Russell v. Educational Commission for Foreign Medical Graduates

A class of plaintiffs injured when they were treated by an unqualified, purportedly foreign-trained doctor filed an action against the Educational Commission for Foreign Medical Graduates, which is responsible for confirming the credentials of foreign-trained doctors. The district court certified an “issue class” on liability issues relating to whether the defendant violated a duty of care, and the defendant appealed. We serve as co-counsel on appeal, arguing that the district court’s opinion is consistent with an emerging consensus among the circuits on when certification of an issue class is appropriate. On September 24, 2021, the Third Circuit issued an opinion agreeing with our position that an issue class may be certified even when the plaintiffs’ claim as a whole does not meet the standard for certification under Rule 23(b)(3). However, the court also held that the district court had not sufficiently analyzed whether the issue certified satisfied the Rule 23(b)(3) requirements and had not addressed some of the criteria set forth in the court’s prior case law concerning when issue certification is appropriate.

The defendant then filed a petition for certiorari, asking the Court to consider whether a court may certify one or more issues for classwide resolution pursuant to Federal Rules of Civil Procedure 23(b)(3) and 23(c)(4), where common questions predominate over individual ones for the certified issues but not necessarily for the case as a whole. On April 8, 2022, as co-counsel for the plaintiff-respondent, we filed an opposition to the petition. In May 2022, the Court denied the petition.