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Postawko v. Missouri Department of Corrections

United States Court of Appeals, Eighth Circuit

December 6, 2018

Michael Postawko; Christopher Baker; Michael C. Jamerson Plaintiffs-Appellees
Missouri Department of Corrections; Corizon LLC; Trinidad Aguilera; John Williams; FNU Stamps; Thomas Pryor; FNU Proctor; FNU Hardman; FNU Davison; Paul Jones; FNU Stieferman; T. Bredeman; Julie Fipps; FNU Cofield; FNC Rucker; Jamie Campbell; Dawn Baker; Geeneen Wilhite; Adrienne Hardy; Bonnie Boley; Amanda Yates; Julie LNU; J. Doe; Anne Precythe, in her official capacity as Director of the Missouri Department of Corrections Defendants-Appellants The Arc of the United States; Center for Children's Law and Policy; Judge David L. Bazelon Center for Mental Health Law; Disability Rights Arkansas, Inc.; Human Rights First; Impact Fund; National Disability Rights Network; National Immigrant Justice Center; National Juvenile Defender Center; Missouri Protection & Advocacy Services; Lawyers' Committee for Civil Rights Under Law Amid on Behalf of Appellee(s)

          Submitted: September 27, 2018

          Appeal from United States District Court for the Western District of Missouri - Jefferson City

          Before WOLLMAN, KELLY, and ERICKSON, Circuit Judges.

          ERICKSON, Circuit Judge.

         Michael Postawko, Christopher Baker, and Michael Jamerson sought class certification for their claims alleging that the Missouri Department of Corrections ("MDOC") and various related defendants violated the Eighth Amendment and Title II of the Americans with Disabilities Act ("ADA") by providing inadequate medical screening and care for chronic Hepatitis C ("HCV") viral infections. In particular, they claim the MDOC's policies expose the class to a substantial risk of serious harm. The district court[1] granted class certification. We granted the Defendants' Fed.R.Civ.P. 23(f) petition for interlocutory appeal of the grant of class certification, and now affirm.

         I. Background

         Postawko, Baker, and Jamerson (the Named Plaintiffs) are each incarcerated in the MDOC. They filed an action asserting that they received inadequate medical care for their HCV infections and sought class certification. The following facts were contained in the Plaintiffs' Second Amended Complaint. HCV is a viral infection that can cause liver damage and other extremely serious side effects. Those who contract HCV may suffer inflammation of the liver, known as hepatitis. In turn, those with hepatitis may suffer significantly impaired liver functioning. A decrease in liver function may result in symptoms such as severe pain, fatigue, difficulty or pain with urination, and an increased risk of heart attacks.

         HCV may be either acute or chronic. While some acute HCV infections are resolved naturally, others develop into chronic HCV. Individuals suffering from chronic HCV develop fibrosis of the liver, in which healthy liver tissue is replaced with scar tissue. Patients are said to suffer from cirrhosis when a significant portion of the liver has been converted into scar tissue. Cirrhosis is irreversible. Determining exactly when significant fibrosis amounts to cirrhosis is not always an easy task, complicating treatment. Cirrhosis often causes "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." Some of these complications can cause death if left untreated.

         At least half of all those who suffer from chronic HCV will develop either cirrhosis or liver cancer. Each day without treatment increases the risk that an HCV infection will either develop into a serious condition such as chronic liver disease, fibrosis, cirrhosis, or liver cancer, or cause death from liver failure. HCV causes the death of more American citizens than any other infectious disease.

         In recent years, significant medical advancements have been made in the treatment of HCV, which gives rise to the Plaintiffs' case. While previous treatments demonstrated only low rates of success and often caused substantial side effects, new direct-acting antiviral drugs ("DAA drugs") are estimated to cure over 90% of patients who receive them as treatment. DAA drugs are also estimated to cause a 90% reduction in the risk of liver-related mortality. Those effects, however, may diminish if treatment is delayed. The medical standard of care put forward by organizations such as the Infectious Diseases Society of America and the American Association for the Study of Liver Diseases now recommends that almost all persons with chronic HCV receive DAA drug treatment.[2]

         To know whether or not treatment is required, patients must undergo reliable screening for liver fibrosis or cirrhosis. One method for determining the presence and degree of cirrhosis or fibrosis is the AST to Platelet Ratio Index, or APRI. The APRI is derived by analyzing a blood sample of the patient and determining the ratio of a particular enzyme to the number of platelets. While a high APRI score (above 2.0) reliably indicates the presence of cirrhosis or severe fibrosis, a low APRI does not provide conclusive evidence in the other direction; in fact, over half of all patients suffering from cirrhosis will not have an APRI score of 2.0. For this reason, the use of other methods (such as liver biopsies) may be required to reliably determine whether an individual is suffering from fibrosis or cirrhosis.

         The rate of HCV infection among the population of the MDOC is estimated to be at least 10% to 15%. As a highly communicable disease, HCV often spreads among the incarcerated population. The MDOC has provided DAA medications to less than one-half of one percent of inmates in their custody with a known HCV infection.

         Plaintiffs alleged that Defendants Precythe, MDOC, and Corizon, LLC have the following policies or customs:

(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 ...

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