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Postawko v. Missouri Department of Corrections

United States District Court, W.D. Missouri, Central Division

July 26, 2017

MICHAEL POSTAWKO, et al., Plaintiffs,


          NANETTE K. LAUGHREY United States District Judge.

         Plaintiffs Michael Postawko, Christopher Baker, and Michael Jamerson move for class certification. [Doc. 77]. For the following reasons, the motion is granted.

         I. Background

         Named 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 facilities. [Id.].

         A. Hepatitis C

         HCV is 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 effects. [Id.].

         HCV can 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.].

         When 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 failure. [Id.].

         At 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.].

         B. Standard of Care for HCV

         For 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].

         The CDC 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.].

         C. Methods for Determining Progression of Fibrosis/Cirrhosis

         Health 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].

         If a 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.].

         D. Defendants' HCV Treatment Policy within the MDOC

         Plaintiffs 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.[1] [Id.].

         Defendants 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.].

         E. Named Plaintiffs Postawko, Baker, and Jamerson's Claims

         Named 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. [Id.].

         In 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. [Id.].

         On 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.].

         Named 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. [Id.].

         F. The Proposed Class

         The 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, [2] as that term is defined medically, but who are not provided treatment with direct acting antiviral drugs.

         Plaintiffs 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.[3]

         Specifically, 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.

         II. Discussion

         A. Class Certification Standard

         Under 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).

         Plaintiffs 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 satisfied.” Id.

         At the 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 motion.

         While 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 ...

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