Appeals court to decide whether to certify class action for inmates with hepatitis C

By John Breslin | Nov 15, 2018

ST. LOUIS — A federal appeals court is currently considering whether to affirm a lower court's decision to certify a class action on behalf of prisoners with hepatitis C.

The American Civil Liberties Union (ACLU) and the MacArthur Justice Center of St. Louis want all inmates suffering from the liver infection to receive treatment, arguing that it is "cruel and unusual punishment" to deny treatment.

Missouri is fighting the suit, arguing that the inmates have such different symptoms that each case should be dealt with separately.

Tony Rothert, legal director for the ACLU in Missouri, said any decision by the 8th Circuit appeals court is not yet a win for the inmates in the underling suit, just that class certification will be approved.

Nevertheless, Rothert told the St. Louis Record: "We are extremely confident in our evidence, that it is not even a close case."

He noted that there was similar litigation in approximately 10 other states. Colorado settled and agreed to spend more than $40 million on treatment, while a federal court in Indiana found that the Department of Corrections' failure to treat inmates violated constitutional protections against cruel and unusual punishment.

Rothert said that when it came to the treatment of inmates, courts were often "extremely deferential" to states, but that medical advances in the treatment of hepatitis C made this a different situation.

"This is an extreme illness, with serious effects, including death, and there is a cure," Rothert said.

The Missouri Department of Corrections has not said in court that cost is a factor, but the plaintiffs believe it is a motivator.

New drugs developed in recent years makes hepatitis C curable within 12 weeks. But the price for the best known treatments is between $55,000 and $95,000, though the Food and Drug Administration last year approved the use of a significantly lower-priced medication, costing $26,500 for an eight week course of treatment.

U.S. District Judge Nanette Laughrey approved the class action certification, a decision that the state appealed. Oral arguments were heard before the appeals court in September, and the panel could deliver its opinion before the end of the year, according to the plaintiffs.

Missouri Deputy Attorney-General Ryan Bangert argued that because the medical needs of the inmates were so different they should not be included in the same lawsuit, according to a report by St. Louis Public Radio.

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