Defendants’ overarching objection to the district court’s certification focuses on the common contention that “excessive heat constitutes a condition of confinement that poses a substantial risk of serious harm to the health of inmates.” Defendants do not contest that putative class members are all exposed to essentially the same temperatures. Defendants also do not contest that Pack Unit temperatures, particularly in the summer months, are often extreme. Nor do they contest that, absent mitigation measures, every inmate in the Pack Unit is at a substantial risk of serious harm due to the heat. They do contest, however, the ability to decide the substantial-risk-of-serious-harm question “in one stroke” (under Wal-Mart v. Dukes) in light of the various heat mitigation measures that TDCJ makes available to Pack Unit inmates. Specifically, Defendants assert that the efficacy of TDCJ’s heat-mitigation measures to reduce the risk of serious harm to a constitutionally acceptable level will largely depend on the age and health of each particular individual — for the young and healthy, they may; for the old and sick, they may not. And because the Pack Unit inmate population is diverse in both age and health, it is impossible to determine all at once whether the excessive heat in the Pack Unit constitutes a condition of confinement that poses a substantial risk of serious harm to the health of all inmates. So, Defendants assert that in order for this question to be “common” for Rule 23(a) purposes, Plaintiffs were required to prove that even the youngest, healthiest, and most acclimatized inmates face a substantial threat of serious harm despite TDCJ’s existing heat-mitigation measures.
However, the district court “made precisely this finding. It acknowledged that ‘no two individuals have the exact same risk.’ Nonetheless, it concluded that this obvious fact does not destroy commonality because ‘the evidence calls into serious question the adequacy of TDCJ’s mitigation measures — as applied in practice — in reducing the heat risk for all the inmates, and particularly those with comorbidities that diminish their ability to thermoregulate.’ In other words, the district court found, based on the expert testimony, that TDCJ’s heat-mitigation measures — more frequent showers, cold drinking water, fans, and temporary access to air-conditioned respite areas — were ineffective to reduce the risk of serious harm to a constitutionally permissible level for any inmate, including the healthy inmates, and the Defendants concede the existence of a common question under these circumstances.”
Yates v. Collier, No.16-20505, 2017 WL 3574968 (5th Cir. Aug. 18, 2017).