United States District Court, W.D. Missouri, Central Division
NANETTE K. LAUGHREY United States District Judge.
Michael Postawko, Christopher Baker, and Michael Jamerson
move for class certification. [Doc. 77]. For the following
reasons, the motion is granted.
Plaintiffs Michael Postawko, Christopher Baker, and Michael
Jamerson are incarcerated in the Missouri Department of
Corrections (“MDOC”). [Doc. 30');">30, p. 3]. They filed
this putative class action for claims arising out of what
they allege to be inadequate medical care for their chronic
Hepatitis C (“HCV”) viral infections.
[Id.]. They bring claims under 42 U.S.C. § 1983
and the Eighth Amendment, as well as Title II of the
Americans with Disabilities Act (ADA). [Id. at p.
4-9]. They named numerous defendants, including their prison
treating physicians and nurses; prison officials who reviewed
their grievances and treatment requests; the MDOC; and
Corizon, LLC, the healthcare provider for all MDOC
a viral infection that attacks the liver and causes its
inflammation, referred to as hepatitis. [Id. at p.
9]. Hepatitis caused by HCV can significantly impair liver
function and damage its crucial role in digesting nutrients,
filtering toxins from the blood, and preventing disease.
[Id.]. In turn, liver impairment can cause severe
pain, fatigue, muscle wasting, difficulty or pain with
urination, an increased risk of heart attacks, and other side
be either acute or chronic. [Id.]. Some people who
are exposed to infected blood develop an acute infection that
their body resolves without treatment, while others who
develop acute HCV go on to develop chronic HCV. [Id.
at p. 10]. People with chronic HCV develop fibrosis of the
liver, which is a process by which healthy liver tissue is
replaced with scarring. [Id.]. Because scar tissue
cannot perform the jobs of normal liver cells, fibrosis
reduces liver function. [Id.].
scar tissue begins to take over most of the liver, this
extensive fibrosis is termed cirrhosis. [Id.].
Cirrhosis is irreversible, and it often causes additional
painful complications, including arthritic pain throughout
the body, kidney disease, jaundice, fluid retention with
edema, internal bleeding, easy bruising, abdominal ascites,
mental confusion, lymph disorders, widespread itching, and
even more extreme fatigue. [Id.]. Because it can be
difficult to determine exactly when significant hepatitis
fibrosis becomes cirrhosis, most of these complications can
occur before cirrhosis. [Id.]. Further, if these
complications go untreated, some can cause death.
[Id.]. At least half of all persons diagnosed with
chronic HCV will develop cirrhosis or liver cancer, and
between 70 and 90 percent will develop chronic liver disease.
[Id.]. Each day without treatment increases a
person's likelihood of developing chronic liver disease,
fibrosis, cirrhosis, liver cancer, and death from liver
least 10 to 15 percent of the population under the
supervision, care, and custody of the MDOC are infected with
HCV. [Id. at p. 11]. As of January 2015, the MDOC
reported that it was treating 0.11 percent of HCV-positive
inmates under its supervision, or 5 inmates out of 4, 736
inmates with known HCV infections. [Id.].
Standard of Care for HCV
many years, there was no effective and safe treatment for
HCV. [Id.]. The standard treatment, which included
the use of interferon and ribavirin medications, failed to
cure most patients and was associated with adverse side
effects, including psychiatric and autoimmune disorders.
[Id. at p. 12]. However, over the past four years,
the Federal Drug Administration (“FDA”) has
approved eight new medications, called direct-acting
antiviral drugs (“DAA drugs”), which work faster,
cause fewer side effects, and are more effective.
[Id.]. Over 90 percent of patients treated with a
DAA drug are cured. [Id. at p. 14].
encourages health professionals to follow the evidence-based
standard of care developed by the Infectious Diseases Society
of America (“IDSA”) and the American Association
for the Study of Liver Diseases (“AASLD”), which
constitutes the medical standard of care. [Id.]. On
July 6, 2016, these organizations updated the standard of
care to recommend treating all persons with chronic
HCV with DAA drugs. [Id. at p. 15]. Benefits of
treatment include an immediate decrease in liver
inflammation, reduction in the progression of liver fibrosis
and improvement in cirrhosis, a 70 percent reduction in the
risk of liver cancer, and a 90 percent reduction in the risk
of liver-related mortality. [Id.]. Studies show that
a delay in DAA drug treatment for HCV decreases the benefits
associated with cure. [Id.].
Methods for Determining Progression of
care providers use several methods to determine the
advancement of an HCV-positive person's cirrhosis or
fibrosis, including liver biopsy and APRI (AST to Platelet
Ratio Index). [Id. at p. 16]. APRI is the use of a
blood sample to determine the ratio of a certain enzyme in
the blood to the number of platelets. [Id.]. When an
APRI score is very high, it has good diagnostic utility in
predicting severe fibrosis or cirrhosis, but low and
mid-range scores miss many people who have significant
fibrosis or cirrhosis. [Id.]. For example, in more
than 90 percent of cases, an APRI score of at least 2.0
indicates that a person has cirrhosis, but more than half of
all people with cirrhosis will not have an APRI score of at
least 2.0. [Id. at 17].
person has already been diagnosed with cirrhosis through some
other means, such as liver biopsy, an APRI score is
irrelevant and not necessary for measuring the progression of
fibrosis. [Id.]. In addition, because the levels of
AST and ALT in one's blood fluctuate from day to day, a
decreased or normalized level does not mean the condition has
improved, and even a series of normal readings over time may
fail to accurately show the level of fibrosis or cirrhosis.
[Id.]. Furthermore, the elevation levels of AST and
ALT often fail to show an individual's current level of
fibrosis or cirrhosis, and they often fail to predict the
consequences of not treating that individual. [Id.].
Although ALT is found predominately in the liver and not all
over the body like AST, and ALT is a more specific indicator
of liver inflammation than AST, an APRI score relies only on
AST without taking ALT into account. [Doc. 30');">30, p. 17');">p. 17]. For
all of these reasons, using an APRI score alone to determine
the severity of a person's fibrosis or cirrhosis is not
adequate or appropriate. [Id.].
Defendants' HCV Treatment Policy within the MDOC
further allege that Defendants Precythe, MDOC, and Corizon,
LLC have the following policies or customs, all of which are
contrary to the prevailing standard of care: (1) not
providing DAA drug treatment to all inmates with chronic HCV;
(2) using an APRI score, which measures the progression of
fibrosis or cirrhosis, to determine whether a person should
be treated; (3) relying exclusively on APRI score to
determine the stage of fibrosis or cirrhosis, rather than
using other more accurate methods of determining its
progression through liver biopsies, FIB-4, or FibroScan; (4)
failing to consider providing treatment to HCV-positive
inmates unless they have an APRI score above 2.0 that
persists for several months, even though more than half of
persons with cirrhosis will not have an APRI score at or
above 2.0, and they know that AST levels are transient; (5)
disregarding independent diagnoses of cirrhosis or
significant hepatitis fibrosis in making their treatment
decisions; and (6) basing treatment decisions on cost, rather
than on need for treatment. [Id. at p. 17');">p. 17-18].
Plaintiffs allege that these policies or customs have caused,
and continue to cause, unnecessary pain and an unreasonable
risk of serious damage to the health of HCV-positive inmates.
[Id. at p. 18]. As evidence of some of these
policies, Plaintiffs submitted eight grievance and informal
resolution request (“IRR”) responses to
inmates' requests for DAA treatment. [Doc. 132-6]. These
IRR responses reflect that DAA treatment was denied to each
inmate due to their individual APRI scores, including to
Named Plaintiff Chris Baker, despite his independent
diagnosis of cirrhosis. [Id.].
have repeatedly denied the requests of the Named Plaintiffs
and other members of the putative class for DAA drug
treatment for their HCV infections. [Id. at p. 19].
It is the policy of Defendants to classify inmates with known
HCV infection as “Chronic Care Clinic Offenders.”
[Id.]. Rather than receiving DAA treatment, these
inmates receive a blood draw every six months and, at times,
minimal counseling. [Id.].
Named Plaintiffs Postawko, Baker, and Jamerson's
Plaintiff Michael Postawko became infected with HCV while
under the care and supervision of the MDOC in or around 2012.
[Id. at p. 20]. Every Defendant treater who Postawko
has seen at the MDOC or who has reviewed his HCV-related
complaints has refused to treat Postawko with DAA drugs.
2005, Named Plaintiff Christopher Baker was diagnosed with
HCV, and in 2007, he underwent a liver biopsy and was
diagnosed with cirrhosis. [Id. at p. 21]. In 2008,
Baker was sentenced to ten years in the MDOC. [Id.].
In 2009, the MDOC began treating Baker with the
then-prevailing treatment, interferon and ribavirin, which
appeared to be working. [Id.]. However, after five
months of treatment, the MDOC, through a provider named Dr.
McKinney, informed Baker that the MDOC was no longer treating
HCV-positive inmates with those drugs and discontinued
Baker's course of treatment. [Id.]. Since early
2010, Baker has received no further treatment for HCV and has
received no treatment at any time with a DAA drug.
March 2, 2016, while Baker was incarcerated at JCCC, an
Informal Resolution Request response to Baker indicates that
he was “placed on a spreadsheet” because he had
an APRI score above 1.0, without regard to his
pre-incarceration cirrhosis diagnosis, which was made based
on a liver biopsy. [Id.]. Baker did not receive any
treatment as a result of either his independent cirrhosis
diagnosis or his placement on a spreadsheet. [Id.].
In July 2016, Baker was transferred from JCCC to Algoa
Correctional Center where he no longer even appears on a list
for treatment. [Id.].
Plaintiff Michael Jamerson became infected with HCV while
incarcerated at the MDOC. [Id.]. Jamerson has
repeatedly requested treatment with DAA drugs.
[Id.]. Although Jamerson is enrolled in the Chronic
Care Clinic, he has not received any DAA treatment.
The Proposed Class
Named Plaintiffs seek certification of a class of similarly
situated individuals in the custody of the Missouri
Department of Corrections, defined as:
All those individuals in the custody of MDOC, now or in the
future, who have been, or will be, diagnosed with chronic
HCV,  as that term is defined medically, but who
are not provided treatment with direct acting antiviral
bring two claims on behalf of the putative class: Count I for
prospective relief for deprivation of their Eighth Amendment
rights against Precythe, in her official capacity, and
Corizon, LLC, and Count II for prospective relief for
violation of the ADA against the MDOC.
Plaintiffs seek a declaratory judgment that Defendants'
“policy of withholding treatment with DAA drugs from
inmates diagnosed with HCV violates the Eighth and Fourteenth
Amendments” and the Americans with Disabilities Act.
[Doc. 30');">30, p. 25 and 27 ¶¶ 136, 144 (Second Amended
Complaint)]. Plaintiffs seek injunctions that (1) direct
Defendants to “formulate and implement an HCV treatment
policy that meets the prevailing standard of care, including
identifying persons with HCV”; (2) direct Defendants to
“treat members of the class with appropriate DAA
drugs”; and (3) direct Defendants to “provide
members of the class an appropriate and accurate assessment
of the level of fibrosis or cirrhosis they have, counseling
on drug-drug interactions, and ongoing medical care for
complications and symptoms of HCV.” Id.
Class Certification Standard
Federal Rule of Civil Procedure 23, a motion for class
certification involves a two-part analysis. First, under Rule
23(a), the proposed class must satisfy the requirements of
“numerosity, commonality, typicality, and fair and
adequate representation.” Luiken v. Domino's
Pizza, LLC, 705 F.3d 370, 372 (8th Cir. 2013). Second,
the proposed class must meet at least one of the three
requirements of Rule 23(b). Comcast Corp. v.
Behrend, 6');">133 S.Ct. 1426, 1432 (2013).
carry the burden to show the class should be certified.
See Luiken, 705 F.3d at 372. This burden is met only
if, “after a rigorous analysis, ” the Court is
convinced the Rule 23 requirements are satisfied.
Comcast, 133 S.Ct. at 1432 (quoting Wal-Mart
Stores, Inc. v. Dukes, 64 U.S. 338');">564 U.S. 338, 341 (2011)).
Rigorous analysis may further “entail some overlap with
the merits of the plaintiff's underlying claim, ”
because “[t]he class determination generally involves
considerations that are enmeshed in the factual and legal
issues comprising the plaintiff's cause of action.”
Id. (quoting Gen. Tel. Co. of Sw. v.
Falcon, 457 U.S. 147, 160 (1982)). However, the
Court's inquiry on a motion for class certification is
“tentative, ” “preliminary, ” and
“limited.” In re Zurn Pex Plumbing Prod.
Liab. Litig., 644 F.3d 604');">644 F.3d 604, 613 (8th Cir. 2011).
“Rule 23 grants courts no license to engage in
free-ranging merits inquiries at the certification
stage.” Amgen Inc. v. Connecticut Ret. Plans &
Trust Funds, 133 S.Ct. 1184, 1194-95 (2013).
“Merits questions may be considered to the extent-but
only to the extent-that they are relevant to determining
whether the Rule 23 prerequisites for class certification are
outset, Defendants contend that certification should be
denied because Plaintiffs failed to submit any evidence in
support of class certification and rely entirely on their
Complaint. The Court rejects this argument because Plaintiffs
have submitted evidence to support their class certification
request. Further, there is no rule that requires admissible
evidence be submitted to support a class certification
Rule 23 “does not set forth a mere pleading standard,
” Comcast Corp. v. Behrend, 6');">133 S.Ct. 1426,
1432 (2013), there is nothing in the rule that mandates
evidence must be submitted to support a request for class
certification. The Rules Enabling Act is the method for
changing the Federal Rules of Civil Procedure, and the Court
declines to create an evidentiary burden that is clearly not
contemplated by Rule 23. Such a significant requirement would
not have been included without debate, and without any
explicit reference, particularly because far more mundane
things are explicitly included in the Rules. While a
plaintiff must “be prepared to prove that there are
in fact sufficiently numerous parties, common
questions of law or fact, typicality of claims or defenses,
and adequacy of representation, as required by Rule 23(a),
” id., the operative word is “be
prepared” to prove the requirements of the Rule. It