Wilkinson Walsh Helps Mo. Inmates Get Lifesaving Treatment

By Y. Peter Kang | October 18, 2020, 10:06 PM EDT

In Wilkinson Walsh LLP's first major pro bono case, the litigation boutique joined forces with two nonprofit advocacy groups to win a landmark $50 million settlement in which the Missouri Department of Corrections and its prison health care provider agreed to give inmates suffering from hepatitis C much-needed treatment.

A Missouri federal judge on Aug. 25 granted preliminary approval of the deal, which calls for the Missouri DOC and Corizon LLC to spend about $50 million over the next eight years to provide a new class of drugs to prisoners. The drug essentially acts as a cure for hepatitis C, a life-threatening disease which can lead to liver cancer and cirrhosis.

The deal, which awaits final approval following a fairness hearing expected to be held later this month, also requires the defendants to provide monitoring of high-risk individuals, training of prison medical staff and quarterly updates on treatment progress. The bulk of the claims in the suit alleged violations of the Eighth Amendment, which bars deliberate indifference to prisoners' medical needs.

Shortly after the Eighth Circuit issued a pivotal December 2018 ruling in the patients' favor, the two nonprofits, MacArthur Justice Center and the American Civil Liberties Union of Missouri, contacted the Washington, D.C.-based litigation boutique through mutual connections. Wilkinson Walsh was quickly onboard, although not without some convincing of the partners by associate Betsy Henthorne, who spearheaded the mediation efforts that resulted in the deal.

Wilkinson Walsh associate Betsy Henthorne helped spearhead mediation efforts that resulted in the landmark deal over prisoner health care in Missouri. (Courtesy Wilkinson Walsh)

"I may have pushed [our partners] a little bit," she said. "We are a pretty small firm and the more common pro bono project [has been] smaller cases with single defendants," such as compassionate-release prisoner cases, landlord-tenant eviction defense cases and child custody cases.

"We had never taken on a big federal class action; it's not something we'd done before," she said.

The settlement is the culmination of litigation that began in December 2016, according to Amy Breihan of the MacArthur Justice Center. The criminal justice advocacy group joined with the ACLU of Missouri to file a class action that was certified in July 2017.

Breihan, who noted that the pending settlement is among the first in the nation to successfully obtain medical treatment for prisoners with hepatitis C, said the favorable ruling from the Eighth Circuit regarding certification of the class has provided a valuable blueprint for prisoner advocacy groups. The appeals court found that the prisoners' medical needs were sufficiently similar so as to justify class certification.

"It was helpful to people in other states who were filing similar lawsuits to be able to say, 'Even the conservative Eighth Circuit ruled in favor of prisoners,'" she said. "Attorneys who work on these cases in various states work with each other, lean on each other."

Breihan said shortly after receiving the Eighth Circuit's blessing it dawned on them that they were going to have to do "voluminous and complex" discovery given the potential 3,500 class members, the necessary scientific information and a jury trial that could take weeks.

"We felt it made more sense to bring in more people and Wilkinson Walsh is brilliant and they are great at trying cases," she said. "So few cases go to trial these days so finding a firm that really prioritizes trying cases is somewhat unique. They also have smart and accomplished attorneys who are working there and so we knew they would be committed partners."

The firm moved quickly to handle several depositions and then, after initial settlement negotiations fizzled, they lodged a bid for a preliminary injunction to get some relief for their clients, many of whom were dying from the disease.

The August 2019 preliminary injunction hearing was encouraging, Henthorne said.

"Coming out of the preliminary injunction hearing we felt good about both what we showed the defendants we could do in the courtroom and what they would be up against at trial," she said. "We also really made some substantive legal points about what was problematic about their position and poked holes in what their witnesses were saying. So we felt good both about our prospects of getting our preliminary injunction ruling and also for further settlement negotiations."

After months of deposing top Corizon and Missouri DOC officials and before the judge ruled on the preliminary injunction bid, the parties forged an agreement in principle following a two-day mediation session in February.

The next few months entailed hammering out the details of a settlement, which Henthorne said was difficult due to the fact that many of her clients urgently needed proper medical treatment.

"The timing issue was the hardest," she said, "where you're actually dealing with a disease that is progressing, with actual real people who are getting sicker every day."

Henthorne said they tried to move the case forward as quickly as possible but sometimes couldn't because the defendants didn't share their sense of urgency and communicating with their incarcerated clients, particularly during a pandemic, was no simple task.

And although both Wilkinson Walsh and the lead named plaintiff wanted to go to trial, the urgent need for the sickest prisoners motivated them to take the deal.

"How do we get the sickest people treated ASAP and how do we make sure everybody gets treated?" she said. "Once we had a deal that reflected that, we felt like we had to take it."

The plaintiffs are represented by Anthony E. Rothert, Jessie Steffan, Omri E. Praiss and Gillian R. Wilcox of American Civil Liberties Union of Missouri Foundation, Amy E. Breihan and Megan G. Crane of Roderick & Solange MacArthur Justice Center and Betsy Henthorne, Amelia I.P. Frenkel, Anastasia Pastan, Meghan Cleary and Tamarra Matthews Johnson of Wilkinson Walsh LLP.

The Missouri Department of Corrections is represented by Zachary T. Buchheit, John W. Taylor and Jennifer Baumann of the Missouri Office of the Attorney General.

Corizon is represented by William R. Lunsford and Matthew B. Reeves of Maynard Cooper & Gale PC and Dwight A. Vermette of Eckenrode Maupin.

The case is Michael Postawko et al. v. Missouri Department of Corrections et al., case number 2:16-cv-04219, in the U.S. District Court for the Western District of Missouri.

--Editing by Orlando Lorenzo.

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