Inmates with hepatitis C, and their chief advocate, race against time

By Noreen Marcus, FloridaBulldog.org 

Benjamin Kennedy is grateful to the Florida Justice Institute for giving him a chance at a good life, even if it’s several years away.

“You saved my life. Literally. And I’m forever indebted,” he wrote from the Okeechobee Correctional Institution to Randall Berg Jr., executive director of the FJI nonprofit, public interest law firm in Miami.

A year ago the FJI scored a huge success for Florida inmates, at least 19,400 and up to 38,800 of whom are afflicted with the hepatitis C virus. That’s almost 20 to 40 percent of the 100,000 people in Florida state prisons.

On Nov. 17, 2017, a Tallahassee federal judge ordered the state to give prisoners who have chronic HCV a standard treatment with a cure rate of 95 percent. Chief Judge Mark Walker of the Northern District of Florida certified the prisoners’ class action and found they’re likely to win their lawsuit, which seeks permanent treatment protocols.

Already a public-health hazard, hepatitis C is transmitted through blood, and Berg expects the opioid epidemic to hike the number of infected inmates dramatically. “This is a great opportunity to get these people treated and cured before they get released from prison and go out and infect everybody else,” Berg said.

Walker’s order is a legal landmark. Prison reform advocates in other states have filed similar class actions, but Florida is believed to have the first judicial prescription for the highly effective treatment that was released to market in 2013.

In March of this year Kennedy started taking those DAA (for direct-acting antiviral) pills; now, tests show his disease is gone. “I lead a healthy lifestyle, considering the environment I live in, and appreciate the life-saving medication I was lucky to receive,” Kennedy wrote to Erica Selig, one of his FJI lawyers.

“I will not drop the ball, Ma’am. Just want you to know that your endless hours of work will not be in vain,” Kennedy added. Berg and Dante Trevisani also represent the inmates as class counsel.

The Florida Department of Corrections is sticking to a fixed time table in tackling the difficult job of screening inmates, grouping them by stage of the disease, and treating them appropriately. Some require liver transplants. Hepatitis C must be stopped before it progresses to the tipping point when liver failure dooms the patient–and that’s the catch for inmates.

State could move faster

Officials are complying with the judge’s order, Berg notes. But they could move faster; nothing prevents them from doing more. For years FDC pleaded budget woes, an excuse Walker rejected as unconstitutional once the matter got to court.

Even with the order in place, prisoners are getting sicker and dying preventable deaths, according to court documents. Carl Hoffer, one of three named plaintiffs in this case called Hoffer v. Jones (Julie Jones heads the corrections department), was waiting for a liver transplant evaluation when he died.

It costs $25,000 for one course of the standard DAA treatment, like Kennedy got. If you need something more, like a liver transplant, the cost is much higher.

The FDC did not respond to a question about why it does no more than meet minimum requirements. “The Department is committed to ensuring all inmates in our custody are provided medically necessary treatment in line with constitutional responsibilities,” spokesman Patrick Manderfield wrote in an email.

“Defendant [the FDC] must move with alacrity. This Court will not tolerate further foot-dragging,” Walker wrote a year ago. But to date fewer than half the inmates have been screened for HCV and only 1,831 are in treatment or have finished it, the correction department’s report for November 2018 says.

So while Kennedy’s lawyers won on paper, and helped save him and some other HCV sufferers, their larger victory remains uncertain.

Kicking the can

Berg took his first case for an individual prisoner who’d been denied hepatitis C treatment in 2003. He won. Soon word spread and many more sick inmates approached him, but he didn’t have the staff to help them all.

The availability of DAAs in 2013 changed the legal dynamic and invited a class action. In Hoffer v. Jones, Berg was able to argue that since prison officials knew inmates had HCV and yet denied them the standard care, they were showing deliberate indifference to those inmates’ medical needs. That violates the Eighth Amendment prohibition of cruel and unusual punishment.

When their no-money argument failed to satisfy Judge Walker and a hearing was looming, corrections officials promised to do better. But Centurion, the private contractor for Florida prison medical services, hired Dr. Daniel Dewsnup from the Oregon corrections department to be the state’s expert witness.

Surprisingly, Dewsnup advised the judge against believing the FDC’s expression of good intentions. The doctor pushed for an order and, after a five-day hearing, the judge issued one. Walker referenced Dewsnup’s testimony over and over again.

“One can only wonder how long Defendant would have kicked the can down the road had Plaintiffs not filed this case,” he wrote.

The dispute that is keeping the lawsuit going is whether all inmates should be tested for HCV unless they “opt out,” or, should FDC continue requiring inmates to “opt in” by asking for screening? Federal prisons have adopted an opt out system.

Berg said opt in “is kind of illusory because a lot of people have no idea whether they have hep C.” Keeping the burden on them to come forward and get tested, then, saves money in the short term but wastes many more dollars and lives.

Walker took the case off the trial calendar, where it had been set for this month. After holding a hearing on the screening issue in October, he’s weighing dueling motions for summary judgment. He could rule any day now, and Berg is hopeful.

“They see the writing on the wall,” he said, referring to corrections officials who asked the judge to make permanent his preliminary order on treatment. “I’ve never had that happen,” Berg said. “It’s a huge admission on their part.”

‘The luckiest man’

Berg has spent his entire 40-year career with the FJI. Beyond Florida he is known for playing a leading role in launching a statewide program that uses interest on lawyers’ trust accounts to fund pro bono work. Florida’s IOLTA program was a national model, and Berg said overall, $4.5 billion has been raised to provide legal services to Americans who could not afford them.

In his home state Berg is the go-to crusader for inmates’ rights. He challenges popular sentiment against people like Kennedy, 48, who was convicted of second-degree murder for killing a woman in a Pompano Beach motel. Kennedy’s official release date is Aug. 15, 2023, the end of a 25-year sentence.

Somebody has to stand up for prisoners, Berg believes, and as soon as he earned his law degree, he decided that would be him. “People like Benjamin Kennedy are the underrepresented and the unrepresented in our community, and they deserve to be treated humanely and constitutionally,” he said. “And if we’re not gonna represent them, who else is?”

The case of Hoffer v. Jones has special significance for Berg because it’s his last. He wants it to end successfully before he leaves the FJI in January–”It would be a great win to go out on.”

Over a year ago Berg was diagnosed with ALS (Lou Gehrig’s disease). “Like Lou Gehrig said in his famous speech, I’ve had a great run and I don’t regret anything I’ve done,” Berg said last week. “It’s been a wonderful 40 years, it’s been fabulous.”

He cited the great slugger’s farewell speech in Yankee Stadium on July 4, 1939: “Today I consider myself the luckiest man on the face of this earth.”

Berg’s illness lends poignance to one of Kennedy’s notes to Berg. “I wish you and all your staff the best of life and health and in all that you do. It’s an awesome thing your Institute does for people … God be with you.”