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Oregon HCV Suit Certified as Class Action

On December 19, 2002, Oregon prisoners suing prison officials for refusing to properly diagnose and treat their hepatitis C virus (HCV) were handed an important victory, when a federal judge issued a 37-page Opinion and Order, certifying the suit as a class action. In doing so, the Honorable Anna J. Brown became the first judge in the country to certify a prison HCV suit as a class action.

Judge Brown engaged in a detailed and scholarly analysis of each of the class action requirements enumerated in Fed.R.Civ.P. 23(a), (b)(2), and (b) (3), finding that plaintiffs satisfied all of the requirements of FRCP 23(a) and (b)(2).

The Court first found that plaintiffs satisfied the "numerosity" requirement of FRCP 23(a)(1) when they alleged that: the putative class size is estimated "to be at least 3,300 to 5,500 based on ODOC's estimates"; the putative class includes prisoners "in 12 prisons located in various geographic regions of the State" and prisoners "housed out of state"; "approximately 400 [prisoners] from almost every prison . . . in the state have contacted and retained Plaintiffs' counsel"; and "[m]ost [prisoners] have limited resources and are unable to provide for their own medical care, to pay for medical records, to obtain competent legal counsel, or to access medical research and information."

Noting that defendants failed to directly address plaintiffs' numerosity arguments, and provided no analysis of relevant case law, the Court rejected defendants' general argument "that plaintiffs have not produced information indicating the actual number of potential class members that have been clinically determined to require combination therapy' and have not demonstrated whether it is impracticable to join these individuals in a single suit."' The Court found "Defendants' argument [to be] too narrow: The underlying issue is the creation of and adherence to appropriate administrative procedures for identification and treatment of HCV-positive [prisoners] rather than identification of [prisoners] who require combination drug therapy."

The Court then found that plaintiffs satisfied the "commonality" requirement of FRCP 23(a)(2) "at least with respect to their claims that Defendants systematically denied treatment, and their claims for injunctive relief." The Court noted that "Plaintiffs argue Defendants have engaged in a concerted, systematic, purposeful denial of treatment to all HCV-infected [prisoners] in the Oregon correctional system. Plaintiffs present evidence to show every [prisoner's] request for treatment . . . has been denied initially, and the [prisoners] have been forced to satisfy innumerable and ever-changing administrative hurdles before treatment is even considered." The Court appeared to be particularly moved by Oregon State Penitentiary Health Services Manager William Cabal's response to a treatment request, stating: "We do not treat hep C."

The Court noted that "Defendants point to a multiplicity of reasons for denial of [prisoner] treatment requests and argue a determination as to whether each named Plaintiff's denial of treatment is appropriate would entail a detailed examination of the facts pertinent to each individual plaintiff." The Court rejected this argument, however, finding: "Defendants' multiplicity' of reasons for denial of [prisoner] treatment are, in fact, indicative of ODOC's overall practice of nontreatment."

Next, the Court found that plaintiffs satisfied the "typicality" requirement of FRCP 23(a)(3), concluding: "Although their individual medical conditions differ, the fact remains they all were initially denied testing and treatment as part of what Plaintiffs allege is a deliberate, systematic plan. Plaintiffs' claims arise from the same practice or course of conduct that gives rise to the claims of other class members and are based on the same legal theories." The Court noted that: "All Plaintiffs were denied treatment; all were forced to participate in lengthy, dilatory grievance procedures; all had HCV and had been requesting treatment for several years; and all were the recipients of a cross-section of reasons given by ODOC for denial of treatment. In addition, the remedial theories pertaining to the injunctive relief sought would apply to the putative class[.]"

The Court then concluded that plaintiffs satisfied the "adequate representation" requirement of FRCP 23(a)(4), finding: plaintiffs' "counsel is qualified and competent, the named plaintiffs do not have interests antagonistic to the remainder of the class, and the named Plaintiffs have sufficient interest in the outcome of the case to ensure vigorous advocacy."

The Court concluded that class certification is appropriate under FRCP 23(b)(2) "on the limited issues of liability and injunctive relief." The Court found that "the compensatory and punitive damages sought by Plaintiffs in this action are not `incidental' as required by Rule 23(b)(2). The damages could not be computed by objective standards, and the Court would require additional hearing to determine damages. As such, for purposes of class certification, it would not be appropriate under Rule 23(b)(2) for the Court to consider these damages allegations of the Amended Complaint."

The Court noted in certifying the class under FRCP 23(b)(2) that "Plaintiffs argue Defendants have acted in a concerted manner to deny treatment for HCV to all members of the putative class. They allege Defendants only treat and evaluate an infected [prisoner] if the [prisoner] brings a legal action or initiates the grievance process. Plaintiffs further allege Defendants have denied treatment to all [prisoners] who have filed formal grievances. Again, Plaintiffs provide direct evidence that ODOC officials have repeatedly made clear that ODOC does not treat Hep C." The Court went on to note that "[a]lthough the amount and relative importance of monetary damages available to members of the proposed class may vary widely in this action, the injunctive relief sought is likely to be important to every member of the class. Plaintiffs allege Defendants deliberately and systematically refuse to test for and to treat HCV. The injunctive relief Plaintiffs request would determine definitely the propriety of ODOC's practices with respect to all members of the class and, if granted, would require ODOC to implement some means of ensuring testing and treatment."

Finally, the Court concluded that class certification would not be appropriate under FRCP 23(b)(3), finding that: "it would be difficult to satisfy notification requirements, to calculate individual damages, and to determine the appropriate distribution of damages. . . . The Court also finds the disparity in the stage of disease of each Plaintiff, the individual factors that will affect the type of treatment for each Plaintiff, and the amount of damages actually suffered by each Plaintiff all dictate against a finding of predominance and superiority."

The Court defined the class as "all inmates who are infected with the HCV virus and who are in the custody and control of the Oregon Department of Corrections." Additionally, over defendants' objection, the Court granted "a subclass of formerly incarcerated individuals for the purposes of declaratory relief only." The subclass is defined as "all inmates who were incarcerated under the control and custody of [the] Oregon Department of Corrections and who were infected with the HCV virus during the time of their incarceration."

Additionally, over the objection of defendants, the Court granted plaintiffs' request that Defendants be required "to provide notice of this action to currently incarcerated class members by posting a single page on the bulletin board of each prison library and in the various living quarters in each prison and by including an announcement in each facility's regularly published newsletter" once each month for the duration of the litigation. In ordering the requested notice, the Court found: "[i]n the Amended Complaint and the evidence submitted in support of their Motion for Class Certification, Plaintiffs raise significant questions as to the ability of ODOC inmates to obtain information about HCV testing and treatment. Accordingly, the Court finds the form of notice Plaintiffs request will serve to protect the members of the class and to promote fairness in this action."

In another development, the Republic of Mexico has approached Plaintiffs' counsel and indicated an interest in intervention in this lawsuit since a significantly large percentage of [prisoners] are Hispanic and many are Mexican nationals. These Mexican citizens are rarely given information in Spanish and remain unaware of [their] current situation. These citizens are then deported to Mexico where a national epidemic is being created with HCV infected former" prisoners.

Despite the fact that the case was filed more than one year ago, and Defense Counsel has admitted on several occasions that defendants are aware that the ODOC HCV policies are defective and will be amended at some unspecified future date, ODOC medical staff continue to refuse to properly diagnose and treat HCV infected prisoners and defendants have adamantly refused to entertain any settlement negotiations.

As previously reported in PLN (PLN, July 2002] the plaintiffs are represented by Portland attorney Michelle R. Burrows. She can be reached by email at: See: Anstett, et. al. v. State of Oregon, et. al., USDC No. CV01-1619BR.

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Related legal case

Anstett v. State of Oregon