On October 16, 2002, in the U.S. District Court for the District of New Jersey, private counsel representing a group of New Jersey state prisoners filed a lawsuit pursuant to 42 U.S.C. § 1983 against contract medical care providers, their executives, and New Jersey corrections officials. In that complaint and a later, amended version, the prisoners alleged that they and their class had been exposed in the state's prisons to the Hepatitis C virus (HCV), or had been admitted to the prisons but not treated for the virus, or had contracted the virus in the prisons. They attributed these conditions to the deliberate indifference of the defendants, which allegedly violated the Eighth and Fourteenth Amendments' protections against cruel and unusual punishment. The plaintiffs also alleged that the defendants' conduct constituted negligence, medical malpractice, intentional infliction of emotional distress, and negligent infliction of emotional distress under state common law, and that the conduct also violated the Americans with Disabilities Act, 42 U.S.C. §§ 12131 et seq. The plaintiffs sought monetary and injunctive relief. The class plaintiffs sought to represent included all past or present New Jersey state prisoners from between January 1990, and the date of filing the amended complaint, whether or not they had contracted HCV.

By the time the court adjudicated the class action issue, in May 2008, the New Jersey Department of Corrections had adopted major changes in how people with HCV were treated. According to papers filed with the court, its new program lined up with the federal Bureau of Prisons approach. In particular, the court (Judge Noel Hillman) found:

a. The health care provider for the department, CMS, subcontracted with the Cooper Health System and its Infectious Disease Department to provide infectious disease consultations to inmates. Cooper Hospital is also in the process of reviewing every HCV inmate's medical care to assure compliance with the FBOP's HCV Guidelines.
b. All inmates who meet the treatment criteria in the FBOP's HCV Guidelines are offered HCV pharmacologic treatment which they can accept or reject.
Inmates who accept HCV medications are given a combination of pegylated
interferon in combination with ribavirin. This pharmacologic treatment
is FDA approved and recommended for use in the FBOP's HCV guidelines.
c. Inmates in New Jersey, including in excess of 7,000 admitted prior to February 1, 2003, have been given a Blood Borne Pathogen Risk Assessment. Inmates identified with a positive risk factor for HCV have been encouraged to consent to a HCV test.
d. Any inmate who requests an HCV test is given the test.
e. All inmates are given extensive counseling and education materials, a NJDOC video on HCV and direct communications with their healthcare providers.
f. The inmates' Electronic Medical Records have been updated with comprehensive HCV forms to assure more consistent and thorough HCV documentation.
g. The care and treatment of all HCV inmates is closely tracked.
h. CMS compiles and analyzes statistical data regarding New Jersey's HCV program to measure and analyze the effectiveness of the program. The data is shared with the NJDOC.
i. The NJDOC monitors the HCV care and treatment given to inmates and CMS is subject to contractual penalties if it does not comply with its contract.

Given that the injunctive relief requested by the plaintiffs was this same set of reforms, Judge Hillman denied the request for injunctive relief as moot. In addition, the court found that only prisoners who already had HCV were appropriate plaintiffs in the case--and that there was no evidence that this subset of the putative plaintiffs class was sufficiently numerous to justify class action status. It therefore denied class certification. As to two individual class members who had HCV, the court held there was sufficient evidence in the record to go to trial on their constitutional claims (though not on their Americans with Disabilities Act claims), and denied the state's motion for summary judgment.

In October 2009, the case settled for money damages. It seems from some papers filed by one of the plaintiffs that he may never actually have received his money, but when he sought the assistance of the court in enforcing the settlement against his lawyer, Judge Hillman ruled that the court lacked jurisdiction, and directed him to file a collection action in state court.

- 10/13/2012


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