Associates Help Ga. Prisoner Beat The Odds In Court

In this Law360 article, a team of Kirkland associates that included Jordan Greene, Constance McKinnon and Gabi Durling led a pro bono case that resulted in a successful jury verdict for their client against the statewide medical director of the Georgia Department of Corrections and a former prison doctor in a case involving medical treatment in prison. Partner Kasdin Mitchell supervised the associates. The team also included associates Conley Hurst and Charles Nary.

When a team of mostly associates at Kirkland & Ellis LLP and Bondurant Mixson & Elmore LLP took on the civil case of a Georgia prisoner who had developed stage 4 hepatitis C as he waited five years for prescribed treatment, they expected they'd have their work cut out for them.

What Ricky Johnson's pro bono counsel didn't expect was to be trying to secure their witness list the Friday before trial during a tempestuous drive from Atlanta to Macon, Georgia, arguing to keep their subpoenas alive as they braved a March storm from their rental car.

"Our laptop batteries were slowly dying," Kirkland associate Jordan Greene told Law360. "And we were passing the one remaining laptop between four of us in the car, trying to get our opposition to these motions to quash on file."

It was Greene who had reached out to Bondurant Mixson about Johnson's lawsuit accusing two Georgia prison officials of deliberate indifference to a serious medical need under Section 1983 of the U.S. Code — one Johnson initially filed pro se in 2016 as the hepatitis C virus progressed through his body, unmitigated by treatment.

Greene and the Kirkland team became involved in 2019 when the Eleventh Circuit appointed the firm to handle Johnson's appeal of a lower court dismissal. They needed local counsel after they won the appeal, so they reached out to Bondurant Mixson.

"I just finished clerking maybe a few months ago for a federal district court, and that really made me interested in 1983 work," Bondurant Mixson associate Amanda Bradley told Law360.

Hepatitis C virus, or HCV, is relatively common among prisoners. A 2023 article published in the National Library of Medicine said HCV prevalence in state prisons is nearly nine-fold higher than the U.S. general population. Despite this, a 2020 Georgetown Law report found that only 3% of people incarcerated in U.S. prisons have access to HCV treatment.

Johnson went nearly a decade without treatment. But that wouldn't make his suit easy to win, even though his counsel did beat the motions to toss their witness subpoenas. Because the Kirkland and Bondurant Mixson attorneys came onto their client's case at a later stage in the litigation, they missed a deadline to call an expert witness. They also didn't get to depose defendants or fact witnesses.

"The record just didn't look the way it would have if we had been involved in the beginning," Greene said.

But even if they managed to work around all that, to prevail in their claims against Georgia Department of Corrections statewide medical director Dr. Sharon Lewis and Dr. Thomas Ferrell — Johnson's primary care physician for two of the years he went untreated — the team had to paint a picture of conduct that went beyond just negligence and medical malpractice, overcoming qualified immunity protections to show a violation of their client's Eighth Amendment rights.

"It's a standard akin to criminal recklessness," Greene said.

The team decided they were up for the challenge. Greene, Bradley, Kirkland associates Constance McKinnon and Gabi Durling and Kirkland partner Kasdin Mitchell all participated in the trial. Bondurant Mixson associate Jeff Chen assisted with briefing and trial strategy. Kirkland associates Conley Hurst and Charles Nary briefed the opposition to the motions to quash the subpoenas.

The attorneys ultimately emerged victorious from the three-day trial, winning $20,000 in damages for the claim against Lewis and $1 for the claim against Ferrell.

"Our hope is that this [lawsuit] will lead to everyone in similar positions being more mindful and more intentional about ensuring that folks are getting the medical care that they are constitutionally required to get," Bradley said.

Johnson was living in a Georgia state prison when he was diagnosed with HCV in 2009, according to Kirkland. It wasn't until 2018 that he received treatment for it, despite being prescribed treatment five years before that. By the time he got the treatment, his disease had progressed from stage 1 to stage 4 with cirrhosis, an incurable liver condition.

He didn't have help when he first filed the Section 1983 suit more than seven years ago. But after a Georgia federal court dismissed his case with a summary judgment in 2019, the Eleventh Circuit appointed Kirkland to handle the appeal.

The Kirkland attorneys won a 3-0 reversal of the summary judgment in October, with U.S. District Judge Steven D. Grimberg saying in a published opinion that "material disputes of fact remain as to the doctors' actions and inactions in treating Johnson."

"The bar to proving an Eighth Amendment deliberate indifference claim is certainly high, but it is not insurmountable," the opinion reads. "Johnson has raised a number of factual disputes regarding the denial of his HCV treatment for over eight years. These disputes are sufficiently material to be decided by a jury."

The court still declined to reverse an earlier decision denying Johnson an opportunity to amend his complaint. But with the case alive again, the Kirkland attorneys teamed up with Bondurant Mixson to bring it before a jury.

"One of the biggest difficulties is, obviously, when you're dealing with the medical context, you're dealing with medical doctors who have a range of medical judgment," Durling told Law360. "And the thing about HCV is that it's a slow-progressing disease. So for cases like this, it could be that the doctor says, 'I know that this is progressing, but let's just keep monitoring it.' And in fact, that was a lot of the argument that we dealt with at trial … so what we had to establish was that Mr. Johnson's need for treatment was so great that the wait-and-see approach just didn't work for him."

It didn't help that Lewis is responsible for overseeing the healthcare of thousands of prisoners, and yet Johnson's attorneys had to convince a jury that she knew about their client's illness and specifically decided to deny him treatment.

To do this, the team tracked down a grievance their client submitted over his lack of treatment. Johnson appealed the grievance's initial rejection, and the attorneys were able to show that Lewis signed the decision denying the appeal.

They also got one of their client's former doctors on the witness stand to confirm that he prescribed his then-patient HCV treatment in 2013. Since they were working without an expert witness, they used the treating physician to bring out information not only about Johnson's health but the condition more generally.

"We were really threading a very fine needle," Bradley recalled. "And I think it was one of the ways in which you could see everyone on our team step up and get the information that we needed in the context of not having all the information that we would have had, had we started the case early on with our client."