good morning ladies and gentlemen our st case for this morning is or against shikhar and interruptions to we start with you b the court is going to require to conduct a rigorous analysis of the evidence marshalled by the plaintiff and the defendant to arrive at a decision either granting or denying class certification this in recognition of the high stakes of class action which occasion in this case the plaintiff did not meet any of the elements under rule twenty three dollars k and failed to meet and additional elements under rule twenty dollars b therefore the district court heard when it granted class certification in this case on insufficient record and based upon an order in which the district court  factual findings on the issue of class certification so is is that your real problem the district court didn't spell it out in its opinions or is your problem that the underlying record doesn't show the criteria of rule twenty three and be satisfied well fundamentally it's that the record does not support class certification so we know that there truth out or at least there's some evidence in the record right that there are two thousand people give or take in the illinois department of corrections who would test positive for the hepatitis c virus approximately ten percent of the population in a given time would be hepatitis c positive right and then actually in the in the just reports earlier opinion he goes through quite a bit of conflicting medical evidence i would describe it as some people thinking that it's ok to wait until some of the tests are measuring like the fibrosis level test gets up to at three others saying no you really you know standard care at this point i don't know if they go so far says it would be to deliberately different not to treat immediately but the dut the judge at one point comments that over the eleven years he's been supervising this case medicine has moved along quite a way there's no question about that it went from in the mid two thousand stew and interferon basically like a chemotherapeutic agent and has advanced and this case has sort of dragged along with the advancements in medicine and you know the case started out well before the direct back to you know virals were even on the market  there's a certainly the record is rife with conflicting medical evidence medical evidence that it's irrelevant at the current state of the medicine i would say that advances in medi typically are not made under the th amendment at the point of an th amendment here where we i guess track the advances in a pending case as they happen in order th matter of conscience to is it obvious who the judge was thinking the class representatives were when he identifies these particular cases that have been before him and mr heller has been representing the name plaintiffs and i mean who else would it be other than the name plaintiffs in these cases such as for example jeffrey or well judge the consolidated cases i believe there's four have hundreds of named individual plaintiffs so this isn't a situation where typically we have a representative seeking to bring a class action be happened on the people we have upwards of two thousand people seeking individual damages as named party plane so to say that they were intended to be the class representative i don't know who to fish out of that two thousand people or whose case we would try as the representative let's talk a little bit about your request of relief you're seeking remain with instructions to dismiss the claim is it possible if we don't completely agree with you thinking is that there's going to be less of a onerous outcome so that might be in the what is your positions but well my position is that the elements were met on any that the facts don't support the elements on familiar with case law that would suggest either way i guess suppose i don't see a reason the court couldn't carve out certain moments for remaining but then given the state of the record in this case it being an eleven year old case we need to get down to the business of sorting out these two thousand individual class let me ask you this is one of the things that's always struck me is notable about class actions  if this proceeds as a class action i'll just say hypothetically if you destroy or as the class representative there is a fairly well organized way that we now handle them class against the illinois department of corrections in wexford i assume about them right now but is that better for you that's a little bit like what happens in mt else right you know you get huge number of cases consolidated the court will pick one or two representative cases to try as bellwethers and in you and on the go you should there's a settlement that is not a better way of handling this i'm not sure there's an option here given the individual surely they have hep c they have been the common question you know i guess at what level is a treatment protocols so lacking that it actually meets the deliberate indifference standard i you'd like to give some of it to protocol recognize that recommendations for treatment of hepatitis c change frequently indeed the department updated its protocol to expand treatment for inmates with fiber skin scores up to or greater after the district court records suggested that it do so nonetheless eleven years after this case was st filed the district are granted empire plaintiffs motion for a permanent injunction even though on page eight of that order it also found that there was nothing in the january two hundred one thousand protocol that indicated a deliberate intent intention to ignore the effects of the disease or to deliberately harm the prisoners or consciously expose them to a serious course of the time the portions of the district court's order they  aks i mean again i would certainly not take a position this right now but there i understand them to be saying that without these tweaks that the district court gave to your january th team protocols this still fell of greater than or equal to two these are people you're referring to you i see is her understanding yes correct and so the only question seems to be when you refer them well st of all there's he's added this additional app rescore greater than point seven and he seems to be saying you i see needs to treat them unless it has some reason not to as opposed to just exercising its medical judgment i'm not really clear what the difference i believe under the protocol of the inmates are to be referred to you i see for the physicians at u i c to determine the appropriate course of treatment and at the beginning of the protocol in the st few paragraphs it spells that out that the decision to provide treatment will be made by the physicians at u screened for hepatitis c within three months of being received into department custody and then the treatment began within three months of the hepatitis c day gnosis remind me which this order stayed it was right because otherwise it would have a because well providing it well delay in providing medical treatment may in some instances rise to the level of deliberate indifference what type the length of delay that is constitutionally allowable depends on a particular inmate and the type of disease or harm that may be caused and so in some instances a short delay of even a few hours may reisa level level of deliberate indifference in other instances several months may not and so there is no constitutionally mandated deadline by which  inmates must receive this course of treatment and in fact during the testimony during the evidence here hearings in this case there was not testimony given by any expert explaining that this three month deadline was necessary this right i'm familiar with that evidence it seems to me in principle there could be hypothetical conditions where you would say if you haven't done anything about it and three months is a lapsed you are in the deliberate in abscess or something where somebody used you know in agony because there are two things bad if you sat around and waited for three months like the district court put that outer limit i think we would all say well that's a reasonable outer limit think what you're saying is that the record for hepatitis c at least contains evidence on both sides that there's that there is evidence that suggests as you just said that it's a slow moving that's that's correct here but you but your whether there are constitutionally required might even be a question of fact i mean i can think of instances where delay in treatment is so extreme i think you're making more granular factual argument that this isn't amount to deliberate indifference and as a state defendants argued in our briefs the question of whether treatment should began for inmates below the f two standard is not presently before this court in these appeals because there's not a i was just going to say that's why i was trying to focus on you know this what is the at the practical difference between what you're doing already for the f two people and what the district court wants you to do i think what the least but the judge is concerned that if you if you take this long wait and see approach then you're left with nothing but a liver transplant which i'm sure the state doesn't provide while so that also leads to the reason injunctive relief was not necessary in this case if that is the concern of the district court that these are the potential delay and providing treatment and or that perhaps that you know that the january generic consent decree that didn't drill down into hepatitis c with anything like the details of this case so the consent decree does acknowledge that the department will allow a monitor to review and analyze the type of medical treatment that it provides to inmates for a variety of different medical ailments including inmates of chronic disease like hepatitis c and so lippert consent decree does not provide a specific course of treatment but it does acknowledge that hepatitis c will be type of disease that the monitors who are appointed in that case will be reviewing the department's treatment of inmates with hepatitis c the protocol and you know if there's any issues or problems with implementing those protocols and so the monitor in the lippert consent decree and there has been a monitor that's been appointed at the time that state defendants move to stay the proceedings in reviewing and they will be reviewing their department's protocol and treatment plans and staffing needs for a variety of treatment and diseases including hepatitis c and so this goes to another reason the balance of harm analysis here is that plenary injunctive relief was not needed or necessary in this case in light of the lippert consent decree which would allow a monitor to review the protocol and if there were issues with implementation dge baker pointed out during the course of time one hundred and twenty eight dollars of the inmates with hepatitis c have died about want to months so in the three months that the court has allowed for all of these patients not to get treatment we would estimate that another three will die and one will die every month because they are not being treated for hepatitis c but that's a little more generally now obviously nobody wants this to happen probably the people who are dying needed to be treated quite some time ago i guess i have a lot of questions for you but one of them is didn't the district judge blow by the rule twenty three criteria way too fast because i'm thinking of says i don't know why the state didn't but in cases such as the general telephone case saying you've got to pay attention to the characteristics of the class representative and we don't even know who this is well st of  all there are two thousand patients and we that's fine but i mean if you read justice stevens as opinion in general telephone there they're picking about you know kind of mexican american who's complaining about promotion be a class representative for somebody who's complaining about hiring and they say no so we need to see it is a little it is a little different in this case st of all this is a subset of the lippert class that's already been certified that the state as  got into lippert in a minute but the but the point is would somebody with an f three be a good class representative for somebody who's f one just for example well i think doesn't mean you can only have one class representative you may well have to have a no we don't have any though but we do because each of the individual plaintiff the still party to the suit in a typical case four or five people bring the suit and then you examine whether or not they're qualified class representatives in a typical case the district judge says susie smith is proffered as the class representative let's look at her case let's look and see what happened to her how does it match what happened to the rest of the people are there potential conflicts between her and the others and a whole bunch of inquiries like that and a district court certifies this individual sometimes they get extra payments because they're the class rep and  of course this is the nd time we addressed the issue of class or occasion there was a class certification hearing earlier where the court found commonality where the there and where the court found that the numerosity test was met with what representative you know i don't believe that the court felt that any of the persons who met his criteria were not capable class represented by just doesn't tell us that i mean this is a new one to me i've been thinking that class actions for years and no named representative really discussed by the district well of course as the justice pointed out the court you could remand for the sole purpose of flying which of the individual plaintiff would be the class representatives and judge baker could pick that wasn't what happened in man versus ohio which was decided b and i believe june of this year or and was taco which was decided in september of this year where these exact classes were certified so this isn't something that is new or unusual it isn't what would necessarily happen in florida or in indiana in the stafford case we clearly have a group of people who have a problem and as you pointed out your honor the option is give each plate of one day to present his or her claim and we'll do it individually and give the state half a day for a bottle of cross examination and we will be trying these cases for the next twenty years because there are two thousand plaintiffs already and quite frankly from my clients we have two thousand people that have signed individually to be played as a class certification doesn't help any of them it doesn't help the two thousand name plaintiffs that are before the court what it helps is the people who didn't sign up for the case that the court is saying should be treated so from the dismissed in that case so you're just suing the state and in the or case that's correct and reason is and you you ask counsel about it what's what is it that we want in june of two thousand and seventeen judge baker entered in order as we started this process knowing that would come from interferon unripe a very to the any viral drugs and the price of treatment had gone from twenty thousand to eighty thousand dollars and judge baker said we need to treat everybody as soon as possible but not later the stage to and eighteen months later the state still wasn't treating even stage three we still had people calling on a weekly and monthly basis my husband is dying my husband needs an organ transplant and they  protocols that troubled me a bit especially in light of lippert where he says i still need gender this injunction because i'm not sure that the state is going to stick with what it promised to do now that's already a bit of a problem given that i don't think we presume bad faith on the part of the state and it seems to me it's doubly a problem given the umbrella lippert consensual thing does include hep c well i guess the question is do the people who have hep c have a right to insist on treatment or and they've already had the hearing they presented the evidence they've dealt with those issues we're going to treat them are we going to let them develop from f two to f three to four what's appropriate that is what the protocols st of all when we had a hearing in two thousand and nineteen we were st given a protocol and when the medical director of the department was on the stand he said well that isn't what i did here's the one i did literally the week of the hearing for injunctive relief they came up with this new plan and the new plan doesn't promise treatment for anyone at any point in time it talks about making referrals and then prioritizing and making recommendations for treatment so what's wrong with deferring to the medical judgment of the doctors at u i c for this do you think you can actually write and yes you can treatment well i think what the judge said was that if the doctor say that the standard of care and there isn't any question about what the standard curious that testing was absolutely clear if the standard of care dictates treatment then you'll treat not that you'll make recommendations for t prioritize them and promised them go get treatment some time but you'll get treatment this warning if you look on the internet on good are x website you can find a prescription for eclipse of for three thousand six hundred dollars you take that pill once a day for eight weeks and you're ninety eight percent chance of being cured and yet they'll make a recommendation that maybe you'll get that treatment when will you get it will you go to will you go to fibrosis level three before you get it will you die on the organ transplant list and you're right your honor once you're on the list you're finished but you're not going to get an organ transplant in the department of corrections it's a death penalty and one hundred and twenty people have died and we need to say i agree with this rush to we need to get down to business and treat these folks don't we need more facts about how the class representative matches up with this did the people who die have f four levels of fibrosis i would imagine so i mean they're very they have liberal liver failure don't look like compared to the others and i'm not sure i agree with you that the evidence is uncontested about how to treat there is certainly evidence i saw indicating that it's a slow progress in conditions for some people they can go decades and they're all right for other people they're less fortunate and are in bad shape sooner but you don't know and i don't know and the doctors can't tell us which way the patient for pepsi that would be so if you have hep c and you think well i'll just wait you're playing russian roulette but why doesn't the media that the testimony that i read you can certainly correct indicated that take a wait and see approach f one but then when it moves to f two you say ok now this is moving let's refer to you i see and see if we need a more aggressive intervention it's ok all of the testimony in january of ninety all that testimony was clear that number one st of all it's more cost effective to treat early going to sway you actually save money if you treat early number two that that even at f zero f one people who do not get treatment lose life expectancy faster than people who do get treatment so they are dying faster every day as a result of the the fact that they have this progressive disease going on in their body and it's not being treated and you can treat it with the pill further we don't know who's going to progress at what rate so you are taking a chance and that the doctors a dental fight numerous extra have paddick complications that arise from the failure to treat hepatitis c at page ninety six dollars of one of the versions of or one of the sub reports in lippard it's on page four hundred and seventy four of the p d f file that's contained by the court the the court's expert says it is the best interest of the patient population the institution and the non incarcerated community to create all disease has started to destroy your liver it has already started and it's measurable so to say that there is no harm at f zero or if one is inconsistent with the medical testimony that we heard in this case it's inconsistent with what lip expert testimony in but record there were no experts that testified in january nineteen to the contrary there were there was testimony in the eight in the seventeen yr seventeen hearing yet about that that it was a good idea to wait and  long ago there were lots of reasons to wait because the interferon have such horrible side effects and it was expensive and so they waited and balance but but you take a pill a day with almost no side effects and a ninety eight percent chance of cure there's your position though is it really if the department of corrections adopt any protocol other than the optimal one it's violating the th amendment no ma'am i'm not suggesting that at all but i'm c doctors would commit malpractise if they diagnose somebody as know by doctors don't have the right to prescribe the medicine they make recommendations under this protocol back to department of corrections and then they make a decision as to when and where to treat you and i know that they did and i thought the medicine was like overnighted down to the in the would test once you're qualified to receive the treatment and then you're like you i see is going to obtain the medicine to ship that there's out so that's not what you just said well you think they can prescribe they don't they don't get to make a decision when it's your turn to get the medicine the department of correction still retains that under this protocol and there's no guarantee that you'll ever get it there's no remedy you can't go into natural rule to show cause because you haven't been treated you just wait your turn well i understand that there's a monitor in the lippert to crimean and i recognize that this case is much more focused on hep c and lippert was about actually quite a bit of different i'm not sure that my say you need the pill so to speak they send it to the prison i don't understand this protocol that wexford can just then decide ok we have fifteen pills who are we going to give it to but if you look at the protocol no where in that protocol can you put your finger on something that says you will get treated and here's when you'll get treated it's it's just not in there it it isn't and that's why the judge tweaked it because as he said to here he said you know just because you tell me you've the protocol doesn't mean you'll do it and that's been the history for eleven years that they have these protocols they they have rationale for treatment but yet we have people who do grievances who get rubber stamp say you're not going to get treated they just don't treat people and one of the suggestions i made in the in my brief and i think about it if you if you are inclined to do so but one of the options would be a simply consolidate this case into lippert classes the same or at least were a subset of that class i think by definition all of my clients are or at some point were a member of that class the other interesting fact is that this this case is not the only non lippert case with the department of corrections and their failure to properly treat you know it get the mental health case out of curia as well so this isn't the only area of medicine where lippert wasn't inclusive enough such that the judge who heard the case felt compelled to enter some kind of relief because the history of the treatment that the people with hepatitis c have got in the department of corrections over the last eleven years is really bad well i am not going to disagree with you about that and the department of corrections has not always covered itself with glory that we are looking at this case i think we're looking at the january twenty nine two thousand and nineteen sorry january twenty one thousand protocol i'm looking at least at the way the state describes it and what they say is relying on  o i just can't read in that that it's not designated for the inmate who is in question but but that isn't if you read the protocol so that isn't what happens that isn't what the protocol calls for and there's no designation as to when they have to say ok fine send that prescription or when they have to give it to the plate of the whole point of the injunctive relief was simply to do what mr rip suggest suggest we do and that is some sort of clear direction that will treat people that is that it's not ok to let them die it's not ok to let them go to fibrosis level three and four that after a certain period of time they get the medication that they need maybe it's four months instead of three maybe it's six and you talk about the telemedicine but if again if you know to lippert they only do that twice a year this isn't like you if you're sick you go and you see a doc twice a year they have these telemedicine clinics that's not exactly monitoring the situation that gets progressively worse is that in the record it is it's in the the lipper report on numerous occasions these telemedicine chronicler clinics or twice a year and when we asked the medical director about the part of correction when he was on the stand in january his response is i don't know he didn't even know how often his chronicler the question was clear isn't it true these are only two eyes here i don't know and that's the response we've got to a lot of these issues they don't know and they won't provide the care judge baker from said look eighteen months ago i told you to treat people as soon as possible now what does that mean if if all you have to do is order a pill as soon as possible and eighteen months later the day the week before the hearing they say oh ok well we'll we'll come up with this new protocol but but no guarantees as to when they'll treat and you don't hear me here saying we've treated everybody stage two and above and it's been eleven months and we still haven't treated stage to it but that's what their protocol if you think it should be the way you suggest they treated everybody by now and it really would have made the matter moot but you don't hear him standing before this court and said we've already treated everybody of two and above so we don't need the judge thank you thank you very much which in maine will progress and at what rate but the inmates once they've been diagnosed with hepatitis c they're rolled in the chronic care clinic where they're seen every six months to track the disease and determine if it has progressed and if so then refer the inmates  us sort of chronic care clinic is inside the prison run by wexford and then there's this telemedicine thing with you i see right next up right there telemedicine program is where the inmate is able to speak with minutes out of a day every six months or how does that work in truth your honor i'm not entirely sure exactly how it works as far as when the inmate is referred to time to tell a medicine program and when that set up i will say however to the extent that there are any issues or problems again with the toe medicine program and how it's run or how frequently it's run again that is something that will be reviewed by the monitor to put a point on monitor and leopards and i would also just point out what  concerned about is that there's no individual right for an inmate let's say who's progressed to three or possibly worse to just get in there and say you're under a court order to give me treatment give me treatment now or i'm going to go back and see