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Rule 23 vs 42 - To Class Certify or Consolidate

The Court’s Thirst for Judicial Economy Injured The Pro Se 5

Coquin de Chien

Mar 4

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Instead of my usual standard essay format, or even my sparing use of deductive syllogism, this article will use the format Issue, Rule, Analysis, and Conclusion (IRAC) found on law exams .

Issue

The Pro Se 5 have been litigating their case, Adams et al v MGB (2021), for more than three years, most of that time represented by counsel according to the docket of 274 entries. These Pro Se 5 plaintiffs were once in a group of about 267 plaintiffs consolidated under one attorney as counsel for all plaintiffs. From the professional website of the attorney of record (let’s call him R.M.), his practice comprises an older woman of the same last name, perhaps his mother, and a young man. That’s it—only three listed in the practice. R.M. graduated from a law school ranking, in bar passage rate, near the bottom of 10 law schools in Massachusetts.

All 200+ plaintiffs were terminated from employment at Mass General Brigham Incorporated (MGB) for not taking a COVID vaccine. Some submitted religious exemption requests and others submitted medical exemption requests. Some were completely off-site, never needing to go into an MGB facility. Others were in office desk jobs. And many were in contact with patients regularly as attending healthcare professionals.

The amended complaint of record only makes two claims among the 200+ plaintiffs: 1) religious discrimination under Title VII Civil Rights Act of 1964 and 2) disability or medical discrimination under the Americans with Disabilities Act (ADA).

In the real world of actual people, each plaintiff has a unique facts of their cases. Some plaintiffs were granted religious exemptions for the flu vaccine every year since MGB mandated flu vaccination. Others had never applied for a religious exemption. Some had allergic reactions to the same chemical component in COVID vaccines. Some just did not want to take the COVID vaccine and opted to submit a religious exemption request. They found God. The important point is that each individual has a unique claim and set of facts.

Thesis—because there needs to be one here

The cases of the Pro Se 5 were properly consolidated for common questions of fact and law. There is one defendant for all five and the witnesses and counsel are the same people. However, the case was improperly managed as if it were a class action. Each of the Pro Se 5 is less than a half of a percent of the original plaintiff pool. The Pro Se 5 were not able to access the court or their own counsel for their unique and individual claims. This violates a recent Supreme Court ruling that consolidation must preserve the individual case identities.

Rules

The rule for class certification, Rule 23 of the Federal Rules of Civil Procedure, requires that certain conditions be met before the plaintiffs can be certified as a class. (a)(1) The class must be so numerous that joinder of all members is impracticable (numerosity). (a)(2) There are questions of law or fact common among the class members (commonality). (a)(3) The claims or defenses of the representative party or parties are typical of the claims or defenses of the class members (typicality). (a)(4) The representative party or parties will fairly and adequately protect the interests of the class (adequacy). Rule 23(a)(4) mainly exists for the protection of the class members. The class representative(s) usually has one law firm to litigate the case for the class. The law firm must be able to adequately manage the case. Class actions are often intricate and require many depositions involving product design and manufacturing.

The rule for consolidating cases, Rule 42 of Fed. R. Civ. P., is fairly simple. “If actions before the court involve a common question of law or fact, the court may … consolidate the actions” This is done for “judicial economy” and for efficient “case management.”

Recently, the Supreme Court of the United States (SCOTUS), through Chief Justice Roberts, opined on consolidation in Hall v. Hall, 584 US 59 (2018). “From the outset, we understood consolidation not as completely merging the constituent cases into one, but instead as enabling more efficient case management while preserving the distinct identities of the cases and the rights of the separate parties in them.”

Analysis - the part you’ve waited for

Rule 23 was circumvented in Adams et al v MGB (2021) for “judicial economy.” The 200+ plaintiffs were instead consolidated under Rule 42 for the benefit of the Court to manage the case, the benefit of the defendant MGB to amass dismissals and settlements, and the benefit of R.M. to exit with probably a couple million dollars in contingency fees, retainers, and donations.

However, consolidation without adequacy of representation was to the great detriment of all the plaintiffs whose distinct cases were not heard despite Supreme Court rulings emphatically stating that consolidated parties must retain their individuality. The Court (the judge) has a duty to ensure adequacy in this regard because plaintiffs do not know civil procedure and rules of consolidation versus class action.

R.M.’s small firm likely could not be deemed adequate to represent 200+ unique plaintiffs. In speaking to a few of the Pro Se 5, they assert that their individual cases were not represented in the past three years. Other plaintiffs had no documented medical condition or previously had not requested a flu exemption. The Pro Se 5 have good cases based on their individual fact patterns.

Tyler has a documented medical condition due to an anaphylactic reaction to polyethylene glycol (PEG) resulting in hospitalization. Pfizer and Moderna COVID vaccines contain PEG. Tyler could have been killed by a COVID vaccine. She submitted a request for a medical exemption under the ADA. Her request was denied and she was terminated despite being a fully remote worker. MGB claims it is an “undue hardship” if Tyler was not COVID vaccinated.

Roseann worked as a nurse at MGB since 1987 and was granted a religious exemption for flu vaccination every year since MGB began requiring it in 2018. Her COVID vaccine exemption request was denied. Roseann was terminated. “Thanks for 34 years. Now get out.”

Michelle worked as a nurse at MGB since 2012 and was granted a religious exemption for flu vaccination every year since 2018. Her COVID vaccine exemption request was denied. Michelle was terminated. “Thanks for 9 years. Now get out.” Michelle reapplied for a nursing position in late 2023. She was offered a position, was asked to complete a flu religious exemption request, which she did, and was granted the exemption. She asked if there was anything else she needed to complete. The hiring manager said she was all set. Michelle began work at MGB again on November 13, 2023. In January 2024, Human Resources contacted her to say there was an oversight regarding COVID vaccination. She submitted a COVID vaccine religious exemption request. Her COVID vaccine exemption request was denied. Michelle was terminated again. “Thanks for 3 months this time. Now get out.”

Sarah, a neonatal intensive care physician, began at MGB in 2007. At the time of termination, Sarah was a contract employee of MGB placed at a Holy Family Hospital, which is not an MGB business entity. Her peers and coworkers mainly worked for Holy Family Hospital, not MGB, and many did receive religious exemptions to the COVID vaccines. Sarah was denied a religious exemption and terminated by MGB despite not setting foot in any of their buildings for years. “Thanks for 14 years. Now stay out even though you weren’t in our buildings.”

Jamie worked as a nurse at MGB since 2004. She was granted a flu vaccine religious exemption every year since the flu vaccine mandate was initiated. Jamie submitted a COVID vaccine religious exemption, was denied, and was terminated. “Thanks for 17 years. Now get out.”

Now imagine the Pro Se 5 multiplied by fifty. The Pro Se 5 are only about 2% of the plaintiffs that were originally in this case. R.M. abandoned them after settlement because they would not take the settlement deal. Imagine one small law office trying to represent the individual cases of 200+ plaintiffs against one defendant.

Conclusion

The courts’ common practice of civil procedure is yet again awry from justice and equity. The Court bears some responsibility for putting the Pro Se 5 through three years being ignored by their own counsel, by the Court, and by Defendant MGB. Some may put the blame purely on the Pro Se 5 individuals as principals who did not manage their agent/attorney effectively. However, the Court knows that one small-office attorney cannot adequately represent 200+ clients each with disparate questions of fact and law, while still tending to their individual case needs.

Rule 23 Class actions was circumvented to dispose of 200+ cases at the expense of justice for the Pro Se5. On this issue alone, the Pro Se 5 have “good cause” to amend their complaint and to add new facts and events since the original complaint.

This is certainly an appealable issue and one that SCOTUS should clear up. The adequacy constraint should be added to Rule 42 Consolidation, else more über-consolidations will enrich attorneys at the expense of justice for numerous groups of plaintiffs. Hopefully, the Court, in Adams et al v MGB (2021), will see their error in allowing inadequacy to go on for three years and will allow the amended complaint forthcoming from the Pro Se 5. Another avenue is an interlocutory appeal to clarify civil procedure relative to consolidation and adequacy.

If I were they (The Pro Se 5) …

I would not rely solely upon Title VII and ADA employment laws for discrimination. The fact patterns of their five cases combined with the fact that MGB is essentially a protrusion of the federal government, ergo a “state actor,” make this a good case for 1) Civil Action for Deprivation of Rights under the First Amendment for the free exercise of religion, under the Fourteenth Amendment for due process of law given that no appeals were allowed and for equal protection of the laws because some religions were favored over others as indicated in some of the docket filings, 2) Massachusetts common law Fraudulent Misrepresentation because MGB held out a process to them and then did not follow the process (when Michelle was granted a flu exemption and not a COVID exemption in her second employment, it elucidated the fraudulent misrepresentation of the process of religious exemption request evaluation, which had nothing to do with religion, but rather everything to do with COVID vaccination rates at MGB hospitals), 3) Religious Freedom Restoration Act, again “state actor” is required.

The Pro Se 5 should consider adding those to their amended complaint. They have a superb case from what I read in the Summary Judgment Opposition Memorandum and other filings, exhibits, and other documents. There is much more to write and opine upon, but this article is long enough already.

God Bless you all