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
from United States District Court for the Western District of
Missouri - Jefferson City
WOLLMAN, KELLY, and ERICKSON, Circuit Judges.
ERICKSON, Circuit Judge.
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 granted class certification. We granted
the Defendants' Fed.R.Civ.P. 23(f) petition for
interlocutory appeal of the grant of class certification, and
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
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.
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.
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.
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.
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
alleged that Defendants Precythe, MDOC, and Corizon, LLC have
the following policies or customs:
(1) not providing DAA drug treatment to all inmates with
(2) using an APRI score, which measures the progression of
fibrosis or cirrhosis, to determine whether a person should
(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 ...