Appeals court decertifies class action in assaults case

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By NELSON LAMPE / The Associated Press

OMAHA — A federal appeals court has rejected class-action status for a lawsuit alleging that state officials did nothing to stop sexual assaults and other abuse of female patients at Nebraska’s three mental health hospitals.

In a ruling issued Tuesday, a three-judge panel of the 8th U.S. Circuit Court of Appeals in St. Louis said U.S. District Judge Lyle Strom went too far in certifying as a class action the lawsuit filed on behalf of 16 current or former female patients.

By May 2005, when Strom certified the class action, 14 of the 16 named plaintiffs no longer resided at any of the three hospitals.

The appeals court said “the district court abused its discretion by including present and former residents in a single, essentially unmanageable class.”

The class-action status would have made the suit applicable to more than 1,000 women who have lived or now live at the mental health hospitals in Lincoln, Hastings and Norfolk.

As many as 100 of those women were raped and sexually assaulted, according to court documents.

The 2002 lawsuit was filed by Nebraska Advocacy Services. Bruce Mason, its litigation director, did not immediately return a call for comment.

He has said that the request to expand the lawsuit was made after taking statements and depositions from scores of female patients who were subjected to “rape, sexual assault, sexual harassment, sexual exploitation and physical assault.”

The state had argued that past female patients could not be certified as class members because they would “no longer be subject to an ongoing violation of federal law.”

But Strom cited a 1908 U.S. Supreme Court ruling in rejecting that argument.

“The Supreme Court carved out a narrow exception to this rule,” Strom said. “When the claim on the merits is ’capable of repetition, yet evading review,’ the ... plaintiff may litigate the class certification issue despite loss of his personal stake in the outcome of the litigation.”

Strom noted that many of the women have been residents of the facilities on more than one occasion.

“And it is possible that they could become residents again in the future, due to their continuing mental illnesses,” he said.

Efforts to reach the state’s attorney in the case, Doug Dexter, were unsuccessful. A spokeswoman for Attorney General Jon Bruning said there would be no immediate comment from Bruning’s office.

The lawsuit stems from settlement of a 1995 federal action filed by four women at the Hastings Regional Center that required the state to provide better supervision of patients.

Under the state’s mental health reforms, Norfolk is losing most of its general mental health patients. Hastings is changing the level of care that it offers but will retain some adult female patients in residential care, said Jeanne Atkinson, a spokeswoman for the state Health and Human Services System.

She said the department would have no direct comment on the lawsuit or the appeals court decision.