MDC Blackout: January 27 to February 3, 2019
Scott v. Quay, 19-cv-1075 (E.D.N.Y.)
Last Updated May 22, 2023
If you were at the MDC during the blackout or know someone who was, please continue reading for more information about how to become involved in this lawsuit.
The Lawsuit
On February 22, 2019, plaintiffs David Scott and Jeremy Cerda, both of whom were detained at the Metropolitan Detention Center (“MDC”) in Brooklyn, NY, during the January 27 – February 3, 2019 blackout and crisis, filed a lawsuit against Warden Herman Quay in federal court in Brooklyn. The lawsuit, Scott v. Quay, included claims against the United States under the Federal Tort Claims Act (“FTCA”). The FTCA allows individuals to file personal injury claims against the United States for property damage, injury, or death caused by a federal employee. The lawsuit is currently assigned to Judge Edward R. Korman and Magistrate Judge Peggy Kuo. It was previously assigned to Judge Margo K. Brodie and Magistrate Judge Steven M. Gold.
Updates on the Case
Defendants moved to dismiss the complaint on February 13, 2020. After both parties briefed and argued the case, Magistrate Judge Gold issued a Report and Recommendation on November 16, 2020, recommending that the motion to dismiss be denied as to Plaintiffs’ FTCA claim and granted as to Plaintiffs’ constitutional claims. Both parties filed objections to Judge Gold’s Report and Recommendation. On March 22, 2021, Judge Korman issued an order adopting Magistrate Judge Gold’s Report and Recommendation.
We filed our motion for class certification on February 17, 2021, to ask the Court to allow this case to proceed as a class action.
On May 25, 2021, Judge Korman granted Plaintiffs’ motion and certified the class under the FTCA. The class is defined as “consisting of all those people who were confined in the Metropolitan Detention Center’s West Building from January 27, 2019 until February 3, 2019, and who have or will in the future have satisfied the exhaustion requirement imposed by 28 U.S.C. § 2675.” This means that there is now a certified class of everyone who was in the MDC’s West Building from January 27 to February 3, 2019 and who has already submitted, or will submit, an SF-95 administrative claim to the BOP. However, Judge Korman did not decide whether administrative claims filed more than two years after the power outage would be considered timely. A copy of the Class Certification Order is included on this website as Class Certification Order.
The case is in the “discovery” phase. This means that both sides have investigated a lot of facts relating to the blackout. For example, the parties have asked for, collected, and reviewed documents, and taken sworn testimony from witnesses about what happened during the MDC blackout. Right now, the deadline for the parties to finish discovery has been extended until March 21, 2023 while we engage in settlement negotiations. The Court earlier decided that it would wait until after discovery is over to rule on whether claims filed more than two years after the power outage will be considered late.
As part of the discovery process, Class Counsel asked for the MDC medical records of 109 class members who experienced heightened medical needs during the blackout. The 109 class members were identified based on information provided by these individuals to class counsel on their SF-95 claim forms. These records are relevant to Plaintiffs’ claim that the MDC did not provide adequate medical care during the conditions crisis. On March 25, 2022, Magistrate Judge Kuo ordered that the Defendant must produce these medical records under a HIPAA-compliant court order by April 22, 2022. The medical records will be treated with the highest level of confidentiality and only attorneys will have permission to view them.
To summarize, right now discovery is temporarily paused (or “stayed”) while the parties negotiate a potential settlement. If the negotiations are successful, the parties will begin the months long process of administering the settlement, filing the necessary papers, locating individuals eligible for a settlement award, asking whether eligible people accept or decline, and ultimately sending out payment if enough people agree and other conditions are met. If the negotiations are not successful, not enough people agree to the settlement, or other conditions are not met, the parties will need to set a new schedule for discovery and ultimately trial.
If you have not filled out any paperwork to file an administrative claim (SF-95), you should still do so. Please contact our office at mdc@ecbalaw.com for assistance with filing an administrative claim.
If you already filed an administrative claim (SF-95), you did not need to take any action at this time.
Please take a moment to provide us with your current contact information, either by email to mdc@ecbalaw.com or by calling us at (212) 763-5000.
Notable Filings
- Amended Class Action Complaint
- Briefing on defendants’ motion to dismiss:
- Briefing on report & recommendation:
- Class Certification Order
Other Frequently Asked Questions
Who Is Part of the Class Action? What Do I Do to Join the Class Action?
Every person who was confined at MDC during the crisis is a member of the potential class action. If you were confined in the MDC at that time, you are automatically a member of the potential class action if it is approved by the Court and if you choose to remain a part of it. So long as your SF-95 has already been filed, you do not have to do anything to continue to be a class member.
Who Are the Lawyers for the Class Action?
Emery Celli Brinckerhoff Abady Ward & Maazel LLP, the Benjamin N. Cardozo School of Law’s Civil Rights Clinic, and Alexander A. Reinert represent the plaintiffs and are seeking to represent the class of people who were harmed by the blackout.
What Is the Status of the Class Action Lawsuit?
At this point in the case, we are still conducting discovery, which means gathering documents and testimony from witnesses about what occurred during the time period. Right now, the deadline for the parties to finish discovery about the facts in this case is December 31, 2021. We are also engaged in settlement discussions with the Defendant United States of America to see if we can resolve this lawsuit before going to trial.
How Long Will the Lawsuit Take?
It is unlikely that this lawsuit will be resolved for at least another year. While it is possible that the government will offer to settle the case before it goes to trial, this outcome is by no means certain or expected. This lawsuit could take a very long time to resolve and we appreciate your continued patience.
What Does the Lawsuit Request for the Class Members?
If the lawsuit proceeds as a class action, we will seek money for each person who was in the MDC between January 27, 2019 and February 3, 2019. The lawsuit does not ask for a specific amount because it is too early in the case.
If the Court agrees that a class action should be approved, each member of the class will receive notice. For people who don’t want to be part of the class action, they will have an opportunity to “opt out” of the class action—in other words, each class member could decide not to be included in the class action.
If the Court denies our request to proceed as a class action, we will seek to inform everyone, and you will then be free to file an individual lawsuit for any harm you suffered at the MDC between January 27 and February 3, 2019. We cannot promise to represent you in any individual lawsuit you file if the class action is not certified.
We do not currently represent you individually in any claims you might have based on your time at the MDC. We also are not your criminal attorneys and cannot provide you with advice about your criminal case.
Will I Receive Money from the Lawsuit? How Much Money Could I Receive?
This lawsuit seeks money for people who were at the MDC during the blackout. In order to receive money, the lawsuit must succeed, either through a settlement or at trial. We do not yet know how much money each individual might receive, if the lawsuit is successful. It is possible that the government could eventually offer to settle the case by offering a specific amount of money to the entire class of people affected. It is also possible that the parties will reach no settlement, and the case will proceed to trial. At that point, a judge and jury would decide whether we win and whether the government must pay class members for how they were treated during the crisis at MDC.
How Can I Contact the Lawyers for the Case?
If you have any questions related to this case that are not answered by this website, you can contact us by email at mdc@ecbalaw.com. The lawyers for the plaintiffs at Emery Celli Brinckerhoff Abady Ward & Maazel are Katie Rosenfeld, Andrew Wilson, and Sara Estela. The lawyers for the plaintiffs at the Cardozo Law School’s Civil Rights Clinic are Professor Betsy Ginsberg. Alexander Reinert is another lawyer for the plaintiffs.
We will do our best to respond to every inquiry we receive. Because we anticipate receiving many questions, we ask that you do not contact us with inquiries regarding other grievances you might have that do not relate to the blackout at the MDC from January 27 to February 3, 2019. We hope you will refer to this website for the latest updates.
Last updated: May 22, 2023