Opinion
Civ. No. 3:99-CV-P549-H.
April 2000.
MEMORANDUM OPINION
Plaintiff is a state prisoner suffering from Hepatitis C and cirrhosis of the liver. He originally brought this lawsuit to force the Kentucky Department of Corrections to allow him access to free medical treatment from the Veterans Administration. He also seeks compensatory and punitive damages for violations of his Eighth Amendment rights, pursuant to 42 U.S.C. § 1983, and the Kentucky torts of outrage and intentional infliction of emotional distress. On March 30, 2000, this Court granted injunctive relief and ordered the Defendants to take all steps necessary to allow Plaintiff's VA physician to proceed with combination drug therapy. Now before the Court is Plaintiff's motion to certify his claim as a class action.
Plaintiff originally proposed a class defined as follows: "all individuals being held in the Commonwealth of Kentucky's Department of Corrections and who were housed in the Commonwealth of Kentucky's Department of Corrections since December 1, 1998, who are positive for Hepatitis C, or who were not tested for Hepatitis C, and have been denied or have not been given the opportunity to be treated with the Interferon/Ribavirin combination treatment, and any and all individuals housed in the Commonwealth of Kentucky's Department of Corrections or its various institutions as of December 1, 1998, who are known to be Hepatitis C positive and have been denied the Interferon/Ribavirin treatment for Hepatitis C based upon the Commonwealth of Kentucky's Department of Corrections treatment criteria." The U.S. Food and Drug Administration did not approve the requested treatment until December, 1998.
In his reply to Defendants' response, however, Plaintiff expanded the class definition as follows: "all inmates with Hepatitis C virus whose treatment — including initial testing, subsequent monitoring, and evaluation by a competent physician — is being deliberately ignored by the DOC."
Although a district court possesses broad discretion to determine the propriety of class certification, see Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1197 (6th Cir. 1988), the Court must carefully evaluate Plaintiff's motion under the indispensable standards of Federal Rule of Civil Procedure 23. See General Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 157 (1982) ( quoting East Texas Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 405-06 (1977)). Not only must Plaintiff meet all the prerequisites enumerated in Rule 23(a), but he must also show that the class would be maintainable under one of the provisions in Rule 23(b). In this case, Plaintiff seems to allege that the proposed class would satisfy either Rules 23(b)(1) or 23(b)(3). The Court will assess each requirement in turn, always considering whether Plaintiff has carried his burden to prove that the proposed class fits the standard. See Falcon, 457 U.S. at 161; In re American Med. Sys., Inc., 75 F.3d 1069, 1079 (6th Cir. 1996).
Plaintiff must show numerosity, commonality, typicality, and adequacy of representation. See Fed.R.Civ.P. 23(a).
First, Plaintiff alleges that, if left to litigate separately, the individual class members might receive inconsistent legal determinations or remedies. Second, Plaintiff asserts that a common question of inadequate medical treatment predominates over all other legal and factual questions, and that therefore the Court "would be well within its bounds to grant this motion."
I.
A class must be "so numerous that joinder of all members is impracticable." Fed.R.Civ.P. 23(a)(1). Numerosity, however, is inextricably bound up in the question of class definition. The Kentucky Department of Corrections houses approximately 15,000 prisoners. Some 5,000 may be infected with the Hepatitis C virus. If all 5,000 infected prisoners belong in the class, the Court would find that Plaintiff has met the numerosity requirement. See Senter v. General Motors Corp., 532 F.2d 511, 522-23 (6th Cir. 1976).
Yet Defendants argue that this number over-represents the class, because some positive tests are negative upon confirmation, not all individuals with Hepatitis C require combination therapy, and some would experience detrimental side effects from such treatment. Defendants contend that, if the class were limited to prisoners with Hepatitis C who need combination therapy, or to prisoners with Hepatitis C who have requested and been refused treatment, the numbers would be manageable by regular joinder. But neither Plaintiff nor Defendants suggest the actual size or composition of such classes, so the Court cannot conclude whether they might be so large as to make joinder impracticable. Though a more narrowly defined class will necessarily be less numerous, the ultimate question — appropriate class definition — is best addressed in terms of the commonality, typicality, and adequacy questions, rather than whether a given definition passes the numerosity test.
The Court notes that other prisoner Hepatitis C cases are pending before other judges in this district.
II.
There must also be "questions of law or fact common to the class." Fed.R.Civ.P. 23(a)(2). The Sixth Circuit emphasizes that this requirement is "`qualitative rather than quantitative,'" so Plaintiff need only allege a specific issue of law or fact relevant to all proposed class members. In re American Med. Sys., Inc., 75 F.3d at 1080 ( quoting 1 Herbert B. Newberg Alba Conte, Newberg on Class Actions, § 3.10, at 3-50 (3d ed. 1992)).
Although each prisoner's health care is a separate factual inquiry, at least one factual issue is common to Defendants' actions: the written policy on treatment criteria for serious medical problems, and its implementation in fact. Furthermore, the Eighth Amendment claim — the central legal claim of Plaintiff's lawsuit — is common to all prisoners. Commonality is not a difficult hurdle for class certification, and Plaintiff has satisfied it in this case. However, though this common issue resolves Paulley's case, it may not resolve many others. Once again, a more refined class definition could change this analysis.
III.
The next requirement is that "the claims or defenses of the representative parties [must be] typical of the claims or defenses of the class." Fed.R.Civ.P. 23(a)(3). Like the Sixth Circuit in In re American Medical Systems, Inc., the Court must assess typicality without the benefit of extensive discovery regarding the alleged injuries of other members of the proposed class. After comparing Paulley's medical situation and his legal claim to that of the potential class members, see supra note 1, it is clear that the proposed class definition is overbroad. Not only is Paulley known to be infected with the Hepatitis C virus, but he also suffers from cirrhosis of the liver, and his doctor diagnosed a serious risk of death within a very short time period. To avert this large risk of death, the only possible treatment is the recently approved combination therapy. The Defendants denied Paulley the opportunity to receive such therapy.
Paulley's prognosis and the Department's response to it make his claim untypical of the proposed class. Although failures to test inmates for Hepatitis C or to thoroughly evaluate the medical condition of those who test positive may indeed be violations of the Eighth Amendment, Plaintiff cannot represent such a class. Paulley's legal claim is that Defendants' prevented him — a Hepatitis C positive inmate — from receiving the only therapy that might lessen his significant risk of death. Failure to test is not a part of Paulley's claim, so he is not aligned with other potential plaintiffs who don't suffer immediate, life-threatening consequences from the Hepatitis C virus and aren't denied access to treatment. "We have repeatedly held that a class representative must be part of the class and possess the same interest and suffer the same injury as the class members." Falcon, 457 U.S. at 156 (internal quotations and citations omitted). Paulley's claim may not be typical of the claims of plaintiffs in the class proposed. See In re American Med. Sys., Inc., 75 F.3d at 1082.
The Court does not decide this issue.
This lack of typicality does not, by itself, defeat class certification, but it does redefine the hypothetical class. An appropriate class — one that satisfies the typicality requirement — is the following: all Hepatitis C positive inmates of the Kentucky Department of Corrections whose condition causes a serious, near-term risk of death, who need the combination therapy to address that risk, and who are denied access to the therapy by the Department based upon currently established criteria.
Other than the bare allegations contained in an exhibit to Plaintiff's reply, the Court has no information from which to determine compliance with the numerosity requirement under the appropriate class definition. According to the exhibit, at least four inmates (not including Paulley himself) might qualify for the class. Although there is no minimum number for impracticability of joinder, see Cash v. Swifton Land Corp., 434 F.2d 569, 571 (6th Cir. 1970), it does not seem that Plaintiff has introduced facts sufficient to satisfy the numerosity requirement. Paulley has "the positive burden of showing . . . that the number is so large that it would be impracticable to join all the parties." Id. Plaintiff complains that his failure to come up with more potential plaintiffs is entirely due to Defendants' control of information relevant to discovery of included class members. The Court is unaware of Plaintiff's discovery efforts to date. But because of the disposition of the Rule 23(b) analysis, it is unnecessary for the Court to sort through a potential discovery issue or to stay determination in the interim.
IV.
The final requirement of Rule 23(a) is that Paulley "fairly and adequately protect the interests of the class." Fed.R.Civ.P. 23(a)(4). To be an adequate representative, Paulley must have common interests with the unnamed class members, and he must "vigorously prosecute the interests of the class through qualified counsel." Senter, 532 F.2d at 524-25. Paulley clearly has some common interests with the other class members, and Defendants' suggestion that other class members' lack of VA coverage creates a conflict of interest is unavailing. Defendants also contest the ability of a plaintiff in forma pauperis to vigorously prosecute a case. No prisoner is likely to have large sums of money from which to fund a class action lawsuit. Nonetheless, Paulley's counsel seem to be pursuing the case zealously and well, and there is nothing in the record to suggest that they would not continue to do so.
As to the final element, Plaintiff first asserts that separate actions by individual inmates would risk inconsistent results or incompatible standards of conduct for the Department. See Fed.R.Civ.P. 23(b)(1)(A). To support this assertion, Plaintiff states, "Some juries may find no constitutional violations by the Defendants while others may." This is undoubtedly true, but it does not satisfy Rule 23(b)(1). Unlike cases in which separate adjudications will harm a defendant's ability to satisfy all the potential claims against it, see, e.g., First Fed. of Mich. v. Barrow, 878 F.2d 912, 919 (6th Cir. 1989), a determination by a jury that one prisoner's treatment is or is not constitutional does not pass judgment on the Department's policy writ large. "The fact that some plaintiffs may be successful in their suits against a defendant while others may not is clearly not a ground for invoking Rule 23(b)(1)(A)." In re Benedectin Prods. Liability Litig., 749 F.2d 300, 305 (6th Cir. 1984) (citations omitted); cf. Becherer v. Merrill Lynch, Pierce, Fenner Smith, Inc., 193 F.2d 415, 430 n. 1 (6th Cir. 1999) (Moore, J., concurring) (risk of inconsistent damages does not constitute prejudice for Rule 23(b)(1) purposes).
The constitutionality of each prisoner's treatment must be assessed individually, and a conclusion in one case may not foreclose a different conclusion in another. No inequity results from such different outcomes, because each prisoner is considered as an individual. Medical needs are always peculiar to the patient, and the necessary differences in treatment will not establish conflicting or incompatible standards for the board.
Alternatively, Plaintiff claims that the common questions of law or fact predominate over the individual questions. See Fed.R.Civ.P. 23(b)(3). The Court disagrees. Most of the important and difficult issues in this lawsuit are peculiar to the individual. For each prisoner, the following facts must be determined: Is he Hepatitis C positive? How serious is the infection? Is it fatal? Is combination therapy an appropriate or medically necessary treatment for the prisoner? Would other therapies be more appropriate? Is the Department aware of his condition? Is the Department preventing his treatment? Is the Department's refusal to treat the prisoner under the particular circumstances "sufficiently harmful to evidence deliberate indifference to serious medical needs"? Estelle v. Gamble, 429 U.S. 97, 106 (1976). The depth of Magistrate Judge Gambill's analysis for Paulley's individual claim is a testament to the idiosyncracy of each prisoner's situation. For each inmate, the central question is his access to treatments necessary to satisfy his own medical needs. While Judge Gambill's central holding and this Court's approval of it may form an essential context for all cases; necessarily, individual questions will ultimately predominate. Cf. LoCicero v. Day, 518 F.2d 783, 785 (6th Cir. 1975).
Coordinated resolution of this and other pending and potential prisoner Hepatitis cases may well promote efficiency and consistency. This ruling does not foreclose either a narrower class certification or some other procedural efficiencies. Such other suggestions could be considered by this and other courts. For now, the Court declines to certify the class proposed in Plaintiff's motion. The Court will enter an Order consistent with this Memorandum Opinion.
cc: Counsel of Record
ORDER
Plaintiff moved to certify his complaint as a class action. Being otherwise sufficiently advised,
IT IS HEREBY ORDERED that Plaintiff's motion for class certification is DENIED.
cc: Counsel of Record