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Barfield v. Cook

United States District Court, D. Connecticut

August 6, 2019

ROBERT BARFIELD, ET AL Plaintiffs,
v.
ROLLIN COOK in his official capacity as Commissioner of the Connecticut Department of Correction Defendant.

          RULING ON CLASS CERTIFICATION

          MICHAEL P. SHEA, U.S.D.J.

         Plaintiffs Robert Barfield, John Knapp, Jason Barberi, and Darnell Tatem (together, “named Plaintiffs” or “Plaintiffs”) bring this putative class action lawsuit regarding medical care for incarcerated people infected with Hepatitis C against Rollin Cook in his official capacity (“Defendant”) as Commissioner of the Connecticut Department of Correction (“CT DOC”). Following the Court's ruling on the Motion to Dismiss, the only claim remaining is Plaintiffs' claim for various forms of injunctive relief against Cook in his official capacity for deliberate indifference to medical needs in violation of the Eighth Amendment under 42 U.S.C. § 1983.[1] Plaintiffs move to certify a class consisting of “all people who are or will be prisoners in the custody of the [CT DOC], and who have or will have Hepatitis C while in custody and have not yet been cured.” ECF No. 32 at 1. For the reasons discussed below, this motion is GRANTED to the extent set forth in this ruling.

         I. FACTS

         These facts are drawn from the operative complaint, the parties' briefs on class certification, and the accompanying affidavits and exhibits.

         A. Hepatitis C

         Hepatitis C is a blood-borne disease caused by the Hepatitis C Virus (“HCV”). ECF No. 35 at ¶ 25. HCV causes inflammation that damages liver cells, and is a leading cause of liver disease and liver transplants. Id. It is transmitted through contact with infected blood and can be transmitted through intravenous drug use, tattooing, blood transfusions, and sexual activity. Id. at ¶ 26. HCV can be either acute or chronic. Id. at ¶ 27. Acute HCV clears itself from the blood stream within six months of exposure. Id. Chronic HCV is a long-term illness that is defined as having a detectable HCV viral level in the blood six months after exposure. Id. People with chronic HCV develop fibrosis of the liver, which is a process that replaces healthy liver tissue with scarring, thereby reducing liver function. Id. at ¶ 29. When scar tissue takes over most of the liver, it is called cirrhosis. Id. at ¶ 30. Cirrhosis may not be reversible and can cause complications even after the HCV is treated. Id. at ¶ 33. Fibrosis can also lead to liver cancer. Id. at ¶ 29. In addition, chronic HCV can cause kidney disease, internal bleeding, and a host of other serious medical issues. Id. at ¶¶ 28-31, 35. It can also cause death. Id. at ¶ 31.

         Approximately 2.7 to 3.9 million Americans have chronic HCV and approximately 19, 000 people die of HCV-caused liver disease each year in the United States. Id. at ¶¶ 39, 42. The prevalence of HCV in prison is much higher than in the general population. Id. at ¶ 44. It is not clear how many people in the CT DOC system have HCV, but a recent study shows that 10-12 percent of the population at the New Haven Correctional Center had HCV in 2015. Id. at ¶¶ 45, 55, 58.

         B. Standard of Care for HCV

         In the past, the standard treatment for HCV, which included the use of interferon and ribavirin medications, had long treatment durations, failed to cure most patients, and was associated with many side effects. Id. at ¶ 62. In 2011, however, the Food and Drug Administration (“FDA”) began approving new oral medications called direct-acting antiviral drugs (“DAAs”). Id. at ¶ 63.While the DAAs were initially designed to work with the old treatment regimen, in 2013 the FDA began to approve DAAs that can be taken alone. Id. DAAs work more quickly, cause fewer side effects, and treat chronic HCV more effectively than the old treatment; in fact, 90 to 95 percent of HCV patients treated with DAAs are cured, whereas the old treatment regime cured only roughly one-third of patients. Id. at ¶¶ 63-65.[2]

         The American Association for the Study of Liver Diseases (“AASLD”) and the Infectious Disease Society of America (“IDSA”) set forth the medical standard of care for the treatment of HCV. Id. at ¶¶ 67-68. The IDSA/AASLD guidelines recommend that all people with risk factors for HCV be tested, including both those born between 1945 and 1965 and all those who were ever incarcerated. Id. at ¶ 75. The guidelines also recommend immediate treatment with DAA drugs for all people with chronic HCV. Id. at ¶ 69. The Centers for Disease Control and Prevention (“CDC”) encourages healthcare professionals to follow this standard of care. Id. at ¶ 67. The Medicaid guidelines are consistent with this standard of care, as they eliminated any requirement that there be evidence of hepatic fibrosis before covering DAA treatments. Id. at ¶ 71.

         The benefits of immediate treatment include immediate decrease in liver inflammation, reduction in the rate of progression of liver fibrosis, reduction in the likelihood of the manifestations of cirrhosis and associated complications, a 70 percent reduction in the risk of liver cancer, a 90 percent reduction in the risk of liver-related mortality, and a dramatic improvement in quality of life. Id. at ¶ 73. Delay in treatment increases the risk that treatment will be ineffective. Id. at ¶ 74.

         C. HCV Treatment at CT DOC

         In 1997, CT DOC and the University of Connecticut Health Center (“UCHC”) entered into a Memorandum of Agreement (“MOA”) for the provision of health care to offenders through Correctional Managed Health Care (“CMHC”). Id. at ¶ 20. This MOA remained in place until July 1, 2018, when Semple terminated the relationship between DOC and UCHC and brought all health care functions “in house, to be controlled specifically by the DOC.” Id. at ¶¶ 20-21. It provided that CMHC would implement clinical practice guidelines and Medicaid guidelines. Id. at ¶ 70. CMHC's policy governing the treatment of prisoners with HCV (“Policy G 2.04”) was promulgated on December 10, 2002, and revised on May 30, 2005, December 21, 2010, February 1, 2012, July 31, 2013, June 30, 2015, and June 30, 2016. Id. at ¶ 91; ECF No. 35-1 (Policy G 2.04). The policy created a special board of infectious disease experts who evaluate all requests for treatment of the Hepatitis C infection in CT DOC facilities. ECF No. 35 at ¶ 93. It also created a Hepatitis C Utilization Review Board (“HepCURB”) to review all requests for treatment. Id. at ¶ 95. The policy details the steps that physicians and the HepCURB should take when working with patients who have HCV. Id. at ¶¶ 97-99, 102, 106. Policy G 2.04 provides that, “in general, ” HepCURB will follow the specific recommendations of the AASLD and IDSA, which both recommend immediate treatment with DAAs for all people with chronic HCV; at the same time, the policy states that “they will not directly provide specific anti-viral drugs for Hepatitis C.” Id. at ¶¶ 69, 95-96. CT DOC did not release any new guidelines for HCV treatment following the July 1, 2018 decision by Semple to change the management of health care services for DOC inmates. Id. at ¶ 104.

         Plaintiffs allege that “prioritization for the DAA treatment as stated in Policy G 2.04, which places advanced HCV cases of hepatic fibrosis and liver transplant candidates at the top of the line is not in line with the standard of care” as“[d]elaying treatment until a patient is extremely sick has the perverse effect of withholding treatment from the patients who could benefit from it most, because the treatment is less effective for patients with the most advanced stages of the disease.” Id. at ¶ 105. Plaintiffs allege that even if the policy was adequate, CT DOC does not follow the policy and, in practice, delays treatment for virtually all prisoners with HCV (regardless of disease progression) until the prisoner is released from prison or dies. Id. at ¶¶ 100, 105, 108-09, 113, 115. Plaintiffs further allege that the policy does not address liver transplantation, the only cure for people with decompensated cirrhosis, and does not address the need for liver cancer screening, “which is standard medical practice once individuals have progressed to advanced fibrosis or cirrhosis.” Id. at ¶¶ 117-18.

         D. Named Plaintiffs

         1. Plaintiff Barfield

         Robert Barfield has been incarcerated since 1994 and was transferred to the custody of the CT DOC in August 2012. Id. at ¶¶ 174-75. He was diagnosed with Hepatitis C in 2006 while he was incarcerated in Nevada, Id. at ¶ 177, and has chronic HCV, Id. at ¶ 179. While in the custody of the DOC, Barfield continually requested treatment for HCV, but was told that he did not meet the requirements for treatment and that he was not sick enough to be treated. Id. at ¶¶ 184-85. He filed numerous grievances complaining of his symptoms and requesting treatment, but all were denied. Id. at ¶ 186. CT DOC did not comply with Policy G 2.04 in Barfield's case, Id. at ¶¶ 187, 191, 206, and he developed a No. of medical issues that can be caused by HCV, Id. at ¶¶ 199, 203, 208, 221. On April 13, 2017, Dr. Omprakash Pillai received a test showing that Barfield had a viral load of 4, 567, 000 in his blood plasma; a viral load of more than 800, 000 is considered high, but Barfield was told that his viral load was normal. Id. at ¶ 223. His viral load continued to be very high in subsequent tests. Id. at ¶¶ 224, 226. Barfield specifically requested DAAs on more than one occasion, but was denied access to them. Id. at ¶¶ 218-19, 244. On June 1, 2017, Barfield's medical record indicates that a FibroScan - an ultrasound that determines the amount of fibrosis in a liver - would be requested for him. Id. at ¶¶ 81, 227. He had the liver scan approximately nine months later on March 12, 2018. Id. at ¶ 235. The liver scan showed that he had at least an 85 percent probability of significant fibrosis. Id. at ¶ 236. After filing several requests to obtain information about his condition, Id. at ¶¶ 237-39, Barfield was informed on June 14, 2018, that he suffered from moderate fibrosis (F2 on the scale of F0 to F4), Id. at ¶ 241. Barfield was informed that he would be considered for treatment, but that he would have to wait until the CT DOC fully transitioned medical care away from CMHC before the request for treatment could be considered. Id. at ¶ 242. Barfield was approved for DAAs only after filing this suit. Id. at ¶ 247. By the time Defendant filed his opposition to class certification, Barfield had completed treatment for HCV and had completely cleared the Hepatitis C virus. ECF No. 52-1 at ¶ 18.

         2. Plaintiff Knapp

         John Knapp was a pretrial detainee in the custody of the CT DOC from March 9, 2018 through October 25, 2018.[3] ECF No. 35 at ¶ 250. He pled guilty to two charges on October 25, 2018 and continued to be in the custody of the CT DOC. Id. at ¶ 249. Knapp already knew that he had HCV before entering into the custody of the CT DOC, but it was confirmed when he tested positive for HCV at the Hartford Country Correctional Center. Id. at ¶¶ 251-52. Knapp suffers from a variety of medical issues, including an echogenic (i.e., abnormally dense) liver and hepatic steatosis (inflammation and scarring caused by fat in the liver), which likely resulted from HCV. Id. at ¶¶ 254-59. He is also a recognized risk for cirrhosis of the liver. Id. at ¶ 261. When Knapp was transitioned from being a pretrial detainee to being fully committed to the custody of the CT DOC, he was not initiated through the HCV protocol as set forth in Policy G 2.04. Id. at ¶¶ 263-66. As of the filing of the operative complaint, Knapp was not receiving any treatment for his HCV. Id. at ¶ 264. However, he was started on a course of DAA treatment with Mavyret on May 24, 2019, and is scheduled to complete treatment on August 16, 2019. ECF No. 52-1 at ¶ 29.

         3. Plaintiff Barberi

         Jason Barberi was diagnosed with HCV on or about April 29, 2013, while he was being housed at Carl Robinson Correctional Institution. ECF No. 35 at ¶ 288. At that meeting in 2013, the doctor told him that he would be a good candidate for treatment, but he was not consulted about treatment again until 2018. Id. at ¶ 289. He asked for treatment repeatedly from the time he was diagnosed in 2013 until October 2018. Id. at ¶ 292. Barberi had a FibroScan in February 2018 and the results, which he received in June 2018, showed that he had stage 3 fibrosis. Id. at ¶¶ 298-99. After seeing these results, Barberi requested more information about his condition. Id. at ¶ 300. On August 1, 2018, he received a response explaining that treatment had been requested. Id. at ¶ 301. He then completed several request forms seeking information about the timeline for treatment. Id. at ¶¶ 302-04. On August 20 and 26, 2018, Barberi completed request forms seeking to speak with Plaintiffs' attorney Ken Krayeske. Id. at ¶¶ 305-06. On September 10, 2018, Barberi learned that his treatment had been approved. Id. at ¶ 307. As of September 30, 2018, he still did not know when his treatment would start. Id. at ¶ 308. On October 8, 2018, he requested a copy of his HCV treatment plan and learned that he still had no start date for his treatment. Id. at ¶ 309. He never received an HCV information packet, but he did begin treatment on or about October 22, 2018, i.e., before the operative complaint was filed. Id. at ¶¶ 309-10. By the time Defendant filed his opposition to class certification, Barberi had completed treatment for HCV and had completely cleared the Hepatitis C virus. ECF No. 52-1 at ¶ 18.

         4. Plaintiff Tatem

         Darnell Tatem has been HCV positive since at least 1999 and has been housed in Northern Correctional Institution, Cheshire Correctional Institution, or Osborn Correctional Institution at all times relevant to this action. ECF No. 35 at ¶¶ 317, 319. When he came into the custody of CT DOC in 2006, he had a brief conversation with a doctor about his HCV. Id. at ¶ 321. In addition to serious medical conditions unrelated to HCV, Tatem also has high blood pressure, which may be attributable to the virus. Id. at ¶¶ 322-29. He has requested DAAs, but was repeatedly told that his HCV had to reach a certain level of dysfunction before he would be eligible to receive treatment. Id. at ¶¶ 331-32, 336. He may have had an MRI and a FibroScan, but he is unsure. Id. at ¶¶ 337-38. He has not received any counseling about his HCV nor has he received an information packet about HCV. Id. at ¶¶ 330, 340. As of the filing of the operative complaint, the CT DOC had not completed its HCV protocol on Tatem. Id. at ¶ 342. However, since then, Dr. Pillai recommended treatment with DAAs and Tatem was scheduled to start a course of DAAs on June 7, 2019. ECF No. 52-1 at ¶¶ 24-25.

         E. Class Action and Relief Sought

         Plaintiffs seek to certify “a class of all current and future prisoners in CT DOC custody who have been diagnosed, or will be diagnosed, with chronic HCV.” ECF No. 35 at ¶ 346; see also Id. at 69 ¶ A. They also seek an injunction ordering Defendant to provide routine opt-out testing for all CT DOC prisoners or otherwise identify all prisoners who are infected with chronic HCV; to properly screen, evaluate, monitor, and stage CT DOC prisoners with HCV; to modify the exclusions from HCV treatment; to immediately provide direct-acting antiviral medications to those with chronic HCV; and to provide liver transplants where appropriate. Id. at 69 ¶¶ D-E.[4]

         II. LEGAL STANDARDS

         A party seeking class certification must satisfy each of the requirements set forth in Federal Rule of Civil Procedure 23(a):

(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or ...

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