Duane Morris Class Action Review - 2023 - Report - Page 104
D.
Appeals In Prisoner Civil Rights Cases
In contrast to preliminary pleadings either seeking or opposing class certification,
Johnson, et al. v. Hutchison, 44 F.4th 1116 (8th Cir. 2022), was unique in that was an
appeal from the district court’s findings at trial concluding that the plaintiffs failed to
prove the elements of a method-of execution claim under the Eighth Amendment. Id. at
1118. Specifically, the district court concluded that the plaintiffs failed to demonstrate
that the specific drug protocol at issue created a substantial risk of severe pain, and that
a feasible and readily implemented alternative could significantly reduce the risk of
severe pain. Id. The factual dispute revolved around allegations that the sedative
administered, midazolam, has a “ceiling effect” at 0.4 mg such that, if an individual
remains sensate, additional dosages will have no effect and severe pain will be
experienced during the second and third drug administrations under the protocol. Id. at
1119. The district court’s findings were premised on the fact that there is no scientific
consensus to establish the dose at which any “ceiling effect” occurs, thereby precluding
proof that the protocol produces severe pain. Id. at 1120. Given this lack of medical
consensus concerning the effect of large doses of midazolam on humans, the Eighth
Circuit determined on appeal that the district court’s ruling was not clearly erroneous. Id.
This lack of proof stemmed from the fact that such human studies were not and cannot
be conducted. A concurrence recognized the “impossible” burden on the prisoners
could ever succeed on an Eighth Amendment method-of-execution claim, and how
“hollow” appellate review is since there was unlikely to be evidence sufficient to meet
the standard that the method of execution “presents a risk that is sure or very likely to
cause serious illness and needless suffering,” in part because execution protocols
involve administration of drugs at dosages that have never been and likely never will be
tested in humans. Id. at 1121, 1123.
E.
Class Certification Rulings In Fourth Amendment Litigation
In Taylor, et al. v. City Of Saginaw, 2022 WL 202999 (E.D. Mich. Jan. 21, 2022), the
court granted class certification for the plaintiff who sued on behalf of a group of
similarly-situated motorists who alleged the defendants, the City of Saginaw and parking
ticket issuer Tabitha Hoskins, violated the Fourth Amendment by chalking the tires of
vehicles to record how long they had been parked. After a lengthy procedural history
involving dismissals, appeals, and remands, the plaintiffs ultimately sought certification
of a primary non-damages class of individuals who had their tires chalked without a
warrant, and a secondary damages sub-class of individuals who paid tickets as a result
of the chalking. The plaintiffs also sought declaratory and injunctive relief. Id. at *1-2.
The court determined that the issue of whether warrantless tire-chalking violated the
Fourth Amendment was capable of class-wide resolution. In so finding, the court
rejected the defendants’ arguments that commonality was defeated since it might
currently be unknown which class members had a tire chalked before issuing a ticket,
and the basis for any given parking ticket may vary. Id. at *4. The court also held that
the fact that damages might vary did not destroy commonality and typicality, since the
class representative’s claims and the class members’ claims were based on the same
legal theory. Id. at *5.
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Duane Morris Class Action Review – 2023
