below about your honors the simple question in this appeal is whether evidence of a common policy concerning treatment of inmates with chronic hepatitis c taken alone is sufficient to sort of buy a class of thousands of inmates with widely divergent medical needs the district court below did not consider expert testimony it did not hold an evidentiary hearing with witnesses no discovery has been taken in this case to date the evidence considered by the court included two affidavits one of which the court later discarded and a handful of documents most of which were attached to the plaintiff's reply brief  support of class certification in short no rigorous analysis was conducted by the court below despite that fact and despite the relative dearth of evidence the district court certified a class of all missouri  inmates future and present with chronic each cd hepatitis c whether asymptomatic or suffering from advanced complications for the purpose of deciding the question of whether that policy the policy concerning treatment violates the commitment of the u s constitution and the americans with disabilities act now your honour's of the central problem with the district court district court's decision is that conflicts with the teaching of wal mart vs do decided by the u s supreme court in wal mart vs dukes the court held that certification depends not on the raising of common questions even in droves anyone can do that but on the capacity of the class proceeding to generate common answers that will drive the resolution of the case the question that was raised in this case is whether the defendant's policy concerning treatment violates the eighth amendment and the eighty eight as applied to every single inmate in india o c s custody with h cv in the low mark case there was concern about the discretion of the individual supervisors or managers at here i think the district court was pretty clear in distinguishing it by saying this policy actually takes away discretion so we're really not in the wal mart  world so it it seems to me to be and an important distinction that that they're actually directing everyone to be treated the same even when perhaps they're not going to think that's  that doesn't quite get the policy just right if you the district court got it wrong the policy in the policy the district court framed was a policy of not treating inmates with hepatitis c using direct acting anti  does allow for discretion because there's a wide does a continuum of care there's a continuum of treatment nutri they understood that the diagnostic tool wasn't there it wasn't their concern that that was a bit outdated and so it was not a sharp enough tool to actually determine whether someone might might need the drugs you're on and that gets to a very set a central issue that i think is a flaw in the district court's reasoning the district court came to the conclusion that it could answer this question but whether the policy which which the district court and the plaintiffs have framed as being an outdated policy whether it could answer the question of whether that policy violates the eighth amendment with respect every single member of the class and the question is not whether the policy is outdated rather as judge it khuda on the ninth circuit said in his dissenting opinion and in response to the denial of on bach and again this is in the parsons where the ninth circuit certified a class of the route thirty thousand inmates many of whom had no discernible medical conditions and he said in that case that when you look at rule twenty three in the eighth them in that context you have to look not just at the question of whether a common questions are posed but how that question interplays with the claims that are asserted but let me let me ask this and in this particular context it seems like we've got kind of an unusual medical situation we don't often get what i guess what we've been referring to is about as close to the magic pill as you can get for hepatitis c right i mean this is a dramatic swing in the progress of  guess my point is this seems to be and i appreciate what what you're arguing in that that medical error is so individual eyes that it's very difficult to conceive of sort of a policy that would affect everyone but i i wonder if this particular policy is a little different r or c or or significantly different in any meaningful way because of the nature of the treatment where you can get to someone  understand it correctly early and maybe they don't have any in any negative consequences of the virus that all right alison good to answer your question judge kelly that the development of da drugs is a very good thing in the treatment of h c the question here though is whether the court can properly answer the question of whether that policy is constitutional as applied to every single inmate with h c b and the evidence in the record demonstrates that not all inmates with h c b are equally situated in fact they're very differently situated there's evidence in the record from dr breton and  the appendix pages one hundred two to one fifty four he lays out the gradations between these inmates some of them have advanced forms of h cv where they're suffering from advanced fibrosis or even cirrhosis of the liver which is a pre cancerous condition and those types of plant those types of inmates are usually suffering from severe complications treatment of course for those inmates is available under the policy but there's also the other end of the spectrum there are those who suffer from b in a chronic form but yet have no symptoms or asymptomatic and as dr benjamin points out they may never develop fibrosis or cirrhosis based upon medical knowledge and so you have a rate yes r this a different situation when you understand that this is a medication that if it's available early they're looking at actual cure rates of up to ninety percent for a communicable honor and there may be instances and i don't want to speculate too far but there may be isn't this is where an inmate who is suffering from age c v brings an individual eighth amendment claim and may be able to make out a claim based on their own individual get that but what i'm looking at is just this is a policy that's going to allow people to remain in a confined population where other people are susceptible to acquiring the disease right because hepatitis c is communicable and you're just going to wait until they're bad down and that's really what the policy what does this dated policy which apparently predates the widespread availability of these drugs that's the that's the policy abis and doesn't that implicate  because the evidence suggest the evidence indicates that there are some patients who will never get bad enough they will never develop fibrosis or cirrhosis of the liver and for those patients it's unnecessary in fact the district court even recognize its own opinion that members of the class certain members of the class did not need and would not need treatment with direct acting anti viral drugs and this gets to the issue that is framed by wal mart versus duke's is this a situation where the class a certified you can answer the question for the entire class in one stroke in one stroke and maybe where they're looping back again to the same spot but then yes i have a question about the folks who you say well there are some people who may never get the medication when did they find out i guess the question being if you have to wait until you're actually damage before you say oops i should've done it isn't that put you in a class where you could be damaged if you don't have at least access to an assessment charmin whether you could get the drugs before our damage comes around and says so it seems to me an eight the minute claim after you've got fibrosis or cirrhosis seems a little a little bit late in the game when you had the drugs and initially they could have prevented that and your honor and a couple of issues there i want to unpack one this is not a situation where it's a you waiting intel they've suffered damage to treat they're all on the continuum of care they're being monitored counseled they're being diagnosed assessed and diagnosed all on the way they're put into a chronic care clinic and the evidence in the record shows that so they're not being left adrift with no treatment they are being monitored and cared for but to the eighth amendment point it's very clear in the law that an eight minute claim does not exist when there are simply speculative hypothetical or possible future injury but rather there must be deliberate indifference to a serious medical need and is the bigger case which we've cited makes clear that medical need is not simply a serious condition but a serious medical need for treatment for treatment and a deliberate indifference prong is also very important here with respect to the in that it's requirement because  indifference is not simply deliberate indifference to a potential hypothetical harm but to a serious risk of substantial and imminent injury and the imminence piece is substantially lacking here for a large portion of the class an unknowable portion of the class and so if you look and again this goes back to a coup is again in dissent but it is opinion in the parson case where he pointed out the flaw by the majority and the flaw by the by the judges who refused on bond consideration was that they were looking only at the common question can this policy be set up or down the judges constitution but that's not enough under wal mart you have to ask can that decision be made for the entire class in light of the claims pled and in light of the evidence in the case here the claim pled is an eighth amendment claim which requires deliberate indifference to showing deliberate indifference which is akin to criminal recklessness is a very high standard it's not just medical negligence it's not just simply failure to keep up with the cutting edge standard of care and that's because we're looking not at are we giving them cutting edge care we're looking at whether or not they're suffering from some sort of cruel and unusual punishment by being in  infliction of pain and that's not what's happening here they're being given care what specifically what will this injunction require your department to do that or what it is not presently doing you're out of the plant as have asked for a number of different in general pieces of relief believe claim which the district court discarded along the way didn't certified its claim was for immediate treatment of all h c b suffering inmates with direct acting on anti viral drugs right now the plaintiffs as it's framed in the courts order score that the court was looking at so it would be to discard that but i think the effect of that your honor would be that a lot of these inmates are going to be forced into treatment of gas who may not need them as the court has recognized and to get to your point you're getting a twenty three b two cohesive injunction point is there really an injunction that can be issued for the entire class that would answer the question the answer is no because not all members of the class are entitled to an injunction because they haven't demonstrated couple of night a couple about a dozen of those inmates are being treated in accordance with the standard of care each year the reason why most of the prisoners with chronic h receiving treatment is because of this policy and the policy forces medical treatment decisions for this particular malady just for h c b to be made without regard to the prevailing medical standard well what an a p r ice core measures fibrosis and fibrosis is one of the factors that you can take into account to determine what the status of h t v is and where it is but to but to use it exclusively leaves out people who need to be a treatment but have had other symptoms or are going to develop other symptoms other than type process and it delays treatment for people who are going to develop a fried process or cirrhosis that's not reversible and it delays treatment for them so it's it's that policy making treatment decisions based on something that really doesn't measure according to the medical standard of  doesn't measure of the need for treatment it would be as if if you had diabetics that you were using you know some dumb diabetics very severe diabetics may have seizures but if you waited and you required that someone have a seizure before we even give them insulin that would be putting them at substantial risk of serious harm because instead of using the medical standard of care of the prevailing medical standard of care you'd be waiting until something that's associated with diabetes but is not indicative of whether or not there is a need for treatment and excludes far too many people and that's exactly what you see in the p r i score is we conten were wrong about that that we would lose on the merits but the question here is whether the legality of keeping this policy going forward should be decided in a single case for prospective relief or whether that's based on the same common policy that we're challenging and common evidence which is the existing policy and what the standard of care is this is exactly what rule twenty three b two was designed to the the problem is that you then we have a standard policy you still have you still come back to individualized medical care and every single person in this case inmate who comes forth still going to have their own individual presentation of disease and so that that sort of at least has as a sense  injury in the constitutional injury and the harm the injury they've amendment injury is the exposure to the policy that creates a substantial risk of harm that's always the standard and the same substantial risk of harm as a result of this policy yes and that is that that's even though they have come to the situation with their own individual medical condition for lack of a better well description there are two answers so that first general yes the exposure to the policy creates a substantial risk of harm when the decision whether or not to treat is made on sorry the the second question those are the second piece of that question is are they in a different medical situation and the way the class has been defined is they all have chronic h c b and that really a list of drugs for which da treatments contraindicated for your to receiving these other treatments but i mean most most people would call the medical standard of care would be treated with the made for other than medical based on the medical standard of care and you know while the when you make a decision medical decisions for someone like conduct decisions for someone based on other than the double standard of care you can be in this case are putting them at substantial risk of harm and maybe this is  well the policy is it's about the screening and and making sure that they're being tested properly right to see whether they are candidates for the drugs what's the next step i mean what i mean there's at this point we're not that the diagnostic part of it are we going to are we delve into whether or not the department of corrections could or would ever be able to afford the drugs they understand are relatively expensive for the sounds of people is that a part of the  the remedy that the side well it would be on the department corrections to to actually formulate the particulars of the policy and what the standard of care will be when that injunction comes may be different than it is today  to the there with exposure to policy with the constitutional injury even though it might result in a range of harms from no harm at all to death and brown vs pot every problem relied on farmer against b hundred four which likewise talked about the exposure to the policy that creates the substantial risk of heart so whether or not a particular individual experiences the worst harm or a lesser harm or no harm at all it's not important looking at perspective relief under the at the moment it's whether they're being put at a substantial risk of harm  were there was some argument in the briefs about whether we had to show evidence that huge number of the class has standing at all the members of the class have to have standing we we agree with that and however stand against auto owner's insurance company this this court's two thousand and thirteen case help that there is no requirement that each member of the class and that evidence of personal standing we just need to show that they're exposed to the policy and each person medical standard of care for non medical reasons essentially because there are about thousands of putative class members and they are all exposed to a policy that creates a substantial risk of harm to them the class is certified to showing what the policy was a bunch of letters to and mates explaining why they weren't getting h c b treatment were included the other side was allowed to file a so reply in which they provided evidence as well so did anyone ask for a hearing that no one requested a hearing and the court the district court found that evidence wasn't necessary but also said but i'm going to turn to it anyhow since it's been provided  this was the there was evidence this is early in the case but we believe it's important to be allowed to certify a class in this case early so that discovery can be based on on a don't equate satyrs are we permitted to look at relief that we're requesting that's the that's the only and there are several other cases that have not yet gone to judgment each of them has certified a class that is much like this the underlying issue one of optimal treatment versus of things one right i want to lead off with something that counsel said multiple times and that is that they're simply asking that the court enjoined the state to implement the prevailing standard of care but that that absolutely gets the eighth amendment test wrong  and then that is not a medical malpractise requirement it is something akin to criminal recklessness deliberate indifference to a serious medical need and that serious medical need has to be something that's going to cause substantial and imminent risk of harm to an  so it would not be fair to characterize the test here as whether or not indio see is following the prevailing standard of care and what is that prevailing standard of care but was very clear in the pleadings that the preventing standard of care that the plaintiffs want to impose would be treatment of all of these h p v positive patients with da drugs except in very minor circumstances you're gonna raise some question about cost and that is a merits question but that kind of treatment obviously is going to be very very push back i would push back on that because the policy that the that the defendants are implementing is one that prioritizes care for those inmates with the most substantial and serious medical needs just like the eighth amendment requires that's the purpose of the current policy it's not in the current policy exists because there are limited resources in the state must make sure that those with the most substantial and serious medical needs are being addressed just like the eighth amendment requires the plaintiffs  heighten that burden on the state and impose upon the state an injunction that applies to all and maids requiring the state meet effectively a medical malpractise standard and your honor that is simply not the test and the eighth amendment that is not and is not the reason the question is this policy constitutional can be decided for all inmates with the stroke of a pen with one stroke of a pen superficially that looks attractive when you look at the evidence when you look at the claims vault it's simply cannot be done because for each and every inmate in this class it cannot be said that simply because they are suffering from a c v they are being denied medical care to