2:08-cv-02232-HAB-DGB # 269 Page 1 of 8
`E-FILED
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` Friday, 05 April, 2013 02:50:00 PM
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` Clerk, U.S. District Court, ILCD
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE CENTRAL DISTRICT OF ILLINOIS
`URBANA DIVISION
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` No. 2:10-cv-2095-HAB-DGB
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`No. 2:08-cv-2232-HAB-DGB
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`No. 4:10-cv-4011-HAB-JAG
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`DUSTIN COLLINS, et al.,
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`-vs.-
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`Plaintiffs,
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`WILLARD O. ELYEA, M.D.,
`MICHAEL PIUSIS, and WEXFORD CORP.,
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`Defendants.
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`_______________________________________
`JEFFREY D. ORR, et al.,
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`Plaintiffs,
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`-vs.-
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`WILLARD O. ELYEA, M.D.,
`MICHAEL PUISIS, WEXFORD CORP., and
`DR. LOUIS SHICKER
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`Defendants.
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`_______________________________________
`CLARENCE RAYMOND JONES,
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`Plaintiffs,
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`-vs.-
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`DR. WILLARD EYLEA, MICHAEL PUISIS,
`WEXFORD CORP., ROGER E. WALKER,
`JR., MICHAEL RANDLE, ANDREA
`LASHBROOK, AND WILLIAM RANKIN,
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`Defendants.
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`_______________________________________
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`2:08-cv-02232-HAB-DGB # 269 Page 2 of 8
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`ANDRE KENNEDY, et al.,
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`Plaintiffs,
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`-vs.-
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`LOUIS SCHICKER, M.D.,
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`Defendant.
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`_______________________________________
`ZACHARY ALLEN, et al.,
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`No. 2:12-cv-02155-HAB-DGB
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`No. 13-cv-2056
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`Plaintiffs,
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`-vs.-
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`ILLINOIS DEPARTMENT OF
`CORRECTIONS, MICHAEL PUISIS, LOUIS
`SCHICKER, M.D., and WEXFORD CORP.,
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`Defendants.
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`AGREED ORDER APPOINTING
`SETTLEMENT SPECIAL MASTER
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`This matter involves the claims of numerous current and former state prison inmates who
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`have filed, or intend to file, claims under U.S.C §1983 alleging past and continuing injury due to
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`the alleged inadequacy of treatment for their Hepatitis C while in the custody of the Illinois
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`Department of Corrections.
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`On November 5, 2012, certain named plaintiffs filed their Motion to Appoint Additional
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`Counsel to Assist in Supervising Settlement. The thrust of the motion is that while both
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`plaintiffs and defendants seek to achieve a settlement of as many of the Hepatitis C claims as
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`possible, the sheer number of claimants and potential classes of plaintiffs have made it
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`extraordinarily difficult for plaintiffs’ counsel to formulate a comprehensive settlement demand
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`upon which settlement negotiations can proceed. Plaintiffs’ motion specifically states “[t]hat in
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`order to further administer the various claims, Plaintiffs’ counsel believes that independent
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`2:08-cv-02232-HAB-DGB # 269 Page 3 of 8
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`settlement counsel should be appointed to assist in the administration of settlement of the claims
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`and would be of assistance not only to the Plaintiffs but also to the Court.” (Motion to Appoint,
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`p. 3.) Plaintiffs’ motion asks that “this Court appoint independent counsel for the purpose of
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`evaluating and administering potential settlement with the various classes of Plaintiffs identified
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`herein.” (Id.)
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`In response to Plaintiff’s Motion to Appoint, this Court contacted the Pro Bono
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`Administrator of the Jenner & Block law firm to determine the firm’s interest in serving, and
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`willingness to serve, as the requested independent settlement counsel. After a brief review of the
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`Court File, brief consultation with the Court and a brief phone conversation with Plaintiff’s
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`counsel limited to gaining a better understanding of how requested independent settlement
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`counsel might assist the parties and the Court in achieving a settlement of as many Hepatitis C
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`claims as possible, Jenner & Block stated its willingness, in concept, to offer the requested
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`independent settlement counsel assistance.
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`At a phone status conference on January 15, 2013, the Court advised counsel of record of
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`Jenner & Block’s willingness to provide the requested assistance on a pro bono basis and
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`identified Jenner & Block partner Richard J. Gray as the prospective appointee, aided by such
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`additional Jenner & Block resources as the firm may reasonably deem necessary. Participating
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`counsel stated their conceptual agreement to that appointment, subject to agreement on the form
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`of the order of appointment. By Order of January 15, 2013, this Court directed that the parties
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`“send a suggested [appointment] order to the Court,” and set this matter for Further Status
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`Conference on February 20, 2013.
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`On February12, 2013 the then parties and Jenner & Block provided this Court with a
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`proposed Agreed Order Appointing Settlement Special Master. Since then, three additional
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`2:08-cv-02232-HAB-DGB # 269 Page 4 of 8
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`§1983 Hepatitis C cases have been filed with or transferred to this Court. By Orders of
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`February 12 and March 4,, 2013, this Court extended the time for filing objections to the
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`appointment of the Settlement Special Master and ultimately set the Further Status Conference
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`for March 20, 2013. After consultation among the expanded group of parties and their counsel,
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`all parties and Jenner & Block on March 19, 2013 provided this Court with a revised proposed
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`Agreed Order Appointing Settlement Special Master.
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`At the March 20, 2013 Further Status Conference, certain objections were raised
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`concerning the application of this Order to the most recently filed Hepatitis C case, Allen v.
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`Illinois Department of Corrections, (“IDOC”) et al, No.13-CV-2056. In response to those
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`objections, this Court decided to a) consolidate all four of the above captioned cases; b) exempt
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`defendants in Allen v. IDOC from the requirements of this Order pending resolution of any
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`remaining objections to the application of this Order to the Allen v. IDOC case; c) require
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`plaintiffs’ counsel to serve plaintiffs’ injunctive relief settlement demand upon the Settlement
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`Special Master and all counsel of record in the consolidated cases by March 28, 2013; and d) set
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`the consolidated cases for a further status conference on May 1, 2013 at 1:30 pm at which time
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`this Court will, absent agreement of the parties, set a schedule for the filing of the Settlement
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`Special Master’s report, the filing of objections thereto, and the holding of the status/settlement
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`hearing.
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`Consistent with the preceding paragraph, this Court adopts the Agreed Order Appointing
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`Settlement Special Master, pursuant to F.R. Civ. P. 53, as follows:
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`1.
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`Pursuant to F.R.Civ.P. 53 (a)(1)(A) and (C), the Court hereby appoints Richard J.
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`Gray as Settlement Special Master to perform the following pretrial duties consented to by the
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`parties: To assist the parties in efficiently mediating, structuring and documenting a settlement
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`2:08-cv-02232-HAB-DGB # 269 Page 5 of 8
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`with the goal of recommending to the Court a settlement, supported by the parties, that resolves
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`the claims of the broadest group(s) of Hepatitis C plaintiffs and claimants, thereby eliminating or
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`reducing the burden on the parties and the Court of adjudicating each separate claim.
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`2.
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`The Settlement Special Master may “take all appropriate measures to perform the
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`assigned duties fairly and efficiently,” as set forth in F.R.Civ.P 53(c)(1)(B). In the exercise of
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`his duties, the Settlement Special Master is granted absolute immunity.
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`3.
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`In carrying out his duties, the Settlement Special Master may meet and confer
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`with the parties’ representatives collectively. He may also meet and confer with any party
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`representative individually upon prior notice to the other party representatives. The Settlement
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`Special Master may, without notice to the parties’ representatives, engage in confidential ex
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`parte communications with the Court. The Settlement Special Master is not obligated to meet
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`with every party representative. While serving, the Settlement Special Master will maintain an
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`ethical screen between himself and those Jenner & Block attorneys representing a party adverse
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`to the Illinois Department of Corrections (“IDOC”) or any of its current or former employees
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`(collectively the “Jenner Screened Attorneys”). Consistent with this ethical screen, the
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`Settlement Special Master and Jenner Screened Attorneys shall not communicate regarding the
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`subject matter of this Order or the subject matter of the ongoing representation adverse to the
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`IDOC or any current or former IDOC employee. If the Settlement Special Master desires to
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`confer with one or more of the Jenner Screened Attorneys regarding the subject matter of this
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`Order, he may seek a waiver of the ethical screen for that purpose.
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`4.
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`All written and oral communications with the Settlement Special Master or the
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`Court regarding settlement shall be “Confidential and for Settlement Purposes Only.”
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`2:08-cv-02232-HAB-DGB # 269 Page 6 of 8
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`5.
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` The Settlement Special Master shall, no later than May 23, 2013, file under seal
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`with this Court a Confidential Settlement Report and Recommendation. The Confidential
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`Settlement Report and Recommendation shall note the areas of agreement and disagreement
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`among the parties, and identify any open issues. A copy of the Confidential Settlement Report
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`and Recommendation shall be simultaneously provided to each counsel for the identified parties.
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`6.
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`Any party wishing to file an objection to the Settlement Special Master’s
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`Confidential Settlement Report and Recommendation must do so no later than June 6, 2013.
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`7.
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` The Court
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`shall hold a
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`status/settlement conference no
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`later
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`than
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`June 13, 2013. All counsel of record shall be required to participate.
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`8.
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`The Settlement Special Master shall serve pro bono but, with Jenner & Block,
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`shall be promptly reimbursed by the parties for all reasonable expenses incurred in the
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`performance of the Settlement Special Master’s duties. Expense reimbursements shall be
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`allocated by agreement of the parties or by order of the Court upon recommendation of the
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`Settlement Special Master.
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`9.
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`Other than his Confidential Settlement Report and Recommendation, the
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`Settlement Special Master need not preserve or file any materials generated in the course of
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`performing his duties.
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`10.
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`If, at any time, the Settlement Special Master determines that his services to the
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`Court are no longer useful or economic, he may, upon notice to the Court and counsel of record,
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`withdraw as Settlement Special Master.
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`11.
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`As required by F.R.Civ.P. 53(b)(3)(A), the Settlement Special Master has filed an
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`affidavit with this Court stating that he has no relationship to the parties, attorneys, action, or
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`court that would require disqualification of a judge pursuant to 28 U.S.C. § 455.
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`2:08-cv-02232-HAB-DGB # 269 Page 7 of 8
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`12.
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`Pursuant to F.R.Civ.P. 53(a)(3), the Court has considered the fairness of imposing
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`the likely expenses on the settling parties and has concluded that, especially given the parties’
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`consent to the appointment of the Settlement Special Master, the potential benefit to the parties
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`of appointing the Settlement Special Master far outweighs the likely expense. F.R.Civ.P
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`53(a)(3) also requires the Court to protect against unreasonable expense or delay. This Court is
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`satisfied that, under its guidance, the procedures set forth above are sufficient to achieve that
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`result.
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`SO ORDERED.
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` s/Harold A. Baker
`Hon. Harold A. Baker
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`Dated: April 5, 2013
`Urbana, IL
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`AGREED AS TO FORM AND SUBSTANCE
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`_______________________________________
`H. Kent Heller
`Heller Holmes & Associates PC
`Counsel for Plaintiffs
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`________________________________________
`James A. Borland
`Quinn Johnston Henderson & Pretorius
`Counsel for Defendant Michael Puisis
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`_________________________________________
`Russell L. Reed
`Hinshaw & Culbertson
`Counsel for Defendant Willard O. Elyea_
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`2:08-cv-02232-HAB-DGB # 269 Page 8 of 8
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`_________________________________________
`Douglas R. Bitner
`Heyl Royster Voelker & Allen
`Counsel for Defendants Wexford Corp. and William Rankin
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`________________________________________
`Brent D. Stratton
`Chief Deputy Attorney General
`Office of the Illinois Attorney General
`Counsel for Defendants Illinois Department of Corrections
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