief Due 12/4/97 ) (Jefferson, V.) (Entered: 11/14/1997)

11/13/1997 11/13/1997 11/14/1997 11/14/1997 11/17/1997 11/24/1997 11/26/1997
11/26/1997 11/26/1997 11/26/1997 11/26/1997

244 MEMORANDUM by all plaintiffs in support of [243-1] motion to Compel production of documents (Jefferson, V.) (Entered: 11/14/1997)
245 AFFIDAVIT of Frank J. Laski by all plaintiffs Re [243-1] motion to Compel production of documents by all plaintiffs (Jefferson, V.) (Entered: 11/14/1997)
ENDORSEMENT granting [241-1] motion for Leave to File Reply re Objection to Amend Expert Report UNDER SEAL ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 11/14/1997)
242 REPLY by all plaintiffs to response to [214-1] motion to Amend The Reports of Experts after the Deadline for Disclosing Expert Opinions by all plaintiffs (FILED UNDER SEAL PER DOCKET #241) (Jefferson, V.) (Entered: 11/14/1997)
246 MOTION by Susan S. Addiss, Southbury Training to Modify [206-1] order reseting Discovery deadline to 2/28/98 so that discovery will be completed by 3/15/98 and dispositive motions shall be filed by 2/10/98 (Depino, F.) (Entered: 11/17/1997)
ENDORSEMENT granting [214-1] motion to Amend The Reports of Experts after the Deadline for Disclosing Expert Opinions, as to Dr. Kugal and Ms. Russo, otherwise denied as moot signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 11/25/1997)
248 SCHEDULING ORDER granting [246-1] motion to Modify [206-1] order reset Dispositive Motions due by 2/10/98; opposition filed by 3/10/98 Parties shall depose all witnesses except rebuttal experts by 12/20/97. Parties to identify their rebuttal experts by 12/30/97. Rebuttal experts to complete tours by 1/30/98; Reports of tours submitted by 2/21/98; Rebuttal expert deposed within 3 weeks of submission of report, all rebuttal expert depositions completed by 3/15/98 ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 11/28/1997)
ENDORSEMENT denying [236-1] supplemental amended motion to Compel production of documents ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 11/28/1997)
ENDORSEMENT mooting [227-1] motion to Expedite determination of Plaintiffs' Motion to Compel dated 10/15/97 ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 11/28/1997)
ENDORSEMENT granting [228-1] motion to Compel production of documents. Compliance shall be effected no later than 12/1/97 ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 11/28/1997)
ENDORSEMENT mooting [230-1] motion to Extend Time within which they must complete the depositions of Drs. Reid, Walsh and Foxx be extended until two weeks after the documents covered by plaintiffs'

11/26/1997 11/26/1997
11/28/1997
12/01/1997 12/01/1997
12/04/1997 12/04/1997 12/08/1997 12/08/1997 12/08/1997

motion to compel are provided, by revised scheduling order of 11/26/97 ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 11/28/1997)
ENDORSEMENT granting [233-1] motion to Extend Time to complete the deposition of defendants' expert Theodore Kastner, M.D. ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 11/28/1997)
ENDORSEMENT mooting [234-1] motion to Extend Time until 11/22/97 within which depositions of State employees nad others, not designated as expert witnesses, must be taken, by revised scheduling order of 11/26/97 (signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 11/28/1997)
247 RULING granting [243-1] motion to Compel production of documents. Request that the court order Dr. Kastner's testimony excluded is denied at this time. Plaintiffs may renew this request again. Request for attorney's fees and costs is also denied. ( signed by Senior Judge Ellen Bree Burns ) 5 Page(s) (Jefferson, V.) (Entered: 11/28/1997)
249 MOTION by Southbury Training to Extend Time until 12/2/97 to Serve a Brief in Opposition to Plaintiffs' Motion for Sanctions (Brown, S.) Modified on 12/03/1997 (Entered: 12/02/1997)
250 OBJECTION by all plaintiffs re: [246-1] motion to Modify [206-1] order reseting Discovery deadline to 2/28/98 so that discovery will be completed by 3/15/98 and dispositive motions shall be filed by 2/10/98 by Southbury Training, Susan S. Addiss (Jefferson, V.) (Entered: 12/02/1997)
251 BRIEF by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training in opposition to [239-1] motion for Sanctions for failure to comply with court order by all plaintiffs (Depino, F.) (Entered: 12/04/1997)
252 RULING granting in part, denying in part [239-1] motion for Sanctions for failure to comply with court order SEE RULING FOR DETAILS ( signed by Senior Judge Ellen Bree Burns ) 5 Page(s) (Depino, F.) (Entered: 12/04/1997)
ENDORSEMENT granting [249-1] motion to Extend Time until 12/2/97 to Serve a Brief in Opposition to Plaintiffs' Motion for Sanctions ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 12/08/1997)
253 MOTION by all plaintiffs for Sanctions againt Defendants for failure to comply with 11/26/97 Endorsement Ruling (Brief Due 12/29/97 ) (Brown, S.) Modified on 12/09/1997 (Entered: 12/09/1997)
254 MEMORANDUM by all plaintiffs in support of [253-1] motion for Sanctions againt Defendants for failure to comply with 11/26/97

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12/18/1997
12/18/1997
12/18/1997 12/18/1997

Endorsement Ruling (Brown, S.) Modified on 12/09/1997 (Entered: 12/09/1997)
255 MOTION by Thomas Howley, Southbury Training for Reconsideration of [252-1] order dated 12/4/97 re: [239-1] motion for Sanctions for failure to comply with court order (Brief Due 12/31/97 ) (Jefferson, V.) (Entered: 12/10/1997)
256 MOTION by Western CT Assoc, ARC/Connecticut, Inc, People First, Leonard Haversat, Raymond Mitchell, Leon Horton, Carole Ann Carr, Thomas Maloney, Richard Messier to Expedite Determination to prohibit tour (Depino, F.) (Entered: 12/15/1997)
257 MOTION by all plaintiffs to prohibit tour of previously undisclosed expert Marsha Parsons (Depino, F.) (Entered: 12/15/1997)
258 MOTION by Southbury Training to Compel production re deposition , and to Extend Time for designating rebuttal experts accordingly (Jefferson, V.) (Entered: 12/18/1997)
259 RESPONSE by defendants to [257-1] motion to prohibit tour of previously undisclosed expert Marsha Parsons by all plaintiffs (Jefferson, V.) (Entered: 12/18/1997)
260 MOTION by Western CT Assoc, ARC/Connecticut, Inc, People First, Gregory Kabbai, Leonard Haversat, Raymond Mitchell, Leon Horton, Carole Ann Carr, Thomas Maloney, Richard Messier for Order to Compel discovery (Brief Due 1/8/98 ) (Depino, F.) (Entered: 12/18/1997)
261 MEMORANDUM by Western CT Assoc, ARC/Connecticut, Inc, People First, Gregory Kabbai, Leonard Haversat, Raymond Mitchell, Leon Horton, Carole Ann Carr, Thomas Maloney, Richard Messier in support of [260-1] motion for Order to Compel discovery (Depino, F.) (Entered: 12/18/1997)
262 MOTION by Western CT Assoc, ARC/Connecticut, Inc, People First, Gregory Kabbai, Leonard Haversat, Raymond Mitchell, Leon Horton, Carole Ann Carr, Thomas Maloney, Richard Messier to Expedite Determination of motion to compel #260 (Depino, F.) (Entered: 12/18/1997)
ENDORSEMENT granting [256-1] motion to Expedite Determination to prohibit tour ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 12/18/1997)
ENDORSEMENT denying [257-1] motion to prohibit tour of previously undisclosed expert Marsha Parsons, with the understanding Ms. Parsons shall abide by the production order entered in this case ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 12/18/1997)

12/18/1997 12/22/1997 12/22/1997
12/22/1997 12/22/1997
12/22/1997
12/22/1997
12/24/1997 12/31/1997 12/31/1997 12/31/1997

263 MOTION by all plaintiffs to Extend Time to conduct the deposition of the custodian of records of the Home and School, Inc. ("HSA") until two weeks after the court rules on the plaintiffs' motion for order compelling discovery (Sherman, M.) (Entered: 12/19/1997)
ENDORSEMENT granting [262-1] motion to Expedite Determination of motion to compel #260 ( signed by Senior Judge Ellen Bree Burns ) (Depino, F.) (Entered: 12/22/1997)
ENDORSEMENT granting [263-1] motion to Extend Time to conduct the deposition of the custodian of records of the Home and School, Inc. ("HSA") until two weeks after the court rules on the plaintiffs' motion for order compelling discovery ( signed by Senior Judge Ellen Bree Burns ) (Depino, F.) (Entered: 12/22/1997)
264 ORDER granting [260-1] motion for Order to Compel discovery SEE ORDER FOR FURTHER DETAILS ( signed by Senior Judge Ellen Bree Burns ) (Depino, F.) (Entered: 12/22/1997)
265 MOTION by Western CT Assoc, ARC/Connecticut, Inc, People First, Gregory Kabbai, Leonard Haversat, Raymond Mitchell, Leon Horton, Carole Ann Carr, Thomas Maloney, Richard Messier to Compel production of records of class members (Brief Due 1/12/98 ) (Depino, F.) (Entered: 12/22/1997)
266 MEMORANDUM by Western CT Assoc, ARC/Connecticut, Inc, People First, Gregory Kabbai, Leonard Haversat, Raymond Mitchell, Leon Horton, Carole Ann Carr, Thomas Maloney, Richard Messier in support of [265-1] motion to Compel production of records of class members (Depino, F.) (Entered: 12/22/1997)
267 AFFIDAVIT of David Shaw by Western CT Assoc, ARC/Connecticut, Inc, People First, Gregory Kabbai, Leonard Haversat, Raymond Mitchell, Leon Horton, Carole Ann Carr, Thomas Maloney, Richard Messier Re [265-1] motion to Compel production of records of class members by plaintiff (Depino, F.) (Entered: 12/22/1997)
ENDORSEMENT denying [258-1] motion to Compel production re deposition, granting [258-2] motion to Extend Time for designating rebuttal experts accordingly ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 12/24/1997)
268 Disclosure of rebuttal expert witnesses by all plaintiffs (Depino, F.) (Entered: 12/31/1997)
269 MOTION by all plaintiffs to Extend Time until 1/22/98 within which the deposition of defendants' expert, Theodore Kastner, M.D., must be completed (Sherman, M.) (Entered: 12/31/1997)
270 MOTION by all plaintiffs to Extend Time until 1/22/98 within which the depositions of Michael Tambling, John Howard, Judith Mulvey and the

12/31/1997 01/05/1998
01/05/1998 01/05/1998
01/05/1998 01/05/1998 01/06/1998 01/07/1998 01/07/1998

person most knowledgeable about the accident/injury investigation report involving C.K. dated 3/9/96 must be completed (Sherman, M.) (Entered: 12/31/1997)
271 MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training to Extend Time until 1/3/98 to respond to plaintiffs' motion for sanctions (Sherman, M.) (Entered: 12/31/1997)
272 MEMORANDUM by Western CT Assoc, ARC/Connecticut, Inc, People First, Gregory Kabbai, Leonard Haversat, Raymond Mitchell, Leon Horton, Carole Ann Carr, Thomas Maloney, Richard Messier, Public Safety in opposition to [255-1] motion for Reconsideration of [252-1] order dated 12/4/97 re: [239-1] motion for Sanctions for failure to comply with court order by Southbury Training, Thomas Howley (Depino, F.) (Entered: 01/05/1998)
ENDORSEMENT granting [269-1] motion to Extend Time until 1/22/98 within which the deposition of defendants' expert, Theodore Kastner, M.D., must be completed ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 01/05/1998)
ENDORSEMENT granting [270-1] motion to Extend Time until 1/22/98 within which the depositions of Michael Tambling, John Howard, Judith Mulvey and the person most knowledgeable about the accident/injury investigation report involving C.K. dated 3/9/96 must be completed ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 01/05/1998)
ENDORSEMENT granting [271-1] motion to Extend Time until 1/6/98 to respond to plaintiffs' motion for sanctions ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 01/05/1998)
Deadline updated; Brief Deadline set for 1/6/98 [253-1] motion for Sanctions againt Defendants for failure to comply with 11/26/97 Endorsement Ruling (Inferrera, L.) (Entered: 01/06/1998)
ENDORSEMENT denying [255-1] motion for Reconsideration of [2521] order dated 12/4/97 re: [239-1] motion for Sanctions for failure to comply with court order ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 01/06/1998)
273 MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training to Extend Time until 1/12/98 to respond to plaintiffs' motion for sanctions (Sherman, M.) (Entered: 01/07/1998)
274 RULING granting [273-1] motion to Extend Time until 1/12/98 to respond to plaintiffs' motion for sanctions, Brief Deadline set for 1/12/98 [253-1] motion for Sanctions againt Defendants for failure to comply with 11/26/97 Endorsement Ruling ( signed by Senior Judge Ellen Bree Burns ) 3 Page(s) (Brown, S.) (Entered: 01/08/1998)

01/09/1998 01/09/1998 01/12/1998 01/13/1998
01/14/1998 01/15/1998
01/20/1998 01/20/1998 01/20/1998 01/20/1998 01/20/1998
01/20/1998 01/20/1998

275 MOTION by all plaintiffs for further Orders , and/or for Sanctions (Brief Due 1/30/98 ) (Jefferson, V.) (Entered: 01/09/1998)
276 MEMORANDUM by all plaintiffs in support of [275-1] motion for further Orders, [275-2] motion for Sanctions (Jefferson, V.) (Entered: 01/09/1998)
291 MOTION by Home and School for Reconsideration of [264-1] order dated 12/22/97 re: [260-1] motion for Order to Compel discovery (Jefferson, V.) (Entered: 01/29/1998)
290 RESPONSE by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training to [253-1] motion for Sanctions againt Defendants for failure to comply with 11/26/97 Endorsement Ruling by all plaintiffs (Jefferson, V.) (Entered: 01/27/1998)
277 MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training for Leave to File, nunc pro tunc, response re Motion for Sanctions (Jefferson, V.) (Entered: 01/14/1998)
278 MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training to Extend Time to respond to Motion re Deposition and Production of Documents, to 1/16/98 (Jefferson, V.) (Entered: 01/16/1998)
279 MOTION by all plaintiffs to Extend Time to 1/26/98 to report rebuttal expert (Jefferson, V.) (Entered: 01/20/1998)
280 MOTION by all plaintiffs to Extend Time to 2/16/98 to complete depositions (Jefferson, V.) (Entered: 01/20/1998)
281 MOTION by all plaintiffs to Limit Rebuttal Tours of Defendants' 15 Rebuttal Experts (Brief Due 2/10/98 ) (Jefferson, V.) (Entered: 01/20/1998)
282 MEMORANDUM by all plaintiffs in support of [281-1] motion to Limit Rebuttal Tours of Defendants' 15 Rebuttal Experts (Jefferson, V.) (Entered: 01/20/1998)
283 MEMORANDUM by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training in opposition to [265-1] motion to Compel production of records of class members by plaintiff (Jefferson, V.) (Entered: 01/20/1998)
284 MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training for Sanctions (Brief Due 2/10/98 ) (Jefferson, V.) (Entered: 01/20/1998)
285 MEMORANDUM by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training in support of [284-1] motion for Sanctions (Jefferson, V.) (Entered: 01/20/1998)

01/20/1998 01/20/1998 01/20/1998 01/21/1998 01/21/1998 01/21/1998 01/22/1998 01/23/1998 01/26/1998 01/26/1998 01/28/1998 01/29/1998

286 MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training to Strike [265-1] motion to Compel production of records of class members by plaintiff (Brief Due 2/10/98 ) (Jefferson, V.) (Entered: 01/20/1998)
287 MEMORANDUM by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training in support of [286-1] motion to Strike [265-1] motion to Compel production of records of class members by plaintiff (Jefferson, V.) (Entered: 01/20/1998)
288 MEMORANDUM by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training in opposition to [281-1] motion to Limit Rebuttal Tours of Defendants' 15 Rebuttal Experts by all plaintiffs (Jefferson, V.) (Entered: 01/21/1998)
ENDORSEMENT granting [277-1] motion for Leave to File, nunc pro tunc, response re Motion for Sanctions ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 01/21/1998)
ENDORSEMENT granting [279-1] motion to Extend Time to 1/26/98 to report rebuttal expert ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 01/21/1998)
ENDORSEMENT granting [280-1] motion to Extend Time to 2/16/98 to complete depositions ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 01/21/1998)
289 RULING denying [281-1] motion to Limit Rebuttal Tours of Defendants' 15 Rebuttal Experts ( signed by Senior Judge Ellen Bree Burns ) 4 Page(s) (Depino, F.) (Entered: 01/22/1998)
294 MEMORANDUM by all plaintiffs in opposition to [291-1] motion for Reconsideration of [264-1] order dated 12/22/97 re: [260-1] motion for Order to Compel discovery by Home and School (Jefferson, V.) (Entered: 01/29/1998)
ENDORSEMENT denying as moot [253-1] motion for Sanctions againt Defendants for failure to comply with 11/26/97 Endorsement Ruling ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 01/28/1998)
ENDORSEMENT granting [278-1] motion to Extend Time to respond to Motion re Deposition and Production of Documents, to 1/16/98 ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 01/28/1998)
292 MOTION by all plaintiffs to Extend Time until 2/9/98 to file a reply to defendants' response to plaintiffs' motion for sanctions (Sherman, M.) (Entered: 01/28/1998)
ENDORSEMENT granting [292-1] motion to Extend Time until 2/9/98 to file a reply re motion for sanctions, Brief Deadline set for 2/9/98

01/29/1998 01/29/1998 01/29/1998 01/30/1998 01/30/1998
02/02/1998 02/02/1998 02/06/1998 02/06/1998 02/09/1998 02/09/1998

[275-2] motion for Sanctions ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 01/29/1998)
293 MOTION by Western CT Assoc, ARC/Connecticut, Inc, People First, Gregory Kabbai, Leonard Haversat, Raymond Mitchell, Leon Horton, Carole Ann Carr, Thomas Maloney, Richard Messier to Extend Time until 2/21/98 to submit expert reports (Depino, F.) (Entered: 01/29/1998)
295 APPEARANCE of Attorney for Home & School Assoc. -- Richard J. Scarola (Former Employee) (Entered: 01/29/1998)
296 REPLY by all plaintiffs to response to [281-1] motion to Limit Rebuttal Tours of Defendants' 15 Rebuttal Experts by all plaintiffs (Jefferson, V.) (Entered: 01/30/1998)
ENDORSEMENT granting [293-1] motion to Extend Time until 2/21/98 to submit expert reports ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 01/30/1998)
297 RULING granting in part, denying in part [291-1] motion for Reconsideration of [264-1] order dated 12/22/97 re: [260-1] motion for Order to Compel discovery, denying [275-1] motion for further Orders, denying [275-2] motion for Sanctions ( signed by Senior Judge Ellen Bree Burns ) 19 Page(s) (Depino, F.) (Pesta, J.). (Entered: 02/02/1998)
ENDORSEMENT denying [286-1] motion to Strike [265-1] motion to Compel production of records of class members by plaintiff ( signed by Senior Judge Ellen Bree Burns ) (Jefferson, V.) (Entered: 02/03/1998)
298 RULING on Plaintiff's Motion to Compel: denying [265-1] motion to Compel production of records of class members ( signed by Senior Judge Ellen Bree Burns ) 4 Page(s) (Jefferson, V.) (Entered: 02/03/1998)
299 MOTION by Southbury Training School, Southbury Foundation to Extend Time to file all dispositive motions to 3/15/98 and responses to dispositive motions to 4/15/98 (Brown, S.) Modified on 02/20/1998 (Entered: 02/06/1998)
300 MOTION by all plaintiffs to Extend Time to February 18, 1998 within which to file brief in oppostion to Defendants' Motion for Sanctions (Brown, S.) (Entered: 02/06/1998)
301 MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training for Protective Order prohibiting Depositions of Nirbay Singh and Renee Wachtel (Brief Due 3/2/98 ) (Brown, S.) (Entered: 02/09/1998)
302 MEMORANDUM by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training in support of [301-1] motion for Protective Order prohibiting Depositions of Nirbay Singh and Renee Wachtel (Brown, S.) (Entered: 02/09/1998)

02/09/1998 02/09/1998 02/13/1998
02/13/1998 02/13/1998 02/17/1998 02/17/1998
02/17/1998
02/17/1998 02/19/1998 02/19/1998 02/19/1998
02/19/1998

303 Uncontested MOTION by USA for time to respond to Plaintiff's Subpoenas (Brown, S.) (Entered: 02/10/1998)
304 REPLY by all plaintiffs to response to [284-1] motion for Sanctions by Southbury Training, Toni Richardson, Thomas Howley, Patricia Giardi, Susan S. Addiss (Brown, S.) (Entered: 02/10/1998)
ENDORSEMENT granting [300-1] motion to Extend Time to February 18, 1998 within which to file brief in oppostion to Defendants' Motion for Sanctions ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 02/13/1998)
ENDORSEMENT granting [303-1] motion for time to respond to Plaintiff's Subpoenas ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 02/13/1998)
305 MOTION by all plaintiffs to Submit Supplemental Memorandum (Brief Due 3/6/98 ) (Brown, S.) (Entered: 02/13/1998)
306 MOTION by all plaintiffs for Reconsideration of [298-1] order dated 2/2/98 re: [265-1] motion to Compel production of records of class members (Brief Due 3/10/98 ) (Brown, S.) (Entered: 02/18/1998)
307 MEMORANDUM by all plaintiffs in support of [306-1] motion for Reconsideration of [298-1] order dated 2/2/98 re: [265-1] motion to Compel production of records of class members, and in Opposition to [284-1] Motion for Sanctions, Part 1 of 2 (Brown, S.) (Entered: 02/18/1998)
307 MEMORANDUM by all plaintiffs in opposition to [284-1] motion for Sanctions by Southbury Training, Toni Richardson, Thomas Howley, Patricia Giardi, Susan S. Addiss; and in Support of Motion for Reconsideration of (298-1) order dated 2/2/98 re: (265-1) Motion to Compel Production of records of class memebers, Part 2 (Brown, S.) (Entered: 02/18/1998)
314 MOTION by Susan S. Addiss to Extend Time to 2/27/98 to file report of expert witness Russell Phillips (Brown, S.) (Entered: 02/24/1998)
309 MOTION by all plaintiffs to Extend Time to Disclose opinions of Rebuttal Experts Wachtel and Singh (Brown, S.) (Entered: 02/23/1998)
310 MOTION by all plaintiffs for Costs and Fees (Brief Due 3/12/98 ) (Brown, S.) (Entered: 02/23/1998)
311 AFFIDAVIT of David Shaw by all plaintiffs Re [308-1] motion to Extend Time to Submit Report of Rebuttal Expert Fred Balicki [310-1] motion for Costs and Fees by all plaintiffs (Brown, S.) Modified on 03/18/1998 (Entered: 02/23/1998)
312 AFFIDAVIT of Robert Kugel by all plaintiffs Re [308-1] motion to Extend Time to Submit Rebuttal Report of Rebuttal Expert Fred Balicki

02/20/1998
02/24/1998 02/24/1998 02/24/1998 02/24/1998 02/24/1998 02/24/1998 02/25/1998 02/25/1998 02/26/1998 02/26/1998

by plaintiff, defendant, movant, defendant, movant, defendant, [310-1] motion for Costs and Fees by all plaintiffs (Brown, S.) (Entered: 02/23/1998)
308 MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training, Western CT Assoc, ARC/Connecticut, Inc, People First, David Yeske, Gregory Kabbai, Leonard Haversat, Raymond Mitchell, Leon Horton, Carole Ann Carr, Thomas Maloney to Extend Time to Submit Report of Rebuttal Expert Fred Balicki (Brown, S.) Modified on 03/18/1998 (Entered: 02/23/1998)
313 MOTION by Susan S. Addiss, Southbury Training for Leave to File a Motion Nunc Pro Tunc (Inferrera, L.) (Entered: 02/24/1998)
315 MOTION by all plaintiffs and Defendants, Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training to Extend Time for filing dispositive motions to 4/17/98 and filing responses to 5/15/98 (Brown, S.) (Entered: 02/24/1998)
ENDORSEMENT granting [313-1] motion for Leave to File a Motion Nunc Pro Tunc ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 02/24/1998)
316 MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training to Extend Time to 3/9/98 to complete Rebuttal Reports by Theodore Kastner (Brown, S.) (Entered: 02/24/1998)
ENDORSEMENT granting [305-1] motion to Submit Supplemental Memorandum ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 02/24/1998)
317 Supplemental MEMORANDUM by all plaintiffs in support of [284-1] motion for Sanctions (Brown, S.) Modified on 03/18/1998 (Entered: 02/24/1998)
ENDORSEMENT granting [308-1] motion to Extend Time to Submit Rebuttal Report of Rebuttal Expert Fred Balicki ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 02/25/1998)
ENDORSEMENT granting [309-1] motion to Extend Time to Disclose opinions of Rebuttal Experts Wachtel and Singh ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 02/25/1998)
ENDORSEMENT mooting [299-1] motion to Extend Time to file all dispositive motions to 3/15/98 and responses to dispositive motions to 4/15/98 ( signed by Senior Judge Ellen Bree Burns ) (Inferrera, L.) (Entered: 02/26/1998)
ENDORSEMENT granting absent objection [314-1] motion to Extend Time to 2/27/98 to file report of expert witness Russell Phillips ( signed by Senior Judge Ellen Bree Burns ) (Inferrera, L.) (Entered: 02/26/1998)

02/26/1998 02/27/1998 02/27/1998 02/27/1998 03/02/1998
03/02/1998 03/02/1998 03/03/1998 03/03/1998 03/05/1998
03/13/1998

ENDORSEMENT granting [315-1] motion to Extend Time for filing dispositive motions to 4/17/98 and filing responses to 5/15/98, resetting Dispositive Motions due by 4/17/98 responses due 5/15/98 ( signed by Senior Judge Ellen Bree Burns ) (Inferrera, L.) (Entered: 02/26/1998)
318 OBJECTION by all plaintiffs re: [313-1] motion for Leave to File a Motion Nunc Pro Tunc by Southbury Training, Susan S. Addiss (Brown, S.) Modified on 02/27/1998 (Entered: 02/27/1998)
319 OBJECTIONS by all plaintiffs to [316-1] motion to Extend Time to 3/9/98 to complete Rebuttal Reports by Theodore Kastner by Southbury Training, Toni Richardson, Thomas Howley, Patricia Giardi, Susan S. Addiss (Brown, S.) (Entered: 02/27/1998)
320 REPLY by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training to response to [284-1] motion for Sanctions by Southbury Training, Toni Richardson, Thomas Howley, Patricia Giardi, Susan S. Addiss (Brown, S.) (Entered: 03/18/1998)
322 MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training to Extend Time until 3/9/98 to file a brief in opposition to defendants' motion for protective order that depositions of Nirbay Singh and Renee Wachtel (Sherman, M.) (Entered: 03/03/1998)
329 REPLY by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training to response to (Brown, S.) (Entered: 03/27/1998)
321 REPLY by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training to supplemental memorandum to [2752] motion for Sanctions by all plaintiffs (Brown, S.) (Entered: 03/27/1998)
323 RESPONSE by USA to [301-1] motion for Protective Order prohibiting Depositions of Nirbay Singh and Renee Wachtel by Southbury Training, Toni Richardson, Thomas Howley, Patricia Giardi, Susan S. Addiss (Brown, S.) (Entered: 03/03/1998)
324 APPEARANCE of Attorney for USA -- Laurie J. Weinstein (Brown, S.) (Entered: 03/04/1998)
325 REPLY by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training to response to [316-1] motion to Extend Time to 3/9/98 to complete Rebuttal Reports by Theodore Kastner by Southbury Training, Toni Richardson, Thomas Howley, Patricia Giardi, Susan S. Addiss (Brown, S.) (Entered: 03/06/1998)
326 Uncontested MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training to Extend Time to

03/16/1998 03/16/1998 03/25/1998 04/08/1998
04/09/1998
04/17/1998 04/17/1998 04/17/1998 04/17/1998
04/17/1998 04/27/1998 04/27/1998 04/27/1998

4/15/98 to complete rebuttal depositions (Brown, S.) Modified on 03/16/1998 (Entered: 03/13/1998)
ENDORSEMENT granting [326-1] motion to Extend Time to 4/15/98 to complete rebuttal depositions ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 03/16/1998)
327 RESPONSE by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training to Affidavit re [310-1] motion for Costs and Fees by all plaintiffs (Inferrera, L.) (Entered: 03/17/1998)
328 REPLY by all plaintiffs to response to [310-1] motion for Costs and Fees by all plaintiffs (Depino, F.) (Entered: 03/26/1998)
330 JOINT MOTION by all plaintiffs, Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training to Extend Time until 4/30/98 for filing of dispositive motions (Sherman, M.) Modified on 04/09/1998 (Entered: 04/08/1998)
ENDORSEMENT granting [330-1] joint motion to Extend Time until 4/30/98 for filing of dispositive motions, reset Dispositive Motions due by 4/30/98 ( signed by Senior Judge Ellen Bree Burns ) (Depino, F.) Modified on 04/09/1998 (Entered: 04/09/1998)
331 Volume I Exhibits by Sarah E. Bondy to Affidavit (Brown, S.) (Entered: 04/17/1998)
332 Volume 2 Exhibits by Sarah E. Bondy to Affidavit (Brown, S.) (Entered: 04/17/1998)
333 MOTION by 611 Residents to Opt Out of Class , and to Intervene on the side of the Defendants (Brief Due 5/8/98 )(Brown, S.) Modified on 06/19/1998 (Entered: 04/17/1998)
334 AFFIDAVIT of Sarah E. Bondy by 611 Residents Re [333-1] motion by 611 Residents to Opt Out of Class, [333-2] motion to Intervene on the side of the Defendants by 611 Residents (Brown, S.) (Entered: 04/17/1998)
335 MEMORANDUM by 611 Residents in support of [333-1] motion to Opt Out of Class, [333-2] motion to Intervene on the side of the Defendants (Brown, S.) (Entered: 04/17/1998)
336 APPEARANCE of Attorney for Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training -- David Paul Friedman (Former Employee) (Entered: 04/27/1998)
337 JOINT MOTION by all plaintiffs, Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training to Extend Time for filing of dispositive motions (Sherman, M.) (Entered: 04/27/1998)
338 MOTION by 611 Residents for Richard J.J. Scarola to Appear Pro Hac Vice (Former Employee) (Entered: 04/28/1998)

04/28/1998 04/29/1998 04/29/1998 04/29/1998 04/30/1998 05/01/1998 05/01/1998 05/13/1998 05/14/1998 05/15/1998
05/15/1998
05/18/1998

339 ORDER granting Plaintiffs [310-1] motion for Costs and Fees in the sum of $3,487.50 ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 04/29/1998)
ENDORSEMENT granting [338-1] motion for Richard J.J. Scarola to Appear Pro Hac Vice ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 04/29/1998)
340 MOTION by all plaintiffs to Compel production of documents and for Sanctions (Former Employee) (Entered: 04/30/1998)
341 MEMORANDUM by all plaintiffs in support of [340-1] motion to Compel production of documents, [340-2] motion for Sanctions (Former Employee) (Entered: 04/30/1998)
342 MOTION by all plaintiffs to Extend Time of four weeks to file a brief in opposition to the motion of 611 Residents of Southbury Training School and their guardians to opt out of the class and to intervene on the side of the defendants (Sherman, M.) (Entered: 04/30/1998)
343 MOTION by all plaintiffs to Extend Time through 6/1/98 to Conduct Discovery After Discovery Deadline (Brief Due 5/22/98 ) (Brown, S.) Modified on 06/29/1998 (Entered: 05/01/1998)
344 MEMORANDUM by all plaintiffs in support of [343-1] motion to Extend Time through 6/1/98 After Discovery Deadline (Brief Due 5/22/98 ) (Brown, S.) (Entered: 05/01/1998)
345 JOINT MOTION by all plaintiffs, Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training to Extend Time until 5/20/98 for filing dispositive motions and for filing responses until 6/22/98 (Sherman, M.) Modified on 06/02/1998 (Entered: 05/14/1998)
346 MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training to Extend Time until 5/29/98 to respond to motion to compel and for sanctions (Sherman, M.) Modified on 06/02/1998 (Entered: 05/14/1998)
ENDORSEMENT granting [345-1] joint motion to Extend Time until 5/20/98 for filing dispositive motions and the deadline for filing responses thereto until 6/22/98, reset Dispositive Motions due by 5/20/98 ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 05/19/1998)
ENDORSEMENT granting [346-1] motion to Extend Time until 5/29/98 to respond to plaintiffs' motion to compel and for sanctions, Brief Deadline set for 5/29/98 [340-1] motion to Compel production of documents, set for 5/29/98 [340-2] motion for Sanctions ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 05/19/1998)
347 RESPONSE by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training to [342-1] motion to Extend Time of

05/18/1998
05/19/1998
05/20/1998 05/20/1998 05/20/1998 05/20/1998 05/20/1998 05/20/1998 05/20/1998 05/20/1998 05/20/1998 05/20/1998 05/20/1998

four weeks to file a brief in opposition to the motion of 611 Residents of Southbury Training School and their guardians to opt out of the class and to intervene on the side of the defendants by all plaintiffs (Brown, S.) (Entered: 05/18/1998)
348 RESPONSE by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training to [343-1] motion to Extend Time through 6/1/98 to Conduct Discovery after deadline (Brief Due 5/22/98 ) by all plaintiffs (Brown, S.) (Entered: 05/18/1998)
ENDORSEMENT granting [342-1] motion to Extend Time of four weeks to file brief in opposition to the motion of 611 Residents of Southbury Training School to opt out of the class and to intervene. Response to be filed by 6/15/98. Discovery may be conducted during the interim, confined soley to motion. Brief Deadline set for 6/15/98 [333-1] motion to Opt out of Class ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) Modified on 08/13/1998 (Entered: 05/20/1998)
349 MOTION by all plaintiffs for Partial Summary Judgment (Brief Due 6/10/98 ) (Former Employee) (Entered: 05/20/1998)
350 MEMORANDUM by all plaintiffs in support of [349-1] motion for Partial Summary Judgment (Former Employee) (Entered: 05/20/1998)
351 STATEMENT of Uncontroverted Material Facts by all plaintiffs regarding [349-1] motion for Partial Summary Judgment (Former Employee) (Entered: 05/20/1998)
352 MOTION by all plaintiffs to Seal exhibits in support of Motion for Partial Summary Judgment (Former Employee) (Entered: 05/20/1998)
353 MOTION by Southbury Training for Summary Judgment (Brief Due 6/10/98 ) (Brown, S.) (Entered: 05/20/1998)
354 STATEMENT of Undisputed Material Facts by Southbury Training regarding [353-1] motion for Summary Judgment (Brown, S.) (Entered: 05/20/1998)
355 MEMORANDUM by Southbury Training in support of [353-1] motion for Summary Judgment (Brown, S.) (Entered: 05/20/1998)
356 MOTION by Patricia Giardi for Summary Judgment (Brief Due 6/10/98 ) (Brown, S.) (Entered: 05/20/1998)
357 STATEMENT of Undisputed Material Facts by Patricia Giardi regarding [356-1] motion for Summary Judgment (Brown, S.) (Entered: 05/20/1998)
358 MEMORANDUM by Patricia Giardi in support of [356-1] motion for Summary Judgment (Brown, S.) (Entered: 05/20/1998)
359 MOTION by Susan S. Addiss for Summary Judgment (Brief Due 6/10/98 ) (Brown, S.) (Entered: 05/20/1998)

05/20/1998 05/20/1998 05/20/1998 05/20/1998 05/21/1998 05/21/1998 06/01/1998
06/01/1998
06/01/1998
06/03/1998 06/03/1998
06/04/1998

360 MOTION by Susan S. Addiss to exceed page limit for Memorandum in Support of Motion for Summary Judgment (Brown, S.) (Entered: 05/20/1998)
361 STATEMENT of Material Facts by Susan S. Addiss regarding [359-1] motion for Summary Judgment (Brown, S.) (Entered: 05/20/1998)
362 Exhibits by Susan S. Addiss to [359-1] motion for Summary Judgment (Brown, S.) (Entered: 05/20/1998)
363 MEMORANDUM by Susan S. Addiss in support of [359-1] motion for Summary Judgment (Brown, S.) (Entered: 05/26/1998)
ENDORSEMENT granting [360-1] motion to exceed page limit for Memorandum in Support of Motion for Summary Judgment ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 05/22/1998)
ENDORSEMENT granting [352-1] motion to Seal exhibits in support of Motion for Partial Summary Judgment ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 05/26/1998)
364 MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training to Extend Time to respond to plaintiffs' motion to compel and for sanctions dated 4/28/98 (Sherman, M.) (Entered: 06/01/1998)
365 MOTION by Defendants' Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training for Reasonable Expenses in Opposing Plaintiffs' Unjustified Motion to Compel (Brief Due 6/22/98 ) (Brown, S.) (Entered: 06/02/1998)
366 MEMORANDUM by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training in opposition to [340-1] motion to Compel production of documents by all plaintiffs, [340-2] motion for Sanctions by all plaintiffs (Brown, S.) (Entered: 06/02/1998)
367 NOTICE/Amended Certificate of Service by plaintiffs (Brown, S.) (Entered: 06/03/1998)
ENDORSEMENT granting [364-1] motion to Extend Time to respond to plaintiffs' motion to compel and for sanctions dated 4/28/98, Brief Deadline set for 6/1/98 [340-1] motion to Compel production of documents, set for 6/1/98 [340-2] motion for Sanctions (signed by Senior Judge Ellen Bree Burns) (Lopez, B.) (Entered: 06/05/1998)
ENDORSEMENT granting nunc pro tunc [316-1] motion to Extend Time to 3/9/98 to complete Rebuttal Reports by Theodore Kastner ( signed by Senior Judge Ellen Bree Burns ) (Former Employee) (Entered: 06/08/1998)

06/08/1998 06/09/1998 06/10/1998
06/10/1998
06/11/1998 06/11/1998 06/11/1998 06/12/1998
06/12/1998 06/15/1998 06/15/1998
06/16/1998

368 MOTION by all plaintiffs for Judith A. Gran and Barbara E. Ransom to Appear Pro Hac Vice (Brief Due 6/29/98 ) (Brown, S.) (Entered: 06/10/1998)
369 MOTION by all plaintiffs to Extend Time to 7/21/98 to respond to opt out (Brief Due 6/30/98 ) (Brown, S.) (Entered: 06/11/1998)
370 ORDER directing Defendants to provide court with copies of disputed documents for in camera review no later than 6/17/98 to resolve Plaintiffs' Motions to Compel and For Sanctions by Senior Judge Ellen Bree Burns ) (Brown, S.) Modified on 06/11/1998 (Entered: 06/11/1998)
374 ORDER, Brief Deadline set for 6/17/98 [340-1] motion to Compel production of documents, set for 6/17/98 [340-2] motion for Sanctions ( signed by Senior Judge Ellen Bree Burns ) (Former Employee) (Entered: 06/19/1998)
371 REPLY by all plaintiffs to response to [340-1] motion to Compel production of documents by all plaintiffs (Brown, S.) (Entered: 06/11/1998)
372 OBJECTION by Susan S. Addiss, Patricia Giardi re: [369-1] motion to Extend Time to 7/21/98 to respond to opt out by all plaintiffs (Brown, S.) (Entered: 06/11/1998)
375 MOTION by all plaintiffs to Extend Time until 7/1/98 to file briefs in opposition for summary judgment (Sherman, M.) (Entered: 06/15/1998)
ENDORSEMENT denying [368-1] motion for Judith A. Gran and Barbara E. Ransom to Appear Pro Hac Vice for failure to comply with Local Rule 2(d) ( signed by Senior Judge Ellen Bree Burns ) (Former Employee) (Entered: 06/12/1998)
373 MOTION by all plaintiffs for Judith A. Gran, Barbara E. Ransom to Appear Pro Hac Vice FEE PAID (Lopez, B.) (Entered: 06/12/1998)
ENDORSEMENT granting [373-1] motion for Judith A. Gran, Barbara E. Ransom to Appear Pro Hac Vice ( signed by Senior Judge Ellen Bree Burns ) (Former Employee) (Entered: 06/16/1998)
ENDORSEMENT granting [369-1] motion to Extend Time to 7/21/98 to respond to opt out, Brief Deadline set for 7/21/98 [333-1] motion, set for 7/21/98 [333-2] motion to Intervene on the side of the Defendants ( signed by Senior Judge Ellen Bree Burns ) (Former Employee) (Entered: 06/18/1998)
ENDORSEMENT granting [375-1] motion to Extend Time until 7/1/98 to file briefs in opposition for summary judgment, Brief Deadline set for 7/1/98 [359-1] motion for Summary Judgment, set for 7/1/98 [356-1] motion for Summary Judgment ( signed by Senior Judge Ellen Bree Burns ) (Former Employee) (Entered: 06/19/1998)

06/18/1998 06/18/1998 06/19/1998 06/19/1998 06/22/1998 06/22/1998 06/25/1998 06/26/1998 06/26/1998 06/29/1998
06/29/1998 06/29/1998

376 MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training to File a Motion Nunc Pro Tunc (Inferrera, L.) Modified on 06/19/1998 (Entered: 06/18/1998)
377 MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training to Extend Time until 6/24/98 to produce documents for court requested in camera review (Sherman, M.) Modified on 06/19/1998 (Entered: 06/18/1998)
378 MOTION by all plaintiffs For Orders Compelling Production (Brief Due 7/10/98 ) (Brown, S.) (Entered: 06/19/1998)
379 MEMORANDUM by all plaintiffs in support of [378-1] motion For Orders Compelling Production (Brown, S.) (Entered: 06/19/1998)
ENDORSEMENT granting [376-1] motion to File a Motion Nunc Pro Tunc ( signed by Senior Judge Ellen Bree Burns ) (Former Employee) (Entered: 06/23/1998)
ENDORSEMENT granting [377-1] motion to Extend Time until 6/24/98 to produce documents for court requested in camera review ( signed by Senior Judge Ellen Bree Burns ) (Former Employee) (Entered: 06/23/1998)
380 MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training for Leave to File Response to Plaintiffs' Reply to Defendants' Opposition to Motion to Compel (Inferrera, L.) (Entered: 06/25/1998)
381 Response by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training to Response to Plaintiffs reply to Defendants Opposition to [340-1] motion to Compel production of documents by all plaintiffs (Brown, S.) (Entered: 06/26/1998)
ENDORSEMENT denying as moot [378-1] motion For Orders Compelling Production ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 06/29/1998)
ENDORSEMENT granting [380-1] motion for Leave to File Response to Plaintiffs' Reply to Defendants' Opposition to Motion to Compel, Brief Deadline set for 6/26/98 [340-1] motion to Compel production of documents ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 06/29/1998)
382 APPEARANCE of Attorney for ARC/Connecticut, Inc, Western CT Assoc -- Judith A. Gran, Barbara E. Ransom (Former Employee) (Entered: 06/29/1998)
383 RULING denying [340-1] motion to Compel production of documents, denying [340-2] motion for Sanctions, denying [365-1] motion for Reasonable Expenses in Opposing Plaintiffs' Unjustified Motion to

07/01/1998 07/01/1998 07/01/1998 07/07/1998
07/07/1998
07/07/1998
07/08/1998 07/08/1998 07/08/1998 07/08/1998 07/09/1998
07/15/1998

Compel. SEE for details ( signed by Senior Judge Ellen Bree Burns ) 7 Page(s) (Brown, S.) (Entered: 06/30/1998)
384 MOTION by all plaintiffs to Extend Time in opposition to the summary judgment (Sherman, M.) Modified on 07/01/1998 (Entered: 07/01/1998)
385 MOTION by all plaintiffs to Extend Time until 7/15/98 in opposition to the motion in summary judgment (Sherman, M.) (Entered: 07/01/1998)
386 MOTION by all plaintiffs to Extend Time until 7/8/98 in opposition to the motion for summary judgment (Sherman, M.) (Entered: 07/01/1998)
ENDORSEMENT granting [385-1] motion to Extend Time until 7/15/98 in opposition to the motion in summary judgment, Brief Deadline set for 7/15/98 [359-1] motion for Summary Judgment ( signed by Senior Judge Ellen Bree Burns ) (Former Employee) (Entered: 07/08/1998)
ENDORSEMENT granting [386-1] motion to Extend Time until 7/8/98 in opposition to the motion for summary judgment, Brief Deadline set for 7/8/98 [359-1] motion for Summary Judgment ( signed by Senior Judge Ellen Bree Burns ) (Former Employee) (Entered: 07/08/1998)
ENDORSEMENT granting [384-1] motion to Extend Time in opposition to the summary judgment, Brief Deadline set for 7/8/98 [3591] motion for Summary Judgment ( signed by Senior Judge Ellen Bree Burns ) (Former Employee) (Entered: 07/08/1998)
387 MOTION by all plaintiffs to Seal Memorandum in Opposition to Motion for Summary Judgment by Connecticut Public Health (Brief Due 7/29/98 ) (Brown, S.) (Entered: 07/08/1998)
388 MEMORANDUM with voluminous attachments by all plaintiffs in opposition to [359-1] motion for Summary Judgment by Susan S. Addiss (Brown, S.) Modified on 07/08/1998 (Entered: 07/08/1998)
389 MOTION by all plaintiffs to Amend [124-1] amended complaint by plaintiff (Brief Due 7/29/98 ) (Brown, S.) (Entered: 07/08/1998)
390 MEMORANDUM by all plaintiffs in support of [389-1] motion to Amend [124-1] amended complaint by plaintiff (Brown, S.) (Entered: 07/08/1998)
ENDORSEMENT granting [387-1] motion to Seal Memorandum in Opposition to Motion for Summary Judgment by Connecticut Public Health ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 07/09/1998)
391 MOTION by Southbury Training to Extend Time until 7/22/98 filing date for reply to the motion for summary judgment (Sherman, M.) (Entered: 07/15/1998)

07/15/1998
07/16/1998
07/16/1998
07/16/1998 07/17/1998 07/17/1998 07/17/1998 07/17/1998 07/17/1998 07/17/1998 07/17/1998 07/21/1998 07/21/1998

392 MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training to Extend Time until 7/21/98 to respond to DMR's motion for summary judgment (Sherman, M.) (Entered: 07/15/1998)
ENDORSEMENT granting [392-1] motion to Extend Time until 7/21/98 to respond to DMR's motion for summary judgment, Brief Deadline set for 7/21/98 [349-1] motion for Partial Summary Judgment ( signed by Senior Judge Ellen Bree Burns ) (Depino, F.) (Entered: 07/16/1998)
ENDORSEMENT granting [391-1] motion to Extend Time until 7/22/98 filing date for reply to the motion for summary judgment, Brief Deadline set for 7/22/98 [353-1] motion for Summary Judgment ( signed by Senior Judge Ellen Bree Burns ) (Depino, F.) (Entered: 07/16/1998)
400 AFFIDAVIT of Sue Gant by all plaintiffs Re [359-1] motion for Summary Judgment by Susan S. Addiss (Brown, S.) (Entered: 07/21/1998)
393 MOTION by all plaintiffs for Leave to File Amended Responses to [387-1] motion and [388-1] memorandum to include Department of Social Services (Brown, S.) (Entered: 07/17/1998)
395 RESPONSE by all plaintiffs to [353-1] motion for Summary Judgment by Southbury Training (Brown, S.) (Entered: 07/17/1998)
394 STATEMENT of Material Facts by all plaintiffs regarding [349-1] motion for Partial Summary Judgment (Brown, S.) (Entered: 07/17/1998)
396 MEMORANDUM by all plaintiffs in opposition to [353-1] motion for Summary Judgment by Southbury Training (Brown, S.) (Entered: 07/17/1998)
397 RESPONSE by all plaintiffs to [356-1] motion for Summary Judgment by Patricia Giardi (Brown, S.) (Entered: 07/17/1998)
398 STATEMENT of Material Facts by all plaintiffs regarding [356-1] motion for Summary Judgment (Brown, S.) (Entered: 07/17/1998)
399 MEMORANDUM by all plaintiffs in opposition to [356-1] motion for Summary Judgment by Patricia Giardi (Brown, S.) (Entered: 07/17/1998)
401 MOTION by Southbury Foundation, Thomas Howley, Toni Richardson to Extend Time Respond to Motion for Partial Summary Judgment (Brown, S.) (Entered: 07/21/1998)
402 STATEMENT of Material Facts by Southbury Foundation, Thomas Howley, Toni Richardson regarding [353-1] motion for Summary Judgment (Brown, S.) (Entered: 07/21/1998)

07/21/1998 07/22/1998 07/22/1998 07/22/1998 07/24/1998 07/27/1998 07/27/1998 07/27/1998 07/28/1998 07/28/1998 07/28/1998
07/28/1998

403 MOTION by all plaintiffs to Extend Time to 7/27/98 to file Brief in Opposition to Motion to Opt Out (Brown, S.) (Entered: 07/21/1998)
ENDORSEMENT granting [403-1] motion to Extend Time to 7/27/98 to file Brief in Opposition to Motion to Opt Out, Brief Deadline set for 7/27/98 [333-1] motion to Opt Out of Class ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 07/23/1998)
ENDORSEMENT granting [401-1] motion to Extend Time Respond to Motion for Partial Summary Judgment, Brief Deadline set for 7/24/98 [349-1] motion for Partial Summary Judgment ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 07/23/1998)
404 REPLY by Southbury Foundation to objection to [353-1] motion for Summary Judgment by Southbury Training (Brown, S.) (Entered: 07/23/1998)
405 MOTION by Southbury Foundation to Extend Time to respond to motion for partial summary judgment (Brown, S.) (Entered: 07/24/1998)
406 MOTION by 611 Residents to Extend Time until 7/28/98 to file an objection to the motion to opt out (Sherman, M.) (Entered: 07/27/1998)
407 MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training to Extend Time until 8/7/98 to file a response to the motion to amend the complaint (Sherman, M.) (Entered: 07/27/1998)
ENDORSEMENT granting [405-1] motion to Extend Time to respond to motion for partial summary judgment, Brief Deadline set for 7/31/98 [349-1] motion for Partial Summary Judgment ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 07/27/1998)
ENDORSEMENT granting [406-1] motion to Extend Time until 7/28/98 to file an objection to the motion to opt out, Brief Deadline set for 7/28/98 [333-1] motion to Opt Out of Class ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 07/28/1998)
408 MOTION by all plaintiffs to file Reply Brief in Excess of 40 pages (Brief Due 8/18/98 ) (Brown, S.) Modified on 07/28/1998 (Entered: 07/28/1998)
ENDORSEMENT granting [407-1] motion to Extend Time until 8/7/98 to file a response to the motion to amend the complaint, Brief Deadline set for 8/7/98 [389-1] motion to Amend [124-1] amended complaint by plaintiff ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 07/28/1998)
890 RESPONSE re: 406 Motion filed by all plaintiffs. (Falcone, K.) (Entered: 08/15/2008)

07/29/1998 07/30/1998 07/30/1998
07/31/1998 07/31/1998 07/31/1998 07/31/1998 07/31/1998 07/31/1998 07/31/1998 07/31/1998 07/31/1998 08/03/1998 08/05/1998

ENDORSEMENT granting [408-1] motion to file Reply Brief in Excess of 40 pages ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 07/29/1998)
409 MOTION by all plaintiffs to Seal Memorandum in opposition to Motion to Opt out class and to Intervene (Depino, F.) (Entered: 07/30/1998)
420 MOTION by all plaintiffs for Leave to File memo in opposition to motion to opt out of class and to intervene on the side of defendants of 611 reseidents of Southbury Training school and their guardians (Depino, F.) (Entered: 08/07/1998)
410 MOTION by Defendants' for Leave to File Responsive Brief in excess of 40 pages (Brief Due 8/21/98 ) (Brown, S.) (Entered: 07/31/1998)
411 MEMORANDUM by Defendants' in opposition to [349-1] motion for Partial Summary Judgment by plaintiffs (Brown, S.) (Entered: 07/31/1998)
412 MOTION by Defendants' to Extend Time to Reply to Plaintiffs' Response to Motion for summary Judgment of Department of Mental Retardation (Brown, S.) (Entered: 07/31/1998)
413 MOTION by all plaintiffs for Order to Compel Return of Documents (Brief Due 8/21/98 ) (Brown, S.) (Entered: 07/31/1998)
414 MEMORANDUM by all plaintiffs in support of [413-1] motion for Order to Compel Return of Documents (Brown, S.) (Entered: 07/31/1998)
415 AFFIDAVIT of Robert Kugel by all plaintiffs Re [413-1] motion for Order to Compel Return of Documents by plaintiffs (Brown, S.) (Entered: 07/31/1998)
416 MOTION by Southbury Training to Extend Time until 7/31/98 to file reply brief in support of the motion for summary motion (Sherman, M.) (Entered: 08/03/1998)
417 MOTION by Patricia Giardi for Leave to File Reply Memorandum in excess of page limit (Brief Due 8/21/98 ) (Brown, S.) (Entered: 08/03/1998)
421 REPLY by Patricia Giardi to response to [356-1] motion for Summary Judgment by Patricia Giardi (Brown, S.) (Entered: 08/10/1998)
418 MOTION by 611 Residents to Extend Time until 8/27/98 to opt out of the class in this class (Sherman, M.) (Entered: 08/04/1998)
419 Sur-Reply MEMORANDUM by all plaintiffs in opposition to [359-1] motion for Summary Judgment by Susan S. Addiss (Brown, S.) (Entered: 08/05/1998)

08/07/1998 08/07/1998 08/07/1998 08/07/1998 08/07/1998 08/07/1998 08/07/1998 08/07/1998 08/07/1998 08/10/1998

ENDORSEMENT granting [420-1] motion for Leave to File memo in opposition to motion to opt out of class and to intervene on the side of defendants of 611 reseidents of Southbury Training school and their guardians ( signed by Senior Judge Ellen Bree Burns ) (Depino, F.) (Entered: 08/07/1998)
ENDORSEMENT granting [410-1] motion for Leave to File Responsive Brief in excess of 40 pages ( signed by Senior Judge Ellen Bree Burns ) (Depino, F.) (Entered: 08/07/1998)
ENDORSEMENT granting [418-1] motion to Extend Time until 8/27/98 to opt out of the class in this class, Brief Deadline set for 8/27/98 [333-1] motion to Opt Out of Class ( signed by Senior Judge Ellen Bree Burns ) (Depino, F.) (Entered: 08/07/1998)
ENDORSEMENT granting [393-1] motion for Leave to File Amended Responses to [387-1] motion and [388-1] memorandum to include Department of Social Services ( signed by Senior Judge Ellen Bree Burns ) (Depino, F.) (Entered: 08/07/1998)
ENDORSEMENT granting [417-1] motion for Leave to File Reply Memorandum in excess of page limit ( signed by Senior Judge Ellen Bree Burns ) (Depino, F.) (Entered: 08/07/1998)
ENDORSEMENT granting [412-1] motion to Extend Time to Reply to Plaintiffs' Response to Motion for summary Judgment of Department of Mental Retardation, Brief Deadline set for 8/7/98 [353-1] motion for Summary Judgment ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 08/10/1998)
ENDORSEMENT granting [416-1] motion to Extend Time until 7/31/98 to file reply brief in support of the motion for summary motion, Brief Deadline set for 7/31/98 [356-1] motion for Summary Judgment ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 08/10/1998)
422 MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training to Extend Time until 8/12/98 to file a reply to the motion for summary judgment (Sherman, M.) (Entered: 08/10/1998)
423 MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training to Extend Time until 8/12/98 to file a response to the motion to amend the complaint (Sherman, M.) (Entered: 08/10/1998)
ENDORSEMENT granting [409-1] motion to Seal Memorandum in opposition to Motion to Opt out class and to Intervene ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 08/10/1998)

08/12/1998 08/12/1998 08/13/1998 08/13/1998
08/13/1998 08/14/1998
08/14/1998 08/14/1998 08/14/1998 08/18/1998 08/19/1998

424 MOTION by Defendants for Leave to File Memorandum in Opposition to Motion to Opt Out (Brown, S.) (Entered: 08/12/1998)
425 MEMORANDUM by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training in opposition to [389-1] motion to Amend [124-1] amended complaint by all plaintiffs (Brown, S.) (Entered: 08/12/1998)
426 MOTION by Thomas Howley, Toni Richardson, Southbury Training for Leave to File reply to response to motion for summary judgment nunc pro tunc (Depino, F.) (Entered: 08/13/1998)
427 MOTION by Western CT Assoc, ARC/Connecticut, Inc, People First, Gregory Kabbai, Leonard Haversat, Raymond Mitchell, Leon Horton, Carole Ann Carr, Thomas Maloney, Richard Messier to Extend Time until 8/12/98 to file reply memorandum to DMR Defendants response to plaintiffs motion for partial summary judgement (Ghilardi, K.) (Entered: 08/13/1998)
ENDORSEMENT granting [424-1] motion for Leave to File Memorandum in Opposition to Motion to Opt Out, Brief Deadline set for 8/25/98 [333-1] motion to Opt Out of Class ( signed by Senior Judge Ellen Bree Burns ) (Depino, F.) (Entered: 08/13/1998)
ENDORSEMENT granting [427-1] motion to Extend Time until 8/27/98 to file reply memorandum to DMR Defendants response to plaintiffs motion for partial summary judgement, Brief Deadline reset for 8/27/98 [349-1] motion for Partial Summary Judgment ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 08/14/1998)
ENDORSEMENT granting [426-1] motion for Leave to File reply to response to motion for summary judgment nunc pro tunc, Brief Deadline reset for 8/14/98 [353-1] motion for Summary Judgment ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 08/14/1998)
428 MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training for Leave to File Reply Brief in excess of 10 pages (Brown, S.) (Entered: 08/17/1998)
429 REPLY by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training to response to [353-1] motion for Summary Judgment by Southbury Training (Brown, S.) (Entered: 08/17/1998)
ENDORSEMENT granting [428-1] motion for Leave to File Reply Brief in excess of 10 pages ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 08/19/1998)
430 REPLY by Susan S. Addiss to Sur-reply in Opposition to [359-1] motion for Summary Judgment by Susan S. Addiss (Brown, S.) (Entered: 08/19/1998)

08/20/1998 08/21/1998
08/24/1998 08/24/1998 08/25/1998
08/26/1998 08/27/1998 08/28/1998 08/28/1998 08/28/1998 08/28/1998

431 MOTION by all plaintiffs to Extend Time to 9/14/98 to respond to defendant's memorandum in opposition to motion to amend (Former Employee) Modified on 08/24/1998 (Entered: 08/21/1998)
ENDORSEMENT granting [431-1] motion to Extend Time to 9/14/98 to respond to defendant's memorandum in opposition, Brief Deadline set for 9/14/98 [389-1] motion to Amend [124-1] amended complaint by plaintiff ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 08/24/1998)
432 RESPONSE by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training to [413-1] motion for Order to Compel Return of Documents by all plaintiffs (Brown, S.) (Entered: 08/24/1998)
433 MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training to Extend Time to 9/1/98 to respond to memorandum in opposition to motion to opt out of class (Former Employee) (Entered: 08/24/1998)
ENDORSEMENT granting [433-1] motion to Extend Time to 9/1/98 to respond to memorandum in opposition to motion to opt out of class, Brief Deadline set for 9/1/98 [333-1] motion to Opt Out of Class, set for 9/1/98 [333-2] motion to Intervene on the side of the Defendants ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 08/26/1998)
434 Objection by Susan S. Addiss, Patricia Giardi to [393-1] motion for Leave to File Amended Responses to [387-1] motion and [388-1] memorandum to include Department of Social Services by all plaintiffs (Brown, S.) (Entered: 08/26/1998)
435 MOTION by all plaintiffs to Extend Time to 9/3/98 to file reply memorandum to dmr response to motion for summary judgement (Ghilardi, K.) (Entered: 08/27/1998)
ENDORSEMENT mooting [306-1] motion for Reconsideration of [2981] order dated 2/2/98 re: [265-1] motion to Compel production of records of class members ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 08/28/1998)
ENDORSEMENT mooting [301-1] motion for Protective Order prohibiting Depositions of Nirbay Singh and Renee Wachtel ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 08/28/1998)
ENDORSEMENT mooting [284-1] motion for Sanctions ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 08/28/1998)
ENDORSEMENT mooting [322-1] motion to Extend Time until 3/9/98 to file a brief in opposition to defendants' motion for protective order that depositions of Nirbay Singh and Renee Wachtel ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 08/28/1998)

08/28/1998
09/01/1998 09/01/1998
09/02/1998 09/03/1998 09/04/1998 09/04/1998 09/09/1998 09/09/1998 09/09/1998
09/10/1998

ENDORSEMENT granting [435-1] motion to Extend Time to 9/3/98 to file reply memorandum to Department of Mental Retardation's response to motion for summary judgement, Brief Deadline set for 9/3/98 [349-1] motion for Partial Summary Judgment ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 08/31/1998)
436 MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training to Extend Time to 9/9/98 to respond to memorandum in opposition to motion to opt out of class (Ghilardi, K.) (Entered: 09/01/1998)
ENDORSEMENT granting [436-1] motion to Extend Time to 9/9/98 to respond to memorandum in opposition to motion to opt out of class, Brief Deadline set for 9/9/98 [333-1] motion to Opt Out of Class ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 09/01/1998)
437 Memorandum in Opposition by all plaintiffs to [434-1] motion response by Patricia Giardi, Susan S. Addiss, AND in response to [430-1] by Susan S. Addiss (Brown, S.) (Entered: 09/02/1998)
438 REPLY by all plaintiffs to response to [349-1] motion for Partial Summary Judgment by all plaintiffs (Brown, S.) (Entered: 09/03/1998)
439 MOTION by all plaintiffs to Extend Time to 9/18/98 to respond to defendents' response to plaintiffs motion to compel (Ghilardi, K.) (Entered: 09/04/1998)
440 Sur-Reply MEMORANDUM by all plaintiffs in opposition to [356-1] motion for Summary Judgment by Patricia Giardi (Brown, S.) (Entered: 09/04/1998)
441 MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training to Extend Time to 09/15/98 to respond to plaintiff's memorandum in opposition to motion to opt out of class & intervine (Former Employee) (Entered: 09/09/1998)
442 MOTION by all plaintiffs to exceed page limit when filing reply memorandum in support of partial summary against DMR (Brown, S.) (Entered: 09/09/1998)
ENDORSEMENT granting [439-1] motion to Extend Time to 9/18/98 to respond to defendents' response to plaintiffs motion to compel, Brief Deadline set for 9/18/98 [413-1] motion for Order to Compel Return of Documents ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 09/09/1998)
443 MOTION by all plaintiffs for Leave to File additional brief in response to the Briefs filed by the DMR Defendant and counsel for the Home and School Association of Southbury Training School (Depino, F.) (Entered: 09/10/1998)

09/11/1998 09/11/1998 09/11/1998
09/14/1998 09/15/1998 09/15/1998 09/15/1998 09/16/1998
09/16/1998 09/16/1998 09/17/1998

ENDORSEMENT granting [442-1] motion to exceed page limit when filing reply memorandum in support of partial summary against DMR ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 09/11/1998)
ENDORSEMENT granting [441-1] motion to Extend Time to 09/15/98 to respond to plaintiff's memorandum, Brief Deadline set for 9/15/98 [333-1] motion to Opt Out of Class ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 09/14/1998)
ENDORSEMENT granting [443-1] motion for Leave to File additional brief in response to the Briefs filed by the DMR Defendant and counsel for the Home and School Association of Southbury Training School, Brief Deadline set for 10/5/98 [333-1] motion to Opt Out of Class ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 09/14/1998)
444 MOTION by all plaintiffs to Extend Time to 9/22/98 to reply to the defendants' memorandum in opposition to the motion to amend complaint (Ghilardi, K.) (Entered: 09/15/1998)
445 RESPONSE by Southbury Training to [333-1] motion to Opt Out of Class by 611 Residents, [333-2] motion to Intervene on the side of the Defendants by 611 Residents (Brown, S.) (Entered: 09/15/1998)
446 Motion in Opposition by 611 Residents to [403-1] motion to Extend Time to 7/27/98 to file Brief in Opposition to Motion to Opt Out by all plaintiffs (Brown, S.) (Entered: 09/16/1998)
ENDORSEMENT overruling [446-1] motion in opposition ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 09/16/1998)
ENDORSEMENT granting [444-1] motion to Extend Time to 9/22/98 to reply to the defendants' memorandum in opposition to the motion to amend complaint, Brief Deadline set for 9/22/98 [389-1] motion to Amend [124-1] amended complaint by plaintiff ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 09/16/1998)
447 MOTION by all plaintiffs to Supplement [438-1] reply by all plaintiffs (Brief Due 10/7/98 ) (Brown, S.) Modified on 09/17/1998 (Entered: 09/16/1998)
448 MOTION by Southbury Training for Leave to File Response to Reply to Motion for Partial Summary Judgment against DMR , and to Extend Time to so respond (Brown, S.) (Entered: 09/16/1998)
449 Opposition Response by 611 Residents to [447-1] motion to Supplement [438-1] response reply by all plaintiffs by all plaintiffs (Brown, S.) (Entered: 09/17/1998)

09/18/1998 09/22/1998 09/24/1998 09/24/1998
09/24/1998
09/24/1998
09/25/1998 09/28/1998 09/30/1998 10/01/1998 10/01/1998 10/01/1998

450 REPLY by all plaintiffs to response to [378-1] motion For Orders Compelling Production by all plaintiffs (Brown, S.) (Entered: 09/22/1998)
451 MOTION by all plaintiffs motion to File Motion for Enlargement of Time out of Time to respond to Objections to Motion to Amend (Brown, S.) (Entered: 09/22/1998)
ENDORSEMENT granting [451-1] motion motion to File Motion for Enlargement of Time out of Time to respond to Objections to Motion to Amend ( signed by Senior Judge Ellen Bree Burns ) (Depino, F.) (Entered: 09/24/1998)
452 MOTION by People First, Gregory Kabbai, Leonard Haversat, Raymond Mitchell, Leon Horton, Carole Ann Carr, Thomas Maloney, Richard Messier to Extend Time to reply to defendants objections to the motion to amend the complaint for seven days (Depino, F.) (Entered: 09/24/1998)
ENDORSEMENT granting [452-1] motion to Extend Time to reply to defendants objections to the motion to amend the complaint for seven days, Brief Deadline set for 9/28/98 [389-1] motion to Amend [124-1] amended complaint by plaintiff ( signed by Senior Judge Ellen Bree Burns ) (Depino, F.) (Entered: 09/24/1998)
ENDORSEMENT granting [448-1] motion for Leave to File Response to Reply to Motion for Partial Summary Judgment against DMR, granting [448-2] motion to Extend Time to so respond, Brief Deadline set for 9/25/98 [349-1] motion for Partial Summary Judgment ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 09/25/1998)
453 MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training for Leave to File Surreply Brief in Excess of 10 pages (Brown, S.) (Entered: 09/25/1998)
454 MOTION by all plaintiffs to file reply brief that Exceeds Page Limit (Brown, S.) (Entered: 09/28/1998)
455 MOTION by all plaintiffs to Amend Memorandum [437-1] response by all plaintiffs (Brief Due 10/21/98 ) (Brown, S.) (Entered: 09/30/1998)
ENDORSEMENT granting [454-1] motion to file reply brief that Exceeds Page Limit ( signed by Senior Judge Ellen Bree Burns ) (Former Employee) (Entered: 10/01/1998)
ENDORSEMENT granting [455-1] motion to Amend Memorandum [437-1] response by all plaintiffs ( signed by Senior Judge Ellen Bree Burns ) (Villano, P.) (Entered: 10/02/1998)
456 MOTION by 611 Residents for Leave to File Reply Memorandum to Motion to Opt Out of Class & to Intervene (Lopez, B.) (Entered: 10/02/1998)

10/05/1998 10/06/1998
10/07/1998 10/07/1998 10/07/1998 10/07/1998 10/08/1998 10/08/1998 10/08/1998 10/08/1998
10/08/1998 10/09/1998

457 MOTION by all plaintiffs to Extend Time to 10/07/98 to respond to brief of Home & School Association and DMR re Motion to Opt Out (Former Employee) Modified on 10/20/1998 (Entered: 10/06/1998)
458 MOTION by Southbury Training Court should deem Plaintiffs Motion to Supplement Reply and Plaintiffs' Supplementary Memorandum in Reply to to Defendants' Response to Plaintiffs' Motion for Partial Summary Judgment against DMR as Having Been Filed 10/2/98 (Brown, S.) (Entered: 10/06/1998)
ENDORSEMENT granting [456-1] motion for Leave to File Revised Reply Memorandum to Motion to Opt Out of Class & to Intervene ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 10/07/1998)
459 MOTION by all plaintiffs for Leave to File Supplement to Reply Brief (Brown, S.) (Entered: 10/07/1998)
460 MEMORANDUM by all plaintiffs in support of [333-1] motion to Opt Out of Class (Brown, S.) (Entered: 10/07/1998)
891 RESPONSE re 409 Motion to opt out out of class and to intervene on the side of defendants filed by 611 Residents of Southbury Training School. (Falcone, K.) (Entered: 08/15/2008)
ENDORSEMENT granting [453-1] motion for Leave to File Surreply Brief in Excess of 10 pages ( signed by Senior Judge Ellen Bree Burns ) (Depino, F.) (Entered: 10/08/1998)
ENDORSEMENT granting [459-1] motion for Leave to File Supplement to Reply Brief ( signed by Senior Judge Ellen Bree Burns ) (Depino, F.) (Entered: 10/08/1998)
461 AFFIDAVIT of Margaret Dignotti by all plaintiffs Re [349-1] motion for Partial Summary Judgment by all plaintiffs (Depino, F.) (Entered: 10/08/1998)
ENDORSEMENT granting [458-1] motion that Court should deem Plaintiffs Motion to Supplement Reply and Plaintiffs' Supplementary Memorandum in Reply to Defendants' Response to Plaintiffs' Motion for Partial Summary Judgment against DMR as Having Been Filed 10/2/98 ( signed by Senior Judge Ellen Bree Burns ) (Depino, F.) Modified on 10/20/1998 (Entered: 10/08/1998)
ENDORSEMENT granting nunc pro tunc[457-1] motion to Extend Time to 10/07/98 to respond to brief of Home & School Association and DMR ( signed by Senior Judge Ellen Bree Burns ) (Depino, F.) Modified on 10/20/1998 (Entered: 10/08/1998)
462 TRANSCRIPT for date of August 14, 1996 (Court reporter: Finkelstein) (Collins, S.) (Entered: 10/09/1998)

10/14/1998 10/14/1998
10/14/1998 10/23/1998 10/27/1998 10/28/1998
10/29/1998
11/02/1998 11/02/1998 11/05/1998 11/05/1998

463 Motion hearing held re: [333-1] motion to Opt Out of Class by 611 Residents, [349-1] motion for Partial Summary Judgment by all plaintiffs ( EBB) (Brown, S.) (Entered: 10/15/1998)
464 RESPONSE by all plaintiffs to [458-1] motion Court should deem Plaintiffs Motion to Supplement Reply and Plaintiffs' Supplementary Memorandum in Reply to to Defendants' Response to Plaintiffs' Motion for Partial Summary Judgment against DMR as Having Been Filed 10/2/98 by Southbury Training (Brown, S.) (Entered: 10/15/1998)
465 Surreply by Susan S. Addiss, Patricia Giardi in opposition to [389-1] motion to Amend [124-1] amended complaint by all plaintiffs (Brown, S.) Modified on 10/27/1998 (Entered: 10/15/1998)
466 MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training for Leave to File Response to additional allegations of Plaintiffs' counsel related to Plaintiffs' motion for partial summary judgment (Brown, S.) (Entered: 10/23/1998)
467 RESPONSE to Additional Allegations of Plaintiffs' Counsel Related to Plaintiff's [349-1] motion for Partial Summary Judgment (Brown, S.) Modified on 10/27/1998 (Entered: 10/27/1998)
468 OBJECTIONS by all plaintiffs to [466-1] motion for Leave to File Response to additional allegations of Plaintiffs' counsel related to Plaintiffs' motion for partial summary judgment by Southbury Training, Toni Richardson, Thomas Howley, Patricia Giardi, Susan S. Addiss (Brown, S.) (Entered: 10/28/1998)
ENDORSEMENT granting nunc pro tunc [466-1] motion for Leave to File Response to additional allegations of Plaintiffs' counsel related to Plaintiffs' motion for partial summary judgment, Brief Deadline set for 10/26/98 [349-1] motion for Partial Summary Judgment ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 10/29/1998)
469 MOTION by all plaintiffs to Strike [467-1] motion response to Additional Allegations of Plaintiffs' Counsel Related to Plaintiffs' Motion for Partial Summary Judgment (Brown, S.) (Entered: 11/03/1998)
470 MEMORANDUM by all plaintiffs in support of [469-1] motion to Strike [467-1] motion response to Additional Allegations of Plaintiffs' Counsel Related to Plaintiffs' Motion for Partial Summary Judgment (Brown, S.) (Entered: 11/03/1998)
471 RULING denying [333-1] motion to Opt Out of Class, denying [333-2] motion to Intervene on the side of the Defendants ( signed by Senior Judge Ellen Bree Burns ) 27 Page(s) (Depino, F.) (Entered: 11/05/1998)
ENDORSEMENT denying [469-1] motion to Strike [467-1] motion response to Additional Allegations of Plaintiffs' Counsel Related to

11/09/1998 11/16/1998 12/02/1998 12/02/1998
12/03/1998 12/04/1998 12/11/1998 12/14/1998 12/17/1998
12/22/1998 12/22/1998

Plaintiffs' Motion for Partial Summary Judgment ( signed by Senior Judge Ellen Bree Burns ) (Depino, F.) (Entered: 11/05/1998)
472 TRANSCRIPT for date of 10/14/98 (Court reporter: Thea Finkelstein) (Brown, S.) (Entered: 11/12/1998)
473 Trial Memorandum Order. Trial Memorandum due 12/15/98 ( ; Pretrial Conference is set for 12/29/98 @ 10:00 AM, Trial to commence 1/4/99 Signed by Mag. Judge Joan G. Margolis ) (Brown, S.) (Entered: 11/18/1998)
474 MOTION by all plaintiffs for Leave to File Additional Authority relating to Plaintiffs' Motion for Partial Summary Judgment (Brown, S.) (Entered: 12/02/1998)
475 RULING granting in part, denying in part [413-1] motion for Order to Compel Return of Documents; denies reuest for attyorney's fees and costs associated with this motion; denies request to depose Dr. Hauser again; grants Plaintiffs' leave to depose Dr. Kastner again. Dr. Kastner to be deposed no later than 12/24/98 ( signed by Senior Judge Ellen Bree Burns ) 13 Page(s) (Brown, S.) (Entered: 12/02/1998)
476 MOTION by all plaintiffs for Order to obtain copy of Special Master's Report to the Court #5: First Review of Compliance (Brown, S.) (Entered: 12/04/1998)
477 NOTICE OF APPEAL of [471-1] order by Southbury Training FILING FEE $ 105.00 RECEIPT # 000278 Certified Copy of Appeal and Docket mailed to USCA (Former Employee) (Entered: 12/07/1998)
478 MOTION by all plaintiffs to Extend Time to 12/23/98 to prepare trial memoranda (Ghilardi, K.) (Entered: 12/11/1998)
ENDORSEMENT granting [478-1] motion to Extend Time to 12/23/98 to prepare trial memoranda, reset Filing of Trial Memorandum due by 12/23/98 ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 12/14/1998)
479 RESPONSE by Home & School Assoc., USA, Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training to [4741] motion for Leave to File Additional Authority relating to Plaintiffs' Motion for Partial Summary Judgment by all plaintiffs (Inferrera, L.) (Entered: 12/17/1998)
480 MOTION by Southbury Training in Limine RE: Limiting Testimony of Rebuttal Experts (Brown, S.) (Entered: 12/22/1998)
481 MEMORANDUM by Southbury Training in support of [480-1] motion in Limine RE: Limiting Testimony of Rebuttal Experts (Brown, S.) (Entered: 12/22/1998)

12/23/1998 12/24/1998 12/24/1998 12/24/1998 12/24/1998 12/24/1998 12/24/1998 12/24/1998 12/24/1998 12/24/1998 12/24/1998 12/24/1998 12/24/1998 12/24/1998 12/28/1998

482 PRETRIAL MEMORANDUM by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training Estimated trial time is for 20-30 days (Depino, F.) (Entered: 12/28/1998)
483 MOTION by all plaintiffs in Limine for Order for Sanction to preclude the testimony of David Strauss (Brief Due 1/14/99 ) (Depino, F.) (Entered: 12/28/1998)
484 MEMORANDUM by all plaintiffs in support of [483-1] motion in Limine for Order for Sanction to preclude the testimony of David Strauss (Depino, F.) (Entered: 12/28/1998)
485 MOTION by all plaintiffs in Limine RE: prohibiting the expert testimony of Polly Spare (Brief Due 1/14/99 ) (Depino, F.) (Entered: 12/28/1998)
486 MOTION by all plaintiffs in Limine for Order RE: calling Justine Sheppard as an expert witness (Brief Due 1/14/99 ) (Depino, F.) (Entered: 12/28/1998)
487 MEMORANDUM by all plaintiffs in support of [486-1] motion in Limine for Order RE: calling Justine Sheppard as an expert witness (Depino, F.) (Entered: 12/28/1998)
488 MOTION by all plaintiffs in Limine for Order for Sanctions RE: testimony of Theodore Kastner M.D. (Brief Due 1/14/99 ) (Depino, F.) (Entered: 12/28/1998)
490 MOTION by all plaintiffs to Extend Time to file motion for enlargement of time out of time (Ghilardi, K.) (Entered: 12/28/1998)
491 MOTION by all plaintiffs to Extend Time to 12/24/98 to file response to pretrial order (Ghilardi, K.) (Entered: 12/28/1998)
493 PRETRIAL MEMORANDUM by all plaintiffs Estimated trial time is for 40 days (Depino, F.) (Entered: 12/29/1998)
494 Proposed Witness list by all plaintiffs (Depino, F.) (Entered: 12/29/1998)
495 Proposed Exhibit List by all plaintiffs (Depino, F.) (Entered: 12/29/1998)
496 Designation of Deposition Testimony by all plaintiffs (Depino, F.) (Entered: 12/29/1998)
497 PROPOSED Findings of Fact and Conclusions of Law by all plaintiffs (Depino, F.) (Entered: 12/29/1998)
489 MEMORANDUM by all plaintiffs in support of [488-1] motion in Limine for Order for Sanctions RE: testimony of Theodore Kastner M.D. (Depino, F.) (Entered: 12/28/1998)

12/28/1998 12/28/1998 12/30/1998 01/04/1999 01/04/1999 01/04/1999 01/04/1999 01/04/1999 01/04/1999 01/04/1999 01/04/1999 01/05/1999

492 MEMORANDUM by Southbury Training in opposition to [476-1] motion for Order to obtain copy of Special Master's Report to the Court #5: First Review of Compliance by all plaintiffs (Depino, F.) (Entered: 12/29/1998)
521 MEMORANDUM by all plaintiffs in support of [485-1] motion in Limine RE: prohibiting the expert testimony of Polly Spare (Former Employee) (Entered: 01/26/1999)
498 MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training to Continue trial , or to Strike [493-1] trial brief by all plaintiffs (Brief Due 1/20/99 ) (Former Employee) (Entered: 12/30/1998)
ENDORSEMENT denying [476-1] motion for Order to obtain copy of Special Master's Report to the Court #5: First Review of Compliance ( signed by Senior Judge Ellen Bree Burns ) (Depino, F.) (Entered: 01/04/1999)
ENDORSEMENT granting [490-1] motion to Extend Time to file motion for enlargement of time out of time ( signed by Senior Judge Ellen Bree Burns ) (Depino, F.) (Entered: 01/04/1999)
ENDORSEMENT granting [491-1] motion to Extend Time to 12/24/98 to file response to pretrial order ( signed by Senior Judge Ellen Bree Burns ) (Depino, F.) (Entered: 01/04/1999)
ENDORSEMENT granting [474-1] motion for Leave to File Additional Authority relating to Plaintiffs' Motion for Partial Summary Judgment ( signed by Senior Judge Ellen Bree Burns ) (Depino, F.) (Entered: 01/04/1999)
ENDORSEMENT granting [498-1] motion to Continue trial, granting [498-2] motion to Strike [493-1] trial brief by all plaintiffs to the extent that this case shall commence on 1/19/99 ( signed by Senior Judge Ellen Bree Burns ) (Depino, F.) (Entered: 01/04/1999)
499 MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training for Protective Order Regarding plaintiff deposition and to Continue trial (Brief Due 1/25/99 ) (Former Employee) (Entered: 01/04/1999)
500 Scheduling Order from USCA regarding [477-1] appeal by Southbury Training USCA Number: 98-9608 (Former Employee) (Entered: 01/04/1999)
501 MOTION by all plaintiffs to Extend Time until 1/6/99 to file brief in opposition to motion in limine (Inferrera, L.) (Entered: 01/04/1999)
502 RULING denying [359-1] motion for Summary Judgment, denying [356-1] motion for Summary Judgment, granting [353-1] motion for Summary Judgment, granting [349-1] motion for Partial Summary

01/05/1999 01/05/1999 01/06/1999 01/06/1999 01/06/1999 01/08/1999 01/11/1999 01/13/1999
01/15/1999

Judgment ( signed by Senior Judge Ellen Bree Burns ) 59 Page(s) (Depino, F.) (Entered: 01/05/1999)
503 RULING granting in part, denying in part [389-1] motion to Amend [124-1] amended complaint by plaintiff; plaintiffs may amend complaint by adding June Woods; Third Amended Complaint remains operative document ( signed by Senior Judge Ellen Bree Burns ) 13 Page(s) (Former Employee) (Entered: 01/06/1999)
ENDORSEMENT granting [501-1] motion to Extend Time until 1/6/99 to file brief in opposition to motion in limine, Brief Deadline set for 1/6/99 [480-1] motion in Limine RE: Limiting Testimony of Rebuttal Experts ( signed by Senior Judge Ellen Bree Burns ) (Former Employee) (Entered: 01/06/1999)
504 OBJECTION by all plaintiffs to Defendants' Witness List re: [482-1] trial brief by Southbury Training, Toni Richardson, Thomas Howley, Giardi, Susan S. Addiss (Inferrera, L.) (Entered: 01/06/1999)
505 MEMORANDUM by all plaintiffs in support of [504-1] objectionx to Addition in Defendant's Witnes List re [493-1] trial brief (Inferrera, L.) (Entered: 01/06/1999)
506 MEMORANDUM by all plaintiffs in opposition to [480-1] motion in Limine RE: Limiting Testimony of Rebuttal Experts by Southbury Training (Inferrera, L.) (Entered: 01/06/1999)
507 MEMORANDUM by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training in opposition to [486-1] motion in Limine for Order RE: calling Justine Sheppard as an expert witness by all plaintiffs (Brown, S.) (Entered: 01/12/1999)
508 MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training To Exclude Witnesses , to Continue Trial , and To Impose Other Sanctions (Brief Due 2/1/99 ) (Brown, S.) (Entered: 01/12/1999)
509 MEMORANDUM by People First, David Yeske, Gregory Kabbai, Leonard Haversat, Raymond Mitchell, Leon Horton, Carole Ann Carr, Thomas Maloney, Richard Messier in opposition to [508-1] motion To Exclude Witnesses by Southbury Training, Toni Richardson, Thomas Howley, Patricia Giardi, Susan S. Addiss, [508-2] motion to Continue Trial by Southbury Training, Toni Richardson, Thomas Howley, Patricia Giardi, Susan S. Addiss, [508-3] motion To Impose Other Sanctions by Southbury Training, Toni Richardson, Thomas Howley, Patricia Giardi, Susan S. Addiss (Depino, F.) (Entered: 01/13/1999)
510 MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson to Extend Time until 1/19/99 to respond to three remaining motions in limine (Inferrera, L.) (Entered: 01/15/1999)

01/15/1999 01/15/1999 01/15/1999 01/19/1999 01/19/1999
01/19/1999 01/19/1999
01/19/1999
01/19/1999 01/19/1999 01/19/1999

511 MOTION by all plaintiffs to Compel Defendants to Produce Exhibits (Brief Due 2/5/99 ) (Inferrera, L.) (Entered: 01/15/1999)
512 MOTION by all plaintiffs for Expedited Determination (Brief Due 2/5/99 ) (Inferrera, L.) (Entered: 01/15/1999)
513 MOTION by all plaintiffs for Permission to Present Rebuttal Experts During Plaintiffs' Case in Chief (Brief Due 2/5/99 ) (Inferrera, L.) (Entered: 01/15/1999)
514 Brief by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson in opposition to [483-1] motion in Limine for Order for Sanction to preclude the testimony of David Strauss by all plaintiffs (Inferrera, L.) (Entered: 01/19/1999)
515 MOTION by all plaintiffs for Clarification or Reconsideration of [5021] Ruling granting summary judgment to the DMR defendants on plaintiffs' Title XIX claims with attached Memorandum of Law in Support (Brief Due 2/9/99 ) (Inferrera, L.) Modified on 01/19/1999 (Entered: 01/19/1999)
516 MOTION by all plaintiffs to Compel defendants to supplement responses to plaintiffs' motions for disclosure and production (Brief Due 2/9/99 ) (Inferrera, L.) (Entered: 01/19/1999)
ENDORSEMENT granting [510-1] motion to Extend Time until 1/19/99 to respond to three remaining motions in limine, Brief Deadline set for 1/19/99 [488-1] motion in Limine for Order for Sanctions RE: testimony of Theodore Kastner M.D. ( signed by Senior Judge Ellen Bree Burns ) (Depino, F.) (Entered: 01/19/1999)
ENDORSEMENT granting in part, denying in part [508-1] motion To Exclude Witnesses, granting in part, denying in part [508-2] motion to Continue Trial, granting in part, denying in part [508-3] motion To Impose Other Sanctions SEE ENDORSEMENT FOR DETAILS ( signed by Senior Judge Ellen Bree Burns ) (Depino, F.) (Entered: 01/19/1999)
ENDORSEMENT granting [511-1] motion to Compel Defendants to Produce Exhibits to the extent defendants' exhibits have not been produced ( signed by Senior Judge Ellen Bree Burns ) (Depino, F.) (Entered: 01/19/1999)
ENDORSEMENT mooting [499-1] motion for Protective Order Regarding plaintiff deposition, mooting [499-2] motion to Continue trial ( signed by Senior Judge Ellen Bree Burns ) (Depino, F.) (Entered: 01/19/1999)
ENDORSEMENT granting [512-1] motion for Expedited Determination ( signed by Senior Judge Ellen Bree Burns ) (Depino, F.) (Entered: 01/19/1999)

01/19/1999 01/19/1999 01/19/1999 01/20/1999 01/20/1999 01/21/1999
01/21/1999 01/21/1999 01/21/1999 01/21/1999 01/25/1999

ENDORSEMENT denying [480-1] motion in Limine RE: Limiting Testimony of Rebuttal Experts ( signed by Senior Judge Ellen Bree Burns ) (Depino, F.) (Entered: 01/19/1999)
ENDORSEMENT denying [486-1] motion in Limine for Order RE: calling Justine Sheppard as an expert witness ( signed by Senior Judge Ellen Bree Burns ) (Depino, F.) (Entered: 01/19/1999)
517 MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson to Extend Time until 1/21/99 to respond to two remaining motions in limine (Sherman, M.) (Entered: 01/20/1999)
518 MEMORANDUM by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson in opposition to [485-1] motion in Limine RE: prohibiting the expert testimony of Polly Spare by all plaintiffs (Inferrera, L.) (Entered: 01/20/1999)
519 MEMORANDUM by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson in opposition to [488-1] motion in Limine for Order for Sanctions RE: testimony of Theodore Kastner M.D. by all plaintiffs (Inferrera, L.) (Entered: 01/20/1999)
ENDORSEMENT granting [517-1] motion to Extend Time until 1/21/99 to respond to two remaining motions in limine, Brief Deadline set for 1/21/99 [488-1] motion in Limine for Order for Sanctions RE: testimony of Theodore Kastner M.D., set for 1/21/99 [485-1] motion in Limine RE: prohibiting the expert testimony of Polly Spare, set for 1/21/99 [483-1] motion in Limine for Order for Sanction to preclude the testimony of David Strauss ( signed by Senior Judge Ellen Bree Burns ) (Depino, F.) (Entered: 01/21/1999)
ENDORSEMENT denying without prejudice [485-1] motion in Limine RE: prohibiting the expert testimony of Polly Spare ( signed Senior Judge Ellen Bree Burns ) (Former Employee) (Entered: 01/21/1999)
ENDORSEMENT denying [488-1] motion in Limine for Order for Sanctions RE: testimony of Theodore Kastner M.D. ( signed by Senior Judge Ellen Bree Burns ) (Depino, F.) (Entered: 01/21/1999)
ENDORSEMENT denying [483-1] motion in Limine for Order for Sanction to preclude the testimony of David Strauss ( signed by Senior Judge Ellen Bree Burns ) (Depino, F.) (Entered: 01/21/1999)
ENDORSEMENT denying without prejudice [485-1] motion in Limine RE: prohibiting the expert testimony of Polly Spare ( signed Senior Judge Ellen Bree Burns ) (Former Employee) (Entered: 01/26/1999)
520 MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training to Compel Plaintiffs to Supplement Responses to Defendants Discovery Response (Brief Due 2/15/99 ) (Brown, S.) (Entered: 01/25/1999)

01/25/1999 01/25/1999 01/27/1999 01/28/1999 01/29/1999 02/03/1999 02/03/1999 02/03/1999 02/03/1999 02/04/1999 02/05/1999 02/05/1999 02/08/1999 02/08/1999 02/08/1999 02/09/1999 02/10/1999 02/12/1999

522 MOTION by all plaintiffs to Amend Exhibit 329 (Brown, S.) (Entered: 01/26/1999)
523 COURT Trial held Trial continued until 1/26/99; oral motion to seal exhibits granted ( EBB) (Brown, S.) (Entered: 01/26/1999)
524 COURT Trial held Trial continued until 1/27/99 @ 10:00 a.m. (EBB) (Collins, S.) (Entered: 01/27/1999)
525 COURT Trial held Trial continued until 1/28/99 @ 10:00 a.m. (EBB) (Collins, S.) (Entered: 01/28/1999)
526 COURT Trial held Trial continued until 2/2/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 01/29/1999)
527 COURT Trial held Trial continued until 2/3/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 02/03/1999)
528 TRANSCRIPT for date of January 25, 1999 (Court reporter: Dolores Falzarano) (Collins, S.) (Entered: 02/03/1999)
529 TRANSCRIPT for date of January 26, 1999 (Court reporter: Thea Finkelstein) (Collins, S.) (Entered: 02/03/1999)
530 TRANSCRIPT for date of January 27, 1999 (Court reporter: Deborah Stedman) (Collins, S.) (Entered: 02/03/1999)
531 COURT Trial held Trial continued until 2/4/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 02/04/1999)
532 COURT Trial held 2/4/99. Trial continued until 2/5/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 02/05/1999)
533 COURT Trial held 2/5/99. Trial continued until 02/08/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 02/08/1999)
534 MEMORANDUM by all plaintiffs in support of Admission of Summary Exhibit 411 (Brown, S.) (Entered: 02/09/1999)
535 AFFIDAVIT of Max Lapertosa by all plaintiffs Re [534-1] support memorandum by all plaintiffs (Brown, S.) (Entered: 02/09/1999)
536 COURT Trial held 02/08/99. Trial continued until 02/09/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 02/09/1999)
537 COURT Trial held 02/09/99. Trial continued until 02/10/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 02/10/1999)
538 COURT Trial held 02/10/99. Trial continued until 02/11/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 02/11/1999)
539 TRANSCRIPT for date of January 28, 1999 (Court reporter: Brenda Granfield) (Collins, S.) (Entered: 02/12/1999)

02/12/1999 02/12/1999 02/12/1999 02/18/1999 02/19/1999
02/24/1999 02/25/1999
02/25/1999 02/26/1999 02/26/1999 03/01/1999 03/01/1999 03/02/1999 03/03/1999 03/03/1999 03/03/1999 03/04/1999

540 TRANSCRIPT for date of February 2, 1999 (Court reporter: Dolores Falzarano) (Collins, S.) (Entered: 02/12/1999)
541 COURT Trial held 02/11/99. Trial continued until 02/12/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 02/12/1999)
542 COURT Trial held 02/12/99. Trial continued until 02/22/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 02/16/1999)
543 MOTION by all plaintiffs to Extend Time to 03/04/99 to respond to motion to compel (Ghilardi, K.) (Entered: 02/18/1999)
ENDORSEMENT granting [543-1] motion to Extend Time to 03/04/99 to respond to motion to compel, Brief Deadline set for 3/4/99 [520-1] motion to Compel Plaintiffs to Supplement Responses to Defendants Discovery Response ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 02/19/1999)
544 MOTION by all plaintiffs to Add Witness and Exhibits (Brown, S.) (Entered: 02/24/1999)
545 MOTION and Affidavit by David Shaw by all plaintiffs to Compel Payment of Expert Fees (Brief Due 3/18/99 ) (Brown, S.) (Entered: 02/26/1999)
548 MOTION by all plaintiffs to Compel Defendants' Expert's Reports (Brief Due 3/18/99 ) (Brown, S.) (Entered: 02/26/1999)
546 TRANSCRIPT for date of February 3, 1999 (Court reporter: Deborah Stedman) (Collins, S.) (Entered: 02/26/1999)
547 TRANSCRIPT for date of February 4, 1999 (Court reporter: Deborah Stedman) (Collins, S.) (Entered: 02/26/1999)
549 COURT Trial held Trial continued until March 1, 1999 @9:00 a.m. ( EBB) (Collins, S.) (Entered: 03/01/1999)
550 TRANSCRIPT for date of February 5, 1999 (Court reporter: Brenda Granfield) (Collins, S.) (Entered: 03/01/1999)
551 COURT Trial held March 1, 1999. Trial continued until March 2, 1999 @10:0 a.m. (EBB) (Collins, S.) (Entered: 03/02/1999)
552 TRANSCRIPT for date of February 10, 1999 (Court reporter: Cheryl Poehls) (Collins, S.) (Entered: 03/03/1999)
553 TRANSCRIPT for date of February 11, 1999 (Court reporter: Cheryl Poehls) (Collins, S.) (Entered: 03/03/1999)
554 COURT Trial held March 2, 1999. Trial continued until March 3, 1999 @10:00 a.m. (EBB) (Collins, S.) (Entered: 03/03/1999)
555 MOTION by all plaintiffs to Seal Response and Objecctions to Defendants' Motion to Compel Plaintiffs to Supplement Plaintiffs'

03/04/1999
03/04/1999
03/04/1999 03/05/1999 03/05/1999 03/05/1999
03/08/1999 03/09/1999 03/10/1999 03/10/1999 03/10/1999 03/11/1999 03/12/1999 03/15/1999

Response to Defendants Discovery Requests (Brown, S.) (Entered: 03/04/1999)
556 RESPONSE and Objections by all plaintiffs to [520-1] motion to Compel Plaintiffs to Supplement Responses to Defendants Discovery Response by Southbury Training, Toni Richardson, Thomas Howley, Patricia Giardi, Susan S. Addiss Part 1 of 2 (Brown, S.) (Entered: 03/04/1999)
556 OBJECTIONS and Response by all plaintiffs to [520-1] motion to Compel Plaintiffs to Supplement Responses to Defendants Discovery Response by Southbury Training, Toni Richardson, Thomas Howley, Patricia Giardi, Susan S. Addiss Part 2 of 2 (Brown, S.) (Entered: 03/04/1999)
557 COURT Trial held March 3, 1999. Trial continued until March 4, 1999 @10:00 a.m. (EBB) (Collins, S.) (Entered: 03/04/1999)
558 TRANSCRIPT for date of February 9, 1999 (Court reporter: Deborah Stedman) (Collins, S.) (Entered: 03/05/1999)
559 TRANSCRIPT for date of February 12, 1999 (Court reporter: Brenda Granfield) (Collins, S.) (Entered: 03/05/1999)
ENDORSEMENT granting [555-1] motion to Seal Response and Objecctions to Defendants' Motion to Compel Plaintiffs to Supplement Plaintiffs' Response to Defendants Discovery Requests ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 03/08/1999)
560 MANDATE OF USCA (certified copy) dated 03/02/99 withdrawing [477-1] appeal ( Stanley A. Bass) (Former Employee) (Entered: 03/08/1999)
561 COURT Trial held March 8, 1999. Trial continued until March 9, 1999 ( EBB) (Collins, S.) (Entered: 03/09/1999)
562 COURT Trial held March 4, 1999. Trial continued until March 5, 1999 @10:00 a.m. ( EBB) (Collins, S.) (Entered: 03/10/1999)
563 TRANSCRIPT for date of February 26, 1999 (Court reporter: Brenda Granfield) (Collins, S.) (Entered: 03/10/1999)
564 TRANSCRIPT for date of March 3, 1999 (Court reporter: Cheryl Poehls) (Collins, S.) (Entered: 03/10/1999)
565 COURT Trial held March 10, 1999. Trial continued until March 11, 1999 ( EBB) (Collins, S.) (Entered: 03/11/1999)
566 COURT Trial held March 11, 1999. Trial continued until March 12, 1999 @10:00 a.m. (EBB) (Collins, S.) (Entered: 03/12/1999)
567 COURT Trial held March 12, 1999. Trial continued until March 15, 1999 @10:00 a.m. (EBB) (Collins, S.) (Entered: 03/15/1999)

03/15/1999 03/16/1999 03/16/1999 03/17/1999 03/17/1999 03/17/1999 03/17/1999 03/17/1999 03/22/1999 03/22/1999 03/23/1999 03/23/1999 03/23/1999 03/24/1999 03/25/1999 03/25/1999 03/25/1999 03/26/1999

568 TRANSCRIPT for date of March 2, 1999 (Court reporter: Ellen Szamier) (Collins, S.) (Entered: 03/15/1999)
569 COURT Trial held Trial continued until March 16, 1999 @10:00 a.m. (EBB) (Collins, S.) (Entered: 03/16/1999)
570 TRANSCRIPT for date of March 5, 1999 (Court reporters: Deborah Stedman/Brenda Granfield) (Collins, S.) (Entered: 03/16/1999)
571 COURT Trial held March 16, 1999. Trial continued until March 17, 1999 @10:00 a.m. (EBB) (Collins, S.) (Entered: 03/17/1999)
572 TRANSCRIPT for date of March 1, 1999 (Court reporter: Wendie Bahnsen) (Collins, S.) (Entered: 03/17/1999)
573 TRANSCRIPT for date of March 4, 1999 (Court reporter: Ellen Szamier) (Collins, S.) (Entered: 03/17/1999)
574 MOTION by all plaintiffs for Reimbursement of Expenses (Brief Due 4/7/99) (Lopez, B.) (Entered: 03/18/1999)
575 MEMORANDUM by all plaintiffs in support of [574-1] motion for Reimbursement of Expenses (Lopez, B.) (Entered: 03/18/1999)
576 COURT Trial held March 17, 1999. Trial continued until March 22, 1999 (EBB) (Collins, S.) (Entered: 03/22/1999)
580 MOTION by all plaintiffs To Add Witnesses (Brown, S.) (Entered: 03/23/1999)
577 COURT Trial held March 22, 1999. Trial continued until March 23, 1999 @9:00 a.m. (EBB) (Collins, S.) (Entered: 03/23/1999)
578 TRANSCRIPT for date of March 8, 1999 (Court reporter: Dolores Falzarano) (Collins, S.) (Entered: 03/23/1999)
579 TRANSCRIPT for date of March 10, 1999 (Court reporter: Cheryl Poehls) (Collins, S.) (Entered: 03/23/1999)
581 COURT Trial held March 23, 1999. Trial continued until March 24, 1999 @9:00 (EBB) (Collins, S.) (Entered: 03/24/1999)
582 TRANSCRIPT for date of March 9, 1999 (Court reporter: Ellen Szamier) (Collins, S.) (Entered: 03/25/1999)
583 TRANSCRIPT for date of March 11, 1999. (Court reporter: Ellen Szamier) (Collins, S.) (Entered: 03/25/1999)
584 COURT Trial held March 24, 1999. Trial continued until March 25, 1999 @10:00 a.m. (EBB) (Collins, S.) (Entered: 03/25/1999)
585 COURT Trial held March 25, 1999. Trial continued until March 26, 1999 @9:00 a.m. (EBB) (Collins, S.) (Entered: 03/26/1999)

03/29/1999 03/29/1999 03/29/1999 03/29/1999
03/30/1999 03/30/1999 03/30/1999 03/31/1999 04/01/1999 04/01/1999 04/01/1999 04/05/1999 04/05/1999 04/05/1999 04/07/1999 04/07/1999 04/08/1999 04/08/1999

586 COURT Trial held March 26, 1999. Trial continued until March 29, 1999 @10:00 a.m. (EBB) (Collins, S.) (Entered: 03/29/1999)
587 TRANSCRIPT for date of March 12, 1999 (Court reporter: Cheryl Poehls) (Collins, S.) (Entered: 03/29/1999)
588 TRANSCRIPT for date of March 16, 1999 (Court reporter: Dolores Falzarano) (Collins, S.) (Entered: 03/29/1999)
590 MANDATE OF USCA (certified copy) dated 03/23/99 Petition for a writ of mandamus is denied (CC Campbell) (Former Employee) (Entered: 03/30/1999)
589 COURT Trial held Mrch 29, 1999. Trial continued until March 30, 1999 @10:00 a.m. (EBB) (Collins, S.) (Entered: 03/30/1999)
591 TRANSCRIPT for date of March 17, 1999 (Court reporter: Cheryl Poehls) (Collins, S.) (Entered: 03/30/1999)
592 TRANSCRIPT for date of March 22, 1999 (Court reporter: Cheryl Poehls) (Collins, S.) (Entered: 03/30/1999)
593 COURT Trial held March 30, 1999. Trial continued until March 31, 1999 @10:00 a.m. (EBB) (Collins, S.) (Entered: 03/31/1999)
594 COURT Trial held March 31, 1999. Trial continued until April 1, 1999 @10:00 a.m. (EBB) (Collins, S.) (Entered: 04/01/1999)
595 TRANSCRIPT for date of March 15, 1999. (Court reporter: Ellen Szamier) (Collins, S.) (Entered: 04/01/1999)
596 TRANSCRIPT for date of March 23, 1999. (Court reporter: Cheryl Poehls) (Collins, S.) (Entered: 04/01/1999)
597 COURT Trial held April 1, 1999. Trial continued until April 5, 1999 @10:00 a.m. (EBB) (Collins, S.) (Entered: 04/05/1999)
598 TRANSCRIPT for date of March 24, 1999 (Court reporter: Dolores Falzarano) (Collins, S.) (Entered: 04/05/1999)
599 TRANSCRIPT for date of March 26, 1999 (Court reporter: Brenda Granfield) (Collins, S.) (Entered: 04/05/1999)
600 COURT Trial held April 5, 1999. Trial continued until April 6, 1999 @10:00 a.m. (EBB) (Collins, S.) (Entered: 04/07/1999)
601 COURT Trial held April 6, 1999. Trial continued until April 7, 1999 @9:30 a.m. (EBB) (Collins, S.) (Entered: 04/07/1999)
602 COURT Trial held April 7, 1999. Trial continued until April 8, 1999 @10:00 a.m.. (EBB) (Collins, S.) (Entered: 04/08/1999)
603 TRANSCRIPT for date of March 25, 1999 (Court reporter: Ellen Szamier) (Collins, S.) (Entered: 04/08/1999)

04/08/1999 04/08/1999 04/09/1999
04/12/1999 04/14/1999 04/14/1999 04/14/1999
04/14/1999
04/15/1999 04/15/1999 04/15/1999 04/15/1999
04/15/1999 04/19/1999 04/19/1999

604 TRANSCRIPT for date of March 29, 1999 (Court reporter: Cheryl Poehls) (Collins, S.) (Entered: 04/08/1999)
605 COURT Trial held Trial continued until 4/9/99 @ 10:00 a.m. ( EBB) (Inferrera, L.) (Entered: 04/09/1999)
ENDORSEMENT granting [545-1] motion to Compel Payment of Expert Fees; defendants shall make payments by 5/1/99 ( signed by Senior Judge Ellen Bree Burns ) (Former Employee) (Entered: 04/12/1999)
606 COURT Trial held April 9, 1999. Trial continued until April 14, 1999 @10:00 a.m. (EBB) (Collins, S.) (Entered: 04/12/1999)
607 MOTION by all plaintiffs To Admit Exhibits (Brown, S.) (Entered: 04/14/1999)
608 MEMORANDUM by all plaintiffs in support of [607-1] motion To Admit Exhibits (Brown, S.) (Entered: 04/14/1999)
609 MOTION by all plaintiffs in Limine for Sanctions to Exclude Report and Testimony of Dr. Theordore Kastner , for Attorney Fees and Costs (Brown, S.) (Entered: 04/14/1999)
610 MEMORANDUM by all plaintiffs in support of [609-1] motion in Limine for Sanctions to Exclude Report and Testimony of Dr. Theordore Kastner, [609-2] motion for Attorney Fees and Costs (Brown, S.) (Entered: 04/14/1999)
611 COURT Trial held April 14, 1999. Trial continued until April 15, 1999 @10:00 a.m. (EBB) (Collins, S.) (Entered: 04/15/1999)
612 TRANSCRIPT for date of March 31, 1999 (Court reporter: Cheryl Poehls) (Collins, S.) (Entered: 04/15/1999)
613 TRANSCRIPT for date of April 5, 1999 (Court reporter: Cheryl Poehls) (Collins, S.) (Entered: 04/15/1999)
614 MEMORANDUM by Thomas Howley, Toni Richardson, Southbury Training in opposition to [609-2] motion for Attorney Fees and Costs by all plaintiffs (Depino, F.) (Entered: 04/15/1999)
ENDORSEMENT granting [607-1] motion To Admit Exhibits ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 04/15/1999)
615 COURT Trial held April 15, 1999. Trial continued until April 28, 1999 @10:00 a.m. (EBB) (Collins, S.) (Entered: 04/19/1999)
616 MOTION by all plaintiffs to Withdraw [609-1] motion in Limine for Sanctions to Exclude Report and Testimony of Dr. Theordore Kastner by all plaintiffs, [609-2] motion for Attorney Fees and Costs by all plaintiffs (Brown, S.) (Entered: 04/26/1999)

04/26/1999
04/26/1999 04/28/1999 04/28/1999 04/28/1999 04/28/1999 04/30/1999 04/30/1999 04/30/1999 05/03/1999 05/05/1999 05/06/1999 05/06/1999 05/07/1999 05/07/1999 05/07/1999 05/11/1999

ENDORSEMENT granting [616-1] motion to Withdraw [609-1] motion in Limine for Sanctions to Exclude Report and Testimony of Dr. Theordore Kastner by all plaintiffs, [609-2] motion for Attorney Fees and Costs by all plaintiffs ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 04/26/1999)
617 TRANSCRIPT for date of 04/08/99 (Court reporter: Falzarano Court Reporters) (Ghilardi, K.) (Entered: 04/27/1999)
618 TRANSCRIPT for date of March 30, 1999 (Court reporter: Ellen Szamier) (Collins, S.) (Entered: 04/28/1999)
619 TRANSCRIPT for date of April 6, 1999 (Court reporter: Ellen Szamier) (Collins, S.) (Entered: 04/28/1999)
620 COURT Trial held Trial continued until 4/29/99 ( EBB) (Brown, S.) (Entered: 04/29/1999)
626 TRANSCRIPT for date of April 7, 1999 (Court reporter: Cindy Castaldo) (Collins, S.) (Entered: 05/06/1999)
621 COURT Trial held April 29, 1999. Trial continued until April 30, 1999 @9:30 a.m. (EBB) (Collins, S.) (Entered: 04/30/1999)
622 TRANSCRIPT for date of April 9, 1999 (Court reporter: Brenda Granfield) (Collins, S.) (Entered: 04/30/1999)
623 TRANSCRIPT for date of April 15, 1999 (Court reporter: Ellen Szamier) (Collins, S.) (Entered: 04/30/1999)
624 COURT Trial held April 30, 1999. Trial continued until May 4, 1999 @10:00 a.m. (EBB) (Collins, S.) (Entered: 05/03/1999)
625 COURT Trial held 05/04/99. Trial continued until 05/05/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 05/05/1999)
627 TRANSCRIPT for date of April 30, 1999 (Court reporter: Brenda Granfield) (Collins, S.) (Entered: 05/06/1999)
628 COURT Trial held May 5, 1999. Trial continued until May 6, 1999 @9:30 a.m. (EBB) (Collins, S.) (Entered: 05/06/1999)
629 COURT Trial held May 6, 1999. Trial continued until May 7, 1999 @9:00 a.m. (EBB) (Collins, S.) (Entered: 05/07/1999)
630 TRANSCRIPT for date of April 28, 1999 (Court reporter: Cheryl Poehls) (Collins, S.) (Entered: 05/07/1999)
631 COURT Trial held Trial continued until 5/10/99 @ 10:00a.m. ( EBB) (Depino, F.) (Entered: 05/07/1999)
632 TRANSCRIPT for date of April 14, 1999 (Court reporter: Cheryl Poehls) (Collins, S.) (Entered: 05/11/1999)

05/11/1999 05/11/1999 05/12/1999 05/12/1999 05/14/1999 05/14/1999 05/19/1999 05/25/1999 05/25/1999
05/26/1999 05/26/1999 05/26/1999 05/26/1999 05/27/1999 05/27/1999 06/01/1999 06/01/1999 06/02/1999

633 TRANSCRIPT for date of April 29, 1999 (Court reporter: Ellen Szamier) (Collins, S.) (Entered: 05/11/1999)
634 COURT Trial held May 10, 1999. Trial continued until May 11, 1999 @10:00 a.m. (EBB) (Collins, S.) (Entered: 05/11/1999)
635 COURT Trial held May 11, 1999. Trial continued until May 12, 1999 @10:00 a.m. (EBB) (Collins, S.) (Entered: 05/12/1999)
636 TRANSCRIPT for date of May 6, 1999 (Court reporter: Dolores Falzarano) (Collins, S.) (Entered: 05/12/1999)
637 COURT Trial held May 12, 1999. Trial continued until May 13, 1999 @10:00 a.m. (EBB) (Collins, S.) (Entered: 05/14/1999)
638 COURT Trial held May 13, 1999. Trial continued until May 14, 1999 @10:00 a.m. (EBB) (Collins, S.) (Entered: 05/14/1999)
639 COURT Trial held 05/14/99. Trial continued until 05/25/99 @2:00 p.m. (EBB) (Collins, S.) (Entered: 05/19/1999)
640 MOTION by all plaintiffs in Limine Prohibition of Testimony by expert John Cole (Brown, S.) (Entered: 05/25/1999)
641 MEMORANDUM by all plaintiffs in support of [640-1] motion in Limine Prohibition of Testimony by expert John Cole (Brown, S.) (Entered: 05/25/1999)
642 COURT Trial held May 25, 1999. Trial continued until May 26, 1999 @10:00 a.m. (EBB) (Collins, S.) (Entered: 05/26/1999)
643 TRANSCRIPT for date of May 4, 1999 (Court reporter: Ellen Szamier) (Collins, S.) (Entered: 05/26/1999)
644 MOTION by all plaintiffs for Expert Disclosure (Brown, S.) (Entered: 05/26/1999)
645 MEMORANDUM by all plaintiffs in support of [644-1] motion for Expert Disclosure (Brown, S.) (Entered: 05/26/1999)
646 TRANSCRIPT for date of May 5, 1999 (Court reporter: Ellen Szamier) (Collins, S.) (Entered: 05/27/1999)
647 TRANSCRIPT for date of May 10, 1999 (Court reporter: Dolores Falzarano) (Collins, S.) (Entered: 05/27/1999)
648 TRANSCRIPT for date of May 11, 1999 (Court reporter: Ellen Szamier) (Collins, S.) (Entered: 06/01/1999)
649 TRANSCRIPT for date of May 12, 1999 (Court reporter: Dolores Falzarano) (Collins, S.) (Entered: 06/01/1999)
650 COURT Trial held May 26, 1999. Trial continued until May 27, 1999 @10:00 a.m. (EBB) (Collins, S.) (Entered: 06/02/1999)

06/02/1999 06/02/1999 06/02/1999
06/03/1999 06/04/1999 06/04/1999 06/08/1999 06/08/1999 06/09/1999 06/09/1999 06/09/1999 06/10/1999 06/11/1999 06/14/1999 06/21/1999 06/23/1999 06/23/1999 06/23/1999

651 COURT Trial held May 27, 1999. Trial continued until June 1, 1999 @10:00 a.m. (EBB) (Collins, S.) (Entered: 06/02/1999)
652 COURT Trial held June 1, 1999. Trial continued until June 2, 1999 @10:00 a.m.(EBB) (Collins, S.) (Entered: 06/02/1999)
ENDORSEMENT denying [640-1] motion in Limine/Prohibition of Testimony by expert John Cole ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 06/02/1999)
653 COURT Trial held 06/02/99. Trial continued until 06/03/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 06/03/1999)
654 COURT Trial held 06/03/99. Trial continued until 06/04/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 06/04/1999)
655 TRANSCRIPT for date of May 7, 1999 (Court reporter: Brenda Granfield) (Collins, S.) (Entered: 06/04/1999)
656 COURT Trial held 06/04/99. Trial continued until 06/07/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 06/08/1999)
657 COURT Trial held 06/07/99. Trial continued until 06/08/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 06/08/1999)
658 COURT Trial held June 8, 1999. Trial continued until 06/09/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 06/09/1999)
659 TRANSCRIPT for date of May 13, 1999 (Court reporter: Ellen Szamier) (Collins, S.) (Entered: 06/09/1999)
660 TRANSCRIPT for date of May 14, 1999 (Court reporter: Ellen Szamier) (Collins, S.) (Entered: 06/09/1999)
661 COURT Trial held 06/09/99. Trial continued until 06/10/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 06/10/1999)
662 COURT Trial held 06/10/99. Trial continued until 06/11/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 06/11/1999)
663 COURT Trial held 06/11/99. Trial continued until 06/15/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 06/14/1999)
664 COURT Trial held 06/15/99. Trial continued until 06/23/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 06/21/1999)
665 COURT Trial held 06/16/99. Trial continued until 06/17/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 06/23/1999)
666 TRANSCRIPT for date of May 25, 1999 (Court reporter: Ellen Szamier) (Collins, S.) (Entered: 06/23/1999)
667 TRANSCRIPT for date of May 27, 1999 (Court reporter: Ellen Szamier) (Collins, S.) (Entered: 06/23/1999)

06/24/1999 06/24/1999 06/24/1999 06/28/1999 06/28/1999 06/28/1999 06/29/1999 06/30/1999 06/30/1999 06/30/1999 07/08/1999
07/08/1999
07/09/1999 07/09/1999 07/09/1999 07/09/1999 07/12/1999

668 COURT Trial held 06/23/99. Trial continued until 06/24/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 06/24/1999)
669 TRANSCRIPT for date of June 2, 1999 (Court reporter: Cheryl Poehls) (Collins, S.) (Entered: 06/24/1999)
670 TRANSCRIPT for date of June 3, 1999 (Court reporter: Cheryl Poehls) (Collins, S.) (Entered: 06/24/1999)
671 COURT Trial held 06/24/99. Trial continued until 06/28/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 06/28/1999)
672 TRANSCRIPT for date of June 4, 1999 (Court reporter: Brenda Granfield) (Collins, S.) (Entered: 06/28/1999)
673 TRANSCRIPT for date of June 7, 1999 (Court reporter: Cheryl Poehls) (Collins, S.) (Entered: 06/28/1999)
674 COURT Trial held June 28, 1999. Trial continued until June 29, 1999 @10:00 a.m. (EBB) (Collins, S.) (Entered: 06/29/1999)
675 COURT Trial held June 29, 1999. Trial continued until 06/30/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 06/30/1999)
676 TRANSCRIPT for date of June 1, 1999 (Court reporter: Ellen Szamier) (Collins, S.) (Entered: 06/30/1999)
677 TRANSCRIPT for date of June 8, 1999 (Court reporter: Ellen Szamier) (Collins, S.) (Entered: 06/30/1999)
678 MOTION by all plaintiffs For Separate Trial re: Liability Issues , To Conduct Discovery , and To Present Evidence on Remedy (Brown, S.) (Entered: 07/08/1999)
679 MEMORANDUM by all plaintiffs in support of [678-1] motion For Separate Trial re: Liability Issues, [678-2] motion To Conduct Discovery, [678-3] motion To Present Evidence on Remedy (Brown, S.) (Entered: 07/08/1999)
680 COURT Trial held 06/30/99. Trial continued until 07/08/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 07/09/1999)
681 TRANSCRIPT for date of June 9, 1999 (Court reporter: Cheryl Poehls) (Collins, S.) (Entered: 07/09/1999)
682 TRANSCRIPT for date of June 11, 1999 (Court reporter: Brenda Granfield) (Collins, S.) (Entered: 07/09/1999)
683 COURT Trial held 07/08/99. Trial continued until 07/09/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 07/09/1999)
684 COURT Trial held 07/09/99. Trial continued until 07/12/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 07/12/1999)

07/12/1999 07/12/1999 07/13/1999 07/13/1999 07/13/1999 07/14/1999 07/15/1999 07/19/1999 07/20/1999 07/20/1999 07/20/1999 07/21/1999 07/21/1999 07/21/1999 07/22/1999 07/22/1999 07/22/1999 07/23/1999

685 TRANSCRIPT for date of June 10, 1999 (Court reporter: Ellen Szamier) (Collins, S.) (Entered: 07/12/1999)
686 TRANSCRIPT for date of June 15, 1999 (Court reporter: Cheryl Poehls) (Collins, S.) (Entered: 07/12/1999)
687 COURT Trial held 07/12/99. Trial continued until 07/13/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 07/13/1999)
688 TRANSCRIPT for date of June 16, 1999 (Court reporter: Dolores Falzarano) (Collins, S.) (Entered: 07/13/1999)
689 TRANSCRIPT for date of June 24, 1999 (Court reporter: Brenda Granfield) (Collins, S.) (Entered: 07/13/1999)
690 COURT Trial held 07/13/99. Trial continued until 07/14/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 07/14/1999)
694 COURT Trial held Trial continued until 7/19/99 ( EBB) (Brown, S.) (Entered: 07/20/1999)
695 COURT Trial held Trial continued until 7/21/99 ( EBB) (Brown, S.) (Entered: 07/20/1999)
691 COURT Trial held 07/14/99. Trial continued until 07/15/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 07/20/1999)
692 TRANSCRIPT for date of June 23, 1999 (Court reporter: Cheryl Poehls) (Collins, S.) (Entered: 07/20/1999)
693 TRANSCRIPT for date of June 28, 1999 (Court reporter: Cheryl Poehls) (Collins, S.) (Entered: 07/20/1999)
696 COURT Trial held July 20, 1999. Trial continued until 07/21/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 07/21/1999)
697 TRANSCRIPT for date of 07/08/99 (Court reporter: Cheryl Poehls) (Collins, S.) (Entered: 07/21/1999)
698 TRANSCRIPT for date of 07/09/99 (Court reporter: James Scally) (Collins, S.) (Entered: 07/21/1999)
699 COURT Trial held 07/21/99. Trial continued until 07/22/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 07/22/1999)
700 TRANSCRIPT for date of 06/30/99 (Court reporter: Ellen Szamier) (Collins, S.) (Entered: 07/22/1999)
701 TRANSCRIPT for date of July 12, 1999 (Court reporter: Cheryl Poehls) (Collins, S.) (Entered: 07/22/1999)
702 COURT Trial held 07/22/99. Trial continued until 07/23/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 07/23/1999)

07/23/1999 07/23/1999 07/26/1999 07/26/1999
07/27/1999 07/30/1999 07/30/1999 08/03/1999
08/03/1999 08/04/1999 08/04/1999 08/04/1999 08/05/1999 08/05/1999 08/05/1999 08/06/1999 08/06/1999 08/06/1999

703 TRANSCRIPT for date of 06/29/99 (Court reporter: Brenda Granfield) (Collins, S.) (Entered: 07/23/1999)
704 TRANSCRIPT for date of 07/13/99 (Court reporter: James Scally) (Collins, S.) (Entered: 07/23/1999)
705 COURT Trial held 07/23/99. Trial continued until 07/26/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 07/26/1999)
706 TRANSCRIPT of status conference before David Ferleger, Special Master for date of July 14, 1999 (Court reporter: Ellen Szamier) (Collins, S.) (Entered: 07/26/1999)
707 COURT Trial held 07/26/99. Trial continued until 07/27/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 07/27/1999)
708 COURT Trial held 07/27/99. Trial continued until 07/28/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 07/30/1999)
709 COURT Trial held 07/28/99. Trial continued until 08/03/99 10:00 a.m. (EBB) (Collins, S.) (Entered: 07/30/1999)
710 MEMORANDUM by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson in opposition to [678-3] motion To Present Evidence on Remedy by all plaintiffs (Brown, S.) (Entered: 08/03/1999)
711 COURT Trial held. Trial continued until 08/04/99 @10:00 a.m. (EBB) (Collins, S.) Modified on 09/08/1999 (Entered: 08/04/1999)
712 TRANSCRIPT for date of July 15, 1999 (Court reporter: Ellen Szamier) (Collins, S.) (Entered: 08/04/1999)
713 TRANSCRIPT for date of July 19, 1999. (Court reporter: Cheryl Poehls) (Collins, S.) (Entered: 08/04/1999)
714 COURT Trial held. Trial continued until 08/05/99 @10:00 a.m. (EBB) (Collins, S.) Modified on 09/08/1999 (Entered: 08/05/1999)
715 TRANSCRIPT for date of July 20, 1999. (Court reporter: James Scally) (Collins, S.) (Entered: 08/05/1999)
716 TRANSCRIPT for date of July 21, 1999. (Court reporter: James Scally) (Collins, S.) (Entered: 08/05/1999)
717 COURT Trial held. Trial continued until 08/06/99 @10:00 a.m. (EBB) (Collins, S.) Modified on 09/08/1999 (Entered: 08/06/1999)
718 TRANSCRIPT for date of July 22, 1999 (Court reporter: Ellen Szamier) (Collins, S.) (Entered: 08/06/1999)
719 TRANSCRIPT for date of July 26, 1999 (Court reporter: Cheryl Poehls) (Collins, S.) (Entered: 08/06/1999)
720 COURT Trial held. Trial continued until 08/09/99 @10:00 a.m. (EBB) (Collins, S.) Modified on 09/08/1999 (Entered: 08/09/1999)

08/09/1999 08/09/1999 08/09/1999 08/10/1999 08/11/1999 08/11/1999 08/11/1999 08/12/1999 08/13/1999 08/24/1999 08/25/1999 08/26/1999 08/26/1999 08/26/1999 08/27/1999 08/27/1999 08/27/1999 08/30/1999

721 TRANSCRIPT for date of July 14, 1999 (Court reporter: Cheryl Poehls) (Collins, S.) (Entered: 08/09/1999)
722 TRANSCRIPT for date of July 27, 1999 (Court reporter: James Scally) (Collins, S.) (Entered: 08/09/1999)
723 COURT Trial held. Trial continued until 08/10/99 10:00 a.m. (EBB) (Collins, S.) Modified on 09/08/1999 (Entered: 08/10/1999)
724 COURT Trial held. Trial continued until 08/11/99 @10:00 a.m. (EBB) (Collins, S.) Modified on 09/08/1999 (Entered: 08/11/1999)
725 TRANSCRIPT for date of July 23, 1999 (Court reporter: Brenda Granfield) (Collins, S.) (Entered: 08/11/1999)
726 TRANSCRIPT for date of July 28, 1999 (Court reporter: Cheryl Poehls) (Collins, S.) (Entered: 08/11/1999)
727 COURT Trial held. Trial continued until 08/12/99 @10:00 a.m. (EBB) (Collins, S.) Modified on 09/08/1999 (Entered: 08/12/1999)
728 COURT Trial held. Trial continued until 08/13/99 @10:00 a.m. (EBB) (Collins, S.) Modified on 09/08/1999 (Entered: 08/13/1999)
729 COURT Trial held. Trial continued until 08/24/99 @10:00 a.m. (EBB) (Collins, S.) Modified on 09/08/1999 (Entered: 08/16/1999)
730 COURT Trial held. Trial continued until 08/25/99 @10:00 a.m. (EBB) (Collins, S.) Modified on 09/08/1999 (Entered: 08/25/1999)
731 COURT Trial held. Trial continued until 08/26/99 @10:00 a.m. (EBB) (Collins, S.) Modified on 09/08/1999 (Entered: 08/26/1999)
732 TRANSCRIPT for date of 08/03/99 (Court reporter: Ellen Szamier) (Collins, S.) (Entered: 08/26/1999)
733 TRANSCRIPT for date of 08/04/99 (Court reporter: James Scally) (Collins, S.) (Entered: 08/26/1999)
734 COURT Trial held. Trial continued until 08/27/99 @10:00 a.m. (EBB) (Collins, S.) Modified on 09/08/1999 (Entered: 08/27/1999)
735 TRANSCRIPT for date of August 5, 1999 (Court reporter: James Scally) (Collins, S.) (Entered: 08/27/1999)
736 TRANSCRIPT for date of August 6, 1999 (Court reporter: James Scally) (Collins, S.) (Entered: 08/27/1999)
737 COURT Trial held. Trial continued until 08/30/99 @10:00 a.m. (EBB) (Collins, S.) Modified on 09/08/1999 (Entered: 08/30/1999)
738 TRANSCRIPT for date of August 10, 1999. (Court reporter: James Scally) (Collins, S.) (Entered: 08/30/1999)

08/30/1999 08/31/1999 09/01/1999 09/01/1999 09/01/1999 09/02/1999 09/03/1999 09/03/1999
09/03/1999
09/03/1999 09/07/1999 09/07/1999 09/07/1999 09/08/1999 09/08/1999 09/08/1999 09/08/1999 09/09/1999

739 TRANSCRIPT for date of August 12, 1999 (Court reporter: Ellen Szamier) (Collins, S.) (Entered: 08/30/1999)
740 COURT Trial held 08/30/99. Trial continued until 08/31/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 08/31/1999)
741 COURT Trial held 08/31/99. Trial continued until 09/01/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 09/01/1999)
742 TRANSCRIPT for date of August 25, 1999 (Court reporter: James Scally) (Collins, S.) (Entered: 09/01/1999)
743 TRANSCRIPT for date of August 26, 1999 (Court reporter: James Scally) (Collins, S.) (Entered: 09/01/1999)
744 COURT Trial held 09/01/99. Trial continued until 09/02/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 09/02/1999)
745 COURT Trial held 090/02/99. Trial continued until 09/03/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 09/03/1999)
746 MOTION by all plaintiffs for Partial Summary Judgment on issues previously litigated in USA -v- Connecticut (Brown, S.) (Entered: 09/03/1999)
747 MEMORANDUM by all plaintiffs in support of [746-1] motion for Partial Summary Judgment on issues previously litigated in USA -vConnecticut (Brown, S.) (Entered: 09/03/1999)
748 TRANSCRIPT for date of 08/13/99 (Court reporter: Brenda Granfield) (Collins, S.) (Entered: 09/03/1999)
749 COURT Trial held 090/03/99. Trial continued until 08/07/99 10:00 a.m. (EBB) (Collins, S.) (Entered: 09/07/1999)
750 TRANSCRIPT for date of 08/24/99 (Court reporter: Ellen Szamier) (Collins, S.) (Entered: 09/07/1999)
751 TRANSCRIPT for date of 08/30/99 (Court reporter: James Scally) (Collins, S.) (Entered: 09/07/1999)
752 COURT Trial held 09/07/99. Trial continued until 09/08/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 09/08/1999)
753 TRANSCRIPT for date of August 9, 1999 (Court reporter: Cheryl Poehls) (Collins, S.) (Entered: 09/08/1999)
754 TRANSCRIPT for date of August 11, 1999 (Court reporter: Cheryl Poehls) (Collins, S.) (Entered: 09/08/1999)
755 COURT Trial held Trial continued until 09/09/99 @10:00 a.m.. (EBB) (Collins, S.) (Entered: 09/09/1999)
756 TRANSCRIPT for date of September 3, 1999 (Court reporter: James Scally) (Collins, S.) (Entered: 09/09/1999)

09/09/1999 09/10/1999
09/10/1999 09/13/1999 09/13/1999 09/13/1999
09/13/1999 09/14/1999 09/14/1999 09/14/1999 09/16/1999 09/23/1999
09/23/1999

757 COURT Trial held Trial continued until 09/10/999 (EBB) (Collins, S.) (Entered: 09/10/1999)
ENDORSEMENT granting [515-1] motion for Clarification or Reconsideration of [502-1] Ruling granting summary judgment to the DMR defendants on plaintiffs' Title XIX claims; ... Plaintiff's Claims arising under Title XIX of the Social Security Act are still viable ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 09/10/1999)
760 COURT Trial held Trial continued until 9/13/99 @ 10:00 ( EBB) (Jefferson, V.) (Entered: 09/13/1999)
758 TRANSCRIPT for date of 9/1/99 (104th day of Trial) (Court reporter: FALZARANO) (Jefferson, V.) (Entered: 09/13/1999)
759 TRANSCRIPT for date of 9/2/99 (105th day of Trial) (Court reporter: FALZARANO) (Jefferson, V.) (Entered: 09/13/1999)
ENDORSEMENT denying [678-1] motion For Separate Trial re: Liability Issues, denying [678-2] motion To Conduct Discovery, denying [678-3] motion To Present Evidence on Remedy ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 09/13/1999)
761 COURT Trial held. (Day 111) Trial continued until 9/14/99 @ 10:00 ( EBB) (Jefferson, V.) (Entered: 09/14/1999)
762 RULING denying [574-1] motion for Reimbursement of Expenses SEE Ruling for details ( signed by Senior Judge Ellen Bree Burns ) 5 Page(s) (Brown, S.) (Entered: 09/14/1999)
ENDORSEMENT denying as moot [520-1] motion to Compel Plaintiffs to Supplement Responses to Defendants Discovery Response ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 09/15/1999)
763 COURT Trial held Trial continued until 9/16/99 @ 10:00 ( EBB) (Jefferson, V.) (Entered: 09/16/1999)
764 COURT Trial held Trial continued until 09/27/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 09/23/1999)
765 MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training to Strike [746-1] motion for Partial Summary Judgment on issues previously litigated in USA -vConnecticut by all plaintiffs (Brief Due 10/14/99 ) (Former Employee) (Entered: 09/24/1999)
766 MEMORANDUM by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training in support of [765-1] motion to Strike [746-1] motion for Partial Summary Judgment on issues previously litigated in USA -v- Connecticut by all plaintiffs (Former Employee) (Entered: 09/24/1999)

09/27/1999 09/27/1999 09/27/1999 09/28/1999
09/28/1999 09/28/1999 09/28/1999 09/29/1999 09/30/1999 09/30/1999 09/30/1999 09/30/1999 10/01/1999
10/01/1999
10/01/1999

767 TRANSCRIPT for date of August 31, 1999 (Court reporter: Ellen Szamier) (Collins, S.) (Entered: 09/27/1999)
768 MEMORANDUM REGARDING CR0SS-EXAMINATION OF DR. KASTNER by all plaintiffs (Former Employee) (Entered: 09/27/1999)
772 COURT Trial held. Court Trial continued until 09/28/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 09/28/1999)
769 RESPONSE by all plaintiffs to [765-1] motion to Strike [746-1] motion for Partial Summary Judgment on issues previously litigated in USA -vConnecticut by all plaintiffs by Southbury Training, Toni Richardson, Thomas Howley, Patricia Giardi, Susan S. Addiss (Brown, S.) (Entered: 09/28/1999)
770 TRANSCRIPT for date of September 7, 1999 (Court reporter: Ellen Szamier) (Collins, S.) (Entered: 09/28/1999)
771 TRANSCRIPT for date of September 8, 1999 (Court reporter: Cheryl Poehls) (Collins, S.) (Entered: 09/28/1999)
773 COURT Trial held Trial continued until 9/29/99 @ 9:00 ( EBB) (Jefferson, V.) (Entered: 09/30/1999)
774 COURT Trial held Trial continued until 9/30/99 @ 10:00 ( EBB) (Jefferson, V.) (Entered: 09/30/1999)
775 TRANSCRIPT for date of 9/9/99 (Court reporter: FALZARANO COURT REPORTER) (Jefferson, V.) (Entered: 09/30/1999)
776 TRANSCRIPT for date of 9/13/99 (Court reporter: FALZARANO COURT REPORTER) (Jefferson, V.) (Entered: 09/30/1999)
777 TRANSCRIPT for date of 9/14/99 (Court reporter: FALZARANO COURT REPORTER) (Jefferson, V.) (Entered: 09/30/1999)
781 COURT Trial held Trial continued until 10/01/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 10/06/1999)
778 Renewed MOTION by Toni Richardson in Limine RE: To Strike Report and Testimony of Gary Lavigna (Brief Due 10/22/99 ) referring to: [480-1] motion in Limine RE: Limiting Testimony of Rebuttal Experts by Southbury Training (Brown, S.) Modified on 10/01/1999 (Entered: 10/01/1999)
779 Renewed MOTION by Toni Richardson in Limine RE: To Strike in Part Report and Testimony of Diane Bryen and To Exclude in Part the Report and Tesimony of Amy Goldman (Brief Due 10/22/99 ) referring to: [480-1] motion in Limine RE: Limiting Testimony of Rebuttal Experts by Southbury Training (Brown, S.) (Entered: 10/01/1999)
782 COURT Trial held Trial continued until 10/07/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 10/06/1999)

10/04/1999
10/07/1999 10/08/1999 10/08/1999 10/08/1999 10/13/1999 10/13/1999 10/13/1999 10/14/1999 10/14/1999 10/18/1999 10/18/1999 10/19/1999 10/19/1999
10/20/1999

780 RULING denying [746-1] motion for Partial Summary Judgment on issues previously litigated in USA -v- Connecticut, denying as moot [765-1] motion to Strike [746-1] motion for Partial Summary Judgment on issues previously litigated in USA -v- Connecticut by all plaintiffs ( signed by Senior Judge Ellen Bree Burns ) SEE Order for details 1 Page(s) (Brown, S.) (Entered: 10/04/1999)
783 COURT Trial held Trial continued until 10/08/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 10/08/1999)
784 TRANSCRIPT for date of May 26, 1999 (Court reporter: Cheryl Poehls) (Collins, S.) (Entered: 10/08/1999)
785 TRANSCRIPT for date of August 27, 1999 (Court reporter: Brenda Granfield) (Collins, S.) (Entered: 10/08/1999)
786 COURT Trial held Trial continued until 10/12/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 10/13/1999)
787 TRANSCRIPT for date of September 10, 1999 (Court reporter: Cheryl Poehls) (Collins, S.) (Entered: 10/13/1999)
788 TRANSCRIPT for date of October 1, 1999 (Court reporter: James Scally) (Collins, S.) (Entered: 10/13/1999)
795 COURT Trial held Trial continued until 10/20/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 10/21/1999)
789 Response by all plaintiffs to Oral Motion for Sanctions re: Scheduling of Dr. Kevin Walsh (Brown, S.) (Entered: 10/14/1999)
790 RULING re: Plaintiff's rebuttal witness Dr. Wade Hitzing to whom Defendant has objected; objection sustained ( signed by Senior Judge Ellen Bree Burns ) 1 Page(s) (Brown, S.) (Entered: 10/15/1999)
791 TRANSCRIPT for date of October 13, 1999 (Court reporter: James Scally) (Collins, S.) (Entered: 10/18/1999)
793 OBJECTION by all plaintiffs re: disclosure of surrebuttal witnesses (Brown, S.) (Entered: 10/19/1999)
792 TRANSCRIPT for date of 10/7/99 (119th day of Court Trial) (Court reporter: FALZARANO COURT REPORTERS, E. Szamier) (Jefferson, V.) (Entered: 10/19/1999)
794 Renewed Supplemental RESPONSE by all plaintiffs to [779-1] supplemental amended motion in Limine RE: To Strike in Part Report and Testimony of Diane Bryen and To Exclude in Part the Report and Tesimony of Amy Goldman by Toni Richardson (Brown, S.) (Entered: 10/19/1999)
798 COURT Trial held Trial continued until 10/21/99 @10:00 a.m. (EBB) (Collins, S.) (Entered: 10/21/1999)

10/21/1999 10/21/1999 10/21/1999 10/21/1999 10/21/1999 10/21/1999 10/26/1999
10/26/1999 10/26/1999 10/26/1999 10/26/1999 10/26/1999 10/26/1999 10/27/1999

796 TRANSCRIPT for date of September 16, 1999 (Court reporter: Cheryl Poehls) (Collins, S.) (Entered: 10/21/1999)
797 TRANSCRIPT for date of September 27, 1999 (Court reporter: James Scally) (Collins, S.) (Entered: 10/21/1999)
799 TRANSCRIPT for date of September 28, 1999 (Court reporter: Ellen Szamier) (Collins, S.) (Entered: 10/21/1999)
800 TRANSCRIPT for date of September 29, 1999 (Court reporter: James Scally) (Collins, S.) (Entered: 10/21/1999)
801 MOTION by all plaintiffs to Extend Time to respond to Defendant's motion in limine to 11/10/99 (Depino, F.) (Entered: 10/21/1999)
805 COURT Trial concluded. Decision Reserved. Briefing schedule to be set. (EBB) (Collins, S.) (Entered: 10/29/1999)
ENDORSEMENT granting [801-1] motion to Extend Time to respond to Defendant's motion in limine to 11/10/99, Brief Deadline set for 11/10/99 [779-1] supplemental amended motion in Limine RE: To Strike in Part Report and Testimony of Diane Bryen and To Exclude in Part the Report and Tesimony of Amy Goldman, set for 11/10/99 [7781] supplemental amended motion in Limine RE: To Strike Report and Testimony of Gary Lavigna ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 10/26/1999)
ENDORSEMENT granting [544-1] motion to Add Witness and Exhibits ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 10/26/1999)
ENDORSEMENT granting [513-1] motion for Permission to Present Rebuttal Experts During Plaintiffs' Case in Chief ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 10/26/1999)
ENDORSEMENT granting [389-1] motion to Amend [124-1] amended complaint by plaintiff ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 10/26/1999)
ENDORSEMENT granting [522-1] motion to Amend Exhibit 329 ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 10/26/1999)
ENDORSEMENT granting [580-1] motion To Add Witnesses ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 10/26/1999)
802 STIPULATION by all Parties regarding Partial Withdrawal of Testimony of Judith Mulvey (Brown, S.) (Entered: 10/26/1999)
803 TRANSCRIPT for date of September 30, 1999 (Court reporter: James Scally) (Collins, S.) (Entered: 10/27/1999)

10/27/1999 10/28/1999
11/04/1999
11/05/1999 11/05/1999 11/12/1999
11/26/1999 12/14/1999 01/05/2000
04/11/2000 09/20/2000 10/20/2000
10/20/2000

804 TRANSCRIPT for date of October 8, 1999 (Court reporter: James Scally) (Collins, S.) (Entered: 10/27/1999)
ENDORSEMENT granting in part, denying in part [778-1] supplemental amended motion in Limine RE: To Strike Report and Testimony of Gary Lavigna ( signed by Senior Judge Ellen Bree Burns ) (Depino, F.) (Entered: 10/28/1999)
806 CORRECTED RULING vacating 10/26/99 order re: [389-1] motion to Amend [124-1] amended complaint by plaintiff by all plaintiffs ( signed by Senior Judge Ellen Bree Burns ) 1 Page(s) (Depino, F.) (Entered: 11/04/1999)
807 TRANSCRIPT for date of October 21, 1999 (Court reporter: Ellen Szamier) (Collins, S.) (Entered: 11/05/1999)
Document #808 deleted; docketed on wrong case (Inferrera, L.) (Entered: 11/09/1999)
809 ORDER holding in abeyance all orders regarding filing of post trial findings of fact and conclusions of law; parties to mediate before F. Owen Eagan ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 11/12/1999)
810 TRANSCRIPT for date of October 20, 1999 (Court reporter: Cheryl Poehls) (Collins, S.) (Entered: 11/26/1999)
811 TRANSCRIPT for date of June 17, 1999 (Court reporter: Dolores Falzarano) (Collins, S.) (Entered: 12/14/1999)
812 RULING granting nunc pro tunc [516-1] motion to Compel defendants to supplement responses to plaintiffs' motions for disclosure and production, granting [548-1] motion to Compel Defendants' Expert's Reports, granting nunc pro tunc [644-1] motion for Expert Disclosure ( signed by Senior Judge Ellen Bree Burns ) 1 Page(s) (Brown, S.) (Entered: 01/05/2000)
813 Marked exhibit List as to Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training (Collins, S.) (Entered: 04/11/2000)
814 ORDER for filing post-trial briefs, All briefs due by 3/15/01. ( signed by Senior Judge Ellen Bree Burns ) (Villano, P.) Modified on 10/02/2000 (Entered: 09/20/2000)
815 MOTION by People First, David Yeske, Gregory Kabbai, Leonard Haversat, Raymond Mitchell, Leon Horton, Carole Ann Carr, Thomas Maloney, Richard Messier to Enforce Partial Settlement Agreement (Brief Due 11/10/00 ) (Depino, F.) (Entered: 10/20/2000)
816 MEMORANDUM by People First, David Yeske, Gregory Kabbai, Leonard Haversat, Raymond Mitchell, Leon Horton, Carole Ann Carr,

11/13/2000 11/16/2000
11/22/2000 11/27/2000 11/28/2000 11/28/2000 11/29/2000
12/08/2000 12/12/2000 12/12/2000 12/12/2000

Thomas Maloney, Richard Messier in support of [815-1] motion to Enforce Partial Settlement Agreement (Depino, F.) (Entered: 10/20/2000)
817 MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson to Extend Time to 11/28/00 to respond to Motion to Enforce & Implement Partial Settlement Agreement (Pesta, J.) (Entered: 11/14/2000)
ENDORSEMENT granting [817-1] motion to Extend Time to 11/28/00 to respond to Motion to Enforce & Implement Partial Settlement Agreement, Brief Deadline set for 11/28/00 [815-1] motion to Enforce Partial Settlement Agreement ( signed by Senior Judge Ellen Bree Burns ) (Villano, P.) (Entered: 11/16/2000)
818 MOTION by all plaintiffs to Extend Time to 12/15/00 to file post trial brief (Pesta, J.) (Entered: 11/22/2000)
ENDORSEMENT granting [818-1] motion to Extend Time to 12/15/00 to file post trial brief ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 11/27/2000)
819 TRANSCRIPT for date of 9/19/00 (Court reporter: Falzarano Court Reporters) (Pesta, J.) (Entered: 11/28/2000)
820 MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson to Extend Time 12/6/00 to respond to Motion to Enforce & Implement Partial Settlement Agreement & Memorandum of Law in Support (Pesta, J.) (Entered: 11/28/2000)
ENDORSEMENT granting [820-1] motion to Extend Time to 12/6/00 to respond to Motion to Enforce & Implement Partial Settlement Agreement & Memorandum of Law in Support, Brief Deadline set for 12/6/00 [815-1] motion to Enforce Partial Settlement Agreement ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 11/30/2000)
821 MEMORANDUM by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training in opposition to [815-1] motion to Enforce Partial Settlement Agreement by plaintiffs (Depino, F.) (Entered: 12/12/2000)
822 MOTION by all plaintiffs to Extend Time for 1 week to complete post trial brief (Pesta, J.) (Entered: 12/12/2000)
823 MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson, Southbury Training to Extend Time To Respond to Motion to Implement Partial Settlement Agreement (Brown, S.) (Entered: 12/13/2000)
ENDORSEMENT granting nunc pro tunc [823-1] motion to Extend Time until 12/8/00 To Respond to Motion to Implement Partial

12/15/2000 12/21/2000 12/22/2000 12/22/2000 12/22/2000 12/26/2000 12/28/2000 12/28/2000 12/28/2000 12/29/2000 01/04/2001
01/05/2001

Settlement Agreement ( signed by Senior Judge Ellen Bree Burns ) (Inferrera, L.) (Entered: 12/19/2000)
ENDORSEMENT granting [822-1] motion to Extend Time for 1 week to complete post trial brief ( signed by Senior Judge Ellen Bree Burns ) (Inferrera, L.) (Entered: 12/19/2000)
824 MOTION by all plaintiffs to Extend Time to reply dto brief in opposition to the motion to enforce and implement partial settlement agreement (Sherman, M.) (Entered: 12/21/2000)
825 MOTION by People First, David Yeske, Gregory Kabbai, Leonard Haversat, Raymond Mitchell, Leon Horton, Carole Ann Carr, Thomas Maloney, Richard Messier for Leave to File brief exceeding page limitation (Depino, F.) (Entered: 12/26/2000)
826 PROPOSED Conclusions of Law by People First, David Yeske, Gregory Kabbai, Leonard Haversat, Raymond Mitchell, Leon Horton, Carole Ann Carr, Thomas Maloney, Richard Messier (Depino, F.) (Entered: 12/26/2000)
827 PROPOSED Findings of Fact by People First, David Yeske, Gregory Kabbai, Leonard Haversat, Raymond Mitchell, Leon Horton, Carole Ann Carr, Thomas Maloney, Richard Messier (Depino, F.) (Entered: 12/26/2000)
828 STATUS REPORT re: Discussions Relating to Remedy by all plaintiffs (Brown, S.) (Entered: 12/27/2000)
829 Post-TRIAL BRIEF by all plaintiffs (Brown, S.) (Entered: 12/28/2000)
ENDORSEMENT granting [824-1] motion to Extend Time to reply to brief in opposition to the motion to enforce and implement partial settlement agreement (no date/time set) ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 12/28/2000)
ENDORSEMENT granting [825-1] motion for Leave to File brief exceeding page limitation ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 12/28/2000)
830 MOTION by all plaintiffs to Extend Time to 1/5/01 to reply to Brief in Opposition to Motion to Enforce & Implement Partial Settlement Agreement (Pesta, J.) (Entered: 01/02/2001)
ENDORSEMENT granting [830-1] motion to Extend Time to 1/5/01 to reply to Brief in Opposition to Motion to Enforce & Implement Partial Settlement Agreement, Brief Deadline set for 1/5/01 [815-1] motion to Enforce Partial Settlement Agreement ( signed by Senior Judge Ellen Bree Burns ) (Depino, F.) (Entered: 01/04/2001)
831 NOTICE of Filing by all plaintiffs (Inferrera, L.) (Entered: 01/05/2001)

01/05/2001 01/09/2001 01/09/2001 01/23/2001
01/30/2001 02/01/2001
02/01/2001 02/02/2001 02/12/2001 02/15/2001 02/22/2001

832 PROPOSED Findings of Fact and Conclusions of Law (2 volumes) by all plaintiffs (Inferrera, L.) (Entered: 01/05/2001)
833 MOTION by all plaintiffs to Extend Time to reply to Memorandum in Opposition to Enforce Partial Settlement Agreement for unspecified amount of time (Pesta, J.) (Entered: 01/10/2001)
834 MEMORANDUM by all plaintiffs in support of [830-1] motion to Extend Time to 1/5/01 to reply to Brief in Opposition to Motion to Enforce & Implement Partial Settlement Agreement (Sherman, M.) (Entered: 01/12/2001)
ENDORSEMENT granting nunc pro tunc, [833-1] motion to Extend Time to reply to Memorandum in Opposition to Enforce Partial Settlement Agreement, Brief Deadline set for 1/9/01 [815-1] motion to Enforce Partial Settlement Agreement ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 01/23/2001)
835 MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson for Leave to File a response to reply memorandum in support of the motion to enforce and implement partial settlement agreement (Sherman, M.) (Entered: 01/31/2001)
ENDORSEMENT granting [835-1] motion for Leave to File a response to reply memorandum in support of motion to enforce and implement partial settlement agreement, Brief Deadline set for 2/1/01 [815-1] motion to Enforce Partial Settlement Agreement ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 02/01/2001)
836 REPLY by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson to response to [815-1] motion to Enforce Partial Settlement Agreement (Ruocco, M.) (Entered: 02/02/2001)
837 MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson to Extend Time of seventy days to file post-trial findings of fact, conclusion of law and brief (Sherman, M.) (Entered: 02/06/2001)
838 RESPONSE by all plaintiffs to [837-1] motion to Extend Time of seventy days to file post-trial findings of fact, conclusion of law and brief by Toni Richardson, Thomas Howley, Patricia Giardi, Susan S. Addiss (Sherman, M.) (Entered: 02/13/2001)
ENDORSEMENT granting [837-1] motion to Extend Time to file posttrial pleadings. Brief to be filed on or before the 50th day after conclusion of CTBIA case. ( signed by Senior Judge Ellen Bree Burns ) (Ruocco, M.) (Entered: 02/15/2001)
839 ORDER: Parties to file briefs and applicability of certain case law to this case following culmination of CTBIA litigation ( signed by Senior Judge Ellen Bree Burns ) 1 pgs (Brown, S.) (Entered: 02/22/2001)

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04/27/2001 05/21/2001
05/21/2001 05/22/2001
05/22/2001 05/29/2001 05/29/2001

840 MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson to Extend Time to 4/18/01 to file briefs (Pesta, J.) (Entered: 04/11/2001)
ENDORSEMENT granting [840-1] motion to Extend Time to 4/18/01 to file briefs ( signed by Senior Judge Ellen Bree Burns ) (Basile, F.) (Entered: 04/12/2001)
841 MOTION by all plaintiffs to Extend Time until 4/27/01 to file brief addressing the applicability of Board of Trustees V. Garrett (Warner, R.) (Entered: 04/18/2001)
842 MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson to Extend Time to file post-trial brief (Brown, S.) (Entered: 04/25/2001)
ENDORSEMENT granting [842-1] motion to Extend Time to file posttrial brief; post trial brief and findings due 5/25/01 ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 04/25/2001)
ENDORSEMENT granting [841-1] motion to Extend Time to 4/30/01 to file brief addressing the applicability of Board of Trustees V. Garrett ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 04/26/2001)
843 Post TRIAL BRIEF by all plaintiffs re: Applicability of Board of Trustees v. Garrett (Brown, S.) (Entered: 05/01/2001)
844 MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson to Extend Time until 6/11/01 to file Post-Trial Findings of Fact, Conclusions of Law, and Brief (Ruocco, M.) (Entered: 05/21/2001)
845 MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson to Extend Time until 5/29/01 to file briefs re: Garrett (Ruocco, M.) (Entered: 05/21/2001)
ENDORSEMENT granting [844-1] motion to Extend Time until 6/11/01 to file Post-Trial Findings of Fact, Conclusions of Law, and Brief ( signed by Senior Judge Ellen Bree Burns ) (Inferrera, L.) (Entered: 05/22/2001)
ENDORSEMENT granting [845-1] motion to Extend Time until 5/29/01 to file briefs re: Bd. of Trustees v Garrett ( signed by Senior Judge Ellen Bree Burns ) (Inferrera, L.) (Entered: 05/22/2001)
846 Reply by Thomas Howley, Toni Richardson, Southbury Training to [843-1] trial brief by all plaintiffs (Depino, F.) (Entered: 05/29/2001)
847 MOTION by all plaintiffs for Leave to File Reply Brief in Excess of 10 pgs (Brown, S.) (Entered: 05/30/2001)

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ENDORSEMENT granting [847-1] motion for Leave to File Reply Brief in Excess of 10 pgs ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 06/06/2001)
848 Reply by all plaintiffs to response to [843-1] trial brief re: Applicability of Board of Trustees v. Garrett by all plaintiffs (Brown, S.) (Entered: 06/07/2001)
849 MOTION by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson to Extend Time to 6/14/01 for post-trial submissions (Pesta, J.) (Entered: 06/11/2001)
ENDORSEMENT granting [849-1] motion to Extend Time to 6/14/01 for post-trial submissions ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 06/13/2001)
850 Vol. I PROPOSED Findings of Fact and Conclusions of Law by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson (Brown, S.) (Entered: 06/14/2001)
851 Vol. II PROPOSED Findings of Fact and Conclusions of Law by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson (Brown, S.) (Entered: 06/14/2001)
852 Vol.3 PROPOSED Findings of Fact and Conclusions of Law by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson (Brown, S.) (Entered: 06/14/2001)
853 Vol.4 PROPOSED Findings of Fact and Conclusions of Law by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson (Brown, S.) (Entered: 06/14/2001)
854 Vol.5 PROPOSED Findings of Fact and Conclusions of Law by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson (Brown, S.) (Entered: 06/14/2001)
855 Response by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson to [832-1] findings of fact proposed by all plaintiffs (Brown, S.) (Entered: 06/14/2001)
856 PROPOSED Conclusions of Law by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson (Brown, S.) (Entered: 06/14/2001)
857 Post-TRIAL BRIEF by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson (Brown, S.) (Entered: 06/14/2001)
858 MOTION by all plaintiffs to Extend Time to reply to Post Trial Brief for 45 days (Pesta, J.) (Entered: 07/12/2001)
ENDORSEMENT granting [858-1] motion to Extend Time to reply to Post Trial Brief for 45 days ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 07/16/2001)

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11/27/2001

859 MOTION by all plaintiffs to Extend Time until 9/6/01 to file their reply brief (Warner, R.) (Entered: 08/29/2001)
ENDORSEMENT granting [859-1] motion to Extend Time until 9/6/01 to file their reply brief ( signed by Senior Judge Ellen Bree Burns ) (Depino, F.) (Entered: 08/31/2001)
860 MOTION by all plaintiffs for Leave to File Brief in Excess of Page Limit (Brown, S.) (Entered: 09/07/2001)
861 MOTION by all plaintiffs to Seal Reply to Defendants Oppposition to Plaintiff's Proposed Findings and Reply to Defendants Post Trial Brief (Brown, S.) (Entered: 09/07/2001)
862 Reply by all plaintiffs to [857-1] post-trial brief by Toni Richardson, Thomas Howley, Patricia Giardi, Susan S. Addiss (Brown, S.) (Entered: 09/07/2001)
ENDORSEMENT granting [860-1] motion for Leave to File Brief in Excess of Page Limit ( signed by Senior Judge Ellen Bree Burns ) (Inferrera, L.) (Entered: 09/12/2001)
ENDORSEMENT granting [861-1] motion to Seal Reply to Defendants Oppposition to Plaintiff's Proposed Findings and Reply to Defendants Post Trial Brief ( signed by Senior Judge Ellen Bree Burns ) (Inferrera, L.) (Entered: 09/12/2001)
863 MOTION by all plaintiffs To File Corrected Copy of Reply Brief (Brown, S.) (Entered: 09/26/2001)
ENDORSEMENT granting [863-1] motion To File Corrected Copy of Reply Brief ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 10/05/2001)
864 MOTION by all plaintiffs for Richard T. Roznoy to Withdraw as Attorney (Sherman, M.) (Entered: 10/23/2001)
ENDORSEMENT granting [864-1] motion for Richard T. Roznoy to Withdraw as Attorney (Terminated attorney Richard T. Roznoy for Richard Messier, attorney Richard T. Roznoy for Thomas Maloney, attorney Richard T. Roznoy for Carole Ann Carr, attorney Richard T. Roznoy for Leon Horton, attorney Richard T. Roznoy for Raymond Mitchell, attorney Richard T. Roznoy for Leonard Haversat, attorney Richard T. Roznoy for Gregory Kabbai, attorney Richard T. Roznoy for People First, attorney Richard T. Roznoy for ARC/Connecticut, Inc, attorney Richard T. Roznoy for Western CT Assoc ( signed by Senior Judge Ellen Bree Burns ) (Brown, S.) (Entered: 10/25/2001)
865 Motion hearing held re: [815-1] motion to Enforce Partial Settlement Agreement by plaintiffs ( EEB) (Brown, S.) (Entered: 11/27/2001)

11/27/2001 11/27/2001 11/27/2001 12/14/2001 04/04/2006 05/05/2006 05/05/2006 05/08/2006 05/08/2006 05/30/2006
05/31/2006
05/31/2006 06/02/2006

MINUTE Entry: [815-1] motion to Enforce Partial Settlement Agreement under advisement ( EBB) (Brown, S.) Modified on 11/27/2001 (Entered: 11/27/2001)
866 Marked Witness List (Brown, S.) (Entered: 11/27/2001)
867 Marked Exhibit List (Brown, S.) (Entered: 11/27/2001)
868 RULING denying [815-1] motion to Enforce Partial Settlement Agreement ( signed by Senior Judge Ellen Bree Burns ) 6 Page(s) SEE Ruling for details (Brown, S.) (Entered: 12/14/2001)
879 Minute Entry for proceedings held before Judge Ellen Bree Burns : Telephone Status Conference held on 4/4/2006. 30 minutes (Ruocco, M.) (Entered: 03/30/2007)
869 MOTION to determine liability on current record without further supplementation by all plaintiffs.Responses due by 5/26/2006 (Pesta, J.) (Entered: 05/08/2006)
870 Memorandum in Support re 869 MOTION to determine liability on current record without further supplementation filed by all plaintiffs. (Pesta, J.) (Entered: 05/08/2006)
871 ENTERED IN ERROR: MOTION for Extension of Time for Discovery by Southbury Training School. (Pesta, J.) Modified on 3/30/2007 (Ruocco, M.). (Entered: 05/08/2006)
880 Proposal to Update Trial Record on Community Placement in Response to the Court's request during 879 Status Conference filed by Southbury Training School. (Ruocco, M.) (Entered: 03/30/2007)
872 MOTION for Extension of Time to File Response as to 869 MOTION to determine liability on current record without further supplementation until 5/31/06 by Southbury Training School, Toni Richardson, Thomas Howley. (Malone, P.) (Entered: 05/30/2006)
873 ORDER granting 872 Motion for Extension of Time to File Response/Reply to Plaintiffs' Motion to Determine Liability on the Current Record Without Further Supplementation. Response is due May 31, 2006. Signed by Judge Ellen Bree Burns on 5/31/06. (Corbett, P.) (Entered: 05/31/2006)
Reset Deadlines as to 869 MOTION to determine liability on current record without further supplementation. Responses due by 5/31/2006 (Ruocco, M.) (Entered: 06/01/2006)
874 Minute Entry for proceedings held before Judge Ellen Bree Burns : Telephone Conference held on 6/2/2006 re 869 MOTION to determine liability on current record without further supplementation filed by all plaintiffs. 20 minutes(Court Reporter I. Sanchez/Falzarano Court Reporters.) (Ruocco, M.) (Entered: 06/02/2006)

06/02/2006 06/02/2006 06/02/2006 06/05/2006
06/05/2008 06/05/2008 06/06/2008
06/12/2008 06/25/2008 07/01/2008 07/07/2008

875 ORDER, as reflected at the telephone conference this date, granting 869 Motion to Determine Liability without Further Supplementation of the Record . Signed by Judge Ellen Bree Burns on 6/2/06. (Ruocco, M.) (Entered: 06/02/2006)
876 RESPONSE To re 869 MOTION to determine liability on current record without further supplementation filed by Toni Richardson, Thomas Howley. (Malone, P.) (Entered: 06/05/2006)
877 MOTION, Nunc Pro Tunc for Extension of Time for One day To respond to 869 Motion to Determine Liability on the Current Record Without Durther Supplementation. by Toni Richardson, Thomas Howley. (Malone, P.) (Entered: 06/05/2006)
878 ORDER granting 877 Motion, Nunc Pro Tunc, for Extension of Time of one day, until May 31, 2006, to Respond to Plaintiffs' Motion to Determine Liability on the Current Record Without Further Supplementation. Signed by Judge Ellen Bree Burns on 6/5/06. (Corbett, P.) (Entered: 06/05/2006)
881 MEMORANDUM OF DECISION AND ORDER. Signed by Judge Ellen Bree Burns on 6/4/08. (Malone, P.) (Entered: 06/05/2008)
Set Deadlines/Hearings: Status Conference set for 6/13/2008 11:00 AM in Courtroom Three, 141 Church St., New Haven, CT before Judge Ellen Bree Burns (Malone, P.) (Entered: 06/05/2008)
882 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephonic Scheduling Conference set for 6/24/2008 10:00 AM in Chambers Room 208, 141 Church St., New Haven, CT before Judge Ellen Bree Burns. (Corbett, P.) (Entered: 06/06/2008)
883 ORDER denying as moot 779 Motion in Limine. Signed by Judge Ellen Bree Burns on 6/12/08. (Malone, P.) (Entered: 06/12/2008)
884 SCHEDULING ORDER, Hearing on remedies is set for 9/23/2008 10:00 AM in Courtroom Three, 141 Church St., New Haven, CT before Judge Ellen Bree Burns). Signed by Judge Ellen Bree Burns on 6/24/08. (S-Malone, P.) (Entered: 06/25/2008)
885 NOTICE OF APPEAL as to 881 Memorandum of Decision by all plaintiffs. Filing fee $ 455, receipt number N24928. (Ruocco, M.) (Entered: 07/07/2008)
886 NOTICE OF APPEAL as to 881 Memorandum of Decision and Order by Toni Richardson, Thomas Howley, Patricia Giardi, Susan S. Addiss. Filing fee $ 455, receipt number N024983. (Attachments:

07/25/2008 07/29/2008 08/11/2008
08/19/2008 08/22/2008 08/25/2008
09/05/2008 09/08/2008

# 1 Memorandum of Decision and Order 881 )(Malone, P.) (Entered: 07/08/2008)
888 Defendant's Update Re Community Placement re 884 Secheduling Order, filed by Toni Richardson, Thomas Howley, Patricia Giardi, Susan S. Addiss. (Attachments: # 1 Notice of Manual Filing of Exhibits A-F)(Malone, P.) (Entered: 08/01/2008)
887 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Hearing on Remedies set for 9/23/2008 10:00 AM in Courtroom Three, 141 Church St., New Haven, CT before Judge Ellen Bree Burns. (Corbett, P.) (Entered: 07/29/2008)
889 MOTION for Extension of Time until November 10, 2008 for the parties to submit proposals on remedy and an Extension of Time until December 1, 2008 for the parties to respond to the remedial proposals of the opposing party by ARC/Connecticut, Inc, Western Connecticut Association for Human Rights, Richard Messier, Thomas Maloney, Carole Ann Carr, Leon Horton, Raymond Mitchell, Leonard Haversat, Gregory Kabbai, People First of Connecticut, Inc.. (Garguilo, B) (Entered: 08/11/2008)
892 RESPONSE re 889 MOTION for Extension of Time until November 10, 2008 filed by Southbury Training School. (Attachments: # 1 Exhibit, # 2 Exhibit)(Falcone, K.) (Entered: 08/19/2008)
893 REPLY to Response to 889 MOTION for Extension of Time until November 10, 2008 filed by ARC/Connecticut, Inc, Western Connecticut Association for Human Rights, Richard Messier, Thomas Maloney, Carole Ann Carr, Leon Horton, Raymond Mitchell, Leonard Haversat, Gregory Kabbai, People First of Connecticut, Inc.. (Malone, P.) (Entered: 08/22/2008)
894 Plaintiffs' Submission of Proposal on Remedy re 884 Scheduleing Order, re 881 Memorandum of Decision filed by ARC/Connecticut, Inc, Western Connecticut Association for Human Rights, Richard Messier, Thomas Maloney, Carole Ann Carr, Leon Horton, Raymond Mitchell, Leonard Haversat, Gregory Kabbai, People First of Connecticut, Inc.. (Attachments: # 1 Proposed Remedial Orders)(Malone, P.) (Entered: 08/26/2008)
896 Defendant's MOTION for Leave to File Proposed Remedies by Toni Richardson, Thomas Howley. (Attachments: # 1 Proposed Remedies)(Malone, P.) (Entered: 09/08/2008)
895 RULING denying as moot, pending the disposition of the appeals 889 MOTION for Extension of Time until November 10, 2008.

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09/29/2008 09/29/2008 10/06/2008

Hearing scheduled for 9/23/08 is canceled signed by Judge Ellen Bree Burns on 9/5/08. (Malone, P.) (Entered: 09/08/2008)
897 MOTION to Compel Discovery by ARC/Connecticut, Inc, Western Connecticut Association for Human Rights, Richard Messier, Thomas Maloney, Carole Ann Carr, Leon Horton, Raymond Mitchell, Leonard Haversat, Gregory Kabbai, People First of Connecticut, Inc..Responses due by 9/30/2008 (Attachments: # 1 Exhibit A)(Malone, P.) (Entered: 09/09/2008)
898 Memorandum in Support re 897 MOTION to Compel Discovery filed by ARC/Connecticut, Inc, Western Connecticut Association for Human Rights, Richard Messier, Thomas Maloney, Carole Ann Carr, Leon Horton, Raymond Mitchell, Leonard Haversat, Gregory Kabbai, People First of Connecticut, Inc.. (Attachments: # 1 Exhibit A)(Malone, P.) (Entered: 09/09/2008)
899 OBJECTION re 896 MOTION for Leave to File filed by ARC/Connecticut, Inc, Western Connecticut Association for Human Rights, Richard Messier, Thomas Maloney, Carole Ann Carr, Leon Horton, Raymond Mitchell, Leonard Haversat, Gregory Kabbai, People First of Connecticut, Inc.. (Attachments: # 1 Exhibit A)(Malone, P.) (Entered: 09/09/2008)
900 DEFENDANTS' RESPONSE re 894 Plaintiffs' Submission of Proposal on Remedy, filed by Toni Richardson, Thomas Howley, Patricia Giardi, Susan S. Addiss. (Villano, P.) (Entered: 09/16/2008)
901 MOTION For Order Compelling Answers, Production, And Inspection by ARC/Connecticut, Inc, Western Connecticut Association for Human Rights, Richard Messier, Thomas Maloney, Carole Ann Carr, Leon Horton, Raymond Mitchell, Leonard Haversat, Gregory Kabbai, People First of Connecticut, Inc..Responses due by 10/13/2008 (Attachments: # 1 Exhibits A - D, # 2 Memorandum in Support)(Malone, P.) (Entered: 09/23/2008)
902 MOTION for 21 day (after Status Conference) Extension of Time to File Response as to 901 MOTION to Compel, 897 MOTION to Compel and Joint MOTION for Status Conference by Southbury Training School, Toni Richardson, Thomas Howley, Patricia Giardi, Susan S. Addiss. (Brown, S.) (Entered: 09/29/2008)
903 MOTION for Status Conference by ARC/Connecticut, Inc, Western Connecticut Association for Human Rights, Richard Messier, Thomas Maloney, Carole Ann Carr, Leon Horton, Raymond Mitchell, Leonard Haversat, Gregory Kabbai, People First of Connecticut, Inc.. (Malone, P.) (Entered: 09/29/2008)
904 MANDATE of USCA dated 10/2/08 Stipulation Withdrawing 886 Notice of Appeal filed by Susan S. Addiss, Thomas

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12/22/2008 12/22/2008 12/22/2008
01/13/2009 01/23/2009

Howley, Patricia Giardi, Toni Richardson, 885 Notice of Appeal filed by all plaintiffs (Malone, P.) (Entered: 10/06/2008)
905 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephonic Status Conference set for 11/6/2008 10:00 AM in Chambers Room 208, 141 Church St., New Haven, CT before Judge Ellen Bree Burns. (Corbett, P.) (Entered: 10/15/2008)
907 MOTION for Protective Order, MOTION to Quash Subpoena Duces Tecum by Toni Richardson, Thomas Howley.Responses due by 1/9/2009 (Malone, P.) (Entered: 12/22/2008)
909 MOTION for Status Conference To Establish Scheduling Order for Hearing on Remedy by ARC/Connecticut, Inc, Western Connecticut Association for Human Rights, Richard Messier, Thomas Maloney, Carole Ann Carr, Leon Horton, Raymond Mitchell, Leonard Haversat, Gregory Kabbai, People First of Connecticut, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C part 1, # 4 Exhibit C part 2, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Memorandum in Support) (Malone, P.) (Entered: 12/23/2008)
906 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephonic Status Conference set for 1/20/2009 02:00 PM in Chambers Room 208, 141 Church St., New Haven, CT before Judge Ellen Bree Burns. (Corbett, P.) (Entered: 12/22/2008)
908 ORDER finding as moot 907 Motion for Protective Order; finding as moot 907 Motion to Quash. Signed by Judge Ellen Bree Burns on 12/22/08. (Corbett, P.) (Entered: 12/22/2008)
910 MOTION to Compel Discovery Response by ARC/Connecticut, Inc, Western Connecticut Association for Human Rights, Richard Messier, Thomas Maloney, Carole Ann Carr, Leon Horton, Raymond Mitchell, Leonard Haversat, Gregory Kabbai, People First of Connecticut, Inc..Responses due by 1/12/2009 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D part 1, # 5 Exhibit D part 2, # 6 Exhibit E and F, # 7 Memorandum in Support)(Malone, P.) (Entered: 12/23/2008)
911 Memorandum in Opposition re 910 MOTION to Compel Discovery Response filed by Toni Richardson, Thomas Howley, Patricia Giardi, Susan S. Addiss. (Malone, P.) (Entered: 01/14/2009)
912 SCHEDULING ORDER RE Telephonic Conference dated 1/23/09. Signed by Judge Ellen Bree Burns on 1/23/09. (Malone, P.) (Entered: 01/23/2009)

04/29/2009 05/15/2009 06/10/2009 06/12/2009 06/16/2009 07/07/2009
07/10/2009

913 MOTION for Status Conference by ARC/Connecticut, Inc, Western Connecticut Association for Human Rights, Richard Messier, Thomas Maloney, Carole Ann Carr, all plaintiffs, Leon Horton, Raymond Mitchell, Leonard Haversat, Gregory Kabbai, People First of Connecticut, Inc.. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Falcone, K.) (Additional attachment(s) added on 8/12/2009: # 5 Text of Proposed Scheduling Order) (Malone, P.). Modified on 8/12/2009 to correct text (Malone, P.). (Entered: 04/29/2009)
914 MOTION to Compel Discovery by ARC/Connecticut, Inc, Western Connecticut Association for Human Rights, Richard Messier, Thomas Maloney, Carole Ann Carr, Leon Horton, Raymond Mitchell, Leonard Haversat, Gregory Kabbai, People First of Connecticut, Inc..Responses due by 6/5/2009 (Attachments: # 1 Exhibit A & B, # 2 Exhibit C & D, # 3 Exhibit E, F, G, H, # 4 Exhibit I, # 5 Exhibit J part 1, # 6 Exhibit J part 2, # 7 Exhibit K, # 8 Exhibit L, # 9 Memorandum in Support)(Malone, P.) (Entered: 05/15/2009)
915 RESPONSE re 914 MOTION to Compel filed by Toni Richardson, Thomas Howley, Patricia Giardi, Susan S. Addiss. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Spielberg, N.) (Entered: 06/10/2009)
916 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephonic Status Conference set for 6/16/2009 02:00 PM in Chambers Room 208, 141 Church St., New Haven, CT before Judge Ellen Bree Burns. (Corbett, P.) (Entered: 06/12/2009)
917 Minute Entry for proceedings held before Judge Ellen Bree Burns: Telephone Status Conference held on 6/16/2009. Total Time: 1 hours and 4 minutes(Court Reporter S. Bowles.) (Pesta, J.) (Entered: 06/24/2009)
918 TRANSCRIPT of Proceedings held on June 16, 2009 (Status Hearing) before Judge Ellen Bree Burns. Court Reporter: Steve Bowles. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.ctd.uscourts.gov. Redaction Request due 7/28/2009. Redacted Transcript Deadline set for 8/7/2009. Release of Transcript Restriction set for 10/5/2009. (Bowles, S.) (Additional attachment(s) added on 7/10/2009: # 1 Transcript) (Falcone, K.). (Entered: 07/07/2009)
919 Docket Entry Correction uploaded corrected transcript re 918 Transcript. (Falcone, K.) (Entered: 07/10/2009)

08/12/2009 08/14/2009 08/14/2009
08/21/2009
08/24/2009 09/10/2009 09/14/2009
09/16/2009 09/17/2009 09/18/2009 09/23/2009

920 Docket Entry Correction re 913 MOTION for Status Conference Added Exhibit N Text of Proposed Scheduling Order (Malone, P.) (Entered: 08/12/2009)
921 ORDER denying 897 Motion to Compel; denying 901 Motion to Compel; denying 910 Motion to Compel; denying 914 Motion to Compel. Signed by Judge Ellen Bree Burns on 8/14/09. (Corbett, P.) (Entered: 08/14/2009)
922 ORDER finding as moot 896 Motion for Leave to File; finding as moot 902 Motion for Extension of Time to File Response/Reply ; finding as moot 902 Motion for Conference; finding as moot 903 Motion for Conference; finding as moot 909 Motion for Conference; finding as moot 913 Motion for Conference. Signed by Judge Ellen Bree Burns on 8/14/09. (Corbett, P.) (Entered: 08/14/2009)
923 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Hearing on Remedies set for 2/16/2010 10:00 AM in Courtroom Three, 141 Church St., New Haven, CT before Judge Ellen Bree Burns. (Corbett, P.) (Entered: 08/21/2009)
924 SCHEDULING ORDER regarding discovery. Signed by Judge Ellen Bree Burns on 8/21/09. (Malone, P.) (Entered: 08/24/2009)
925 NOTICE of Appearance by Robert M. Frost, Jr on behalf of Southbury Training School Foundation Inc., Emily Morgante (Frost, Robert) (Entered: 09/10/2009)
926 MOTION for Clarification re 924 Scheduling Order by ARC/Connecticut, Inc, Western Connecticut Association for Human Rights, Richard Messier, Thomas Maloney, Carole Ann Carr, Leon Horton, Raymond Mitchell, Leonard Haversat, Gregory Kabbai, People First of Connecticut, Inc.. (Malone, P.) (Entered: 09/15/2009)
927 ORDER granting 926 Motion for Clarification of Scheduling Order. Signed by Judge Ellen Bree Burns on 9/16/09. (Corbett, P.) (Entered: 09/16/2009)
928 ELECTRONIC FILING ORDER - PLEASE ENSURE COMPLIANCE WITH COURTESY COPY REQUIREMENTS IN THIS ORDER. Signed by Judge Ellen Bree Burns on 9/17/09. (Pesta, J.) (Entered: 09/17/2009)
929 CLARIFICATION of 924 SCHEDULING ORDER re:experts. Signed by Judge Ellen Bree Burns on 9/17/09. (S-Pesta, J.) (Entered: 09/18/2009)
930 ENTERED IN ERROR MOTION for Remedy Order by ARC/Connecticut, Inc, Western Connecticut Association for Human

09/23/2009 10/08/2009 10/08/2009
10/12/2009
10/21/2009 10/22/2009 10/27/2009

Rights, Richard Messier, Thomas Maloney, all plaintiffs, Leon Horton, Raymond Mitchell, Leonard Haversat, Gregory Kabbai, David Yeske, People First of Connecticut, Inc.. (Shaw, David) Modified on 9/24/2009 to correct event (Malone, P.). (Entered: 09/23/2009)
931 PROPOSED Remedial ORDERs by ARC/Connecticut, Inc, Western Connecticut Association for Human Rights, Richard Messier, Thomas Maloney, Carole Ann Carr, Leon Horton, Raymond Mitchell, Leonard Haversat, Gregory Kabbai, People First of Connecticut, Inc.. Correcting document number 930. (Malone, P.) (Entered: 09/24/2009)
932 MOTION for Extension of Time until October 22, 2009 Initially Respond to Plaintiffs' latest 931 PROPOSED Remedial ORDERS by Toni Richardson, Thomas Howley, Patricia Giardi, Susan S. Addiss. (York, Thomas) Modified on 10/9/2009 to create a link to document 931 (Malone, P.). (Entered: 10/08/2009)
933 RESPONSE to Defendants 931 PROPOSED Remedial ORDERS filed by ARC/Connecticut, Inc, Western Connecticut Association for Human Rights, Richard Messier, Thomas Maloney, Carole Ann Carr, all plaintiffs, Leon Horton, Raymond Mitchell, Leonard Haversat, Gregory Kabbai, David Yeske, People First of Connecticut, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Shaw, David) Modified on 10/9/2009 to create a link to document 931 (Malone, P.). (Entered: 10/08/2009)
934 OBJECTION re 931 Proposed Order, 932 MOTION for Extension of Time until October 22, 2009 Initially Respond to Plaintiffs' latest Remedial Proposal filed by ARC/Connecticut, Inc, Western Connecticut Association for Human Rights, Richard Messier, Thomas Maloney, Carole Ann Carr, all plaintiffs, Leon Horton, Raymond Mitchell, Leonard Haversat, Gregory Kabbai, People First of Connecticut, Inc.. (Attachments: # 1 Exhibit A thru E, # 2 Exhibit F)(Shaw, David) (Entered: 10/12/2009)
935 ORDER granting 932 Motion for Extension of Time until October 22, 2009, for Defendants to initially respond to Plaintiffs' latest remedial proposal with leave to seek supplementation of that response after Defendants' experts complete their reports. Signed by Judge Ellen Bree Burns on 10/21/09. (Corbett, P.) (Entered: 10/21/2009)
936 RESPONSE re 931 Proposed Order, Defendants' Response to Plaintiffs' Proposed Remedial Orders filed by Toni Richardson, Thomas Howley, Patricia Giardi, Susan S. Addiss. (York, Thomas) (Entered: 10/22/2009)
937 MOTION in Limine to Preclude Def Designated Experts or in the alternative to Limit the Def Expert Designation by all plaintiffs.Responses due by 11/17/2009 (Attachments: # 1 Memorandum in Support, # 2 Exhibit)(Shaw, David) (Entered: 10/27/2009)

10/27/2009 11/03/2009
11/10/2009
11/16/2009 11/17/2009 11/17/2009 11/17/2009 11/17/2009 11/24/2009

938 MOTION for Clarification of 924 Scheduling Order by all plaintiffs. (Attachments: # 1 Memorandum in Support, # 2 Exhibit A thru G)(Shaw, David) Modified on 10/28/2009 to correct motion event and create link to document 924 (Malone, P.). (Entered: 10/27/2009)
939 MOTION to Compel deposition discovery of Deputy Comm Kathryn DuPree and to designate and produce witnesses necessary to respond to Rule 30(b)(6) deposition notice by all plaintiffs.Responses due by 11/24/2009 (Attachments: # 1 Affidavit Certificate of Good Faith, # 2 Memorandum in Support, # 3 Exhibit A thru C, # 4 Exhibit D thru G, # 5 Exhibit H, part 1, # 6 Exhibit H, part 2, # 7 Exhibit H, part 3, # 8 Exhibit I, J, K)(Shaw, David) (Entered: 11/03/2009)
940 MOTION in Limine to preclude Defendants from Offering Evidence to Prove That the Relief Sought by Plaintiffs Would Require a Fundamental Alteration of the State's System for Individuals with Developmental Disabilities by all plaintiffs.Responses due by 12/1/2009 (Attachments: # 1 Appendix, # 2 Memorandum in Support part 1, # 3 Memorandum in Support Part 2)(Shaw, David) (Entered: 11/10/2009)
941 MOTION to Expedite re 940 MOTION in Limine to preclude Defendants from Offering Evidence to Prove That the Relief Sought by Plaintiffs Would Require a Fundamental Alteration of the State's System for Individuals with Developmental Disabilities by all plaintiffs. (Shaw, David) (Entered: 11/16/2009)
942 REPLY to Response to 937 MOTION in Limine to Preclude Def Designated Experts or in the alternative to Limit the Def Expert Designation and Defendants' Request for Sanctions against Plaintiffs' Counsel filed by Toni Richardson, Thomas Howley, . (York, Thomas) Modified on 12/9/2009 to correct filers (Malone, P.). (Entered: 11/17/2009)
943 REPLY to Response to 938 MOTION for Clarification of Scheduling Order, and Defendants' Request For Sanctions Against The Plaintiffs' Counsel filed by Toni Richardson, Thomas Howley. (York, Thomas) Modified on 12/9/2009 to correct filers (Malone, P.). (Entered: 11/17/2009)
944 MOTION for Sanctions by Toni Richardson, Thomas Howley.Responses due by 12/8/2009 CORRECTING SECOND PART OF DOCUMENT 942(Malone, P.) (Entered: 11/18/2009)
945 MOTION for Sanctions by Toni Richardson, Thomas Howley.Responses due by 12/8/2009 CORRECTING SECOND PART OF DOCUMENT 943(Malone, P.) (Entered: 11/18/2009)
946 First MOTION for Extension of Time to File Response/Reply as to 939 MOTION to Compel deposition discovery of Deputy Comm

11/25/2009 11/30/2009 11/30/2009 11/30/2009 11/30/2009
12/01/2009 12/01/2009
12/01/2009

Kathryn DuPree and to designate and produce witnesses necessary to respond to Rule 30(b)(6) deposition notice MOTION to Compel deposition discovery of Deputy Comm Kathryn DuPree and to designate and produce witnesses necessary to respond to Rule 30(b)(6) deposition notice until December 1, 2009 by Toni Richardson, Thomas Howley. (York, Thomas) (Entered: 11/24/2009)
947 First MOTION for Extension of Time until December 1, 2009 to Respond to Plaintiffs' First Motion for Disclosure and Production by Toni Richardson, Thomas Howley. (York, Thomas) (Entered: 11/25/2009)
948 ORDER granting 946 Motion for Extension of Time to File Response/Reply until December 1, 2009; granting 947 Motion for Extension of Time until December 1, 2009. Signed by Judge Ellen Bree Burns on 11/30/09. (Corbett, P.) (Entered: 11/30/2009)
949 MOTION to Expedite Determination of Plaintiffs 938 Motion for Further Clarification by all plaintiffs. (Attachments: # 1 Exhibit A)(Shaw, David) Modified on 12/1/2009 to create link to motion (Malone, P.). (Entered: 11/30/2009)
950 MOTION for Leave to File Excess Pages in Reply brief by all plaintiffs. (Attachments: # 1 Supplement Reply to Def Response to Motion for Further Clarification of Scheduling Order, # 2 Exhibit A thru D to Reply)(Shaw, David) (Entered: 11/30/2009)
Set/Reset Deadlines as to 939 MOTION to Compel deposition discovery of Deputy Comm Kathryn DuPree and to designate and produce witnesses necessary to respond to Rule 30(b)(6) deposition notice MOTION to Compel deposition discovery of Deputy Comm Kathryn DuPree and to designate and produce witnesses necessary to respond to Rule 30(b)(6) deposition notice. Responses due by 12/1/2009 (Pesta, J.) (Entered: 12/01/2009)
951 REPLY to Response to 944 MOTION for Sanctions, 937 MOTION in Limine to Preclude Def Designated Experts or in the alternative to Limit the Def Expert Designation filed by all plaintiffs. (Attachments: # 1 Exhibit A B and C)(Shaw, David) (Entered: 12/01/2009)
952 Second MOTION for Extension of Time until December 3, 2009 to Respond Plaintiff's 939 MOTION to Compel deposition discovery of Deputy Comm Kathryn DuPree and to designate and produce witnesses necessary to respond to Rule 30(b)(6) deposition notice by Toni Richardson, Thomas Howley. (York, Thomas) Modified on 12/2/2009 to correct event (Malone, P.). Modified on 12/3/2009 to create link to motion (Malone, P.). (Entered: 12/01/2009)
953 RESPONSE re 940 MOTION in Limine to preclude Defendants from Offering Evidence to Prove That the Relief Sought by Plaintiffs Would

12/02/2009 12/02/2009 12/03/2009 12/03/2009
12/09/2009 12/15/2009 12/15/2009 12/17/2009
12/18/2009

Require a Fundamental Alteration of the State's System for Individuals with Developmental Disabilities filed by Toni Richardson, Thomas Howley. (York, Thomas) (Entered: 12/01/2009)
954 ORDER granting 952 Motion for Extension of Time until December 3, 2009. Signed by Judge Ellen Bree Burns on 12/2/09. (Corbett, P.) (Entered: 12/02/2009)
955 MOTION Permission to Allow Defendants' Experts' Two Day Site Visit by Toni Richardson, Thomas Howley.Responses due by 12/23/2009 (York, Thomas) (Entered: 12/02/2009)
956 OBJECTION re 955 MOTION Permission to Allow Defendants' Experts' Two Day Site Visit filed by all plaintiffs. (Attachments: # 1 Exhibit A and B)(Shaw, David) (Entered: 12/03/2009)
957 RESPONSE re 939 MOTION to Compel deposition discovery of Deputy Comm Kathryn DuPree and to designate and produce witnesses necessary to respond to Rule 30(b)(6) deposition notice MOTION to Compel deposition discovery of Deputy Comm Kathryn DuPree and to designate and produce witnesses necessary to respond to Rule 30(b)(6) deposition notice filed by Toni Richardson, Thomas Howley. (Attachments: # 1 Exhibit A)(York, Thomas) (Entered: 12/03/2009)
Docket Entry Correction re 942 Reply to Response to Motion, 943 Reply to Response to Motion. Removed association of filers Patricia Giardi and Susan S. Addiss from docket text. (Malone, P.) (Entered: 12/09/2009)
958 Proposed Witness List by Toni Richardson, Thomas Howley. (York, Thomas) (Entered: 12/15/2009)
959 Proposed Witness List by all plaintiffs. (Shaw, David) (Entered: 12/15/2009)
960 MOTION for Extension of Time to File Response/Reply as to 939 MOTION to Compel deposition discovery of Deputy Comm Kathryn DuPree and to designate and produce witnesses necessary to respond to Rule 30(b)(6) deposition notice MOTION to Compel deposition discovery of Deputy Comm Kathryn DuPree and to designate and produce witnesses necessary to respond to Rule 30(b)(6) deposition notice until December 21, 2009, First MOTION for Extension of Time until December 21, 2009 to Reply to Doc. #957 957 Response, by all plaintiffs. (Shaw, David) (Entered: 12/17/2009)
961 ORDER granting 960 Motion for Extension of Time to File Response/Reply Responses due by 12/21/2009. Signed by Judge Ellen Bree Burns on 12/18/09. (Brooks, L.) (Entered: 12/18/2009)

12/18/2009 12/18/2009 12/21/2009 12/28/2009 12/28/2009
01/14/2010 01/21/2010 01/21/2010 01/21/2010 01/27/2010 01/27/2010

962 ORDER granting 960 Motion for Extension of Time (see Order # 961 ). Signed by Judge Ellen Bree Burns on 12/18/09. (Pesta, J.) (Entered: 12/21/2009)
Reset Deadline as to 939 MOTION to Compel -Responses due by 12/21/2009 (Pesta, J.) (Entered: 12/21/2009)
963 MOTION for Leave to File Excess Pages by all plaintiffs. (Attachments: # 1 Reply to Defendants Response to Motion, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F)(Shaw, David) (Entered: 12/21/2009)
964 REPLY to Response to 950 MOTION for Leave to File Excess Pages in Reply brief, 938 MOTION for Clarification filed by all plaintiffs. (Attachments: # 1 Exhibit A thru D)(Shaw, David) (Entered: 12/28/2009)
965 REPLY to Response to 939 MOTION to Compel deposition discovery of Deputy Comm Kathryn DuPree and to designate and produce witnesses necessary to respond to Rule 30(b)(6) deposition notice MOTION to Compel deposition discovery of Deputy Comm Kathryn DuPree and to designate and produce witnesses necessary to respond to Rule 30(b)(6) deposition notice, 963 MOTION for Leave to File Excess Pages filed by all plaintiffs. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Shaw, David) (Entered: 12/28/2009)
966 Amended Proposed Witness List by Toni Richardson, Thomas Howley. (York, Thomas) (Entered: 01/14/2010)
967 MOTION for Protective Order To Quash Plaintiffs' Notices of Deposition by Toni Richardson, Thomas Howley.Responses due by 2/11/2010 (Attachments: # 1 Exhibit A, # 2 Exhibit B)(York, Thomas) (Entered: 01/21/2010)
968 MOTION for Extension of Time until Through February 9, 2010 to complete discovery by all plaintiffs. (Shaw, David) (Entered: 01/21/2010)
969 MOTION to Continue Remedial Hearing by Toni Richardson, Thomas Howley. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Malone, P.) Modified on 1/22/2010 to correct second relief of document 967 (Malone, P.). (Entered: 01/22/2010)
970 First MOTION for Extension of Time until February 10, 2010 Object and/or Respond to Interrogatories and Requests for Production by all plaintiffs. (Shaw, David) (Entered: 01/27/2010)
971 First MOTION for Extension of Time until February 10, 2010 Object and/or Respond to Second Set of Interrogatories and Requests for

01/28/2010
02/01/2010 02/01/2010 02/02/2010 02/02/2010 02/02/2010 02/02/2010 02/11/2010 02/11/2010 02/12/2010 02/12/2010

Production of Defendants dated Jan 8 2010 by all plaintiffs. (Shaw, David) (Entered: 01/27/2010)
972 ORDER granting 970 Motion for Extension of Time until February 10, 2010 to respond to Defendants' Interrogatories and Request for Production dated January 8, 2010; granting 971 Motion for Extension of Time until February 10, 2010, to object or respond to Defendants' Second Interrogatories and Request for Production dated January 8, 2010. Signed by Judge Ellen Bree Burns on 1/28/10. (Corbett, P.) (Entered: 01/28/2010)
973 MOTION to Compel Production of Two Case Managers for Deposition by all plaintiffs.Responses due by 2/22/2010 (Attachments: # 1 Memorandum in Support, # 2 Exhibit A and B)(Shaw, David) (Entered: 02/01/2010)
974 RESPONSE re 973 MOTION to Compel Production of Two Case Managers for Deposition filed by Toni Richardson, Thomas Howley. (York, Thomas) (Entered: 02/01/2010)
975 REPLY to Response to 973 MOTION to Compel Production of Two Case Managers for Deposition as to Defendants' Opposition 974 filed by all plaintiffs. (Shaw, David) (Entered: 02/02/2010)
976 ORDER denying 973 Motion to Compel Production of Two Case Managers for Deposition. Signed by Judge Ellen Bree Burns on 2/2/10. (Corbett, P.) (Entered: 02/02/2010)
977 Minute Entry for proceedings held before Judge Ellen Bree Burns: Telephonic Status Conference held on 2/2/2010. Total Time: 30 minutes (Pesta, J.) (Entered: 02/03/2010)
978 ORAL ORDER granting in part 967 Motion for Protective Order with regard to non-expert witnesses only; denying 968 Motion for Extension of Time ; denying 969 Motion to Continue. Signed by Judge Ellen Bree Burns on 2/2/10. (Pesta, J.) (Entered: 02/11/2010)
979 MOTION to Compel Discovery Responses by Toni Richardson, Thomas Howley.Responses due by 3/4/2010 (Attachments: # 1 Exhibit A)(York, Thomas) (Entered: 02/11/2010)
980 MOTION to Continue Remedial Hearing by Toni Richardson, Thomas Howley. (York, Thomas) (Entered: 02/11/2010)
981 MOTION to Quash Plaintiffs' Subpoenas by Toni Richardson, Thomas Howley.Responses due by 3/5/2010 (Attachments: # 1 Exhibit A)(York, Thomas) (Entered: 02/12/2010)
982 MOTION in Limine to Exclude Tony Records as a Witness at the Hearing on Remedies by Toni Richardson, Thomas Howley.Responses due by 3/5/2010 (York, Thomas) (Entered: 02/12/2010)

02/12/2010
02/12/2010
02/15/2010 02/15/2010 02/16/2010 02/16/2010 02/16/2010 02/17/2010
02/17/2010 02/17/2010

983 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Settlement Conference is set for 2/16/2010 at 10:00 AM in Chambers Room 303, 141 Church St., New Haven, CT before Judge Joan G. Margolis. ALL PARTIES MUST ATTEND THE CONFERENCE. (Hill, M.) (Entered: 02/12/2010)
984 MOTION in Limine to Exclude Testimony of Kevin Walsh and Theodore Kastner or in the alternative to strike portions of defendants expert report by all plaintiffs.Responses due by 3/5/2010 (Attachments: # 1 Memorandum in Support, # 2 Exhibit B C, # 3 Exhibit A part 1, # 4 Errata A part 2, # 5 Exhibit A part 3, # 6 Exhibit A part 4, # 7 Exhibit A part 5, # 8 Exhibit A part 6, # 9 Exhibit A part 7, # 10 Appendix part 8, # 11 Appendix part 9, # 12 Appendix part 10, # 13 Appendix part 11, # 14 Appendix part 12)(Shaw, David) (Entered: 02/12/2010)
985 ExParte Document by all plaintiffs. (Shaw, David) (Entered: 02/15/2010)
989 Plaintiff's ExParte Statement by ARC/Connecticut, Inc, Western Connecticut Association for Human Rights, Richard Messier, Thomas Maloney, Carole Ann Carr, Leon Horton, Raymond Mitchell, Leonard Haversat, Gregory Kabbai, People First of Connecticut, Inc.. (Malone, P.) (Entered: 02/18/2010)
986 Minute Entry for proceedings held before Judge Joan G. Margolis: Settlement Conference held on 2/16/2010. Total Time: 2 hours and 34 minutes (Rodko, B.) (Entered: 02/17/2010)
990 Minute Entry for proceedings held before Judge Ellen Bree Burns: Hearing on Remedies held on 2/16/2010. Total Time: 3 hours(Court Reporter S. Bowles.) (Pesta, J.) (Entered: 02/22/2010)
991 Sealed Document: Plaintiff's Marked Exhibit List. (Pesta, J.) (Entered: 02/22/2010)
987 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Hearing set for 3/1/2010 10:00 AM in Courtroom Three, 141 Church St., New Haven, CT before Judge Ellen Bree Burns. (Corbett, P.) (Entered: 02/17/2010)
988 Minute Entry for proceedings held before Judge Joan G. Margolis: Telephone Settlement Conference held on 2/17/2010. Total Time: 1 hour and 15 minutes (Rodko, B.) (Entered: 02/18/2010)
993 Sealed Document: Plaintiff's Marked Exhibit List. (Pesta, J.) (Entered: 02/22/2010)

02/18/2010 02/18/2010 02/22/2010 03/01/2010
03/01/2010 03/01/2010 03/01/2010 03/01/2010 03/02/2010
03/02/2010

994 Minute Entry for proceedings held before Judge Ellen Bree Burns: Hearing on Remedies held on 2/18/2010. Plaintiff's ORAL motion to Seal all exhibits from hearing GRANTED Total Time: 5 hours(Court Reporter S. Bowles.) (Pesta, J.) (Entered: 02/22/2010)
995 Sealed Document: Joint Marked Exhibit List. (Pesta, J.) (Entered: 02/22/2010)
992 Minute Entry for proceedings held before Judge Ellen Bree Burns: Hearing on Remedies held on 2/22/2010. ORAL Motion for exclusion of dft witness Hanowitz from Court is DENIED. Total Time: 5 hours and 6 minutes(Court Reporter S. Bowles.) (Pesta, J.) (Entered: 02/22/2010)
996 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Settlement Conference is set for 3/1/2010 at 2:00 PM in Chambers Room 303, 141 Church St., New Haven, CT before Judge Joan G. Margolis (Rodko, B.) (Entered: 03/01/2010)
997 Minute Entry for proceedings held before Judge Joan G. Margolis: Settlement Conference held on 3/1/2010. Total Time: 3 hours and 2 minutes (Rodko, B.) (Entered: 03/02/2010)
999 Minute Entry for proceedings held before Judge Ellen Bree Burns: Hearing on Remedies held on 3/1/2010. Total Time: 3 hours and 50 minutes(Court Reporter S. Bowles.) (Pesta, J.) (Entered: 03/02/2010)
1002 ORDER denying as moot 981 Motion to Quash. Signed by Judge Ellen Bree Burns on 3/1/10. (Pesta, J.) (Entered: 03/02/2010)
1004 Plaintiff's Marked Exhibit List from 3/1/10. (Pesta, J.) (Entered: 03/02/2010)
998 RESPONSE re 984 MOTION in Limine to Exclude Testimony of Kevin Walsh and Theodore Kastner or in the alternative to strike portions of defendants expert report filed by Thomas Howley, Toni Richardson. (Attachments: # 1 Exhibit Exhibit A part 1, # 2 Exhibit Exhibit A part 2, # 3 Exhibit Exhibit A part 3, # 4 Exhibit Exhibit A part 4, # 5 Exhibit Exhibit B, # 6 Exhibit Exhibit C, # 7 Exhibit Exhibit D part 1, # 8 Exhibit Exhibit D part 2, # 9 Exhibit Exhibit D part 3, # 10 Exhibit Exhibit E part 1, # 11 Exhibit Exhibit E part 2, # 12 Exhibit Exhibit E part 3, # 13 Exhibit Exhibit F, # 14 Exhibit Exhibit G part 1, # 15 Exhibit Exhibit G part 2, # 16 Exhibit Exhibit G part 3, # 17 Exhibit Exhibit G part 4, # 18 Exhibit Exhibit H, # 19 Exhibit Exhibit I, # 20 Exhibit Exhibit J, # 21 Exhibit Exhibit K)(York, Thomas) # 22 Main Document, # 23 Exhibit L) (Malone, P.). Modified on 3/2/2010 to correct pdf documents (Malone, P.). (Entered: 03/02/2010)
1000 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS

03/02/2010 03/02/2010 03/03/2010
03/11/2010
03/11/2010
03/11/2010 03/12/2010 03/12/2010 03/17/2010

ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Hearing commencing on 3/15/2010 10:00 AM in Courtroom Three, 141 Church St., New Haven, CT before Judge Ellen Bree Burns. (Corbett, P.) (Entered: 03/02/2010)
1001 Docket Entry Correction re 998 Response,,, Corrected Main Document PDF and Added PDF Document Exhibit L (Attachments: # 1 Exhibit L) (Malone, P.) (Entered: 03/02/2010)
1003 Minute Entry. Hearing on Remedies held on 3/2/2010 before Judge Ellen Bree Burns: ORDER denying 940 Motion in Limine; Total Time: 2 hours and 28 minutes(Court Reporter Steve Bowles.) (Pesta, J.) (Entered: 03/02/2010)
1005 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Settlement Conference is set for 3/3/2010 at 9:45 AM in Chambers Room 303, 141 Church St., New Haven, CT before Judge Joan G. Margolis (Rodko, B.) (Entered: 03/03/2010)
1006 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Settlement Conference is set for 3/11/2010 at 10:30 AM in Chambers Room 303, 141 Church St., New Haven, CT before Judge Joan G. Margolis. (Rodko, B.) (Entered: 03/11/2010)
1007 First MOTION for Extension of Time to File Response/Reply to Defendants' Response to Plaintiffs' Motion in Limine as to 984 MOTION in Limine to Exclude Testimony of Kevin Walsh and Theodore Kastner or in the alternative to strike portions of defendants expert report until March 15, 2010 by all plaintiffs. (Shaw, David) (Entered: 03/11/2010)
1009 Minute Entry for proceedings held before Judge Joan G. Margolis: Settlement Conference held on 3/11/2010. Total Time: 3 hours and 17 minutes (Rodko, B.) (Entered: 03/15/2010)
1008 ORDER granting 1007 Motion for Extension of Time to File Response/Reply. Signed by Judge Ellen Bree Burns on 3/12/10. (Corbett, P.) (Entered: 03/12/2010)
Set/Reset Deadlines as to 984 MOTION in Limine to Exclude Testimony of Kevin Walsh and Theodore Kastner or in the alternative to strike portions of defendants expert report. Responses due by 3/15/2010 (Pesta, J.) (Entered: 03/15/2010)
1010 MOTION to Continue Hearing on Remedy to week of May 3, 2010 by all plaintiffs. (Shaw, David) (Entered: 03/17/2010)

03/17/2010 03/18/2010 03/19/2010
03/22/2010 03/22/2010 03/23/2010 03/24/2010 03/26/2010
04/05/2010

1011 Second MOTION for Extension of Time to File Response/Reply to Defendants' Response in Opposition to as to 984 MOTION in Limine to Exclude Testimony of Kevin Walsh and Theodore Kastner or in the alternative to strike portions of defendants expert report until March 22, 2010 by all plaintiffs. (Shaw, David) (Entered: 03/17/2010)
1012 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Hearing set for 5/4/2010 10:00 AM in Courtroom Three, 141 Church St., New Haven, CT before Judge Ellen Bree Burns. (Corbett, P.) (Entered: 03/18/2010)
1015 ORDER granting 1010 Motion to Continue hearing to May 4, 2010 at 10:00 a.m.; granting 1011 Motion for Extension of Time to File Response/Reply re 984 MOTION in Limine to Exclude Testimony of Kevin Walsh and Theodore Kastner or in the alternative to strike portions of defendants expert report (Responses due by 3/22/2010). Signed by Judge Ellen Bree Burns on 3/18/10. (Pesta, J.) (Entered: 03/23/2010)
1013 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. A Telephonic Settlement Conference is set for 3/24/2010 at 11:15 AM before Judge Joan G. Margolis. All counsel will phone it at 11:15a.m. (Rodko, B.) (Entered: 03/22/2010)
1014 MOTION for Leave to File Excess Pages in Reply Brief by all plaintiffs. (Attachments: # 1 Reply Memo, # 2 Exhibits A and B, # 3 Exhibits C and D, # 4 Exhibits E and F)(Shaw, David) (Entered: 03/22/2010)
1016 ORDER granting 1014 Motion for Leave to File Excess Pages. Signed by Judge Ellen Bree Burns on 3/23/10. (Corbett, P.) (Entered: 03/23/2010)
1017 Minute Entry for proceedings held before Judge Joan G. Margolis: Telephonic Settlement Conference held on 3/24/2010. Total Time: 1 hour and 6 minutes (Rodko, B.) (Entered: 03/24/2010)
1018 ORDER finding as moot 938 Motion for Clarification; finding as moot 939 Motion to Compel; finding as moot 941 Motion to Expedite; finding as moot 949 Motion to Expedite; granting 950 Motion for Leave to File Excess Pages; finding as moot 955 Motion ; granting 963 Motion for Leave to File Excess Pages; finding as moot 980 Motion to Continue. Signed by Judge Ellen Bree Burns on 03/26/2010. (Brooks, L.) (Entered: 03/26/2010)
1019 First MOTION for Extension of Time to File Response/Reply A Surreply in Opposition to Plaintiffs Reply Memorandum in Support of

04/05/2010 04/06/2010
04/06/2010 04/12/2010
04/13/2010 04/13/2010

Motion in Limine to Exclude Testimony of Kevin Walsh and Theodore Kastner, or in the Alternative, to Strike Poritions of Defendants' Expert Report as to 984 MOTION in Limine to Exclude Testimony of Kevin Walsh and Theodore Kastner or in the alternative to strike portions of defendants expert report until April 13, 2010 by Thomas Howley, Toni Richardson. (York, Thomas) (Entered: 04/05/2010)
1020 MOTION for Leave to File Defendants' Uncontested Motion for Permission to File a Surreply in Opposition to Plaintiffs' Reply Memorandum in Support of Motion in Limine to Exclude Testimony of Kevin Walsh and Theodore Kastner or, in the Alternative, to Strike Portions of Defendants' Expert Report by Thomas Howley, Toni Richardson. (York, Thomas) (Entered: 04/05/2010)
1021 ORDER granting 1019 Defendants' Uncontested Motion for Extension of Time to File a Surreply in Opposition to Plaintiffs' Reply Memorandum in Support of Motion in Limine to Exclude Testimony of Kevin Walsh and Theodore Kastner, or, in the Alternative, to Strike Portions of Defendants' Expert Report; granting 1020 Motion for Leave to File a Surreply in Opposition to Plaintiffs' Reply Memorandum in Support of Motion in Limine to Exclude Testimony of Kevin Walsh and Theodore Kastner or, in the Alternative, to Strike Portions of Defendants' Expert Report. Signed by Judge Ellen Bree Burns on 4/6/10. (Corbett, P.) (Entered: 04/06/2010)
Set/Reset Deadlines as to 984 MOTION in Limine to Exclude Testimony of Kevin Walsh and Theodore Kastner or in the alternative to strike portions of defendants expert report. Responses due by 4/13/2010 (Pesta, J.) (Entered: 04/08/2010)
1022 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. A Settlement Conference is set for 4/13/2010 at 10:00 AM in Chambers Room 303, 141 Church St., New Haven, CT before Judge Joan G. Margolis. Counsel unable to attend shall participate by telephone 203-773-2350. (Rodko, B.) (Entered: 04/12/2010)
1023 Minute Entry for proceedings held before Judge Joan G. Margolis: Settlement Conference held on 4/13/2010. Total Time: 1 hour and 20 minutes (Rodko, B.) (Entered: 04/13/2010)
1024 Second MOTION for Extension of Time until April 29, 2010 to File a Surreply in Opposition 984 MOTION in Limine to Exclude Testimony of Kevin Walsh and Theodore Kastner or in the alternative to strike portions of defendants expert report by Thomas Howley, Toni Richardson. (York, Thomas) Modified on 4/14/2010 to correct relief(Falcone, K.). (Entered: 04/13/2010)

04/14/2010 04/14/2010 04/29/2010 05/06/2010 05/07/2010
05/10/2010
05/13/2010 05/25/2010
05/26/2010 05/27/2010

1025 ORDER granting 1024 Motion for Extension of Time to File Surreply until April 29, 2010. Signed by Judge Ellen Bree Burns on 4/14/10. (Corbett, P.) (Entered: 04/14/2010)
Set/Reset Deadlines as to 984 MOTION in Limine to Exclude Testimony of Kevin Walsh and Theodore Kastner or in the alternative to strike portions of defendants expert report. Responses due by 4/29/2010 (Pesta, J.) (Entered: 04/15/2010)
1026 REPLY to Response to 984 MOTION in Limine to Exclude Testimony of Kevin Walsh and Theodore Kastner or in the alternative to strike portions of defendants expert report filed by Thomas Howley, Toni Richardson. (York, Thomas) (Entered: 04/29/2010)
1027 MARKED Witness List from 2/6/10-3/2/10 hearings. (Pesta, J.) (Entered: 05/06/2010)
1028 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Continued Settlement Conference is set for 5/11/2010 at 10:00 AM in Chambers Room 303, 141 Church St., New Haven, CT before Judge Joan G. Margolis (Rodko, B.) (Entered: 05/07/2010)
1030 AMENDED - NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. A Continued Settlement Conference is set for 5/13/2010 at 10:00 AM in Chambers Room 303, 141 Church St., New Haven, CT before Judge Joan G. Margolis. (correction to calendar entry #1028) (Rodko, B.) (Entered: 05/10/2010)
1031 Minute Entry for proceedings held before Judge Joan G. Margolis: A Continued Settlement Conference held on 5/13/2010. Total Time: 1 hour and 18 minutes (Rodko, B.) (Entered: 05/14/2010)
1032 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. A Telephonic Settlement Conference is set for 5/26/2010 at 10:00 AM before Judge Joan G. Margolis (Rodko, B.) (Entered: 05/25/2010)
1033 Minute Entry for proceedings held before Judge Joan G. Margolis: A Telephone Settlement Conference held on 5/26/2010. Time: 17 minutes (Rodko, B.) (Entered: 05/26/2010)
1034 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO

07/08/2010 07/12/2010
07/14/2010 07/15/2010 07/28/2010 07/28/2010 07/30/2010

IDENTIFICATION. A Continued Settlement Conference is set for 7/8/2010 at 9:30 AM in Chambers Room 303, 141 Church St., New Haven, CT before Judge Joan G. Margolis (Rodko, B.) (Entered: 05/27/2010)
1035 Minute Entry for proceedings held before Judge Joan G. Margolis: Continued Settlement Conference held on 7/8/2010. Total Time: 2 hours and 5 minutes (Rodko, B.) (Entered: 07/09/2010)
1036 Joint MOTION for Settlement Preliminary Approval of Settlement Agreement and for an Order Requiring Notice to the Class and Scheduling of a Fairness Hearing by ARC/Connecticut, Inc, Susan S. Addiss, Carole Ann Carr, Patricia Giardi, Leonard Haversat, Leon Horton, Thomas Howley, Gregory Kabbai, Thomas Maloney, Richard Messier, Raymond Mitchell, People First of Connecticut, Inc., Toni Richardson, Southbury Training School, Western Connecticut Association for Human Rights, David Yeske. (Attachments: # 1 Settlement Agreement pages 1 thru 7, # 2 Settlement Agreement pages 8 thru end)(Shaw, David). Added MOTION for on 7/14/2010 (Falcone, K.). Modified on 7/15/2010 (Falcone, K.). (Entered: 07/12/2010)
1037 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Fairness Hearing set for 8/20/2010 10:00 AM in Courtroom Three, 141 Church St., New Haven, CT before Judge Ellen Bree Burns. (Corbett, P.) (Entered: 07/14/2010)
1038 ORDER granting 1036 Preliminary Motion for Settlement Agreement; granting 1036 Motion for Order requiring Notice to Class & Scheduling of a fairness hearing. Signed by Judge Ellen Bree Burns on 7/15/10. (Pesta, J.) (Entered: 07/15/2010)
1039 ORDER The Fairness Hearing in the above-captioned matter has been rescheduled to October 4, 2010, at 10:00 A.M. Signed by Judge Ellen Bree Burns on 7/28/10. (Corbett, P.) (Entered: 07/28/2010)
1040 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Fairness Hearing set for 10/4/2010 10:00 AM in Courtroom Three, 141 Church St., New Haven, CT before Judge Ellen Bree Burns. (Corbett, P.) (Entered: 07/28/2010)
1041 ORDER AMENDING 1038 ORDER RE 1036 Motion as follows: The District Court will receive written comments from interested persons until September 20, 2010. Signed by Judge Ellen Bree Burns on 7/30/10. (Inferrera, L.) (Entered: 07/30/2010)

08/06/2010 08/11/2010 09/17/2010 09/20/2010 09/23/2010
09/27/2010
09/30/2010 09/30/2010 10/01/2010 10/04/2010 10/04/2010 10/08/2010

1042 MOTION for Leave to Appear Pro Hac Vice Attorney Martha M. Dwyer by all plaintiffs.. Filing Fee $25.00. Receipt Number no31089. (Falcone, K.) (Entered: 08/11/2010)
1043 ORDER denying 1042 Motion to Appear Pro Hac Vice for failure to comply with Local Rule 83.1. Signed by Judge Ellen Bree Burns on 8/11/10. (Corbett, P.) (Entered: 08/11/2010)
1044 MOTION for Martha M. Dwyer to appear pro hac vice by Southbury Training School.Fee of $25.00 paid, receipt NO31089.(Frost, Robert) Modified on 9/20/2010 to add receipt number and fee amount paid. (Falcone, K.). (Entered: 09/17/2010)
1045 ORDER granting 1044 Motion for Martha Dwyer to Appear Pro Hac Vice. Signed by Clerk on 9/20/2010. (Falcone, K.) (Entered: 09/20/2010)
1046 ORDER denying without prejudice pending approval of of proposed class settlement: 937 Motion in Limine, 944 Motion for Sanctions, 945 Motion for Sanctions, 979 Motion to Compel, 982 Motion in Limine, 984 Motion in Limine. Signed by Judge Ellen Bree Burns on 9/23/10. (Pesta, J.) (Entered: 09/23/2010)
1047 MOTION By Sponsoring Lawyer Under Local Rule 83.1(d)1 To Be Excused From Attending Further Court Proceedings re 1044 MOTION for Leave to Appear Visiting Attorney Martha M. Dwyer., 1045 Order on Motion to Appear by Southbury Training School Foundation Inc..Responses due by 10/18/2010 (Frost, Robert) (Entered: 09/27/2010)
1048 NOTICE of Appearance by Martha M. Dwyer on behalf of all plaintiffs (Dwyer, Martha) (Entered: 09/30/2010)
1049 Certification of Notification Process by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson re 1038 Order on Motion for Settlement, Order on Motion for Order (Attachments: # 1 Certification of Notification part two)(Falcone, K.) (Entered: 10/01/2010)
1050 MOTION for Settlement Approval of Settlement Agreement by all plaintiffs. (Attachments: # 1 Memorandum in Support, # 2 Exhibit A and B, # 3 Exhibit C, # 4 Exhibit D part 1, # 5 Exhibit D part 2, # 6 Exhibit E and F)(Shaw, David) (Entered: 10/01/2010)
1051 Minute Entry for proceedings held before Judge Ellen Bree Burns: Miscellaneous Hearing held on 10/4/2010. Total Time: 3 hours and 30 minutes(Court Reporter Bowles.) (Falcone, K.) (Entered: 10/05/2010)
1052 Marked Exhibit and Witness List. (Falcone, K.) (Entered: 10/05/2010)
1053 NOTICE by Southbury Training School Letter on behalf of certain guardians and family members (Dwyer, Martha). (Entered: 10/08/2010)

11/18/2010
11/19/2010 11/19/2010 12/01/2010 12/15/2010
12/21/2010 12/22/2010 01/14/2011 02/04/2011 02/16/2011

1054 ORDER granting 1050 Motion for Approval of Settlement Agreement and ORDER re Approval & Implementation of Settlement Agreement. Signed by Judge Ellen Bree Burns on 11/18/2010. (Attachments: # 1 Appendix, # 2 Appendix) (Brooks, L.) (Main Document 1054 replaced on 11/19/2010) (Pesta, J.). (Main Document 1054 replaced on 11/19/2010) (Pesta, J.). (Entered: 11/18/2010)
1055 Docket Entry Correction: Replaced PDF of 1054 ORDER granting 1050 Motion for Approval of Settlement Agreement and ORDER re Approval & Implementation of Settlement Agreement. Signed by Judge Ellen Bree Burns on 11/18/2010. (Pesta, J.) (Entered: 11/19/2010)
Defendant's Trial Exhibit 1 from 10/4/10 Fairness hearing returned to James Welch (Pesta, J.) (Entered: 11/19/2010)
1056 Acknowledgment of Receipt of Defendant's Exhibit #1 from 10/4/10 fairness hearing signed by James P. Welsh on 11/30/10. (Pesta, J.) (Entered: 12/03/2010)
1057 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. A Continued Settlement Conference is set for 1/14/2011 at 10:00 AM in Chambers Room 303, 141 Church St., New Haven, CT before Judge Joan G. Margolis (Rodko, B.) (Entered: 12/15/2010)
1058 MOTION for Extension of Time until February 16, 2011 to file plaintiffs' Motion for Costs and Attorneys' Fees 1055 Docket Annotation by all plaintiffs. (Shaw, David) (Entered: 12/21/2010)
1059 ORDER granting 1058 Motion for Extension of Time until February 16, 2011 for Submission of Plaintiffs' Motion for Costs and Attorneys' Fees. Signed by Judge Ellen Bree Burns on 12/22/10. (Corbett, P.) (Entered: 12/22/2010)
1060 Minute Entry for proceedings held before Judge Joan G. Margolis: Continued Settlement Conference held on 1/14/2011. Total Time: 1 hour and 45 minutes (Rodko, B.) (Entered: 01/14/2011)
1061 MOTION for Leave to Appear Pro Hac Vice Attorney Eric Rothschild by Public Interest Law Center of Philadelphia.. Filing Fee $25.00. Receipt Number CTXN000000510. (Falcone, K.) (Entered: 02/08/2011)
1062 MOTION for Leave to File Excess Pages by all plaintiffs. (Attachments: # 1 Memorandum in Support Motion to Award Attorneys Fees, # 2 Memorandum in Support of Motion to Award Attorneys Fees, # 3 Exhibit A to Motion to Award Attys Fees, # 4 Exhibit B C and D to Motion to Award Fees, # 5 Exhibit Attach 1 to Ex E to Motion, # 6 Exhibit Attach 2 to Ex E, # 7 Exhibit Motion to Manually File Ex 2.a. to Motion, # 8 Exhibit Attach 3 to Ex E, # 9 Exhibit Attaach 4 to Ex

02/16/2011 02/16/2011 02/16/2011
02/17/2011 02/17/2011 02/18/2011 02/18/2011 03/02/2011

E, # 10 Exhibit F to Motion, # 11 Exhibit Attach 1 to Ex F to Motion, # 12 Exhibit Attach 2 to Ex F, # 13 Exhibit Attach 3 to Ex F, # 14 Exhibit G to Motion, # 15 Exhibit A to Ex G, # 16 Exhibit B to Ex G, # 17 Exhibit C to Ex G, # 18 Exhibit D to Ex G, # 19 Exhibit E to Ex G, # 20 Exhibit H to Motion, # 21 Exhibit I to Motion, # 22 Exhibit J to Motion, # 23 Exhibit K to Motion, # 24 Exhibit L to Motion, # 25 Exhibit M to Motion, # 26 Exhibit E part 1 to Motion, # 27 Exhibit E part 2 to Motion)(Shaw, David).Modified on 2/18/2011 (Pesta, J.). (Entered: 02/16/2011)
1063 MOTION for Extension of Time until February 22, 2011 file exhibit manually 1062 MOTION for Leave to File Excess Pages by all plaintiffs. (Shaw, David) (Entered: 02/16/2011)
Set/Reset Deadlines as to 1062 MOTION for Attorney Fees. Responses due by 3/9/2011 (Pesta, J.) (Entered: 02/18/2011)
1067 MOTION for Attorney Fees by all plaintiffs.Responses due by 3/11/2011 (Attachments: # 1 Memorandum in Support, # 2 Exhibit A, # 3 Exhibit B,C,D, # 4 Exhibit E, # 5 Affidavit cont'd, # 6 Exhibit cont'd, # 7 Exhibit cont'd, # 8 Exhibit cont'd, # 9 Exhibit cont'd, # 10 Exhibit F, # 11 Exhibit cont'd, # 12 Exhibit cont'd, # 13 Exhibit cont'd, # 14 Exhibit G, # 15 Exhibit cont'd, # 16 Exhibit cont'd, # 17 Exhibit cont'd, # 18 Exhibit cont'd, # 19 Exhibit cont'd, # 20 Exhibit H, # 21 Exhibit I, # 22 Exhibit J, # 23 Exhibit K, # 24 Exhibit L, # 25 Exhibit M)This is the second part of 1062 which was efiled & failed to select two event reliefs. (Pesta, J.) Modified on 2/18/2011 to correct file date (Pesta, J.). (Additional attachment(s) added on 2/18/2011: # 26 Notice of Manual Filing of attachment 2A to exhibit E) (Pesta, J.). (Entered: 02/18/2011)
1064 ORDER granting 1062 MOTION for Leave to File Excess Pages. Signed by Judge Ellen Bree Burns on 2/17/11. (Pesta, J.) (Entered: 02/17/2011)
1065 ORDER granting 1063 Motion for Extension of Time until February 22, 2011 to file manually Attachment to Plaintiffs' Motion for Attorneys' Fees, Costs and Litigation Expenses. Signed by Judge Ellen Bree Burns on 2/17/11. (Corbett, P.) (Entered: 02/17/2011)
1066 ORDER granting 1061 Motion for Eric Rothschild to Appear Pro Hac Vice. Signed by Clerk on 2/18/2011. (Falcone, K.) (Entered: 02/18/2011)
1068 ORDER granting 1062 Motion to file excess pages. Signed by Judge Ellen Bree Burns on 2/17/11. See Order 1064 (Pesta, J.) (Entered: 02/18/2011)
1069 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS

03/08/2011 03/23/2011 03/31/2011 03/31/2011
04/08/2011 04/08/2011 04/13/2011 04/14/2011 04/14/2011 04/14/2011 04/18/2011

ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. A Continued Telephonic Settlement Conference is set for 3/31/2011 at 9:15 AM before Judge Joan G. Margolis. ALL COUNSEL/PARTIES please use the following call in number: 1-218862-1300. Conference code: 266633. (Rodko, B.) (Entered: 03/02/2011)
1070 MOTION for Extension of Time to File Response/Reply as to 1067 MOTION for Cost and Fees until May 18, 2011 by Thomas Howley, Toni Richardson. (York, Thomas) (Entered: 03/08/2011)
1071 NOTICE of Appearance by Eric Rothschild on behalf of Public Interest Law Center of Philadelphia With Certificate of Service (Rothschild, Eric) (Entered: 03/23/2011)
1072 Minute Entry for proceedings held before Judge Joan G. Margolis: Continued Telephonic Settlement Conference held on 3/31/2011. Time: 20 minutes (Rodko, B.) (Entered: 03/31/2011)
1073 ELECTRONIC ORDER granting 1070 Motion for Extension of Time to File Response/Reply until 5/18/11; any additional extensions will be granted only upon a showing of unforeseen and extenuating circumstances. THIS IS THE ONLY NOTICE COUNSEL WILL RECEIVE FROM THE COURT. Signed by Judge Joan G. Margolis on 3/31/11. (Margolis, Joan) (Entered: 03/31/2011)
1074 MOTION for Order to Conduct Discovery by Thomas Howley, Toni Richardson. (York, Thomas) (Entered: 04/08/2011)
1075 Memorandum in Support re 1074 MOTION for Order to Conduct Discovery filed by Thomas Howley, Toni Richardson. (York, Thomas) (Entered: 04/08/2011)
1076 ORDER granting 1047 Motion To Excuse Sponsoring Attorney From Attendance at Further Court Proceedings. Signed by Judge Ellen Bree Burns on 04/13/11. (Brooks, L.) (Entered: 04/13/2011)
1077 MOTION to Expedite re 1074 MOTION for Order to Conduct Discovery by Thomas Howley, Toni Richardson. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(York, Thomas) (Entered: 04/14/2011)
1078 MOTION for Hearing re 1067 MOTION for Cost and Fees by Thomas Howley, Toni Richardson. (York, Thomas) (Entered: 04/14/2011)
1079 Memorandum in Support re 1078 MOTION for Hearing re 1067 MOTION for Cost and Fees filed by Thomas Howley, Toni Richardson. (York, Thomas) (Entered: 04/14/2011)
1080 MOTION for Order approving notice to class, mailing notice & publishing notice Order by all plaintiffs. (Attachments: # 1 Memorandum in Support, # 2 Exhibit A)(Shaw, David) (Entered: 04/18/2011)

04/19/2011 04/20/2011 04/21/2011 04/25/2011 04/27/2011 05/06/2011 05/06/2011 05/09/2011 05/09/2011
05/10/2011

1081 MOTION to Expedite ruling on 1080 Motion for Order of Notice to Class Members by all plaintiffs. (Shaw, David) Modified on 4/20/2011 t6o create link (Brown, S.). (Entered: 04/19/2011)
1082 Memorandum in Opposition re 1074 MOTION for Order to Conduct Discovery, 1067 MOTION for Cost and Fees filed by all plaintiffs. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Shaw, David) (Entered: 04/20/2011)
1083 Supplemental MOTION for Attorney Fees by all plaintiffs.Responses due by 5/12/2011 (Attachments: # 1 Exhibit A, # 2 Supplement Attachment 1 to Ex A, # 3 Exhibit B, # 4 Exhibit C)(Shaw, David) (Entered: 04/21/2011)
1084 REPLY to Response to 1074 MOTION for Order to Conduct Discovery filed by Thomas Howley, Toni Richardson. (York, Thomas) (Entered: 04/25/2011)
1085 Memorandum in Opposition re 1078 MOTION for Hearing re 1067 MOTION for Cost and Fees filed by all plaintiffs. (Attachments: # 1 Exhibit A)(Shaw, David) (Entered: 04/27/2011)
1086 MOTION to Stay Discovery Doc 1074 1074 Motion for Order to Conduct Discovery by all plaintiffs.Responses due by 5/27/2011 (Attachments: # 1 Memorandum in Support, # 2 Exhibit A, # 3 Exhibit B)(Shaw, David) Modified on 5/9/2011 to create link (Brown, S.). (Entered: 05/06/2011)
1087 Second MOTION for Extension of Time to File Response/Reply as to 1067 MOTION for Cost and Fees, 1083 Supplemental MOTION for Attorney Fees until July 1, 2011 by Thomas Howley, Toni Richardson. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(York, Thomas) (Entered: 05/06/2011)
1088 MOTION for Approval of Notice to Class and Entry of Order Concerning Notice to Class Order by all plaintiffs. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Shaw, David) (Entered: 05/09/2011)
1089 OBJECTION re 1087 Second MOTION for Extension of Time to File Response/Reply as to 1067 MOTION for Cost and Fees, 1083 Supplemental MOTION for Attorney Fees until July 1, 2011Second MOTION for Extension of Time to File Response/Reply as to 1067 MOTION for Cost and Fees, 1083 Supplemental MOTION for Attorney Fees until July 1, 2011 filed by all plaintiffs. (Shaw, David) (Entered: 05/09/2011)
1090 ORDER granting 1088 MOTION for Approval of Notice to Class and Entry of Order Concerning Notice to Class Order. Signed by Judge Ellen Bree Burns on 5/10/11. (Attachments: # 1 NOTICE) (Pesta, J.) (Entered: 05/10/2011)

05/10/2011
05/10/2011 05/12/2011 05/16/2011 05/16/2011 05/17/2011
05/17/2011 06/07/2011 06/08/2011
06/15/2011

1091 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION., Set/Reset Deadlines as to 1067 MOTION for Cost and Fees.( Motion Hearing set for 7/20/2011 09:00 AM in Courtroom Three, 141 Church St., New Haven, CT before Judge Ellen Bree Burns) (Pesta, J.) (Entered: 05/10/2011)
1092 Minute Entry for proceedings held before Judge Ellen Bree Burns: Telephone Status Conference held on 5/10/2011. Total Time: 15 minutes (Pesta, J.) (Entered: 05/11/2011)
1093 RESPONSE re 1083 Supplemental MOTION for Attorney Fees Response in Opposition filed by Thomas Howley, Toni Richardson. (York, Thomas) (Entered: 05/12/2011)
1094 ORDER granting 1087 Motion for Extension of Time to File Response/Reply re MOTION for Cost and Fees. MOTION for Cost and Fees Responses due by 7/1/2011. Signed by Judge Ellen Bree Burns on 5/16/2011. (Dodge, D.) (Entered: 05/16/2011)
Set/Reset Deadlines as to 1083 Supplemental MOTION for Attorney Fees, 1067 MOTION for Cost and Fees. Responses due by 7/1/2011 (Pesta, J.) (Entered: 05/17/2011)
1095 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. A Telephonic Status Conference is set for 5/17/2011 at 10:00 AM before Judge Joan G. Margolis. COUNSEL SHOULD CALL IN TO CHAMBERS: 203-773-2350. (Rodko, B.) (Entered: 05/17/2011)
1096 Minute Entry for proceedings held before Judge Joan G. Margolis: Telephonic Status Conference held on 5/17/2011. Time: 30 minutes (Rodko, B.) (Entered: 05/17/2011)
1097 NOTICE by all plaintiffs Certification of Notification Process on Class Members of the Filing of Motion for Attorneys' Fees (Attachments: # 1 Exhibit A)(Shaw, David) (Entered: 06/07/2011)
1098 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephonic Status Conference set for 6/10/2011 02:00 PM in Chambers Room 208, 141 Church St., New Haven, CT before Judge Ellen Bree Burns. (Corbett, P.) (Entered: 06/08/2011)
1099 ORDER granting in part and denying in part 1074 Order to Conduct Discovery; denying 1078 Motion for Hearing; granting 1083 Motion for

06/16/2011
06/27/2011
06/30/2011 06/30/2011 07/01/2011 07/06/2011 07/13/2011 07/13/2011 07/14/2011

Attorney Fees; denying 1086 Motion to Stay. Signed by Judge Ellen Bree Burns on 6/14/11. (Pesta, J.) (Entered: 06/15/2011)
1100 Supplemental Motion for Attorneys' Fees, Costs and Litigation Expenses - Doc. #1083 - filed 042111 by all plaintiffs.Responses due by 7/7/2011 (Attachments: # 1 Exhibit A to Motion to Supplement 042111, # 2 Exhibit Attachment 1 to Exhibit A, # 3 Exhibit B to Motion to Supplement 042111, # 4 Exhibit C ENLARGED to Motion to Supplement 042111)(Shaw, David) Modified on 6/17/2011 to change motion(Brown, S.). (Entered: 06/16/2011)
1101 Second MOTION for Attorney Fees Second Supplement to Fee Claim by all plaintiffs.Responses due by 7/18/2011 (Attachments: # 1 Memorandum in Support, # 2 Exhibit A Declaration of Shaw, # 3 Exhibit Attachment 1 to Ex A, # 4 Exhibit Attachment 2 to Ex A, # 5 Exhibit B Declaration of Rothschild, # 6 Exhibit C Pepper Fees and Costs)(Shaw, David) (Entered: 06/27/2011)
1102 MOTION for Extension of Time until July 6, 2011 to file a Memorandum of Law Setting Forth Legal Arguments as to Plaintiffs' Counsel's Hourly Rate 1067 MOTION for Cost and Fees by Thomas Howley, Toni Richardson. (York, Thomas) Modified on 7/6/2011 to change motion (Brown, S.). (Entered: 06/30/2011)
Set/Reset Deadlines as to 1067 MOTION for Cost and Fees. Responses due by 7/6/2011- (response filed) (Pesta, J.) (Entered: 07/11/2011)
1103 ORDER granting 1102 Motion for Extension of Time. Signed by Judge Ellen Bree Burns on 7/1/11. (Corbett, P.) (Entered: 07/01/2011)
1104 Memorandum in Opposition Defendants' Memorandum of Law as to the Legal Standards for Determining Reasonable Hourly Rates Regarding Plaintiffs' Application for Attorneys' Fees re 1067 MOTION for Cost and Fees filed by Thomas Howley, Toni Richardson. (York, Thomas) (Entered: 07/06/2011)
1105 ENTERED IN ERROR: RESPONSE re 1104 Memorandum in Opposition to Motion, Plaintiffs' Motion for Attorneys Fees filed by all plaintiffs. (Shaw, David) Modified on 7/14/2011 (Brown, S.). (Entered: 07/13/2011)
1106 MOTION for Extension of Time to 7/25/11 to File Reply to 1067 MOTION for Cost and Fees by all plaintiffs. replaces entry 1105 (Brown, S.) (Entered: 07/14/2011)
1107 ORDER granting 1106 Motion for Extension of Time to File Response/Reply to 1067 MOTION for Cost and Fees by all plaintiffs.Responses due by 7/25/2011. Signed by Judge Ellen Bree Burns on 07/14/2011. (Brooks, L.) (Entered: 07/14/2011)

07/20/2011 07/25/2011 07/28/2011 08/01/2011 08/08/2011 08/12/2011 08/16/2011 08/22/2011
09/02/2011 09/07/2011
09/09/2011

1108 Minute Entry for proceedings held before Judge Ellen Bree Burns: Motion Hearing held on 7/20/2011 re 1067 MOTION for Cost and Fees filed by all plaintiffs. Total time 10 minutes(Court Reporter Falzarano.) (Falcone, K.) (Entered: 07/20/2011)
1109 REPLY to Response to 1100 MOTION for Attorney Fees, 1067 MOTION for Cost and Fees, 1101 Second MOTION for Attorney Fees Second Supplement to Fee Claim filed by all plaintiffs. (Shaw, David) (Entered: 07/25/2011)
1110 MOTION for permission to serve excess interrogatories re defendants' attorneys' fees/costs incurred by all plaintiffs. (Shaw, David) (Entered: 07/28/2011)
1111 MOTION for permission to serve excess interrogatories by all plaintiffs. (Attachments: # 1 Memorandum in Support, # 2 Exhibit A to Memo)(Shaw, David) (Entered: 08/01/2011)
1112 ORDER finding as moot 1077 Motion to Expedite; finding as moot 1081 Motion to Expedite. Signed by Judge Ellen Bree Burns on 08/08/2011. (Brooks, L.) (Entered: 08/08/2011)
1113 MOTION for Extension of Time until September 7, 2011 to File Memorandum of Law by Thomas Howley, Toni Richardson, Southbury Training School. (York, Thomas) (Entered: 08/12/2011)
1114 RESPONSE re 1113 MOTION for Extension of Time until September 7, 2011 to File Memorandum of Law filed by all plaintiffs. (Shaw, David) (Entered: 08/16/2011)
1115 Memorandum in Opposition re 1110 MOTION for permission to serve excess interrogatories re defendants' attorneys' fees/costs incurred, 1111 MOTION for permission to serve excess interrogatories filed by Thomas Howley, Toni Richardson, Southbury Training School. (York, Thomas) (Entered: 08/22/2011)
1116 RESPONSE re 1084 Reply to Response to 1074 MOTION for Order to Conduct Discovery filed by all plaintiffs. (Shaw, David) Modified on 9/6/2011 to add link to underlying motion (Garguilo, B). (Entered: 09/02/2011)
1117 Second MOTION for Extension of Time until 09/12/2011 to File Defendants' Brief re: 1099 Order on Motion for Order, Order on Motion for Hearing, Order on Motion for Attorney Fees, Order on Motion to Stay by Thomas Howley, Toni Richardson, Southbury Training School. (York, Thomas) (Entered: 09/07/2011)
1118 NOTICE by all plaintiffs re 1117 Second MOTION for Extension of Time until 09/12/2011 to File Defendants' Brief re: 1099 Order on Motion for Order, Order on Motion for Hearing, Order on Motion for Attorney Fees, Order on Motion to StaySecond MOTION for Extension

09/12/2011
09/14/2011 09/16/2011 10/07/2011 10/17/2011 10/18/2011

of Time until 09/12/2011 to File Defendants' Brief re: 1099 Order on Motion for Order, Order on Motion for Hearing, Order on Motion for Attorney Fees, Order on Motion to Stay Plaintiffs' Do Not Oppose Extension (Shaw, David) (Entered: 09/09/2011)
1119 Third MOTION for Extension of Time until September 14, 2011 to file brief 1099 Order on Motion for Order, Order on Motion for Hearing, Order on Motion for Attorney Fees, Order on Motion to Stay, 1117 Second MOTION for Extension of Time until 09/12/2011 to File Defendants' Brief re: 1099 Order on Motion for Order, Order on Motion for Hearing, Order on Motion for Attorney Fees, Order on Motion to StaySecond MOTION for Extension of Time until 09/12/2011 to File Defendants' Brief re: 1099 Order on Motion for Order, Order on Motion for Hearing, Order on Motion for Attorney Fees, Order on Motion to Stay, 1113 MOTION for Extension of Time until September 7, 2011 to File Memorandum of Law by Thomas Howley, Toni Richardson, Southbury Training School. (York, Thomas) (Entered: 09/12/2011)
1120 Memorandum in Opposition Re: Excellent Results re 1067 MOTION for Cost and Fees AND 1083 Supplemental Motion for Attorney Fees filed by Thomas Howley, Toni Richardson, Southbury Training School. (York, Thomas) Modified on 9/15/2011 to create additional link (Brown, S.). Modified on 9/16/2011 to create link to 1083 (Walker, J.). (Entered: 09/14/2011)
1121 First MOTION for Extension of Time to File Response/Reply to Defs Memo in Opposition to Plaintiffs' Claim of Excellent Results Doc 1120 as to 1067 MOTION for Cost and Fees until 10/10/2011 by all plaintiffs. (Shaw, David) (Entered: 09/16/2011)
1122 Second MOTION for Extension of Time until October 17, 2011 to Reply 1120 Memorandum in Opposition to 1067 MOTION for Cost and Fees AND 1083 Supplemental Motion for Attorney Fees, by all plaintiffs. (Shaw, David) Modified on 10/11/2011 to add links to motions and create relationship to documents (Garguilo, B). (Entered: 10/07/2011)
1123 REPLY to Response to 1067 MOTION for Cost and Fees (Def Opposition Doc. #1120) filed by all plaintiffs. (Attachments: # 1 proposed Reply to Opposition to Claim of Excellent Results and claim for enhancement for costs and expenses, # 2 Exhibit A to Reply, # 3 Exhibit B to Reply, # 4 Exhibit C to Reply, # 5 Exhibit D to Reply, # 6 Exhibit E to Reply)(Shaw, David) (Entered: 10/17/2011)
1124 RULING RE: The Legal Standard For Calculating Attorneys' Fees. Signed by Judge Ellen Bree Burns on 10/18/11. (Pesta, J.) (Entered: 10/18/2011)

10/20/2011 11/29/2011 12/08/2011 12/15/2011 12/20/2011 12/29/2011 12/29/2011 12/29/2011 01/03/2012 01/05/2012

1125 MOTION for Leave to File Surreply in Response to Plaintiffs' "Reply to Defendants' Memorandum of Law in Opposition to Plaintiffs' Claim of Excellent Results and in Opposition to Plaintiffs' Claim for an Enhancement for Costs and Expenses" by Thomas Howley, Toni Richardson. (York, Thomas) (Entered: 10/20/2011)
1126 MOTION Prejudgment Interest re 1067 MOTION for Cost and Fees by all plaintiffs.Responses due by 12/20/2011 (Attachments: # 1 Memorandum in Support, # 2 Exhibit A)(Shaw, David) (Entered: 11/29/2011)
1127 MOTION for Leave to File Supplemental reply to def. memo of law in oppos to claim of excellent results & in oppos to claim for enhancement for costs/expenses by all plaintiffs. (Attachments: # 1 Memorandum in Support, # 2 Exhibit A, part 1, # 3 Exhibit A, part 2)(Shaw, David) (Entered: 12/08/2011)
1128 MOTION Court set a final briefing schedule as to Plaintiffs' Fee Petition re 1067 MOTION for Cost and Fees by all plaintiffs.Responses due by 1/5/2012 (Attachments: # 1 Memorandum in Support)(Shaw, David) (Entered: 12/15/2011)
1129 RESPONSE re 1126 MOTION Prejudgment Interest re 1067 MOTION for Cost and Fees in Opposition to Plaintiffs' Motion for Prejudgment Interest filed by Thomas Howley, Toni Richardson, Southbury Training School. (York, Thomas) (Entered: 12/20/2011)
1130 MOTION in Limine to Exclude Exhibit "A" and all References to that Exhibit in Plaintiffs' Reply to Defendants' Memorandum of Law Regarding Plaintiffs' Claim of Excellent Results by Thomas Howley, Toni Richardson.Responses due by 1/19/2012 (York, Thomas) (Entered: 12/29/2011)
1131 Memorandum in Support re 1130 MOTION in Limine to Exclude Exhibit "A" and all References to that Exhibit in Plaintiffs' Reply to Defendants' Memorandum of Law Regarding Plaintiffs' Claim of Excellent Results filed by Thomas Howley, Toni Richardson. (York, Thomas) (Entered: 12/29/2011)
1132 RESPONSE re 1127 MOTION for Leave to File Supplemental reply to def. memo of law in oppos to claim of excellent results & in oppos to claim for enhancement for costs/expenses filed by Thomas Howley, Toni Richardson. (York, Thomas) (Entered: 12/29/2011)
1133 REPLY to Response to 1126 MOTION Prejudgment Interest re 1067 MOTION for Cost and Fees, 1067 MOTION for Cost and Fees filed by all plaintiffs. (Shaw, David) (Entered: 01/03/2012)
1134 RESPONSE re 1128 MOTION Court set a final briefing schedule as to Plaintiffs' Fee Petition re 1067 MOTION for Cost and Fees filed by

01/13/2012 01/16/2012 01/16/2012 01/30/2012 01/30/2012 03/30/2012 04/04/2012 09/20/2012 09/25/2012

Thomas Howley, Toni Richardson. (York, Thomas) (Entered: 01/05/2012)
1135 REPLY to Response to 1067 MOTION for Cost and Fees, 1127 MOTION for Leave to File Supplemental reply to def. memo of law in oppos to claim of excellent results & in oppos to claim for enhancement for costs/expenses filed by all plaintiffs. (Shaw, David) (Entered: 01/13/2012)
1136 Memorandum in Opposition re 1067 MOTION for Cost and Fees, 1130 MOTION in Limine to Exclude Exhibit "A" and all References to that Exhibit in Plaintiffs' Reply to Defendants' Memorandum of Law Regarding Plaintiffs' Claim of Excellent Results filed by all plaintiffs. (Shaw, David) (Entered: 01/16/2012)
1137 REPLY to Response to 1128 MOTION Court set a final briefing schedule as to Plaintiffs' Fee Petition re 1067 MOTION for Cost and Fees, 1067 MOTION for Cost and Fees filed by all plaintiffs. (Shaw, David) (Entered: 01/16/2012)
1138 MOTION for Leave to File a Sur-Reply to Plaintiffs' Reply to Defendants' Brief in Opposition to Plaintiffs' Motion for a Final Briefing Schedule by Thomas Howley, Toni Richardson. (Attachments: # 1 Exhibit A)(York, Thomas) (Entered: 01/30/2012)
1139 REPLY to Response to 1130 MOTION in Limine to Exclude Exhibit "A" and all References to that Exhibit in Plaintiffs' Reply to Defendants' Memorandum of Law Regarding Plaintiffs' Claim of Excellent Results filed by Thomas Howley, Toni Richardson. (York, Thomas) (Entered: 01/30/2012)
1140 ORDER denying as moot 1080 for Order approving notice to class, mailing notice & publishing notice denying as moot 1113 MOTION for Extension of Time until September 7, 2011 to File Memorandum of Law. Signed by Judge Ellen Bree Burns on 3/30/12. (Pesta, J.) (Entered: 04/03/2012)
1141 MOTION for Status Conference by all plaintiffs. (Shaw, David) (Entered: 04/04/2012)
1142 RESPONSE re 1123 Reply to Response to 1067 Motion, re: Plaintiffs' Claim of Excellent Results and Enhancement of Costs filed by Thomas Howley, Toni Richardson, Southbury Training School. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(York, Thomas) Modified on 9/21/2012 to create a link to motion. (Malone, P.). (Entered: 09/20/2012)
1143 ORDER finding as moot 1117 Motion for Extension of Time ; finding as moot 1119 Motion for Extension of Time ; finding as moot 1121 Motion for Extension of Time to File Response/Reply ; finding as moot 1122 Motion for Extension of Time to File Response/Reply ; finding as moot 1125 Motion for Leave to File;

09/25/2012 10/16/2012 01/23/2013
01/29/2013 03/08/2013 03/11/2013 03/26/2013
04/01/2013

finding as moot 1128 Motion n; finding as moot 1138 Motion for Leave to File; finding as moot 1141 Motion for Conference. Signed by Judge Ellen Bree Burns on 9/25/12. (Brooks, L.) (Entered: 09/25/2012)
1144 MOTION to Strike 1142 Response, by all plaintiffs.Responses due by 10/16/2012 (Attachments: # 1 Memorandum in Support)(Shaw, David) (Entered: 09/25/2012)
1145 RESPONSE re 1144 MOTION to Strike 1142 Response, Defendants' Response in Opposition to Plaintiffs' Motion to Strike Surreply filed by Thomas Howley, Toni Richardson, Southbury Training School. (York, Thomas) (Entered: 10/16/2012)
1146 RULING ON THAT PART OF PLAINTIFFS' MOTION FOR ATTORNEYS' FEES, COSTS AND EXPENSES CONCERNING THEIR "DEGREE OF SUCCESS" IN THE LITIGATION; granting 1127 Motion for Leave to File Supplemental Reply to Defendant Memo of Law in Opposition to Claim of Excellent Results & In Opposition to Claim for Enhancement for Costs/Expenses; denying 1130 Motion in Limine; denying 1144 Motion to Strike 1142 Response. Signed by Judge Ellen Bree Burns on 1/22/2013. (Villano, P.) (Entered: 01/24/2013)
1147 SCHEDULING ORDER RE: REMAINING ISSUES IN PLAINTIFFS' MOTION FOR ATTORNEYS' FEES, COSTS AND EXPENSES Signed by Judge Ellen Bree Burns on 1/29/2013.(Villano, P.) (Entered: 01/30/2013)
1148 First MOTION for Extension of Time until May 14, 2013 to respond/object to Def Renewed Interrogatories, Requests for Production and Requests for Admission dated February 28, 2013 by all plaintiffs. (Shaw, David) (Entered: 03/08/2013)
1149 RESPONSE re 1148 First MOTION for Extension of Time until May 14, 2013 to respond/object to Def Renewed Interrogatories, Requests for Production and Requests for Admission dated February 28, 2013 filed by Thomas Howley, Toni Richardson, Southbury Training School. (York, Thomas) (Entered: 03/11/2013)
1150 ORDER granting in part and denying in part 1148 Motion for Extension of Time. Plaintiffs' request for an enlargement of time to May 14, 2013, to produce documents and answer interrogatories is GRANTED, but their request for an enlargement of time to state objections is DENIED. Plaintiffs should make any such objections by the set deadline. Signed by Judge Ellen Bree Burns on 03/26/13. (Palmieri, A.) (Entered: 03/26/2013)
1151 Second MOTION for Extension of Time to File Response/Reply to Defendants Revised Discovery Requests and Requests for Admission of

04/02/2013 05/07/2013 05/08/2013 05/28/2013 05/29/2013 05/29/2013 05/31/2013 06/27/2013 08/06/2013
08/20/2013 09/13/2013
12/06/2013

February 28, 2013 as to 1067 MOTION for Cost and Fees until April 4, 2013 by all plaintiffs. (Shaw, David) (Entered: 04/01/2013)
1152 ORDER granting 1151 Motion for Extension of Time to File Response/Reply. Signed by Judge Ellen Bree Burns on 04/02/13.(Palmieri, A.) (Entered: 04/02/2013)
1153 Second MOTION for Extension of Time to respond to Defs Renewed Interrogatories, Requests for Production, Requests for Admission by all plaintiffs. (Shaw, David) (Entered: 05/07/2013)
1154 ORDER granting 1153 Motion for Extension of Time. Signed by Judge Ellen Bree Burns on 05/08/13.(Palmieri, A.) (Entered: 05/08/2013)
1155 Third MOTION for Extension of Time until June 4, 2013 to respond to Defendants' Renewed Interrogatories by all plaintiffs. (Shaw, David) (Entered: 05/28/2013)
1156 ORDER granting 1155 Motion for Extension of Time. Signed by Judge Ellen Bree Burns on 05/29/13. (Palmieri, A.) (Entered: 05/29/2013)
1157 Fourth MOTION for Extension of Time until June 27, 2013 to serve responses to Defs Renewed Interrogatories by all plaintiffs. (Shaw, David) (Entered: 05/29/2013)
1158 ORDER granting 1157 Motion for Extension of Time. Signed by Judge Ellen Bree Burns on 05/31/13.(Palmieri, A.) (Entered: 05/31/2013)
1159 NOTICE by all plaintiffs counsel David Shaw's/Frank Laski's service of responses on Defendants renewed interrogatories pursuant to Court order Doc. 1147 (Shaw, David) (Entered: 06/27/2013)
1160 MOTION to Supplement Plaintiffs' Motion for Attorneys' Fees, Costs and Litigation Expenses by ARC/Connecticut, Inc, Public Interest Law Center of Philadelphia, Western Connecticut Association for Human Rights.Responses due by 8/27/2013 (Rothschild, Eric) (Entered: 08/06/2013)
1161 STATUS REPORT on implementation of the Court's Scheduling Order dated January 29, 2013 by all plaintiffs. (Shaw, David) (Entered: 08/20/2013)
1162 Third MOTION for Attorney Fees by all plaintiffs.Responses due by 10/4/2013 (Attachments: # 1 Memorandum in Support, # 2 Exhibit A declaration, # 3 Exhibit Attach 1 to Ex A (part 1), # 4 Exhibit Attach 1 to Ex A (part 2), # 5 Exhibit B affidavit, # 6 Exhibit C affidavit, # 7 Exhibit Attach 2 to Ex A)(Shaw, David) (Entered: 09/13/2013)
1163 First MOTION for Extension of Time to File Response/Reply Defendants' Unopposed First Motion for Extension of Time to Respond to Plaintiffs' "Motion for an Award of Attorneys' Fees, Costs and Litigation Expenses" as to 1067 MOTION for Cost and Fees

12/09/2013 12/09/2013 12/23/2013 01/06/2014 01/06/2014 01/08/2014
02/04/2014

until December 31, 2013 by Thomas Howley, Toni Richardson, Southbury Training School. (York, Thomas) (Entered: 12/06/2013)
1164 ORDER granting 1163 Motion for Extension of Time to File Response/Reply. Signed by Judge Ellen Bree Burns on 12/9/13.(Palmieri, A.) (Entered: 12/09/2013)
1165 Reset Deadlines as to 1067 MOTION for Cost and Fees. Responses due by 12/31/2013 (Villano, P.) (Entered: 12/10/2013)
1166 Second MOTION for Extension of Time to File Response/Reply Defendants' Second Motion for Extension of Time to Respond to Plaintiffs' "Motion for an Award of Attorneys' Fees, Cost, and Litigation Expenses" as to 1067 MOTION for Cost and Fees until January 8, 2014 by Thomas Howley, Toni Richardson, Southbury Training School. (York, Thomas) (Entered: 12/23/2013)
1167 ORDER granting 1166 Motion for Extension of Time to File Response/Reply. Signed by Judge Ellen Bree Burns on 01/06/14.(Palmieri, A.) (Entered: 01/06/2014)
Reset Deadlines as to 1067 MOTION for Cost and Fees. Responses due by 1/8/2014 (Villano, P.) (Entered: 01/07/2014)
1168 Memorandum in Opposition to Plaintiffa' Application for Attorneys' Fees, Costs, and Litigation Expenses re 1067 MOTION for Cost and Fees filed by Thomas Howley, Toni Richardson, Southbury Training School. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Supplement)(York, Thomas) (Additional attachment(s) added on 1/10/2014: # 9 "REPLACEMENT OCR SEARCHABLE PDF, # 10 "REPLACEMENT OCR SEARCHABLE PDF, # 11 "REPLACEMENT OCR SEARCHABLE PDF, # 12 "REPLACEMENT OCR SEARCHABLE PDF, # 13 "REPLACEMENT OCR SEARCHABLE PDF, # 14 "REPLACEMENT OCR SEARCHABLE PDF, # 15 "REPLACEMENT OCR SEARCHABLE PDF, # 16 "REPLACEMENT OCR SEARCHABLE PDF, # 17 "REPLACEMENT OCR SEARCHABLE PDF) (Villano, P.). (Entered: 01/09/2014)
1169 First MOTION for Extension of Time to File Response/Reply to Defendants Memo in Opposition 1168 as to 1160 MOTION to Supplement Plaintiffs' Motion for Attorneys' Fees, Costs and Litigation Expenses , 1100 MOTION for Attorney Fees, 1126 MOTION Prejudgment Interest re 1067 MOTION for Cost and Fees, 1162 Third MOTION for Attorney Fees , 1067 MOTION for Cost and Fees, 1101 Second MOTION for Attorney Fees Second Supplement to Fee Claim until March 24, 2014 by all plaintiffs. (Shaw, David) (Entered: 02/04/2014)

02/10/2014 02/10/2014
03/19/2014 03/21/2014 03/21/2014 04/22/2014
04/23/2014
04/23/2014

1170 ORDER granting nunc pro tunc 1169 Motion for Extension of Time to File Response/Reply. Signed by Judge Ellen Bree Burns on 02/10/14. (Palmieri, A.) (Entered: 02/10/2014)
Reset Deadlines as to 1101 Second MOTION for Attorney Fees Second Supplement to Fee Claim, 1160 MOTION to Supplement Plaintiffs' Motion for Attorneys' Fees, Costs and Litigation Expenses, 1100 MOTION for Attorney Fees, 1126 MOTION Prejudgment Interest re 1067 MOTION for Cost and Fees, 1067 MOTION for Cost and Fees, 1162 Third MOTION for Attorney Fees. Responses due by 3/24/2014 (Villano, P.) (Entered: 02/11/2014)
1171 Second MOTION for Extension of Time to File Response/Reply to Memo in Opposition 1168 and in response to Court's Ruling 1146 as to 1162 Third MOTION for Attorney Fees until April 23, 2014 by all plaintiffs. (Shaw, David) (Entered: 03/19/2014)
1172 ORDER granting 1171 Motion for Extension of Time to File Response/Reply by 4/23/2014; the Court noting Defendants' reservation of right to file sur-reply. Signed by Judge Ellen Bree Burns on 03/21/14. (Palmieri, A.) (Entered: 03/21/2014)
Reset Deadlines as to 1162 Third MOTION for Attorney Fees . Responses due by 4/23/2014 (Villano, P.) (Entered: 03/24/2014)
1173 MOTION for Extension of Time until 5/1/2014 TO FILE BRIEF DESCRIBING DEDUCTIONS TO PILCOPS PORTION OF PLAINTIFFS FEE CLAIM AS REQUIRED BY COURT RULING AND REPLY TO DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR ATTORNEYS FEES 1146 Order on Motion for Leave to File, Order on Motion in Limine, Order on Motion to Strike,,, 1168 Memorandum in Opposition to Motion,,, by Public Interest Law Center of Philadelphia. (Rothschild, Eric) (Entered: 04/22/2014)
1174 ORDER granting 1173 Motion for Extension of Time 1173 MOTION for Extension of Time until 5/1/2014 TO FILE BRIEF DESCRIBING DEDUCTIONS TO PILCOPS PORTION OF PLAINTIFFS FEE CLAIM AS REQUIRED BY COURT RULING AND REPLY TO DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR ATTORNEYS FEES 1146 Order. Signed by Judge Ellen Bree Burns on 04/23/14. (Palmieri, A.) (Entered: 04/23/2014)
1175 MOTION for Leave to File Excess Pages to Memorandum Addressing the Deductions to Plaintiffs' Motion for Fees,Costs and Expenses Required by Court Ruling 1146 and Reply to Defs brief in Opposition [#1168] by all plaintiffs. (Attachments: # 1 Memorandum in Support part 1, # 2 Memorandum in Support part 2, # 3 Memorandum in Support part 3, # 4 Memorandum in Support part 4, # 5 Exhibit A Declaration

04/23/2014 05/01/2014 05/07/2014
05/08/2014 05/12/2014
06/03/2014 06/24/2014

Shaw, # 6 Exhibit B - C- C2 Affidavits, # 7 Exhibit D correspondence, # 8 Exhibit E Responses 062713, # 9 Exhibit F part 1 Time Records, # 10 Exhibit F part 2, # 11 Exhibit F part 3, # 12 Exhibit G part 1, # 13 Exhibit G part 2, # 14 Exhibit G part 3, # 15 Exhibit H part 1 Summary of Testimony, # 16 Exhibit H part 2, # 17 Exhibit I Summary of Deductions, # 18 Exhibit J Qty Remedial Report, # 19 Exhibit K Analysis of Def Ex C, # 20 Exhibit L Responses 101113, # 21 Exhibit M Letter 052097, # 22 Exhibit N Costs, # 23 Exhibit O List of Entries, # 24 Exhibit P Blezard Declaration, # 25 Exhibit Q Letter, # 26 Exhibit R Letter 070299, # 27 Exhibit S Laski Declaration)(Shaw, David) (Entered: 04/23/2014)
Reset Deadlines as to 1162 Third MOTION for Attorney Fees . Responses due by 5/1/2014 (Villano, P.) (Entered: 04/24/2014)
1176 REPLY to Response to 1067 MOTION for Cost and Fees filed by Public Interest Law Center of Philadelphia. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Rothschild, Eric) (Entered: 05/01/2014)
1177 MOTION for Extension of Time to File Response/Reply Motion for Permission to File Reply and Sur-Reply as to 1175 MOTION for Leave to File Excess Pages to Memorandum Addressing the Deductions to Plaintiffs' Motion for Fees,Costs and Expenses Required by Court Ruling 1146 and Reply to Defs brief in Opposition [#1168] until August 4, 2014 by Thomas Howley, Toni Richardson, Southbury Training School. (York, Thomas) (Entered: 05/07/2014)
1178 RESPONSE re 1177 MOTION for Extension of Time to File Response/Reply Motion for Permission to File Reply and Sur-Reply as to 1175 MOTION for Leave to File Excess Pages to Memorandum Addressing the Deductions to Plaintiffs' Motion for Fees,Costs a filed by all plaintiffs. (Shaw, David) (Entered: 05/08/2014)
1179 ORDER granting in part and denying in part 1177 Motion for Extension of Time to File Response/Reply re 1177 MOTION for Extension of Time to File Response/Reply Motion for Permission to File Reply and Sur-Reply as to 1175 MOTION for Leave to File Excess Pages to Memorandum Addressing the Deductions to Plaintiffs' Motion for Fees,Costs a Responses due by 6/27/2014. Signed by Judge Ellen Bree Burns on 05/12/14. (Palmieri, A.) (Entered: 05/12/2014)
1180 Fourth MOTION for Cost and Fees by all plaintiffs.Responses due by 6/24/2014 (Attachments: # 1 Memorandum in Support, # 2 Declaration Attachments 1 and 2)(Shaw, David) (Entered: 06/03/2014)
1181 MOTION for Extension of Time until at least July 18, 2014 to File Response, Reply, and Sur-Reply 1176 Reply to Response to Motion, 1175 MOTION for Leave to File Excess Pages to Memorandum Addressing the Deductions to Plaintiffs' Motion for Fees,Costs and

06/26/2014 06/26/2014 06/26/2014
06/30/2014 07/18/2014
07/25/2014 08/06/2014 09/10/2014 09/11/2014 10/01/2014 10/22/2014

Expenses Required by Court Ruling 1146 and Reply to Defs brief in Opposition [#1168], 1180 Fourth MOTION for Cost and Fees by Thomas Howley, Toni Richardson, Southbury Training School. (Attachments: # 1 Exhibit A)(York, Thomas) (Entered: 06/24/2014)
1182 First OBJECTION To Defendants' Second Motion for Extension of Time filed by all plaintiffs. (Shaw, David) (Entered: 06/26/2014)
1183 ORDER granting 1181 Motion for Extension of Time. Signed by Judge Ellen Bree Burns on 06/26/14. (Palmieri, A.) (Entered: 06/26/2014)
Reset Deadlines as to 1180 Fourth MOTION for Cost and Fees, 1175 MOTION for Leave to File Excess Pages to Memorandum Addressing the Deductions to Plaintiffs' Motion for Fees,Costs and Expenses Required by Court Ruling 1146 and Reply to Defs brief in Opposition [#1168]. Responses due by 7/18/2014 (Villano, P.) (Entered: 06/27/2014)
1184 OBJECTION to Defendants' Second Motion for Extension of Time filed by all plaintiffs. (Shaw, David) (Entered: 06/30/2014)
1185 Memorandum in Opposition 1175-1 Plaintiffs' Memorandum Addressing Deductions and 1176 PILCOP's Memorandum Addressing Deductions re 1180 Fourth MOTION for Cost and Fees filed by Thomas Howley, Toni Richardson, Southbury Training School. (York, Thomas) (Entered: 07/18/2014)
1186 First MOTION for Extension of Time to File Response/Reply Doc. # 1185 as to 1067 MOTION for Cost and Fees until September 15, 2014 by all plaintiffs. (Attachments: # 1 Exhibit)(Shaw, David) (Entered: 07/25/2014)
1187 ORDER Approving 1186 Motion for Extension of Time to File Response/Reply. Signed by Judge Ellen Bree Burns on 08/06/14. (Palmieri, A.) (Entered: 08/06/2014)
1188 MOTION for Leave to File Excess Pages to Plaintiffs' Reply to Defendants' Obj by all plaintiffs. (Attachments: # 1 Supplement Reply brief, # 2 Exhibit A to Reply brief, # 3 Exhibit B to Reply brief)(Shaw, David) (Entered: 09/10/2014)
1189 ORDER granting 1188 Motion for Leave to File Excess Pages. Signed by Judge Ellen Bree Burns on 09/11/14. (Palmieri, A.) (Entered: 09/11/2014)
1190 Fifth MOTION for Attorney Fees by all plaintiffs.Responses due by 10/22/2014 (Attachments: # 1 Memorandum in Support, # 2 Exhibit A, Declaration, # 3 Exhibit Attachment 1 to Exhibit A)(Shaw, David) (Entered: 10/01/2014)
1191 First MOTION for Extension of Time to File Response/Reply as to 1190 Fifth MOTION for Attorney Fees until October 27, 2014 by

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10/28/2014 10/29/2014
11/07/2014 02/27/2015 03/18/2015 03/23/2015 03/23/2015 03/24/2015
03/27/2015

Thomas Howley, Toni Richardson, Southbury Training School. (York, Thomas) (Entered: 10/22/2014)
1192 MOTION for Extension of Time until October 29, 2014Uncontested Defendants' Second Motion for an Extension of Time to Respond to the "Fifth Motion to Supplement Plaintiffs' Motion for Attorneys' Fees, Costs, and Litigation Expenses" 1190 Fifth MOTION for Attorney Fees by Thomas Howley, Toni Richardson, Southbury Training School. (York, Thomas) (Entered: 10/27/2014)
1193 ORDER granting 1191 Motion for Extension of Time to File Response/Reply ; granting 1192 Motion for Extension of Time. Signed by Judge Ellen Bree Burns on 10/28/14. (Palmieri, A.) (Entered: 10/28/2014)
1194 RESPONSE re 1190 Fifth MOTION for Attorney Fees Defendants' Response in Opposition to Plaintiffs' Fifth Motion to Supplement Plaintiffs' Motion for Attorneys' Fees, Costs, and Litigation Expenses and In Opposition to Memorandum in Support Thereof filed by Thomas Howley, Toni Richardson, Southbury Training School. (York, Thomas) (Entered: 10/29/2014)
1195 REPLY to Response to 1190 Fifth MOTION for Attorney Fees filed by all plaintiffs. (Shaw, David) (Entered: 11/07/2014)
1196 Joint RESPONSE TO LETTER SUBMITTED BY HOME AND SCHOOL ASSN OF SOUTHBURY TRAINING SCHOOL filed by Susan S. Addiss, Patricia Giardi. (Salton, Henry) (Entered: 02/27/2015)
1197 Letter from Martha Dwyer Dated 2/6/15 Re: Request for relief relating to remedial expert conduct (Pesta, J.) (Entered: 03/18/2015)
1198 ORDER REFERRING CASE to Magistrate for status conference re. Documents 1196-97. Signed by Judge Ellen Bree Burns on 3/23/15.(Corbett, P.) (Entered: 03/23/2015)
1200 ORDER REFERRING CASE to Magistrate Judge Joan G. Margolis for status conference re. Documents 1196-97 Signed by Clerk on 3/23/2015.(Perez, J.) (Entered: 03/25/2015)
1199 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. A Status Conference to address Dkts. ##1196-1197 is set for 5/8/2015 at 10:30 AM in Chambers Room 303, 141 Church St., New Haven, CT before Judge Joan G. Margolis. (Watson, M.) (Entered: 03/24/2015)
1201 RULING granting in part and denying in part 1067 Motion for Cost and Fees; 1100 Motion for Attorney Fees; 1101 Motion for Attorney

03/27/2015 04/10/2015
04/10/2015 04/10/2015 04/10/2015 04/27/2015 04/27/2015 04/27/2015

Fees; 1126 Motion ; 1160 Motion ; 1162 Motion for Attorney Fees; 1175 Motion for Leave to File Excess Pages; 1180 Motion for Cost and Fees; 1190 Motion for Attorney Fee. The Court finds that the reasonable amount of attorneys fees, costs and expenses to which plaintiffs are entitled, is an adjusted aggregate award of $2,724,763.28. This amountrepresents 35% of the $7,676,839.09 that plaintiffs counsel requested. Signed by Judge Ellen Bree Burns on 3/27/15. (Pesta, J.) (Entered: 03/27/2015)
1202 ORDER denying as moot 1110 Motion for Permission to Serve Excess Interrogatories; denying as moot 1111 Motion for Permission to Serve Excess Interrogatories. Signed by Judge Ellen Bree Burns on 3/27/15. (Pesta, J.) (Entered: 03/27/2015)
1203 MOTION TO CORRECT AND ALLOCATE THE COURTS MARCH 27, 2015 RULING ON THE AMOUNT OF ATTORNEYS FEES, COSTS AND EXPENSES THAT PLAINTIFFS COUNSEL IS TO BE AWARDED by Public Interest Law Center of Philadelphia.Responses due by 5/1/2015 (Attachments: # 1 Exhibit 1)(Rothschild, Eric) (Entered: 04/10/2015)
1204 NOTICE of Appearance by David N. Rosen on behalf of David C. Shaw (Rosen, David) (Entered: 04/10/2015)
1205 MOTION for Reconsideration re 1201 Order on Motion for Cost and Fees,,, Order on Motion for Attorney Fees,,,,,, Order on Motion for Miscellaneous Relief,,,,,,,,, Order on Motion for Leave to File Excess Pages,,,,,,,, by David C. Shaw.Responses due by 5/1/2015 (Rosen, David) (Entered: 04/10/2015)
1206 Memorandum in Support re 1205 MOTION for Reconsideration re 1201 Order on Motion for Cost and Fees,,, Order on Motion for Attorney Fees,,,,,, Order on Motion for Miscellaneous Relief,,,,,,,,, Order on Motion for Leave to File Excess Pages,,,,,,,, filed by David C. Shaw. (Rosen, David) (Entered: 04/10/2015)
1207 NOTICE of Appearance by Henry A. Salton on behalf of Thomas Howley, Toni Richardson in addition to appearances on file (Salton, Henry) (Entered: 04/27/2015)
1208 NOTICE of Appearance by David N. Rosen on behalf of Carole Ann Carr, Leonard Haversat, Leon Horton, Gregory Kabbai, Thomas Maloney, Richard Messier, Raymond Mitchell, People First of Connecticut, Inc., David Yeske (Rosen, David) (Entered: 04/27/2015)
1209 NOTICE OF APPEAL as to 1201 Order on Motion for Cost and Fees,,, Order on Motion for Attorney Fees,,,,,, Order on Motion for Miscellaneous Relief,,,,,,,,, Order on Motion for Leave to File Excess Pages,,,,,,,, by Carole Ann Carr, Leonard Haversat, Leon Horton, Gregory Kabbai, Thomas Maloney, Richard Messier, Raymond

04/27/2015
04/30/2015 04/30/2015 05/01/2015

Mitchell, People First of Connecticut, Inc., David Yeske. Filing fee $ 505, receipt number 0205-3584877. (Rosen, David) (Entered: 04/27/2015)
1210 Index to Record on Appeal by Carole Ann Carr, Leonard Haversat, Leon Horton, Gregory Kabbai, Thomas Maloney, Richard Messier, Raymond Mitchell, People First of Connecticut, Inc., David Yeske re 1209 Notice of Appeal, 1142 Response, 1100 MOTION for Attorney Fees, 1146 Order on Motion for Leave to File,, Order on Motion in Limine,, Order on Motion to Strike, 1127 MOTION for Leave to File Supplemental reply to def. memo of law in oppos to claim of excellent results & in oppos to claim for enhancement for costs/expenses, 1201 Order on Motion for Cost and Fees,,, Order on Motion for Attorney Fees,,,,,, Order on Motion for Miscellaneous Relief,,,,,,,,, Order on Motion for Leave to File Excess Pages,,,,,,,, 881 Order, 1180 Fourth MOTION for Cost and Fees , 1160 MOTION to Supplement Plaintiffs' Motion for Attorneys' Fees, Costs and Litigation Expenses , 1093 Response, 1126 MOTION Prejudgment Interest re 1067 MOTION for Cost and Fees, 124 Amended Complaint, 1190 Fifth MOTION for Attorney Fees , 1162 Third MOTION for Attorney Fees , 1067 MOTION for Cost and Fees, 1101 Second MOTION for Attorney Fees Second Supplement to Fee Claim, 1144 MOTION to Strike 1142 Response,, 1175 MOTION for Leave to File Excess Pages to Memorandum Addressing the Deductions to Plaintiffs' Motion for Fees,Costs and Expenses Required by Court Ruling 1146 and Reply to Defs brief in Opposition [#1168], 1124 Order, 1083 Supplemental MOTION for Attorney Fees, 1130 MOTION in Limine to Exclude Exhibit "A" and all References to that Exhibit in Plaintiffs' Reply to Defendants' Memorandum of Law Regarding Plaintiffs' Claim of Excellent Results. For docket entries without a hyperlink, contact the court to arrange for the document(s) to be made available to you. (Rosen, David) (Entered: 04/27/2015)
1211 ORDER OF TRANSFER. Case reassigned to Judge Victor A. Bolden for all further proceedings Signed by Clerk on 4/30/15.(Walker, J.) Modified on 4/30/2015 to correct signed by Clerk(Walker, J.). (Entered: 04/30/2015)
Docket Entry Correction re 1211 Order of Transfer - modified to correct signed by Clerk. (Walker, J.) (Entered: 04/30/2015)
1212 First MOTION for Extension of Time until 4/11/2015 to respond to Motions to Correct 1205 MOTION for Reconsideration re 1201 Order on Motion for Cost and Fees,,, Order on Motion for Attorney Fees,,,,,, Order on Motion for Miscellaneous Relief,,,,,,,,, Order on Motion for Leave to File Excess Pages,,,,,,,, , 1203 MOTION TO CORRECT AND ALLOCATE THE COURTS MARCH 27, 2015 RULING ON THE

05/04/2015
05/04/2015 05/05/2015 05/08/2015 05/08/2015 05/11/2015
05/11/2015

AMOUNT OF ATTORNEYS FEES, COSTS AND EXPENSES THAT PLAINTIFFS COUNSEL IS TO BE AWARDED by Southbury Training School. (York, Thomas) (Entered: 05/01/2015)
1214 ORDER REFERRING Motion 1212 First MOTION for Extension of Time until 4/11/2015 to respond to Motions to Correct 1205 MOTION for Reconsideration re 1201 Order on Motion for Cost and Fees,,, Order on Motion for Attorney Fees,,,,,, Order on Motion for Miscellane to Magistrate Judge Joan G. Margolis. Signed by Judge Victor A. Bolden on 5/4/2015.(Lynch, K.) (Entered: 05/04/2015)
1215 ELECTRONIC ORDER granting 1212 Motion for Extension of Time until 5/11/15, absent objection. Signed by Judge Joan G. Margolis on 5/4/15. (Margolis, Joan) (Entered: 05/04/2015)
1216 Set/Reset Deadlines as to 1205 MOTION for Reconsideration re 1201 Order on Motion for Cost and Fees,,, Order on Motion for Attorney Fees,,,,,, Order on Motion for Miscellaneous Relief,,,,,,,,, Order on Motion for Leave to File Excess Pages,,,,,,,, . Responses due by 5/11/2015 (Perez, J.) (Entered: 05/05/2015)
1217 Minute Entry for proceedings held before Judge Joan G. Margolis: Status Conference held on 5/8/2015. Total Time: 1 hour and 15 minutes (Watson, M.) (Entered: 05/08/2015)
1218 Second MOTION for Extension of Time until May 18, 2015 to respond to Motions to Correct by Southbury Training School. (York, Thomas) (Entered: 05/08/2015)
1219 NOTICE OF APPEAL as to 1201 Order on Motion for Cost and Fees,,, Order on Motion for Attorney Fees,,,,,, Order on Motion for Miscellaneous Relief,,,,,,,,, Order on Motion for Leave to File Excess Pages,,,,,,,, by ARC/Connecticut, Inc, Western Connecticut Association for Human Rights. Filing fee $ 505, receipt number 0205-3598534. (Rothschild, Eric) (Entered: 05/11/2015)
1220 Index to Record on Appeal by ARC/Connecticut, Inc, Western Connecticut Association for Human Rights re 1219 Notice of Appeal, 1142 Response, 1100 MOTION for Attorney Fees, 1146 Order on Motion for Leave to File,, Order on Motion in Limine,, Order on Motion to Strike, 1127 MOTION for Leave to File Supplemental reply to def. memo of law in oppos to claim of excellent results & in oppos to claim for enhancement for costs/expenses, 1201 Order on Motion for Cost and Fees,,, Order on Motion for Attorney Fees,,,,,, Order on Motion for Miscellaneous Relief,,,,,,,,, Order on Motion for Leave to File Excess Pages,,,,,,,, 881 Order, 1188 MOTION for Leave to File Excess Pages to Plaintiffs' Reply to Defendants' Obj, 1160 MOTION to Supplement Plaintiffs' Motion for Attorneys' Fees, Costs and Litigation Expenses , 1093 Response, 1126 MOTION Prejudgment Interest

05/11/2015 05/12/2015 05/13/2015 05/18/2015
05/29/2015

re 1067 MOTION for Cost and Fees, 124 Amended Complaint, 1162 Third MOTION for Attorney Fees , 1185 Memorandum in Opposition to Motion, 1176 Reply to Response to Motion, 1067 MOTION for Cost and Fees, 1144 MOTION to Strike 1142 Response,, 1175 MOTION for Leave to File Excess Pages to Memorandum Addressing the Deductions to Plaintiffs' Motion for Fees,Costs and Expenses Required by Court Ruling 1146 and Reply to Defs brief in Opposition [#1168], 1124 Order, 1083 Supplemental MOTION for Attorney Fees, 1130 MOTION in Limine to Exclude Exhibit "A" and all References to that Exhibit in Plaintiffs' Reply to Defendants' Memorandum of Law Regarding Plaintiffs' Claim of Excellent Results. For docket entries without a hyperlink, contact the court to arrange for the document(s) to be made available to you. (Rothschild, Eric) (Entered: 05/11/2015)
1221 ORDER REFERRING 1218 Second MOTION for Extension of Time until May 18, 2015 to respond to Motions to Correct to Magistrate Judge Joan G. Margolis. Signed by Judge Victor A. Bolden on 5/11/2015. (Shin, D.) (Entered: 05/11/2015)
1222 ORDER granting 1218 Second Motion for Extension of Time until May 18, 2015. Signed by Judge Joan G. Margolis on 5/12/2015. (Watson, M.) (Entered: 05/12/2015)
1223 Set/Reset Deadlines as to 1203 MOTION TO CORRECT AND ALLOCATE THE COURTS MARCH 27, 2015 RULING ON THE AMOUNT OF ATTORNEYS FEES, COSTS AND EXPENSES THAT PLAINTIFFS COUNSEL IS TO BE AWARDED . Responses due by 5/18/2015 (Perez, J.) (Entered: 05/13/2015)
1224 Memorandum in Opposition re 1205 MOTION for Reconsideration re 1201 Order on Motion for Cost and Fees,,, Order on Motion for Attorney Fees,,,,,, Order on Motion for Miscellaneous Relief,,,,,,,,, Order on Motion for Leave to File Excess Pages,,,,,,,, , 1203 MOTION TO CORRECT AND ALLOCATE THE COURTS MARCH 27, 2015 RULING ON THE AMOUNT OF ATTORNEYS FEES, COSTS AND EXPENSES THAT PLAINTIFFS COUNSEL IS TO BE AWARDED filed by Southbury Training School. (York, Thomas) (Entered: 05/18/2015)
1225 Consent MOTION for Extension of Time to File Response/Reply as to 1205 MOTION for Reconsideration re 1201 Order on Motion for Cost and Fees,,, Order on Motion for Attorney Fees,,,,,, Order on Motion for Miscellaneous Relief,,,,,,,,, Order on Motion for Leave to File Excess Pages,,,,,,,, , 1203 MOTION TO CORRECT AND ALLOCATE THE COURTS MARCH 27, 2015 RULING ON THE AMOUNT OF ATTORNEYS FEES, COSTS AND EXPENSES THAT PLAINTIFFS COUNSEL IS TO BE AWARDED until June 15, 2015 by

05/29/2015 06/01/2015 06/15/2015
06/15/2015 06/15/2015 06/16/2015 06/23/2015

Carole Ann Carr, Leonard Haversat, Leon Horton, Gregory Kabbai, Thomas Maloney, Richard Messier, Raymond Mitchell, People First of Connecticut, Inc.. (Rosen, David) (Entered: 05/29/2015)
1226 ORDER REFERRING CASE to Magistrate Judge Joan G. Margolis for ruling on motion 1225 Consent MOTION for Extension of Time to File Response/Reply as to 1205 MOTION for Reconsideration re 1201 Order on Motion for Cost and Fees,,, Order on Motion for Attorney Fees,,,,,, Order on Motion for Miscellaneous Relief,,,,,,,,, Signed by Judge Victor A. Bolden on 5/29/2015. Motions referred to Joan G. Margolis. (Shin, D.) (Entered: 05/29/2015)
1227 ELECTRONIC ORDER granting 1225 Motion for Extension of Time to File Response/Reply until 6/15/15, absent objection. Signed by Judge Joan G. Margolis on 6/1/15. (Margolis, Joan) (Entered: 06/01/2015)
1228 Consent MOTION for Extension of Time to File Response/Reply as to 1205 MOTION for Reconsideration re 1201 Order on Motion for Cost and Fees,,, Order on Motion for Attorney Fees,,,,,, Order on Motion for Miscellaneous Relief,,,,,,,,, Order on Motion for Leave to File Excess Pages,,,,,,,, , 1203 MOTION TO CORRECT AND ALLOCATE THE COURTS MARCH 27, 2015 RULING ON THE AMOUNT OF ATTORNEYS FEES, COSTS AND EXPENSES THAT PLAINTIFFS COUNSEL IS TO BE AWARDED until June 24, 2015 by Carole Ann Carr, Leonard Haversat, Leon Horton, Gregory Kabbai, Thomas Maloney, Richard Messier, Raymond Mitchell, People First of Connecticut, Inc., David Yeske. (Rosen, David) (Entered: 06/15/2015)
1229 ORDER REFERRING CASE to Magistrate Judge Joan G. Margolis for ruling on 1228 Consent MOTION for Extension of Time to File Response/Reply as to 1205 MOTION for Reconsideration re 1201 Order on Motion for Cost and Fees,,, Order on Motion for Attorney Fees,,,,,, Order on Motion for Miscellaneous Relief,,,,,,,,, Signed by Judge Victor A. Bolden on 6/15/2015. Motions referred to Joan G. Margolis (Shin, D.) (Entered: 06/15/2015)
1230 ELECTRONIC ORDER granting 1228 Motion for Extension of Time to File Response/Reply until 6/24/15, absent objection. Signed by Judge Joan G. Margolis on 6/15/15. (Margolis, Joan) (Entered: 06/15/2015)
1231 Set/Reset Deadlines as to 1205 MOTION for Reconsideration re 1201 Order on Motion for Cost and Fees,,, Order on Motion for Attorney Fees,,,,,, Order on Motion for Miscellaneous Relief,,,,,,,,, Order on Motion for Leave to File Excess Pages,,,,,,,, . Responses due by 6/24/2015 (Perez, J.) (Entered: 06/16/2015)
1232 NOTICE of Appearance by David Hunter Smith on behalf of Carole Ann Carr, Leonard Haversat, Leon Horton, Gregory Kabbai, Thomas Maloney, Richard Messier, Raymond Mitchell, People First of Connecticut, Inc., David Yeske (Smith, David) (Entered: 06/23/2015)

06/24/2015
06/24/2015
07/07/2015
07/17/2015 09/23/2015 09/23/2015 09/28/2015 12/28/2015
01/18/2016 01/19/2016

1233 Memorandum in Support re 1203 MOTION TO CORRECT AND ALLOCATE THE COURTS MARCH 27, 2015 RULING ON THE AMOUNT OF ATTORNEYS FEES, COSTS AND EXPENSES THAT PLAINTIFFS COUNSEL IS TO BE AWARDED filed by Public Interest Law Center of Philadelphia. (Rothschild, Eric) (Entered: 06/24/2015)
1234 REPLY to Response to 1205 MOTION for Reconsideration re 1201 Order on Motion for Cost and Fees,,, Order on Motion for Attorney Fees,,,,,, Order on Motion for Miscellaneous Relief,,,,,,,,, Order on Motion for Leave to File Excess Pages,,,,,,,, filed by David C. Shaw. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Rosen, David) (Entered: 06/24/2015)
1235 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. A TELEPHONIC Settlement Conference is set for 7/17/2015 at 10:00 AM before Judge Joan G. Margolis. Attorney Rosen will initiate the conference call with Attorneys Rothschild and Salton on the line. (203) 773-2350 (Watson, M.) (Entered: 07/07/2015)
1236 Minute Entry for proceedings held before Judge Joan G. Margolis: Settlement Conference held on 7/17/2015. 16 minutes (Watson, M.) (Entered: 07/17/2015)
1237 NOTICE to Defendant Counsel to Pick up Exhibits. (O'Connor, T) (Entered: 09/23/2015)
1238 NOTICE to Plaintiffs Counsel to Pick up Exhibits. (O'Connor, T) (Entered: 09/23/2015)
NOTE: Upon consideration, it was decided that all trial exhibits that are currently retained in the New Haven Courthouse will remain there until pending motions 1203 , 1205 decided. (Pesta, J.) (Entered: 09/28/2015)
1239 MOTION for Determination that Plaintiffs' Counsel Should Be Fully Compensated for Work During 2015 Order by all plaintiffs. (Attachments: # 1 Memorandum in Support, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J)(Shaw, David) (Entered: 12/28/2015)
1240 First MOTION for Extension of Time to File Response/Reply as to 1239 MOTION for Determination that Plaintiffs' Counsel Should Be Fully Compensated for Work During 2015 Order until January 26, 2016 by Southbury Training School. (York, Thomas) (Entered: 01/18/2016)
1241 ELECTRONIC ORDER granting 1240 Motion for Extension of Time to File Response/Reply until 1/26/16, over plaintiffs' objection past

01/26/2016
01/27/2016 01/27/2016 01/28/2016 02/03/2016
02/03/2016 02/23/2016 02/24/2016 03/28/2016
04/11/2016

1/22/16. Signed by Judge Joan G. Margolis on 1/19/16. (Margolis, Joan) (Entered: 01/19/2016)
1242 Second MOTION for Extension of Time to File Response/Reply Response as to 1239 MOTION for Determination that Plaintiffs' Counsel Should Be Fully Compensated for Work During 2015 Order until January 28, 2016 by Southbury Training School. (York, Thomas) (Entered: 01/26/2016)
1243 ELECTRONIC ORDER granting 1242 Motion for Extension of Time to File Response/Reply until 1/28/16, absent objection. Signed by Judge Joan G. Margolis on 1/27/16. (Margolis, Joan) (Entered: 01/27/2016)
Reset Deadlines as to 1239 MOTION for Determination that Plaintiffs' Counsel Should Be Fully Compensated for Work During 2015 Order. Responses due by 1/28/2016. (Walker, J.) (Entered: 01/28/2016)
1244 Memorandum in Opposition re 1239 MOTION for Determination that Plaintiffs' Counsel Should Be Fully Compensated for Work During 2015 Order filed by Southbury Training School. (York, Thomas) (Entered: 01/28/2016)
1245 First MOTION for Extension of Time to File Response/Reply to Defendants' Doc. #1244 as to 1239 MOTION for Determination that Plaintiffs' Counsel Should Be Fully Compensated for Work During 2015 Order until February 26, 2019 by all plaintiffs. (Shaw, David) (Entered: 02/03/2016)
1246 ELECTRONIC ORDER granting 1245 Motion for Extension of Time to File Response/Reply until 2/26/16, absent objection. Signed by Judge Joan G. Margolis on 2/3/16. (Margolis, Joan) (Entered: 02/03/2016)
1247 Second MOTION for Extension of Time to File Response/Reply as to 1239 MOTION for Determination that Plaintiffs' Counsel Should Be Fully Compensated for Work During 2015 Order until March 30, 2016 by all plaintiffs. (Shaw, David) (Entered: 02/23/2016)
1248 ORDER granting 1247 Motion for Extension of Time to File Response/Reply until March 30, 2016. Responses due by 3/30/2016. Signed by Judge Joan G. Margolis on 2/24/2016.(Watson, M.) (Entered: 02/24/2016)
1249 Third MOTION for Extension of Time to File Response/Reply to Defendants' Opposition as to 1239 MOTION for Determination that Plaintiffs' Counsel Should Be Fully Compensated for Work During 2015 Order until April 29, 2016 by all plaintiffs. (Shaw, David) (Entered: 03/28/2016)
1250 ELECTRONIC ORDER granting 1249 Motion for Extension of Time to File Response/Reply until 4/29/16, absent objection. Signed by Judge Joan G. Margolis on 4/11/16. (Margolis, Joan) (Entered: 04/11/2016)

04/29/2016 05/02/2016 05/02/2016 09/08/2016
09/10/2016 09/15/2016 09/15/2016 09/15/2016 09/29/2016 09/29/2016 10/03/2016

1251 MOTION to Withdraw 1239 MOTION for Determination that Plaintiffs' Counsel Should Be Fully Compensated for Work During 2015 Order by all plaintiffs. (Shaw, David) (Entered: 04/29/2016)
1252 ORDER granting (Dkt. #1251) Plaintiffs' Motion to Withdraw Motion for Determination that Plaintiffs' Counsel Should be Fully Compensated for Work During 2015 (Dkt. #1239). Signed by Judge Joan G. Margolis on 5/2/2016. (Watson, M.) (Entered: 05/02/2016)
1253 ELECTRONIC ORDER withdrawing 1239 Motion for Order. (See Dkts. ##1251-52). The Magistrate Judge thanks all counsel and parties for amicably resolving this attorney's fees issue. Signed by Judge Joan G. Margolis on 5/2/16.(Margolis, Joan) (Entered: 05/02/2016)
1254 Joint MOTION To Effectuate the Settlement of Attorneys Fees Between Defendants, and the Public Interest Law Center of Philadelphia and Pepper Hamilton LLP by Public Interest Law Center of Philadelphia.Responses due by 9/29/2016 (Attachments: # 1 Text of Proposed Order)(Rothschild, Eric) (Entered: 09/08/2016)
1255 OBJECTION re 1254 Joint MOTION To Effectuate the Settlement of Attorneys Fees Between Defendants, and the Public Interest Law Center of Philadelphia and Pepper Hamilton LLP filed by David C. Shaw. (Attachments: # 1 Exhibit Letter)(Rosen, David) (Entered: 09/10/2016)
1256 NOTICE of Appearance by Robert B. Flynn on behalf of Public Interest Law Center of Philadelphia (Flynn, Robert) (Entered: 09/15/2016)
1257 NOTICE of Appearance by Dennis Mark Carnelli on behalf of Public Interest Law Center of Philadelphia (Carnelli, Dennis) (Entered: 09/15/2016)
1258 MOTION FOR LEAVE TO WITHDRAW APPEARANCE OF ERIC ROTHSCHILD AS COUNSEL re 1071 Notice of Appearance by Public Interest Law Center of Philadelphia.Responses due by 10/6/2016 (Rothschild, Eric) (Entered: 09/15/2016)
1259 MOTION for Attorney(s) David Richman to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number 0205-4150351) by Public Interest Law Center of Philadelphia. (Attachments: # 1 Affidavit of David Richman)(Flynn, Robert) (Entered: 09/29/2016)
1260 MOTION for Attorney(s) Hedya Aryani to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number 0205-4150388) by Public Interest Law Center of Philadelphia. (Attachments: # 1 Affidavit Hedya Aryani)(Flynn, Robert) (Entered: 09/29/2016)
1261 ORDER denying without prejudice 1259 Motion to Appear ; denying without prejudice 1260 Motion to Appear. Please note that, pursuant to Local Rule 83.1(d), an attorney applying for admission pro hac vice must submit an affidavit that contains all of the information listed in

10/06/2016 10/06/2016 10/07/2016 10/07/2016 10/07/2016 10/07/2016 10/14/2016 10/14/2016 10/19/2016 05/25/2017
05/31/2017

Local Rule 83.1(d)(1). In particular, please be aware of the requirements of Local Rule 83.1(d)(1)(c) and (d). Signed by Judge Victor A. Bolden on 10/3/2016. (Chen, C.) (Entered: 10/03/2016)
1262 MOTION and Amended Affidavit re 1259 for Attorney(s) David Richman to be Admitted Pro Hac Vice by Public Interest Law Center of Philadelphia. Fee paid on 9/29/16. (Gould, K.) (Entered: 10/06/2016)
1263 MOTION and Amended Affidavit re 1260 for Attorney(s) Hedya Aryani to be Admitted Pro Hac Vice by Public Interest Law Center of Philadelphia. Fee paid on 9/29/16. (Gould, K.) (Entered: 10/06/2016)
1264 ORDER granting 1262 Motion to Appear Pro Hac Vice Attorney David Richman for Public Interest Law Center of Philadelphia added. Certificate of Good Standing due by 12/6/2016. Signed by Clerk on 10/7/2016. (Fazekas, J.) (Entered: 10/07/2016)
1265 ORDER granting 1263 Motion to Appear Pro Hac Vice for Hedya Aryani. Certificate of Good Standing due by 12/6/2016. Signed by Clerk on 10/7/2016. (Fazekas, J.) (Entered: 10/07/2016)
1266 NOTICE of Appearance by Hedya Aryani on behalf of Public Interest Law Center of Philadelphia With Certificate of Service (Aryani, Hedya) (Entered: 10/07/2016)
1267 NOTICE of Appearance by David Richman on behalf of Public Interest Law Center of Philadelphia With Certificate of Service (Richman, David) (Entered: 10/07/2016)
1268 CERTIFICATE OF GOOD STANDING re 1262 MOTION for Attorney(s) David Richman to be Admitted Pro Hac Vice by Public Interest Law Center of Philadelphia. (Fazekas, J.) (Entered: 10/17/2016)
1269 CERTIFICATE OF GOOD STANDING re 1263 MOTION for Attorney(s) Hedya Aryani to be Admitted Pro Hac Vice by Public Interest Law Center of Philadelphia. (Fazekas, J.) (Entered: 10/17/2016)
1270 MOTION for David Hunter Smith to Withdraw as Attorney by Carole Ann Carr, Leonard Haversat, Leon Horton, Gregory Kabbai, Thomas Maloney, Richard Messier, Raymond Mitchell, People First of Connecticut, Inc., David Yeske. (Smith, David) (Entered: 10/19/2016)
1271 MOTION Status Conference re 1254 Joint MOTION To Effectuate the Settlement of Attorneys Fees Between Defendants, and the Public Interest Law Center of Philadelphia and Pepper Hamilton LLP by Public Interest Law Center of Philadelphia.Responses due by 6/15/2017 (Richman, David) (Entered: 05/25/2017)
1272 RESPONSE re 1271 MOTION Status Conference re 1254 Joint MOTION To Effectuate the Settlement of Attorneys Fees Between Defendants, and the Public Interest Law Center of Philadelphia and

05/31/2017 05/31/2017 05/31/2017 06/02/2017
06/20/2017 07/18/2017 08/21/2017

Pepper Hamilton LLP filed by David C. Shaw. (Rosen, David) (Entered: 05/31/2017)
1273 ORDER granting 1258 Motion Withdraw as Attorney; granting 1270 Motion to Withdraw as Attorney. Attorney David Hunter Smith terminated. Attorney Eric Rothschild Terminated. Signed by Judge Victor A. Bolden on 5/31/2017. (Chen, C.) (Entered: 05/31/2017)
1274 ORDER REFERRING 1254 Joint MOTION To Effectuate the Settlement of Attorneys Fees Between Defendants, and the Public Interest Law Center of Philadelphia and Pepper Hamilton LLP to Magistrate Judge Joan G. Margolis. Signed by Judge Victor A. Bolden on 5/31/2017. Motions referred to Joan G. Margolis(Chen, C.) (Entered: 05/31/2017)
1275 ORDER denying 1271 Motion for Status Conference in light of the 1274 ORDER REFERRING 1254 Joint MOTION To Effectuate the Settlement of Attorneys Fees Between Defendants, and the Public Interest Law Center of Philadelphia and Pepper Hamilton LLP to Magistrate Judge Joan G. Margolis.Signed by Judge Victor A. Bolden on 5/31/2017. (Chen, C.) (Entered: 05/31/2017)
1276 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. A TELEPHONIC Settlement Conference Regarding the Joint Motion to Effectuate the Settlement of Attorneys Fees Between Defendants, and the Public Interest Law Center of Philadelphia and Pepper Hamilton LLP (Dkt. #1254) is set for 6/20/2017 at 10:00 AM before Judge Joan G. Margolis. Counsel shall use the following conference call-in number: 877-8738018, access code: 7405991, followed by #. (Watson, M.) (Entered: 06/02/2017)
1277 Minute Entry for proceedings held before Judge Joan G. Margolis: Telephonic Settlement Conference held on 6/20/2017. 45 minutes (Watson, M.) (Entered: 06/20/2017)
1278 ORDER: During the telephonic conference held on June 20, 2017 (see Dkts. ##1276-77), counsel agreed to provide supplemental proposals in early July. To date, the Court has not received copies of such proposals. On or before July 21, 2017, counsel shall fax (203-7732304) an update to this Magistrate Judge's Chambers. Signed by Judge Joan G. Margolis on 7/18/2017.(Watson, M.) (Entered: 07/18/2017)
1279 ORDER: On or before September 6, 2017, at least one counsel shall notify this Magistrate Judge's Chambers, in writing: (1) whether settlement discussions are still ongoing with respect to Dkt. #1254, and if so, when counsel reasonably expect to reach an agreement or ascertain

08/23/2017 10/12/2017 10/12/2017
10/12/2017 10/12/2017 10/13/2017 02/01/2018

that no settlement can be reached; or (2) if counsel have concluded that no settlement can be reached with respect to Dkt. #1254, then counsel shall propose deadlines for the filing of supplemental briefs (as requested during thetelephone settlement conference held on June 20, 2017 (Dkt. #1277)). Signed by Judge Joan G. Margolis on 8/21/2017.(Watson, M.) (Entered: 08/21/2017)
Set Deadlines: Status Report due by 9/6/2017 (Campbell, A) (Entered: 08/23/2017)
1280 PROPOSED ORDER TO EFFECTUATE THE SETTLEMENT OF ATTORNEYS FEES BETWEEN DEFENDANTS, THE PUBLIC INTEREST LAW CENTER, PEPPER HAMILTON LLP, DAVID C. SHAW, ESQ., FRANK J. LASKI, ESQ., AND JUDITH GRAN, ESQ. by Public Interest Law Center of Philadelphia. (Richman, David) (Entered: 10/12/2017)
1281 ELECTRONIC ORDER -- The Proposed Order to Effectuate the Settlement of Attorneys' Fees between Defendants, the Public Interest Center, Pepper Hamilton, LLP, David C. Shaw, Esq., Frank J. Laski, Esq. and Judith Gran, Esq., filed today (Dkt. #1280) is SO ORDERED. The Magistrate Judge thanks all parties and counsel for resolving this discrete issue. If at some point all counsel agree that a continued settlement conference before this Magistrate Judge on the remaining open issues would be productive, they should contact Chambers accordingly. Signed by Judge Joan G. Margolis on 10/12/17.(Margolis, Joan) (Entered: 10/12/2017)
1282 ELECTRONIC ORDER withdrawing 1203 Motion, as moot. (See Dkts. ##1280-81). Signed by Judge Joan G. Margolis on 10/12/17.(Margolis, Joan) (Entered: 10/12/2017)
1284 ORDER TO EFFECTUATE THE SETTLEMENT OF ATTORNEYS FEES BETWEEN DEFENDANTS, THE PUBLIC INTEREST LAW CENTER, PEPPER HAMILTON LLP, DAVID C. SHAW, ESQ., FRANK J. LASKI, ESQ., AND JUDITH GRAN, ESQ. Signed by Judge Joan G. Margolis on 10/12/17.(Campbell, A) (Entered: 10/16/2017)
1283 ELECTRONIC ORDER granting in part 1254 Motion to Effectuate Settlement, to the extent agreed upon by the parties and counsel yesterday. (See Dkts. ##1280-81). Signed by Judge Joan G. Margolis on 10/13/17.(Margolis, Joan) (Entered: 10/13/2017)
1285 MOTION for FOR POST-JUDGMENT INTEREST by Carole Ann Carr, Leonard Haversat, Leon Horton, Gregory Kabbai, Thomas Maloney, Richard Messier, Raymond Mitchell, People First of Connecticut, Inc. Motion for Post Judgment Interest (Rosen, David) Modified on 2/2/2018 (Fazekas, J.). (Entered: 02/01/2018)

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04/02/2018 04/13/2018 05/11/2018
05/14/2018 05/14/2018

1286 First RESPONSE re 1285 MOTION for Extension of Time filed by Southbury Training School. (York, Thomas) (Entered: 02/22/2018)
1287 ORDER granting 1286 Motion for Extension of Time filed by Southbury Training School. Signed by Judge Victor A. Bolden on 2/23/2018. (Riegel, J.) (Entered: 02/23/2018)
1288 Second Memorandum in Opposition Extension of Time re 1285 MOTION for filed by Southbury Training School. (York, Thomas) (Entered: 03/15/2018)
1289 ORDER granting 1288 Request for an extension of time to respond/reply. Signed by Judge Victor A. Bolden on 3/17/2018. (Riegel, J.) (Entered: 03/17/2018)
1290 Memorandum in Opposition to Motion for Post-Judgment Interest re 1285 MOTION for filed by Southbury Training School. (York, Thomas) (Entered: 03/19/2018)
1291 First MOTION for Extension of Time to File Response/Reply as to 1285 MOTION for until April 13, 2018 by Carole Ann Carr, Leonard Haversat, Leon Horton, Gregory Kabbai, Thomas Maloney, Richard Messier, Raymond Mitchell, People First of Connecticut, Inc.. (Rosen, David) (Entered: 03/29/2018)
1292 ORDER granting 1291 Motion for Extension of Time to File Response/Reply. Signed by Judge Victor A. Bolden on 4/2/2018. (Riegel, J.) (Entered: 04/02/2018)
1293 RESPONSE re 1290 Memorandum in Opposition to Motion filed by Carole Ann Carr, Leonard Haversat, Leon Horton, Gregory Kabbai, Thomas Maloney, Richard Messier, Raymond Mitchell, People First of Connecticut, Inc.. (Rosen, David) (Entered: 04/13/2018)
1294 MOTION for Oral Argument by Carole Ann Carr, Leonard Haversat, Leon Horton, Gregory Kabbai, Thomas Maloney, Richard Messier, Raymond Mitchell, People First of Connecticut, Inc. re 1205 MOTION for Reconsideration re 1201 Order on Motion for Cost and Fees,,, Order on Motion for Attorney Fees,,,,,, Order on Motion for Miscellaneous Relief,,,,,,,,, Order on Motion for Leave to File Excess Pages,,,,,,,, of Request for Oral Argument (Rosen, David) Modified on 5/14/2018 to correct event (Fazekas, J.). (Entered: 05/11/2018)
1295 ORDER granting 1294 Motion for Hearing. Signed by Judge Victor A. Bolden on 5/14/2018. (Riegel, J.) (Entered: 05/14/2018)
1296 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Motion Hearing set for 7/3/2018 at 02:00 PM in Courtroom Two, 915 Lafayette Blvd., Bridgeport, CT before Judge

06/27/2018 06/28/2018 06/28/2018
06/29/2018 07/03/2018 07/05/2018 07/05/2018 07/06/2018 07/07/2018

Victor A. Bolden as to 1205 MOTION for Reconsideration re 1201 Order on Motion for Cost and Fees; and 1285 MOTION. (Riegel, J.) (Entered: 05/14/2018)
1297 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. Telephonic Status Conference set for 6/28/2018 at 02:30 PM before Judge Victor A. Bolden. Once all counsel are on the line, please call Chambers at (203) 579-5562. (Riegel, J.) (Entered: 06/27/2018)
1298 Minute Entry for proceedings held before Judge Victor A. Bolden: Status Conference held on 6/28/2018. Total Time: 0 hours and 3 minutes (Court Reporter S. Montini.) (Riegel, J.) (Entered: 06/28/2018)
1299 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. The Clarifies that a Motion Hearing is set for 7/3/2018 at 02:00 PM in Courtroom Two, 915 Lafayette Blvd., Bridgeport, CT before Judge Victor A. Bolden solely as to 1205 MOTION for Reconsideration re 1201 Order on Motion for Cost and Fees. (Riegel, J.) (Entered: 06/28/2018)
1300 MOTION to Amend/Correct 1234 Reply to Response to Motion, by Carole Ann Carr, Leonard Haversat, Leon Horton, Gregory Kabbai, Thomas Maloney, Richard Messier, Raymond Mitchell, People First of Connecticut, Inc..Responses due by 7/20/2018 (Attachments: # 1 Exhibit)(Rosen, David) (Entered: 06/29/2018)
1301 Minute Entry for proceedings held before Judge Victor A. Bolden: Motion Hearing held on 7/3/2018. Total Time: 0 hours and 53 minutes (Court Reporter S. Montini.) (McDonough, S.) (Entered: 07/03/2018)
1302 ORDER. Plaintiffs shall submit any supplemental briefing re 1205 MOTION for Reconsideration re 1201 Order on Motion for Cost and Fees by 7/13/2018; Defendants shall submit a response to any supplemental briefing by 7/30/2018. Signed by Judge Victor A. Bolden on 7/5/2018. (Riegel, J.) (Entered: 07/05/2018)
1303 ORDER granting 1300 Motion to Amend/Correct. Signed by Judge Victor A. Bolden on 7/5/2018. (Riegel, J.) (Entered: 07/05/2018)
1304 Consent MOTION for Extension of Time until 7/20/18 Post Argument Submission by Richard Messier, David C. Shaw. (Rosen, David) (Entered: 07/06/2018)
1305 ORDER granting 1304 Motion for Extension of Time. Plaintiffs' submission due 7/20/2018. The Court, sua sponte, extends Defendants' response date to 7/27/2018. Signed by Judge Victor A. Bolden on 7/7/2018. (Riegel, J.) (Entered: 07/07/2018)

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1306 NOTICE by Carole Ann Carr, Leonard Haversat, Leon Horton, Gregory Kabbai, Thomas Maloney, Richard Messier, Raymond Mitchell, People First of Connecticut, Inc. re 1305 Order on Motion for Extension of Time of Post-Argument Submission (Rosen, David) (Entered: 07/20/2018)
1307 First RESPONSE for Extension of Time filed by Southbury Training School. (York, Thomas) (Entered: 07/27/2018)
1308 ORDER re 1307 Response filed by Southbury Training School. Defendants' response due 8/3/2018. Signed by Judge Victor A. Bolden on 7/29/2018. (Riegel, J.) (Entered: 07/29/2018)
1309 RESPONSE re 1306 Notice (Other), Plaintiffs' Post-Argument Memorandum filed by Southbury Training School. (York, Thomas) (Entered: 08/03/2018)
1310 ORDER denying 1205 Motion for Reconsideration. Signed by Judge Victor A. Bolden on 8/31/2018. (Riegel, J.) (Entered: 08/31/2018)
1312 ORDER of USCA as to 1209 Notice of Appeal, filed by Leon Horton, Gregory Kabbai, David Yeske, Carole Ann Carr, Thomas Maloney, People First of Connecticut, Inc., Raymond Mitchell, Leonard Haversat, Richard Messier USCA Case Number 15-1392 (Fazekas, J.) (Entered: 12/18/2018)
1313 MANDATE of USCA dated 11/6/2018 WITHDRAWAL OF APPEAL 1209 Notice of Appeal, filed by Leon Horton, Gregory Kabbai, David Yeske, Carole Ann Carr, Thomas Maloney, People First of Connecticut, Inc., Raymond Mitchell, Leonard Haversat, Richard Messier, 1219 Notice of Appeal, filed by ARC/Connecticut, Inc, Western Connecticut Association for Human Rights (Fazekas, J.) (Entered: 12/18/2018)
1311 ORDER of USCA as to 1209 Notice of Appeal, filed by Leon Horton, Gregory Kabbai, David Yeske, Carole Ann Carr, Thomas Maloney, People First of Connecticut, Inc., Raymond Mitchell, Leonard Haversat, Richard Messier USCA Case Number 15-1392. (Fanelle, N.) (Entered: 12/18/2018)
1314 MANDATE of USCA dated 1/17/2019 FILING A STIPULATION OF WITHDRAWAL 1209 Notice of Appeal, filed by Leon Horton, Gregory Kabbai, David Yeske, Carole Ann Carr, Thomas Maloney, People First of Connecticut, Inc., Raymond Mitchell, Leonard Haversat, Richard Messier (Fazekas, J.) (Entered: 01/18/2019)
1315 ORDER: In light of the January 17, 2019 stipulation withdrawing the appeal to the Second Circuit, the Court denies as moot 1285 Motion for Order. Signed by Judge Victor A. Bolden on 3/13/2019. (Washington, Gregory) (Entered: 03/13/2019)

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1316 MOTION for Henry A. Salton to Withdraw as Attorney by Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson. (Salton, Henry) (Entered: 09/22/2020)
1317 NOTICE of Appearance by Emily V. Melendez on behalf of Susan S. Addiss, Patricia Giardi, Thomas Howley, Toni Richardson (Melendez, Emily) (Entered: 09/22/2020)
1318 ORDER granting 1316 Motion to Withdraw as Attorney. Attorney Henry A. Salton terminated. The Court wishes Mr. Salton well, as he moves into this new phase of his life. Signed by Judge Victor A. Bolden on 9/23/2020. (Shaffer, Chelsea) (Entered: 09/23/2020)

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