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Chimenti v. Wetzel

United States District Court, E.D. Pennsylvania

May 24, 2018

SALVATORE CHIMENTI, ET AL.
v.
JOHN WETZEL, ET AL.

          MEMORANDUM

          JOHN R. PADOVA, J.

         Plaintiffs Salvatore Chimenti, Daniel Leyva, and David Maldonado have brought this lawsuit against John Wetzel, the Secretary of the Pennsylvania Department of Corrections (the “DOC”), and Paul Noel, the Chief Medical Director of the DOC (collectively the “DOC Defendants”), as well as two companies that have contracted to provide medical services for the DOC and officials and employees of those companies (collectively the “Medical Defendants”), asserting claims regarding the medical care provided to DOC inmates who have been diagnosed with Hepatitis C viral infections (“HCV”). Specifically, Plaintiffs contend that the DOC Defendants have violated their rights under the Eighth Amendment and the Pennsylvania Constitution by adopting a policy for the treatment of inmates with chronic HCV that fails to provide them with appropriate medical care.[1] Plaintiffs seek injunctive relief requiring the DOC Defendants to formulate and implement a Hepatitis C treatment policy that (1) meets the community standards of care for patients with chronic HCV; (2) ensures that inmates with chronic HCV are treated with medically necessary and appropriate direct-acting antiviral drugs (“DAAs”); and (3) provides ongoing monitoring and medical care in accordance with the standard of care for such patients' liver fibrosis and cirrhosis.

         Plaintiffs seek to represent a class of similarly situated inmates of the DOC who have at least twelve weeks remaining to serve on their sentences. Before the Court is Plaintiffs' Renewed Motion for Class Certification, which is opposed by the DOC Defendants.[2] For the following reasons, the Motion is granted.

         I. FACTUAL BACKGROUND

         Plaintiffs Chimenti, Leyva, and Maldonado all suffer from chronic HCV and were, at the time of the filing of this action, incarcerated in correctional institutions that are part of the DOC. (See Compl. (Docket No. 1) ¶¶ 1-2; DOC Defs.' Ans. to Compl. (Docket No. 30) ¶¶ 1-2.) Beginning in 2011, the United States Food and Drug Administration (“FDA”) approved DAAs for the treatment of Hepatitis C. (Trooskin Rpt., Pls.' Resp. to Mot. for Summ. J., Ex. A at 2.) These drugs, which include Harvoni, are capable of achieving a “sustained virologic response, ” which means “the elimination of the virus[, ] for more than 90% of patients.” (Id. at 2-3.) Prior to the development of DAAs, the standard of care “was a three-drug treatment containing boceprevir or telaprevir, interferon and ribavirin” that “provided, at best, a 70% cure rate, and was accompanied by significant adverse side effects such as anemia, insomnia, anxiety, depression, nausea, bone pain, muscle [pain], liver failure, joint pain, memory loss, and death.” (Id. at 2.) Plaintiffs' expert, Dr. Stacey Trooskin, has opined that the use of DAAs is now “the standard of medical care for the treatment of all HCV individuals.” (Id. at 3.)

         When Chimenti, Leyva, and Maldonado first asked to be treated with DAAs, their applications were rejected by the DOC. Chimenti began requesting treatment with DAAs in late 2013, but Defendants denied his requests. (Pls.' Counterstatement of Add'l Facts (“PSAF”) ¶¶ 225-30; DOC Defs.' Resp. to Pls.' Counterstatement of Add'l Facts (“DRPCAF”) ¶¶ 225-30.) Chimenti filed grievances asking for treatment with DAAs in early 2014, but his grievances were denied because the DOC did not have a Hepatitis C protocol and had put all Hepatitis C treatment on hold. (PSAF ¶¶ 226-28; DRPCAF ¶¶ 226-28.) Chimenti has suffered from Stage 4 Cirrhosis since at least 2000. (Pls.' Resp. to Mot. for Summ. J., Ex. U at 5.) In October 2015, Chimenti was diagnosed with liver cancer. (PSAF ¶ 232; DRPCAF ¶ 232.) Chimenti was treated with DAAs beginning in October 2016. (PSAF ¶ 236; DRPCAF ¶ 236.)

         Leyva filed a grievance with the DOC on January 13, 2015, asking to be treated with the new Hepatitis C drugs. (Pls.' Resp. to Mot. for Summ. J., Ex. V at 2.) The DOC upheld his grievance, but told him that it was evaluating its treatment options and developing a new treatment protocol and, in the meantime, would only monitor patients with HCV. (Id. at 3.) On March 4, 2015, Leyva sent a letter to the DOC expressing his concern with having to wait for treatment while the DOC developed a new treatment protocol for Hepatitis. (See id. at 4.) The DOC responded that it was continuing to monitor inmates with HCV while it evaluated treatment options. (Id.) On April 7, 2015, Leyva filed a new grievance, asking to be treated with Harvoni. (Id. at 5.) That grievance was denied. (Id. at 7-19.) Leyva still has not received treatment with DAAs. (1st Am. Class Action Compl. (“1st Am. Compl.” ¶ 68; DOC Defs.' Ans. to 1st Am. Compl. ¶ 13.) Maldonado also filed a grievance asking to be treated with the latest DAAs, but his grievance was rejected because the DOC was developing a new treatment protocol. (1st Am. Compl. ¶¶ 73-74; DOC Defs.' Ans. to 1st Am. Compl. ¶ 16.) The DOC has not treated Maldonado with DAAs. (DOC Defs.' Ans. to 1st Am. Compl. ¶ 16.)

         The DOC issued a new protocol for the treatment of HCV on November 7, 2016. (DOC Defs.' Statement of Material Facts (“SMF”) ¶ 40; Pls.' Resp. to SMF ¶ 40.) The Hepatitis C Treatment Protocol does not require the DOC to treat all inmates with HCV with DAAs. Instead, the Protocol requires the DOC to treat the sickest inmates first, and it bases its treatment decisions on an inmate's fibrosis score. (SMF ¶¶ 45, 53; Pls.' Resp. to SMF ¶¶ 45, 53.) Fewer than 10% of DOC inmates with chronic HCV have been treated with DAAs under the Protocol. (PSAF ¶ 178; DRPCAF ¶ 178.)

         Plaintiffs seek to represent the following Class:

all persons who are currently incarcerated in a Pennsylvania Department of Corrections (“DOC”) facility with a diagnosed condition of chronic Hepatitis C, and who have at least twelve (12) weeks or more remaining to serve on their sentences, and who have a life expectancy of over one year.

(Renewed Mot. for Class Cert. at 2.) As of September 20, 2017, the DOC held 7521 inmates who have been infected with Hepatitis C, 5265 of whom have chronic HCV. (Wenhold Decl., DOC Defs.' Mot. for Summ. J., Ex. F, ¶¶ 15-16.) The DOC has treated 297 of those inmates who have chronic HCV with DAAs. (Id. ¶ 17.)

         The First Amended Complaint states four claims for relief. Count I asserts a claim pursuant to 42 U.S.C. § 1983 on behalf of the three named Plaintiffs and the Class for deliberate indifference to the serious medical needs of prisoners infected with HCV in violation of the Eighth Amendment to the United States Constitution. Count II asserts a claim on behalf of the three named Plaintiffs and the Class for violation of Article I, § 13 of the Pennsylvania Constitution. Count III asserts a claim for medical malpractice against all Defendants on behalf of Chimenti. Count IV asserts a claim against Correct Care Solutions and Wexford for medical malpractice on behalf of Chimenti. Plaintiffs seek an injunction on behalf of themselves and the Class ordering the DOC to:

(a) formulate and implement a Hepatitis C treatment policy that meets the community standards of care for patients with Hepatitis C, (b) that members of the Class be treated with medically necessary and the appropriate direct-acting antiviral drugs based on individual medical testing and medical evaluation regarding each individual's Hepatitis C status, and (c) that members of the [C]lass receive ongoing monitoring and medical care per the standard of care for their individual level of liver fibrosis and cirrhosis, including but not limited to appropriate access to and evaluation by a hepatologist and assessment regarding their need for partial or full liver transplant.

(Id. ¶ 98.) Plaintiffs also seek compensatory and punitive damages for Chimenti, reasonable attorney's fees and costs, and such other relief as the Court deems just and equitable. (Id. ¶¶ 99-102.)

         II. LEGAL STANDARD

         In order to be certified, a class action “‘must satisfy the four requirements of Rule 23(a) and the requirements of either Rule 23(b)(1), (2), or (3).'” In re Modafinil Antitrust Litig., 837 F.3d 238, 248 (3d Cir. 2016) (quoting Marcus v. BMW of N.A., LLC, 687 F.3d 583, 590 (3d Cir. 2012)). “The party seeking certification bears the burden of establishing each element of Rule 23 by a preponderance of the evidence.” Marcus, 687 F.3d at 591 (citing In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 307 (3d Cir. 2009)). Thus, Plaintiffs must establish the following four elements:

(1) the class must be “so numerous that joinder of all members is impracticable” (numerosity); (2) there must be “questions of law or fact common to the class” (commonality); (3) “the claims or defenses of the representative parties” must be “typical of the claims or defenses of the class” (typicality); and (4) the named plaintiffs must “fairly and adequately protect the interests of the class” (adequacy of representation, or simply adequacy).

In re Cmty. Bank of N. Va., 622 F.3d 275, 291 (3d Cir. 2010) (quoting Fed.R.Civ.P. 23(a)(1)-(4)). If Plaintiffs are able to satisfy these requirements, “we consider whether the class meets the requirements of one of three categories of class actions in Rule 23(b).” In re Nat'l Football League Players Concussion Injury Litig., 821 F.3d 410, 426 (3d Cir.), cert. denied sub nom. Gilchrist v. Nat'l Football League, 137 S.Ct. 591 (2016), and cert. denied sub nom. Armstrong v. Nat'l Football League, 137 S.Ct. 607 (2016). Plaintiffs ask us to certify the Class under Rule 23(b)(2), which applies when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed.R.Civ.P. (23)(b)(2).

         The DOC Defendants oppose class certification on three grounds. They first argue that the Class is not sufficiently numerous to be certified. They next argue that the named Plaintiffs do not have claims that are typical of the claims of the absent Class members. They finally argue that, because the named Plaintiffs' claims are not typical, they would not be adequate representatives of the members of the Class.[3]

         III. ...


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