'The Judge Is Upset:' Federal Court Pursues Investigation Into Corizon Health Over Arizona Prison Allegations

Published: Thursday, January 18, 2018 - 8:08pm
Updated: Friday, January 19, 2018 - 11:08am

At a Dec. 20 status hearing, U.S. Magistrate Judge David Duncan read aloud from a KJZZ report detailing allegations of denying specialty health care in Arizona prisons.

Duncan said it looked like Corizon, the health-care provider the state contracts with, was trying to perform an “end run” around the monitoring process he oversees. The judge called for a special hearing to explore the merits of the allegations and “see how deep this evil goes.”

Judge 'Didn't Just Fall Off The Turnip Cart'

In a recent court filing, attorneys for the state called the reporting into question in a request to limit the scope of the special hearing. In the filing, attorneys argued that the judge should not be weighing information presented by the media.

At a monthly status hearing Thursday at the Sandra Day O’Connor U.S. Courthouse in Phoenix, Duncan rejected the idea that he was not able to make a judgement on what to investigate in the case.

“It’s not as if I’m trying to put my nose where it doesn’t belong,” Duncan said. “I’m putting my nose where you all asked me to put it. You asked for me to be the person who would preside in this case, so you consented to me,” the judge said to the two parties in the settlement. “You chose me, and you chose somebody who didn’t just fall off the turnip cart.”

The judge went on to list his credentials and decades of experience practicing law.

“It’s as if over 30 years of practice I have learned some things about how to look at a situation and try to make intelligent decisions to help people accomplish what is our common obligation — and that is to comply with the law,” Duncan said.

The judge is overseeing a settlement agreement built around the state’s obligation to comply with more than 100 performance measures relating to health care in Arizona prisons. Duncan said the defense was correct to note in their filing that he was “upset.”

“The judge is upset,” Duncan said, “because I participated in a resolution of a case that I really had full expectation it would not have me — years out — trying to accomplish what is fundamental.”

Duncan said the performance measures outlined in the settlement were not “luxury items.”

“We didn’t get the condo that had the sauna,” Duncan said of the settlement agreement. “This is about basic health care that is supposed to be provided that any reasonable humane person would think would be provided to people that you are guardians for.”

Duncan said the abject failure on behalf of the state to comply with the settlement would make anyone upset.

The judge said it was logical to wonder if Corizon has not been acting in good faith in its self-monitoring. “The KJZZ article suggests that possibility,” said Duncan, referring to an article that included emails from a former Corizon employee. “And I have authorized and pursued a discover effort to find out whether that is true.”

'Trout In The Lake'

The defendants called the upcoming hearing a “witch hunt” and a “fishing expedition,” but once again Duncan rebutted their claims.

“My experience over time in this case has given me enough reason to think that if people are saying there are trout in this lake, before I bring the fleet in to fish for it, I’m going to have an investigation to see if there really are some trout here,” Duncan said of the allegations of misleading the court.

The state argued that the discovery process to prepare for the hearing will be onerous and expensive. Defense attorney Rachel Love said the cost to Corizon and the Arizona Department of Corrections could total more than $280,000. Defense attorney Daniel Struck asked the court to limit the initial scope of the hearing to focus on fewer individuals involved in the monitoring process.

“Defendants are requesting that the court pump the brakes a little bit on this,” Struck said. “Let’s see if there is some traction to it and if you find that there is then we go to the extreme of bringing in more witnesses to explain to the court how the monitoring system works and that it’s not being compromised by Corizon or anybody else.”

Defense attorneys are not disputing the legitimacy of the documents published in KJZZ’s reporting. For the first time, attorneys for the state confirmed the authenticity of an email to Dr. Jan Watson from a Corizon employee asking her to cancel a medical referral. The Corizon employee tells Watson doing so will allow the private, for-profit health-care company to avoid fines. The state did however say it intends to show that such direction was not meant to subvert the integrity of the monitoring process.

Plaintiffs attorney Corene Kendrick told the judge it was to be expected that preparing for such a hearing would require a great deal of effort, because of the magnitude of the issues at hand.

“This is a class action of 34,000 prisoners,” Kendrick said. “It involves one of the largest state agencies that has a budget of over $1 billion a year. And the state is paying Corizon more than $145 million a year to provide health care.”

Kendrick said the cost of preparing for a hearing investigating Corizon’s potential wrongdoings was the “price of doing business.”  “I don’t know why the attorney general of this state has decided to outsource the case management and the document production to a private litigation firm rather than use the state’s own employees and resources,” Kendrick said. “But we do not think defendants should hide behind that policy choice or point to the expense of doing the search as the reason to not provide the information that the court needs to assess whether or not there is actual compliance with the stipulation or if something’s going on.”

'Not A Mom-And-Pop Operation'

Duncan said he was sympathetic to the fact that delving into Corizon’s monitoring practices was no small task. “This is a large operation. It’s not a mom-and-pop operation. It’s a very large operation,” said Duncan, conceding that a thorough investigation would be required.

Duncan agreed to limit the scope of the review to seven of the 10 state prisons and pushed the special hearing back to Feb. 27 to give both sides more time to prepare.

Duncan has stated repeatedly that if he finds he cannot trust the numbers he’s getting from Corizon, he could appoint an independent monitor in the case.

With regard to the defendant’s complaints about the cost of the hearing, Duncan said he had explained over and over again “that the best way to save money in this case is to get the court out of it. And the best way to get the court out of it,” the judge said, “is to satisfy the stipulation.”

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