Filed Date: Sept. 29, 2008
Clearinghouse coding complete
This case is about people with Hepatitis C who were or had been incarcerated in the Illinois Department of Corrections (IDOC). Represented by private counsel, around 75 incarcerated plaintiffs filed this putative class action lawsuit in the United States District Court for the Central District of Illinois on September 29, 2008. Over the course of this decade long litigation, numerous other individual plaintiffs were joined, with the number of plaintiffs eventually growing to be around 1,800.
In their original complaint, the plaintiffs sued the IDOC’s medical directors and its healthcare provider Wexford Corporation (Wexford) under 42 U.S.C. §1983, alleging broad violations of the Eighth and Fourteenth Amendments. Plaintiffs alleged they were required to wait over one year from when received their diagnosis to when they received treatment, which was a delay that did not appear within any federal guidelines. They sought declaratory and injunctive relief, compensatory and punitive damages, and attorneys’ fees. The case was initially assigned to Chief Judge Michael P. McCuskey
Shortly after the lawsuit was filed, the plaintiffs moved for class certification and injunctive relief. After requiring the plaintiffs to refile due to technical errors, Judge McCuskey denied both motions in a set of November 2009 rulings that set up the shape of the case for the next several years.
Judge McCuskey denied the plaintiffs request for class certification on November 16, 2009. 2009 WL 3837553. He held that the putative class lacked commonality, typicality, and adequacy. For commonality, he expressed concerns that individual issues related to incarceration period, prognosis, treatment type, and Hepatitis C complications would dominate over common issues. For typicality, he held there was a strong likelihood that none of the plaintiffs' claims were typical of the putative class, because each claim arose from a plaintiff's particular genotype and individual circumstances. And for adequacy, Judge McCuskey noted the plaintiffs had not named any class representatives or provided any affidavits, expert testimony, or other evidence that they would adequately protect the putative class's interests.
In their request for injunctive relief, the plaintiffs asked the court to (1) order IDOC to comply with the National Digestive Diseases Information Clearinghouse (NDDIC) guidelines for Hepatitis C treatment, (2) coordinate post-release care to allow for treatment completion following release from prison, and (3) appoint a physician to act as prisoners' advocate. Judge McCuskey denied this request on November 19, 2009, holding that an injunction could not be granted because (1) the plaintiffs did not show a reasonable likelihood of succeeding on the merits, as they failed to produce any evidence for why the relief was needed, and (2) the relief they were seeking was too broad, with the plaintiffs' motion even acknowledging that they required a court-appointed expert to help narrow down their relief. 2009 WL 3837614.
While the plaintiffs’ motions were pending, the defendants moved for summary judgment. On November 19, 2009, Judge McCuskey granted summary judgment in part, by ordering the dismissal of over fifty individual plaintiffs who (1) were released from IDOC custody after the suit was already filed, (2) joined the lawsuit after the filing date, or (3) had not yet exhausted their potential administrative remedies under the Prison Litigation Reform Act (PLRA). The court denied summary judgment as to the remaining plaintiffs, who were allowed to continue in the case. 2009 WL 4059050.
After Judge McCuskey’s 2009 decisions, the case went into lengthy discovery to address the issues of individual injunctive relief and damages. The case was reassigned to Judge Harold A. Baker on February 8, 2011. On May 24, 2011, the plaintiffs moved to dismiss Wexford, which Judge Baker granted on May 25, 2011.
Beginning in 2012, the individual plaintiffs entered into discussions about settlement. On April 5, 2013, Judge Baker appointed a special master to assist in settlement negotiations with the numerous individual plaintiffs.
On July 25, 2013, the plaintiffs again moved for injunctive relief, this time seeking compliance with American Association for the Study of Liver Diseases (AASLD) treatment guidelines for Hepatitis C. After this motion was filed, Judge Baker revised the special master’s assignment to focus on resolving the plaintiffs’ injunctive claims.
Ostensibly to help resolve the plaintiffs’ request for changes in treatment, Judge Baker appointed a local doctor as a “court’s expert” on October 14, 2014. The expert, Dr. Andrew Batey, reported his findings in a January 8, 2015 letter. Dr. Batey recommended that all Hepatitis C positive prisoners serving sentences longer than one year be evaluated for treatment with direct acting anti-viral drugs, but noted that these novel and effective medications could be costly.
On March 6, 2015, over a year after the plaintiffs’ renewed request for injunctive relief was filed, Judge Baker issued a case management order stating that settlement negotiations appeared to have stalled and ordered the parties to resolve their differences through litigation. Over the next several months, the parties exchanged discovery about differing protocols for Hepatitis C treatment.
On January 22, 2016, the plaintiffs filed a motion for reconsideration of Judge McCuskey’s class certification decision. Judge Baker denied the motion on October 7, 2016, noting that the plaintiffs needed to further narrow down the class. However, he also he would be willing to certify a more clearly defined class in the future, because medical advancements in Hepatitis C research had made treatment a more predictable and less individualized decision.
In the same order, Judge Baker denied the plaintiffs’ 2013 motion for injunctive relief, which had been pending. He asked the plaintiffs to more narrowly tailor and specifically detail the type of relief they were seeking, as well as take into account updated treatment options. However, Judge Baker also allowed the plaintiffs to amend their complaint.
On November 8, 2016, the plaintiffs filed an amended complaint adding a new state law medical malpractice claim, as well as several new defendants, including IDOC, its new medical director and treating physicians, and Wexford. Otherwise, the amended complaint remained substantially similar to the first complaint, alleging broad violations of the Eighth and Fourteenth Amendments, and seeking the resolution of both damages and injunctive relief.
On December 6, 2016, IDOC moved to dismiss the amended complaint. Judge Baker did not act on this motion and it remained pending for several years.
As Judge Baker suggested, the plaintiffs again moved for reconsideration of class certification on November 8, 2016. On February 4, 2019, he granted their request and certified two classes for all current and future prisoners in IDOC custody who had, or would be, diagnosed with Hepatitis C. One class consisted of prisoners with at least six months remaining on their sentence, who had not received treatment which resulted in a sustained viral response. The other included prisoners with at least one year remaining on their sentence, who had not received treatment and met a certain threshold for their Hepatitis C advancement. Judge Baker reasoned that scientific advancements had made hepatitis C treatment more standardized, and therefore commonality of the class could be broadened.
On November 8, 2016, the plaintiffs filed an amended motion for injunctive relief seeking direct acting antiviral drug treatment for everyone who had at least six months left to serve on their sentence. Judge Baker issued an order on April 6, 2017, stating that he had not been provided enough information on which of the plaintiffs were eligible for treatment and thus could not order any injunction. The plaintiffs refiled their request for injunctive relief on January 2, 2018, which Judge Baker granted in part on February 4, 2019. He ordered the defendants to commence immediate treatment in accordance with the IDOC’s January 2019 protocols for prisoners with at least one year remaining on their sentence. The January 2019 protocols made it easier for incarcerated individuals that had met a designated level of hepatitis C advancement to be recommended for treatment. Judge Baker also ordered that the protocols be adjusted to make treatment mandatory for patients at that level, and to prevent IDOC from abandoning the protocols.
On January 7, 2019, the defendants moved to stay proceedings pending approval of a proposed consent decree in Lippert v. Godinez, a separate class action lawsuit about people in the custody of the IDOC with serious medical or dental needs. Judge Baker denied the stay on January 8, 2019, stating that the motion to stay offered no concrete proposals for the treatment or handling of the combined hepatitis C cases. On January 11, 2019, the defendants moved for reconsideration on the motion to stay, which the court denied on January 15, 2019.
On March 1, 2019, the defendants appealed the district court’s decision to the United States Court of Appeals for the Seventh Circuit, seeking to reverse the class certification and vacate the preliminary injunction. The appellate court granted the petition for permission to appeal on March 25, 2019. Pending resolution of the appeal, on April 18, 2019, the appellate court stayed the district court's order for class certification and injunctive relief. The defendants then moved to stay all district court orders and proceedings on April 22, 2019, which the district court granted on April 23, 2019.
The Seventh Circuit court reversed on April 14, 2020. Judge Diane Wood, writing for Judges William Bauer and Michael Brennan, found that, although numerosity and commonality were satisfied for both classes, the other two requirements (typicality and adequacy) of certification were omitted from the district court’s analysis. The appellate court found that the district court erred in skipping those two steps, especially as there was no evidence in the record to demonstrate that the plaintiffs’ chosen representatives were adequate. The appellate court also vacated the injunction, finding that the plaintiffs were not likely to suffer irreparable harm. The court noted that Hepatitis C had a slow progression, so the mere possibility that a substantial risk might arise did not meet the threshold for demonstrating that a delay in treatment was more likely than not to cause irreparable harm. Furthermore, the court also found that the Lippert consent decree provided the plaintiffs with adequate relief for their medical needs, and that the decree provided the district court with assurances that, even in a situation arose where IDOC abandoned its 2019 protocols, the plaintiffs could still seek relief under the Lippert consent decree. The case was remanded to the district court to decide once again the issues of class certification and injunctive relief. 953 F.3d 490.
Back in the district court, Judge Baker lifted the stay on April 29, 2020 and proceedings resumed for the case. On September 22, 2020, the plaintiffs notified the court that, after the Seventh Circuit’s ruling, they were only pursuing damages. In response, Judge Baker withdrew the appointment of the special master on October 22, 2020.
On January 18, 2022, the case was reassigned to Chief District Judge Sara Darrow due to Judge Baker's retirement. On March 16, 2022, Judge Darrow closed all pending motions in the case – several of which had been open for years – and directed the parties to renew their motions in the lead case, acknowledging that there had been further cases and more plaintiffs that had been consolidated into this case.
On May 5, 2022, the plaintiffs clarified that the case was only about damages and moved to dismiss Wexford as a defendant. On June 6, 2022, the court granted the dismissal without any objections. The plaintiffs filed a second amended complaint on June 30, 2022 that did not mention class certification. However, the amended complaint re-added Wexford as a defendant, and mentioned that injunctive relief was being sought in addition to damages. On July 14, 2022, the defendants moved to dismiss the complaint.
As of March 2023, the case is still ongoing.
Jerry Lan (9/29/2022)
See docket on RECAP: https://www.courtlistener.com/docket/4248372/orr-v-elyea/
Last updated July 5, 2023, 3:12 a.m.
State / Territory: Illinois
Filing Date: Sept. 29, 2008
Case Ongoing: Yes
People who were incarcerated by the Illinois Department of Corrections filed a class action lawsuit because they did not receive medical treatment after receiving a Hepatitis C diagnosis.
Public Interest Lawyer: No
Filed Pro Se: No
Class Action Sought: Yes
Class Action Outcome: Denied
Causes of Action:
Prevailing Party: None Yet / None
Nature of Relief:
Source of Relief:
Content of Injunction:
Type of Facility: