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TRANSCRIPT
DO N01 REMOVE f ! I r r: 0ui ] r~ v fRO"n F\LE . M L l. "'.i, I ~ iYN THE SUPREME COURT OF ApPEALS OF WEST VI
CASE No._----'l->L~ _~==---4_( ___ _
STATE OF WEST VIRGINIA, ex rei. WEST VIRGINIA UNIVERSITY HOSPITALS, INC. and WEST VIRGINIA UNITED HEALTH SYSTEM, INC. d/b/a WVU Healthcare and any related entities of WVU Healthcare acting in concert with WVU Healthcare, Petitioners,
v.
THE HONORABLE PHILLIP D. GAUJOT, CHRISTOPHER THO MACK, and JOSEPH MICHAEL JENKINS, on their own behalf and on behalf of all similarly situated persons consisting of a class of aggrieved persons, Respondents.
Relief sought from an Order of the Circuit Court of Monongalia County (13-C-53) Denying Defendants' Motion to Decertify Class
Petition for Writ of Prohibition
Counsel for Petitioners, West Virginia University Hospitals, Inc. and West Virginia United Health System, Inc.
Marc E. Williams, Esq. (WVSBN 4062) Alexander L. Turner, Esq. (WVSBN 10839) Christopher D. Smith (WVSBN 13050) Nelson Mullins Riley & Scarborough LLP P.O. Box 1856 Huntington, West Virginia 25719 Main Office Phone: (304) 526-3500 Fax: (304) 526-3599
Christine S. Vaglienti, Esq. (WVSBN 4987) West Virginia University Hospitals, Inc. 1238 Suncrest Towne Centre Morgantown, West Virginia 26505 (304) 598-4199
TABLE OF CONTENTS
TABLE OF CONTENTS ..................................................................................................................................... ii
TABLE OF AUTHORITIES ............................................................................................................................... iii
1. QUESTIONS PRESENTED ........................................................................................................................ I
II. STATEMENT OF THE CASE .................................................................................................................... 2
a. Procedural History ................................................................................................................................... 2
b. The Petitioners' Medical Record Request Charging Practices ................................................................ 5
c. Guida, et at., v. Weirton Med. Ctr., Inc., et at., Civil Action No. OI-C-57 ................................. 9
III. SUMMARY OF ARGUMENT .................................................................................................................. II
IV. STATEMENT REGARDING ORAL ARGUMENT AND DECISION ................................................... 15
V. ARGUMENT ............................................................................................................................................. 15
a. A Writ of Prohibition is appropriate because the Petitioners will be irreparably harmed if they are
forced to litigate an improperly certified class action .................................................................................... 16
b. The trial court misapplied West Virginia law when it certified a class that by its definition includes
individuals who do not have standing to pursue a claim under W . VA. CODE § 16-29-1, et seq . ............... 19
c. The trial court misapplied West Virginia law when it created a class whose membership is
unascertainable absent extensive individualized fact finding ......................................................................... 22
d. The trial court misapplied West Virginia law when it certified a class that lacks the ability to generate
common answers ............................................................................................................................................ 25
e. The trial court misapplied West Virginia law when it refused to decertifY the Respondents' class as to
their fraud claim-a tort that requires extensive individualized fact finding ................................................. 29
f. The trial court incorrectly certified a class of individuals asserting that the Petitioners overcharged
them from January 18, 2008 through December 1, 2010-a time period when the Petitioners' charges were
govemered by an injuctive order determining what they could charge ............................................. 30
I. The trial court erred when it determined that the Guida settlement was not a binding adjudication on
the merits because class actions may only be settled through judicial approval. ....................................... 32
11. The trial court erred when it determined that individuals charged from January 18,2008 through
December I, 20 I 0 were not members of the Guida class .......................................................................... 33
Ill. The trial court erred when it determined that future class members were denied due process because
they did not receive adequate notice because the court in Guida deployed adequate safeguards to ensure
that parties received notice ......................................................................................................................... 36
VI. CONCLUSION ...................................................................................................................................... 38
II
TABLE OF AUTHORITIES
Cases Page(s)
Bd. of Educ. of Monongalia Cty. v. Starcher, 176 W. Va. 388, 392, 343 S.E.2d 673, 677
(1986) ................................................................................................................................ 1,9,32
Bear v. Oglebay, 142 F.R.D. 129, 132 (N.D. W. Va. 1992) ......................................................... 29
E.! DuPont de Nemours and Co. v. Hill, 214 W. Va. 760, 591 S.E.2d 318 (2003) ............... 11, 17
EQT Prod. Co. v. Adair, 764 F.3d 347,358 (4th Cir. 2014) .............................................. 1,23,24
Findley v. State Farm Mut. Auto. Ins. Co., 213 W.Va. 80,94,576 S.E.2d 807, 821 (2002) ....... 19
Gill v. Glaxo Wellcome, PLC, No. crv.A. 00-C-245M, 2004 WL 3770050,
at *2 (W. Va. Cir. Ct. July 22, 2004) ........................................................................................ 25
Guida, et al. v. Weirton Med. Ctr., Inc, et al., Civil Action No. 0 1-C-57 ............................. passim
Hesse v. Sprint Corp., 598 F.3d 581, 588 (9th Cir. 2010) ............................................................ 36
Hiser v. Franklin, 94 F.3d 1287, 1291 (9th Cir. 1996) ................................................................. 30
In re West Virginia Rezulin Litig., 214 W. Va. 85, 585 S.E.2d 52 (W. Va. 2003) ....................... 26
Kohen v. Pac. Inv. Mgmt. Co., LLC, 571 F.3d 672,677 (7th Cir. 2009) ...................................... 21
Lengyel v. Lint, 167 W. Va. 272, 273, 280 S.E.2d 66,67 (1981) ............................................. 2,29
McFoyv. Amerigas, Inc., 170 W.Va. 526, 527,295 S.E.2d 16,17 (1982) .................................. 17
Mickv. Ravenswood Alum. Corp., 178 F.R.D. 90, 94 (S.D. W. Va. 1998) .................................. 29
Moody v. Sears Roebuck & Co., 191 N.C. App. 256, 273, 664 S.E.2d 569, 581 (2008) ............. 36
Moore v. Apple Inc., 309 F.R.D. 532, 542 (N.D. Cal. 2015) ........................................................ 21
Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 317 (1950) ........................................ 37
Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 811-12 (1985) .................................................. 23
Rodriguez v. Hayes, 591 F.3d 1105,1118 (9th Cir. 2010) ........................................................... 34
III
Rodriguez v. Carlson, 166 F.R.D. 465, 476-77 (E.D. Wash. 1996) ............................................. 34
State ex reI. City of Huntington v. Lombardo, 149 W.Va. 671,413 S.E.2d 535, 536 (1965) ...... 18
State ex reI. Erie Insurance Property & Casualty Co. v. Nibert, No. 16-0884,2017 WL 564160,
at *6 (W. Va. Feb. 13, 2017) ........................................................................................... 1,13,26
State ex reI. Healthport Techs., LLC v. Stucky, 239 W. Va. 239, 800 S.E.2d 506 (2017) ..... passim
State ex reI. Hoover v. Berger, 199 W.Va. 12,483 S.E.2d 12 (1996) .......................................... 11
State ex rel. McGraw v. Telecheck Serv., 213 W. Va. 438, 582 S.E.2d 885, D. 11 (2003) ........... 17
State v. Miller, 194 W.Va. 3,459 S.E.2d 114 (1995) ................................................................... 31
State ex reI. Metro. Life Ins. Co. v. Starcher, 196 W. Va. 519, 526,
474 S.E.2d 186, 193 (1996) ................................................................................................... 1,22
State ex reI. Suriano v. Gaughan, 198 W. Va. 339,480 S.E.2d 548 (1996) ................................ 17
State ex reI. U-Haul Co. ofW Virginia v. Tabit, No. 17-1052,2018 WL 2304282,
at *4 (W. Va. May 21, 2018) ..................................................................................................... 28
Stephenson v. Dow Chem. Co., 273 F.3d 249,258 (2d Cir. 2001) ............................................... 36
Wetzel v. Liberty Mut. Ins. Co., 508 F.2d 239, 254 (3d Cir. 1975) ............................................... 34
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350, 131 S. Ct. 2541,
2551,180 L. Ed. 2d 374 (2011) ................................................................................................ 26
Wilmington Firefighters Local 1590 v. City of Wilmington, 109 F.R.D. 89,92 (D. Del. 1985) .. 34
Constitutional Provisions
W. VA. CONST. art. VIII, § 3 ......................................................................................................... 16
W. VA. CONST. art .. VIII, § 6 ........................................................................................................ 19
iv
Statutes
W. VA. CODE § 16-29-1 .......................................................................................... 1,3,5, 9, 21, 22
W. VA. CODE § 16-29-1 (1992-June 5, 2014) .............................................................. 9,10,21,22
W. VA. CODE § 16-29-2 ........................................................................................................ 5,9, 16
W. VA. CODE § 16-29-2 (1999-June 5, 2014) .......................................................................... 6,27
W. VA. CODE § 46A-6-101 ............................................................................................................. 3
W. VA. CODE § 53-1-2 .................................................................................................................. 16
W. VA. CODE § 53-5-8 .................................................................................................................. 16
W. VA. CODE § 16-29-1, et seq .............................................................................................. passim
Rules
W. VA. R. Civ. P. 23 ................................................................................................... 17, 18,22,23
W. VA. R. Civ. P. 23(b)(1) ............................................................................................................ 34
W. VA. R. Civ. P. 23(a)(2) .............................................................................................. 1, 4,13,26
W. VA. R. Civ. P. 23(e) ...................................................................................................... 9, 32, 33
W. VA. R. Civ. P. 23(b)(1)(A) and (B) ........................................................................................... 9
W. VA. R. App. P. 16 .......................................................................................................... ... passim
W. VA. R. App. P. 19 .................................................................................................................... 15
W. VA. R. App. P. 19(a)(2) ........................................................................................................... 15
W. VA. R. App. P. 16(a) ............................................................................................................... 16
W. VA. R. App. P. 18(a) ............................................................................................................... 15
W. VA. R. App. P. 20 .................................................................................................................... 16
Treatises
CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE .......................................... 23
CLECKLEY, DAVIS, & PALMER, LITIGATION HANDBOOK ON WEST VIRGINIA RULES OF CIVIL
PROCEDURE .............................................................................................................. 22,23,26,28
McLAUGHLIN on CLASS ACTIONS ........................................................................................... 21,32
NEWBERG ON CLASS ACTIONS .......................................................................................... 21, 30, 34
v
I. QUESTIONS PRESENTED
1. In State ex reI. Healthport Techs., LLC v. Stucky, 239 W. Va. 239, 800 S.E.2d 506 (2017),
this Court determined that neither patients, nor their agents or representatives, have
standing to bring suit under W. VA. CODE § 16-29-1, et seq., until the patient pays for their
medical records. In an attempt to comply with the Healthport precedent, the trial court
amended a previously certified class; however, the trial court's amended class includes
attorneys who paid for their clients' records-a group of individuals who lack standing
under Healthport. Did the trial court err when it amended the class definition to include
individuals who lack standing to bring suit?
2. To ensure administrative feasibility and due process, courts routinely require that classes
be defined in such a way that membership in the class is "ascertainable" without
individualized fact finding. See, e.g., SyI. Pt. 3, State ex reI. Metro. Life Ins. Co. v. Starcher,
196 W. Va. 519, 526,474 S.E.2d 186,193 (1996); EQT Prod. Co. v. Adair, 764 F.3d 347,
358 (4th Cir. 2014). If determining membership in a class requires extensive fact finding
or mini-trials, the class is inappropriate. In this matter, the trial court certified a class whose
membership could only be ascertained after analysis of financial documents, contracts, and
testimony from each individual class member. Did the trial court err when it certified a
class whose membership could only be ascertained after extensive individualized fact
finding?
3. To satisfy the commonality prong of West Virginia Rule of Civil Procedure 23(a)(2),
"claims must depend upon a common contention [ which] must be of such a nature that it
is capable of classwide resolution-which means that determination of its truth or falsity
will resolve an issue that is central to the validity of each one of the claims in one stroke."
State ex reI. Erie Insurance Property & Casualty Co. v. Nibert, 2017 WL 564160, at *6
(W. Va. 2017). In this case, the Respondents contend that the Petitioners violated a medical
records charging statute by charging more for records than it took to produce those records.
Therefore, under the Respondents' theory, liability hinges on whether the Petitioners
charged more than the reasonable expenses incurred in producing an individual patient's
record. The reasonable expenses associated with each production of records varies from
patient to patient; therefore, individualized fact finding is necessary to determine liability
for each individual patient under the Respondents' theory. Did the trial court err when it
certified a class where a separate inquiry is necessary to determine the Petitioners' liability
to each individual class member?
4. To prevail on a fraud claim in West Virginia, claimants must prove that they reasonably
relied on a defendant's representations. See Syl. Pt. 1, Lengyel v. Lint, 167 W. Va. 272,
273,280 S.E.2d 66, 67 (1981). The reasonable reliance element of fraud necessarily entails
extensive individualized fact finding, and the Respondents conceded that the underlying
fraud claim was improper for class adjudication. Despite this, the trial court did not
decertify the Respondents' fraud claim. Did the trial court err when it refused to decertify
the class as to the fraud claim?
5. In Guida, et aZ. v. Weirton Med. Ctr., Inc, et aI., Civil Action No. 01-C-57, Judge Recht
entered an Order enjoining the Petitioners to charge forty cents per page for medical records
until December 1,2010. The trial court ruled that Judge Recht's Order-an Order dealing
with the precise class and issues involved in this case-has no preclusive effect on the
current proceeding, that the class included individuals charged from January 18,2008, and
that the Respondents may assert claims against the Petitioners for conduct compliant with
Judge Recht's Order. Did the trial court err when it included in the class individuals who
were charged in accord with Judge Recht's Order and permitted the Respondents to
proceed on a claim seeking to hold the Petitioners liable for complying with Judge Recht's
binding Order in Guida?
II. STATEMENT OF THE CASE
a. Procedural History
On or about January 29, 2013, Plaintiff Thomack served Petitioner West Virginia
University Hospitals, Inc. (hereinafter "WVUH") with his Class Action Complaint that had been
filed in the Circuit Court of Monongalia County. AR. 30--42. WVUH removed the suit to the
United States District Court for the Northern District of West Virginia; however, on October 7,
2013, the federal court remanded the case to the Circuit Court of Monongalia County. AR. 653-
664.
While Plaintiff Thomack's Motion to Remand was pending in federal court, Plaintiff
Jenkins filed suit in the Circuit Court of Harrison County, asserting similar claims as Plaintiff
Thomack. AR. 43-60. Through the agreement of the parties and the circuit courts, the cases were 2
consolidated, and the Respondents filed their Consolidated Amended Complaint ("Amended
Complaint") on or about January 9, 2014. A.R. 163-181. The Respondents' Amended Complaint
sets forth numerous causes of action, including violations of W. VA. CODE§ 16-29-1 et seq.,
breaches of express or implied contract, violations of West Virginia public policy, the commission
of fraud, and violations ofW. VA. CODE § 46A-6-101 et seq. Id.
On March 26,2014, WVUH and West Virginia United Health System, Inc. ("WVUHS")
filed a memorandum opposing class certification. A.R. 111-131. On March 31, 2014, the trial
court heard oral argument and requested that the parties submit proposed orders. A.R. 785-829.
On April 16, 2014, the trial court entered an order granting class certification with respect to all
claims within the Consolidated Amended Complaint. A.R. 132-143. The Petitioners sought a Writ
of Prohibition regarding that order; however, this Court refused to issue a ruling on the Petitioners'
Petition on August 26,2014. A.R. 598-599.
The case proceeded back to the trial court, where the parties continued to litigate various
procedural issues. l On May 24, 2017, this Court issued its opinion in State ex ref. Healthport
Techs., LLC v. Stucky, 239 W. Va. 239, 800 S.E.2d 506 (2017), which detailed standing
requirements in cases brought under W. VA. CODE § 16-29-1 et seq. Specifically, in Healthport,
this Court determined that neither a medical record requestor nor that requestor's agent has
standing until the medical record requestor pays for the medical record. Healthport, 239 W. Va. at
I The primary procedural issue in contention from 2014 through 2017 stemmed from a protracted dispute
over whether the Respondents should be permitted to consolidate actions against West Virginia University
Health Systems entities in Monongalia County Circuit Court. See. e.g., A.R. 149-162. The trial court
ultimately decided against that consolidation. ld.
3
243. The mere fact that a medical record requestor's attorney paid for records does not confer
standing upon the requestor or his or her agent. ld.
Based on that decision, the Petitioners filed a Motion to Decertify Class on July 21,2017,
because (1) the class previously certified by the trial court included individuals who lacked
standing, (2) class membership was unascertainable absent extensive individualized fact finding,
and (3) the class did not satisfy the commonality prong of West Virginia Rule of Civil Procedure
23(a)(2). AR. 199-435. On November 30, 2017, the Respondents filed a response in opposition
to the Petitioners' Motion, and the Petitioners filed a reply on December 8, 2017. AR. 436-485.
The parties appeared before the trial court on December 13, 2017, and the trial court requested that
both sides submit proposed orders. AR. 701-743. The parties did so, and on February 23, 2018,
the trial court entered an order denying the Petitioners' Motion. AR. 3-17. Although the trial court
denied the Petitioners' Motion to Decertify Class, it amended the class definition to include
"attorneys who have requested and paid for medical records on behalf of their patient clients."
A.R. 12 (~25). At that time, however, the precise scope of the class was unclear.
Later, the Court entered an Order defining the precise scope of the class as "[a ]ny person,
who, from January 18,2008 until June 5, 2014, (1) requested in writing copies of patient medical
records from Defendant, West Virginia University Hospitals, Inc., including the individual patient
and any person who was an authorized agent or authorized representative of the patient through
legal representation; and (2) paid the fees charged by the Defendant to obtain such requested
medical records." AR. 1-2. The Court entered this Order over the objection of Defendants, who
contended that the class should be defined as "1) Patients who requested their medical records
from WVUH and paid for them from December 1,2010 through June 5, 2014; 2) Patients who
were in privity of contract with attorneys who, in the course of providing legal services, requested
4
medical records from WVUH on their client's behalf and who have been reimbursed by their
clients for the cost of the requested records from December 1,2010 through June 5, 2014; and 3)
Attorneys in privity of contract with the patients to provide legal services who requested medical
records from \VVUH on their client's behalf and who have not been reimbursed for the cost of
those medical records by their clients from December 1,2010 through June 5, 2014." A.R. 758-
781. The Petitioners objection are based on the fact that, as discussed further below, Judge Recht
entered an Order in Guida, et a!. v. Weirton Med. Ctr., Inc, et a!., Civil Action No. 01-C-57, in the
Circuit Court of Brooke County that prospectively enjoined the Defendants to charge forty cents
per page until December 1,2010. Id. The overlapping date issue lingered until August 9, 2018,
when Judge Gaujot ultimately determined that the settlement in Guida did not affect the class in
the current action by granting summary judgment in favor of the Respondents on the preclusive
effect of the Guida Order. A.R. 18-29. Now that the scope of the class appears to have sorted
itself out, the Petitioners challenge each of Judge Gaujot's Orders implicating the scope of the
class in this writ.
b. The Petitioners' Medical Record Request Charging Practices
The issue at the heart of this case is what constitutes a reasonable fee under the version of
W. VA. CODE § 16-29-1, et seq., in effect when the Respondents requested their medical records.
W. VA. CODE § 16-29-1, et seq., governs health care providers' entitlement to recoup reasonable
expenses incurred in producing health information. Specifically, the version of W. VA. CODE §
16-29-2 in effect when the Respondents requested their medical records stated that medical record
providers
5
shall be reimbursed by the person requesting in vvriting a copy of the
records at the time of delivery for all reasonable expenses incurred
in complying with this article: Provided, That, the cost may not
exceed seventy-five cents per page for the copying of any record or
records which have already been reduced to written form and a
search fee may not exceed ten dollars.
W. VA. CODE § 16-29-2 (1999-June 5, 2014). At the time the Respondents requested their medical
records, the Petitioners charged $0.40 cents per page and a $10.00 retrieval fee. These charges
were based on an earlier Order from Judge Arthur Recht of the Circuit Court of Ohio County, West
Virginia, in a case involving WVUH and W. VA. CODE § 16-29-1, et seq. which determined that
those charges constituted reasonable fees. See Guida, et al. v. Weirton Med. etr., Inc, et aI., Civil
Action No. 01-C-57, in the Circuit Court of Brooke County, West Virginia; AR. 665-679.
For example, on July 31,2012, Plaintiff Thomack's counsel requested his medical records
from West Virginia University Hospitals ("WVUH"). See, e.g., AR. 109. WVUH charged
Plaintiff Thomack' s counsel a $10.00 retrieval fee and a per-image fee of $0.40 for each of the
1,261 images2 comprising Plaintiff Thomack's medical records. Id. Similarly, on December 26,
2012, counsel for Plaintiff Jenkins requested and paid for copies of his client's medical records
from WVUH. See, e. g., AR. 174-75. WVUH again charged a $10.00 retrieval fee and a per image
fee of$0.40 for each of the 1,617 images comprising Plaintiff Jenkins's medical records.ld.
The fees associated with the requested medical records were advanced by the Respondents'
counsel. See, e.g., AR. 4-5. After the Respondents' underlying lawsuits settled, the cost was
reimbursed to the Respondents' counsel from the settlement proceeds. See, e.g., AR. 228 (pg.
2 The tenn "images" is used here because the records were produced electronically. An image equates to a
page of paper formatted records.
6
49: 11-17). Importantly, individualized fact finding was required to determine whether each ofthe
Respondents actually paid for the record-Plaintiff Thomack confirmed payment in a deposition
and Plaintiff Jenkins confirmed payment through an affidavit signed by his attorney. Id.; id. at
484-85. Absent this kind of evidence, there is no way for the Petitioners to tell whether any class
member has reimbursed their attorneys for their medical records.
Finally, although the Respondents complain bitterly about the Petitioners' billing practices,
the Respondents themselves admit they do not understand what constitutes a reasonable fee. For
example, Plaintiff Jenkins stated that he did not "know [WVUH's] medical billing system or []
recordkeeping system, but [he] wouldn't think it would be a complicated thing." A.R. 233 (pg.
46:20--47: 1). In a drastic oversimplification of the medical records production process, Plaintiff
Jenkins postulated that the Petitioners' fees were excessive because "I can take that computer and
copy it onto a disk in five minutes." Id. (pg. 46:12-16). Despite his baseless conjecture, Plaintiff
Jenkins eventually conceded that he does not know enough about medical record retention and
production to provide a reasonable cost estimate. A.R. 234 (pg. 51 :6-11). Similarly, Plaintiff
Thomack was unable to articulate what a reasonable cost for his records would be, let alone any
basis for making such a determination. A.R. 681-83.
In sharp contrast to the Respondents' baseless conjecture, WVUH produced evidence
showing that its costs vary considerably from record request to record request. To show the
extensive work that goes into collecting, maintaining, and producing patient medical information,
Melissa Martin, Director of Health Information Management and Chief Privacy Officer for
WVUH, provided an unrefuted Affidavit setting forth the myriad medical record retention systems
used and explaining the time and resource-intensive process of responding to a request for medical
records. A.R. 239-244. Ms. Martin showed that the medical records maintained by WVUH exist
7
in multiple forms of media, both physical and electronic, and, depending upon the format and dates
of service, can be located in several different physical and digital locations. Id. Indeed, medical
records searches regularly span WVUH's six different electronic record production and storage
systems and an offsite physical storage facility.Id. In addition to the complexity of actually finding
the medical records, there are additional quality control procedures to ensure that WVUH complies
with the applicable law. Specifically, medical record requests receive an intensive initial review
and subsequent quality assurance reviews once the records are collated and transferred to a portable
medium to ensure that WVUH complies with the law. Id. Put simply, the medical record request
process is costly and cumbersome.
For example, a technician involved in a medical record request could be required (1) to
search and access numerous electronic storage systems---each of which requires access to a
different computer terminal; (2) to collate records from multiple systems; (3) to physically drive
to a warehouse and manually search for documents; and (4) to review numerous pages ofrecords
multiple times across the different systems. Id. On top that burdensome procedure, the record
retrieval process is frequently complicated by the receipt of deficient or inadequate requests,
including (1) requests without documentation of appropriate authority, (2) requests with only the
name of the patient and no other identifier, and (3) requests for records for the wrong date of
service or listing the wrong provider. Id. Further complicating matters, record requests stemming
from litigation require greater expenditures of effort and resources because parties involved in
litigation routinely ask for "any and all records" related to a particular patient. Id. As the undisputed
record shows, each and every medical records request comes with a highly variable set of costs to
the Petitioners.
8
c. Guida, et al. v. Weirton Med. etr., Inc, et al., Civil Action No. 0l-C-S7
This is not the first time the Petitioners have litigated the reasonableness of costs under W.
VA. CODE § 16-29-2. In Guida, et ai. v. Weirton Med. Ctr., Inc, et ai., Civil Action No. 01-C-57,
a class of plaintiffs brought a claim asserting, exactly as Respondents assert, that the charges of
WVUH and other hospitals did not constitute a reasonable "reimbursement" for "all reasonable
expenses incurred" to produce requested medical records pursuant to W. VA. CODE § 16-29-1, et
seq. (1999-June 5, 2014). In that case, Judge Recht certified a class under West Virginia Rule of
Civil Procedure 23(b)(1 )(A) and (B) of the West Virginia Rules of Civil Procedure that included:
All patients, authorized agents of patients, and authorized representatives of patients of any health care provider in West Virginia who have made requests of such health care provider for medical records pursuant to the provisions of W. VA. CODE 16-29-1, since March 2, 1996 and, in response to said requests, were assessed charges by any defendant health care provider or any defendants copy company.
A.R. 667. After several years of litigation, the parties in Guida sought to settle the case. Settlement
in class actions, however, may not be entered into absent court approval. See W. VA. R. Civ. P.
23(e). Therefore, to effectuate the settlement between the parties, Judge Recht entered an Order on
October 28,2003, binding the parties to the settlement. A.R. 665-679.
In the Guida Order, Judge Recht noted that he considered several factors, including the
strength ofthe plaintiffs' case balanced against the settlement amount and the absence of collusion,
in determining whether to approve the settlement. Id. at 671 (citing Board of Education of
Monongalia County v. Starcher, 176 W. Va. 388, 394, 343 S.E.2d 673, 679 (W. Va. 1986)
(McHugh, l, dissenting). Specifically, Judge Recht considered what constituted a reasonable
charge under W. VA. CODE § 16-29-1, et seq. (1999-June 5, 2014) based on the merits of the
9
plaintiffs' case. Id. After considering those merits, Judge Recht entered the settlement Order. The
relevant portion of the settlement Order was a provision that provided prospective injunctive relief
in the form of a
reduction of the per page charge for copies of medical records requested under the West Virginia Health Care Records Act, W. VA. CODE § 16-29-1 et seq., ("Health Care Records Act") by patients, authorized against of patients and/or authorized representatives of patients to forty (40) cents per page, together with a fee not to exceed $10 per request, to be applied on a prospective basis for a seven (7) year period beginning on December 1, 2003.
Id. Specifically, Judge Recht noted that the prospective limitation "constitute[ d] a fair, reasonable,
and adequate reimbursement of both a reasonable, cost-based fee for copying, including the labor
and supply costs, and the reasonable expenses incurred in complying with the Health Care Records
Act." Id. at 672. To guarantee that the ordered prospective injunction was enforceable, Judge Recht
specifically retained jurisdiction over the Guida case, ensuring that all individuals charged under
W. VA. CODE § 16-29-1, et seq. (1999-June 5,2014) between March 2, 1996 and December 1,
2010 were afforded the benefits of the prospective injunctive relief contained in the settlement
Order. Id. at 679.
Despite Judge Recht's prospective injunctive settlement Order determining what WVUH
could charge from December 1, 2003 through December 1, 2010, Judge Gaujot ultimately created
a class whose membership that spans from January 18,2008 through June 5, 2014. A.R. 1. In
essence, Judge Gaujot's Order Amending Class Definition permits class members who were
charged from January 18, 2008 through December 1, 201 O-the dates where the class certified in
this case and the class certified in Guida overlap-to attempt to hold Petitioners liable for
complying with the binding Order entered by Judge Recht in Guida.
10
III. SUMMARY OF ARGUMENT
Class actions were created to allow courts to resolve common questions en masse involving
nearly identical wrongs. However, before courts certify a putative class, they must ask questions
to ascertain if the class is comprised of the appropriate "whos" and that the putative class's harms
are comprised of similar "whats." The trial court failed to do so here by improperly applying settled
case law, resulting in a class that raises more questions than it answers. Accordingly, this Court
should grant the Petition for a Writ of Prohibition.
In determining whether to enter a writ of prohibition, this Court must consider,
(1) whether the party seeking the writ has no other adequate
means, such as direct appeal, to obtain the desired relief; (2)
whether the petitioner will be damaged or prejudiced in a way
that is not correctable on appeal; (3) whether the lower tribunal's
order is clearly erroneous as a matter of law; (4) whether the
lower tribunal's order is an oft repeated error or manifests
persistent disregard for either procedural or substantive law; and
(5) whether the lower tribunal's order raises new and important
problems or issues of law of first impression.
Syl. Pt. 1, E.1. DuPont de Nemours and Co. v. Hill, 214 W. Va. 760, 591 S.E.2d 318 (2003)
(quoting Syl. Pt. 4, State ex ref. Hoover v. Berger, 199 W.Va. 12,483 S.E.2d 12 (1996)). All five
of these factors weigh in favor of entering a writ. Foremost, the Petitioners have no other way of
challenging the trial court's denial of their Motion to Decertify Class. Next, the Petitioners will be
damaged if they are forced to litigate an improperly certified class. Additionally, the third and
fourth factors weigh in favor of granting a writ because the trial court's orders are erroneous and
manifest disregard for substantive law. Finally, the trial court's Order raises new and important
11
issues of West Virginia law-namely, whether defendants may be held liable for complying with
a judicially binding injunctive order. The trial court's legal errors are detailed in tum.
First, the trial court failed to ensure that the class in this case is composed of the appropriate
"whos." In Healthport, this Court definitively determined that record requestors seeking relief
under W. VA. CODE § 16-29-1, et seq., lack standing to bring suit until the record requestor
themselves pay for the requested medical records. Importantly, this Court also determined that
agents of the record requestor-including attorneys-lack standing until the record requestor
himself pays for the medical record. Despite this Court's clear ruling that attorneys do not have
standing to bring a lawsuit on behalf of medical record requestors by virtue of paying for the
requestor's records, the trial court included "attorneys who have requested and paid for medical
records on behalf of their patient clients" in its redefined class. This is a clear misapplication of
this Court's precedent. Put simply, the trial court created a class comprised of "whos" that this
Court determined lacked standing.
Not only is the trial court's redefined class comprised of the wrong "whos," it is also
comprised of unascertainable "whos." Class action litigation was created to facilitate efficiency
and ensure that individuals suffering nearly identical wrongs are able to join together and litigate
those common wrongs. The efficiency and due process assurances underpinning class action
litigation are undermined when extensive fact finding is required to determine who is in the class.
Such is the case here. Here, the trial court certified a class where membership and standing may
only be determined after analysis of financial records, attorney-client contracts, and individualized
testimony. Indeed, to prove that they had standing to bring suit, the named Respondents had to
produce deposition testimony, affidavits, and financial documents showing that they paid for the
records they requested. Such individualized fact finding grinds the gears of a class action-a legal
12
tool designed to ensure efficiency-to a halt and leaves potential class members confused as to
whether they are actually class members. Accordingly, the trial court misapplied the law when it
created a class comprised of unascertainable "whos."
In addition to creating a class full of the v,1fong "whos," the trial court misapplied settled
case law governing the "whats" composing this class action. Again, class actions were created to
streamline mass litigation by allowing courts "to generate common answers apt to drive the
resolution of the litigation." State ex ref. Erie Ins. Prop. & Cas. Co. v. Nibert, No. 16-0884,2017
WL 564160, at *6 (W. Va. Feb. 13,2017) (citation omitted). Put simply, courts must determine
that commonality governs the "whats" composing a class action by ensuring that the resolution of
a single class member's claim is capable ofresolving critical questions-such as liability-for the
entire class. That is not the case here. Here, the Respondents assert that the Petitioners violated W.
V A. W. VA. CODE § 16-29-1, et seq., by charging amounts in excess of the reasonable expenses
incurred by the Petitioners. However, the Respondents' theory destroys commonality because
determining liability under the Respondents' theory requires individualized inquiries into the
actual costs incurred in producing each class member's records. As the undisputed record shows,
the costs of record production vary wildly from request to request. It is likely that some individuals
were charged less for their medical records than the costs Petitioners incurred producing those
records, meaning that the Petitioners are not liable to some class members. Because the class is
composed of a series of "whats" that cannot produce common answers as to liability under the
theory of liability espoused by the Respondents, the trial court misapplied settled case law when it
determined that the class satisfied West Virginia Rule of Civil Procedure 23(a)(2)'s commonality
requirement.
13
Additionally, the trial court erred when it refused to decertify the class as to the
Respondents' fraud claims. Fraud requires plaintiffs to prove that they relied on a purported
misrepresentation to prevail. The reliance element is particularly ill-suited for class actions because
it varies from individual to individual, meaning that the "whats" are nearly impossible to resolve
en masse. Indeed, the Respondents conceded that the fraud claim was not appropriate for class
resolution. A.R. at 448. Despite this, the trial court misapplied settled law and included the
Respondents' fraud claim in the class of certified claims.
Finally, the trial court erred when it created a class that encompassed the wrong "when."
In Guida, et ai. v. Weirton Med. Ctr., Inc, et aI., Civil Action No. 01-C-57, in the Circuit Court of
Brooke County, Judge Recht prospectively enjoined the Petitioners to charge forty cents per page
until December 1,2010. Despite Judge Recht's binding Order, Judge Gaujot certified a class that
spans from January 18,2008 through June 5, 2014. Troublingly, from January 18,2008 through
December 1, 2010, the Petitioners charged forty cents per page because the prospective injunctive
Order entered by Judge Recht in Guida enjoined them to charge that amount. In essence, Judge
Gaujot is permitting class members charged from January 18,2008 through December 1,2010 to
attempt to hold the Petitioners liable for complying with the law. Accordingly, the class certified
by Judge Gaujot encompasses the wrong "when."
Put simply, the trial court misapplied settled law and created a class composed of improper
"whos," unascertainable "whos," dissimilar "whats," and a "when" where the central issue in this
case had already been decided by a prior binding judicial order. Instead of a class action capable
of resolving common questions en masse, the trial court created a bundle of cases that raise more
questions than they answer. This is anathema to the law underpinning class action litigation.
Accordingly, the Petitioners request this COUli issue a rule to show cause why a Writ of Prohibition
14
should not be issued and expeditiously order an automatic stay pursuant to Rule 16 of the West
Virginia Rules of Appellate Procedure. Further, WVUH and WVUHS ask that, after there has been
an 0ppOliunity to show cause, a Writ of Prohibition be issued prohibiting the Honorable Phillip D.
Gaujot, Judge of the Circuit Court of Monongalia County, from conducting any further
proceedings in this class action until the Order denying the Petitioners' Motion to Decertify Class
has been vacated.
IV. STATEMENT REGARDING ORAL ARGUMENT AND DECISION
Under the West Virginia Rules of Appellate Procedure 18(a), the Petitioners respectfully
request a Rule 19 oral argument. This Petition is appropriate for oral argument pursuant to Rule of
Appellate Procedure 19(a)(2). This Petition addresses issues of unsustainable exercise of discretion
where the law governing that discretion is settled in the State of West Virginia. Specifically, it
will resolve certain issues as to standing, the ascertainability and commonality elements required
in all class actions, and the binding effect of class settlements. These issues are settled by the
governing law ofthe State of West Virginia and the Circuit Court's ruling only operates to sidestep
the governing law, ignore it, and generally misapply it, as discussed more fully below. Accordingly
because this Petition satisfies Rule 19 of the West Virginia Rules of Appellate Procedure, oral
argument is both necessary and appropriate.
V. ARGUMENT
The trial court misapplied settled law by creating a class comprised of improper "whos,"
unascertainable "whos," disparate "whats," and an impermissible "when." First, the class certified
by the trial court by its very definition includes individuals who lack standing to pursue a claim
15
under W. VA. CODE § 16-29-1, et seq. in plain violation of this Court's Healthport precedent.
Next, the trial court misapplied the law when it created a class whose membership cannot be
ascertained absent individualized fact finding. Additionally, the trial court misapplied case law
when it refused to decertify a class that, under the theory espoused by the Respondents, generates
no class-wide common answers. Furthermore, the trial court misapplied the law when it refused to
decertify the class as to the Respondents' fraud claim-a claim the Respondents concede is
improper for class adjudication. Finally, the trial court committed numerous errors when it
determined that the class in this case encompasses a "when" wherein the issue of what constitutes
a reasonable charge under W. VA. CODE § 16-29-2 was dictated by Judge Recht's binding
injunctive Order. Due to these numerous errors, the Petitioners will be irreparably harmed if the
Court does not issue the requested Writ.
a. A Writ of Prohibition is appropriate because the Petitioners will be irreparably harmed if they are forced to litigate an improperly certified class action.
This Court should grant this Petition because WVUH will be irreparably harmed if they
are forced to litigate a class action that the trial court certified in contravention of this Court's
precedent. The West Virginia Constitution confers original jurisdiction upon the Supreme Court
of Appeals regarding extraordinary remedies, such as Writs of Prohibition. See W. VA. CONST. art
VIII, § 3. A Writ of Prohibition "shall lie as a matter of right in all cases of usurpation and abuse
of power, when the inferior court ... exceeds its legitimate powers." W. VA. CODE § 53-1-2. This
extends to interlocutory Orders and a Circuit Court's granting of injunctive relief. See W. VA.
CODE § 53-5-8. Issuance of a Writ of Prohibition "under the original jurisdiction of the Supreme
Court ... is not a matter of right, but of discretion sparingly exercised." W. VA. R. App. P. 20.
Generally the Supreme Court of Appeals discourages parties from invoking the Supreme Court of
16
Appeals' original jurisdiction in cases "involving merely factual disputes." State ex ref. Suriano v.
Gaughan, 198 W. Va. 339,480 S.E.2d 548 (1996). However, "[w]here the issues are largely one
of law and clearly erroneous actions of the court below are asserted, prohibition may be a more
appropriate method to seek review of an interlocutory determination regarding injunctive relief."
State ex reI. McGraw v. Telecheck Serv., 213 W. Va. 438, 582 S.E.2d 885, n. 11 (2003); see also,
E.1. DuPont de Nemours and Co. v. Hill, 214 W. Va. 760,591 S.E.2d 318 (2003).
In determining whether to issue a Writ of Prohibition, courts should consider
(1) whether the party seeking the writ has no other adequate means,
such as direct appeal, to obtain the desired relief; (2) whether the
petitioner will be damaged or prejudiced in a way that is not
correctable on appeal; (3) whether the lower tribunal's order is
clearly erroneous as a matter oflaw; (4) whether the lower tribunal's
order is an oft repeated error or manifests persistent disregard for
either procedural or substantive law; and (5) whether the lower
tribunal's order raises new and important problems or issues of law
of first impression.
Syl. Pt. 1, E.1. DuPont de Nemours, 214 W. Va. at 760 (2003). Although none of the factors are
dispositive, this Court noted that the third prong "should be given substantial weight." In this case,
however, all five factors-including the crucial third factor-weigh overwhelmingly in favor of
granting the Petition for Writ of Prohibition.
First, the Petitioners have no other avenue of attacking the trial court's denial of their
Motion to Decertify Class absent a Writ of Prohibition. As this Court noted, "An order denying
class action standing under Rule 23 of the West Virginia Rules of Civil Procedure may be appealed
by the party who asserts such class standing. Conversely, an order awarding class action standing
is also reviewable, but only by a writ of prohibition." Syl. pt. 2, McFoy v. Amerigas, Inc., 170
W.Va. 526, 527, 295 S.E.2d 16,17 (1982). Put simply, if this Court declines to issue a Writ of
17
Prohibition, the Petitioners will have no other method to address the trial court's improperly
certified class and will only be able to obtain appellate review after trial. Accordingly, the first
factor weighs in favor of issuing a Writ of Prohibition.
Second, the Petitioners will be irreparably harmed if they are forced to litigate the trial
court's improperly certified class. Writs of Prohibition are "preventative remed[ies]. One seeking
relief by prohibition in a proper case is not required ... to ... wait until the inferior court or
tribunal has taken final action in the matter in which it is proceeding or about to proceed." Syl. pt.
5, State ex reI. City of Huntington v. Lombardo, 149 W.Va. 671,413 S.E.2d 535, 536 (1965).
Because Writs are preventative remedies, they should be issued in cases like this because they can
help parties avoid substantial improper discovery or litigation fees where those fees are premised
on a lower court's error. Put simply, a Writ should be issued in this case so that the Petitioners are
not forced to suffer the irreparable harm of litigating an improperly certified class. Accordingly,
the second factor weighs in favor of issuing a Writ of Prohibition.
Third, the third, fourth, and fifth factors weigh in favor of granting a Writ. As the
Petitioners' following arguments show, the trial court's order is clearly erroneous as a matter of
law, manifests disregard for substantive law, and raises a novel issues~whether parties may be
held liable for complying with a binding injunctive Order. Accordingly, as the Petitioners'
following arguments show, the third, fourth, and fifth factors weigh in favor of issuing a Writ of
Prohibition.
As demonstrated, all factors of the Dupont test weigh overwhelmingly in favor of granting
a Writ of Prohibition. Accordingly, the Petitioners request this Court issue a rule to show cause
why a Writ of Prohibition should not be issued and expeditiously order an automatic stay pursuant
to Rule 16 of the West Virginia Rules of Appellate Procedure. Fmiher, WVUH and WVUHS ask
18
that, after there has been an opportunity to show cause, a Writ of Prohibition be issued prohibiting
the Honorable Phillip D. Gaujot, Judge of the Circuit Court of Monongalia County, from
conducting any further proceedings in this class action until the Order denying the Petitioners'
Motion to Decertify Class has been vacated.
b. The trial court misapplied West Virginia law when it certified a class that by its definition includes individuals who do not have standing to pursue a claim under W. VA. CODE § 16-29-1, et seq.
The trial court committed plain error when it misapplied West Virginia law and amended
the class definition to include "attorneys who have requested and paid for medical records on
behalf of their patient clients." A.R. 12. In order for a court to exert subject matter jurisdiction
over a case under the West Virginia Constitution, there must be a justiciable case or controversy.
W. VA. CONST. art .. VIII, § 6; Healthport, 239 W. Va. at 242. To pursue a claim on a justiciable
case or controversy, a party must show that it has standing to pursue that claim. Findley v. State
Farm Mut. Auto. Ins. Co., 213 W.Va. 80,94,576 S.E.2d 807,821 (2002). A party has standing if
it meets the following three elements:
First, the party attempting to establish standing must have suffered
an "injury-in-fact"- an invasion of a legally protected interest
which is (a) concrete and particularized and (b) actual or imminent
and not conjectural or hypothetical. Second, there must be a causal
connection between the injury and the conduct forming the basis of
the lawsuit. Third, it must be likely that the injury will be redressed
through a favorable decision of the court.
Id. at SyI. Pt. 5. Failure to meet any of the three elements is fatal to a showing of standing. See,
e.g., Healthport, 239 W. Va. at 242 (detelmining that a plaintifflacked standing where they failed
to meet the first element).
19
In Healthport, this Court definitively determined that medical record requestors lack
standing to pursue claims under W. VA. CODE § 16-29-1, et seq. until they pay for the records
themselves because they have not suffered an injury in fact absent that payment. Id. Until the time
the requestor pays for the record, the requestor is merely capable of showing that his or her
"lawyers have suffered an out-of-pocket expense," which is insufficient to constitute an injury in
fact. Id. Importantly, this Court also rejected the argument that a requestor's attorney had standing
to assert a claim on the requestor's behalf, stating that if the requestor "does not a have an injury
in fact, and thereby standing to bring a suit, then his agent would not have standing to bring a suit
in [the requestor's] name." Id. Therefore, this Court held that until such time as the actual requestor
pays for the medical records, neither the requestor nor his agents have standing to bring suit. Id.
Despite this Court's clear ruling that courts lack subject matter jurisdiction to adjudicate
the claims of a medical record requestor's agent until the requestor pays for the medical record,
the trial court certified a class that included medical record requestor's attorneys where the
requestor has not paid for the records. Put simply, the trial court is exerting jurisdiction over a class
of individuals over which this Court determined courts may not exert subject matter jurisdiction.3
It is hard to imagine plainer error than the trial court's attempt to exert jurisdiction where this Court
has directly ruled none exists.
Not only did the trial court run afoul of this Court's jurisdictional ruling in Healthport, it
also ran afoul of the universally accepted principle that courts may not certify a class where the
class by its definition includes members who lack standing. Indeed, "a plaintiff cannot purport to
3 The trial court did not even address this portion of the Petitioner's arguments in their Motion to DecertifY
Class in its order denying the Petitioners' Motion.
20
represent a class of persons who lack the ability to bring suit themselves." 1 McLAUGHLIN on
CLASS ACTIONS § 4:28 (14th ed.); see also Kohen v. Pac. Inv. Mgmt. Co., LLC, 571 F.3d 672,677
(7th Cir. 2009) ("[I]f the [class] definition is so broad that it sweeps within it persons who could
not have been injured by the defendant's conduct, it is too broad."); Moore v. Apple Inc., 309
F.R.D. 532, 542 (N.D. Cal. 2015) ("[T]he inclusion of class members whom, by definition, could
not have been injured is not only problematic because it demonstrates the overbreadth of the
proposed class, it is also indicative of the individualized inquiries that would be necessary to
determine whether a class member has suffered any injury in the first place."). When a court
certifies a class, "the court's task ... is to ensure that the class is not 'defined so broadly as to
include a great number of members who for some reason could not have been harmed by the
defendant's allegedly unlav..rful conduct. ", 1 NEWBERG ON CLASS ACTIONS § 2:3 (5th ed.) (citation
omitted). The court failed to do so here when it included in its class definition a group of
individuals who plainly lack standing under West Virginia law.
The Respondents will likely argue that attorneys have standing to pursue claims under W.
V A. CODE § 16-29-1, et seq. where the attorneys are proceeding in their own personal capacity
instead of in the capacity of the medical requestor's agent. This argument, however, fails. Under
the version ofW. VA. CODE § 16-29-1 in effect when the Respondents requested their records, the
statute may only be enforced by "by a patient, authorized agent or authorized representative." W.
VA. CODE § 16-29-1 (1992-June 5, 2014). Healthport definitively determined that attorneys lack
standing to pursue a claim as an agent of a medical record requestor until the requestor pays for
the medical records. Healthport, 239 W. Va. at 242. If an attorney lacks standing to proceed as an
agent, then an attorney may not proceed at all. Attorneys may not bring suit in their personal
capacity because they are not the patient as required by W. VA. CODE § 16-29-1. W. VA. CODE §
21
16-29-1 (1992-June 5, 2014). Accordingly, any argument that attorneys may proceed in their
personal capacity under W. VA. CODE § 16-29-1 fails.
The trial court misapplied this Court's plain ruling in Healthport when it redefined the
class to include attorneys who paid for records for their clients. Put simply, the trial court created
a class comprised of "whos" that this Court explicitly ruled lacked standing to pursue a claim.
Therefore, the Petitioners request this Court issue a rule to show cause why a writ of prohibition
should not be issued and expeditiously order an automatic stay pursuant to Rule 16 of the West
Virginia Rules of Appellate Procedure. Further, WVUH and WVUHS ask that, after there has been
an opportunity to show cause, a Writ of Prohibition be issued prohibiting the Honorable Phillip D.
Gaujot, Judge of the Circuit Court of Monongalia County, from conducting any further
proceedings in this class action until the Order denying the Petitioners' Motion to Decertify Class
has been vacated.
c. The trial court misapplied West Virginia law when it created a class whose membership is unascertainable absent extensive individualized fact finding.
Next, the trial court committed plain error when it certified a class whose membership is
unascertainable absent extensive individualized fact finding. According to this Court, "it is
imperative that the class be identified with sufficient specificity so that it is administratively
feasible for the court to ascertain whether a particular individual is a member." Syl. Pt. 3, State ex
reI. Metro. Life Ins. Co. v. Starcher, 196 W. Va. 519,474 S.E.2d 186 (1996); see also CLECKLEY,
DAVIS, & PALMER, LITIGATION HANDBOOK ON WEST VIRGINIA RULES OF CIVIL PROCEDURE §
23 [2] [a] (5th ed. 2017) ("Before a court may certify a class pursuant to Rule 23, the class definition
must be sufficiently definite so that it is administratively feasible for the court to determine whether
a particular individual is a member of the proposed class."). The ascertainability requirement
22
serves two vital purposes: (1) protecting class members' due process by ensuring that they are able
to participate in class action litigation, and (2) ensuring that there is an administratively feasible
means by which a court may determine whether an individual is a member of a class. See Phillips
Petroleum Co. v. Shutts, 472 U.S. 797, 811-12 (1985) (determining that Due Process requires that
absent class members receive notice oflitigation and the opportunity to participate in or opt out of
litigation); 7A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE § 1760 (3d ed.
2005) ("[T]he requirement that there be a class will not be deemed satisfied unless ... it is
administratively feasible for the court to determine whether a particular individual is a member.").
To determine whether class membership is sufficiently ascertainable, the Fourth Circuit
stated that a properly ascertainable class (1) must be defined "in reference to objective criteria"
and (2) there must be a reliable and "administratively feasible" mechanism for determining
whether putative class members fall within the class definition. EQT Prod. Co. v. Adair, 764 F.3d
347,358 (4th Cir. 20 1 4).Therefore, class action is inappropriate if class members are "impossible
to identify without extensive and individualized fact-finding or mini-trials." Id.; see also
CLECKLEY, DAVIS, & PALMER, LITIGATION HANDBOOK ON WEST VIRGINIA RULES OF CIVIL
PROCEDURE § 23[2][a] (5th ed. 2017) ("There can be no class action if the proposed class is
amorphous or imprecise. If class members are impossible to identify without extensive and
individualized factfinding or mini-trials, then a class action is inappropriate.").
For example, in EQT Prod. Co., the Fourth Circuit determined that a class comprised of
"all persons, and their successors-in-interest, who EQT or CNX identified in their filings with the
Board as being the owners of a gas estate, whose interest in CBM is conflicted because a different
person owns the coal estate in the same tract" was not sufficiently ascertainable and vacated the
district court's class certification. EQT, 764 F.3d at 359. Although the cou11 noted that some class
23
members could be identified easily with some documentary cross-referencing, it stated that sorting
through land ownership records "can be a complicated and individualized process." Id. Moreover,
the court determined that the mere fact that class membership could be determined with
individualized fact finding was beside the point-the real issue to the court was that "[w]ithout
even a rough estimate of the number of potential successors-in-interest, we have little conception
of the nature of the proposed classes or who may be bound by a potential merits ruling." Id. at
359-60. Based on that unascertainability, the Fourth Circuit vacated the district court's ruling
certifying the plaintiffs' class. Id. at 371.
Here, much like EQT Prod. Co., the trial court certified a class that is unascertainable
absent extensive individualized fact finding. The redefined class in this case includes patients who
paid for their records out of pocket up front, patients who reimbursed their attorneys, and attorneys
who were reimbursed by their clients.4 See A.R. 1-2. In order to determine who the class member
is and whether that class member has standing to pursue a claim under Healthport, it will be
necessary to analyze who paid for the medical records, whether the attorney-client contract
included a provision regarding reimbursement of attorney expenses, whether the medical record
requestor received a favorable outcome and actually reimbursed the attorney, and financial
documentation detailing all of this. Notably, much of this documentation is beyond the Petitioners'
control because it is the product of the individual attorney-client relationships of medical record
requestors. Moreover, much of this information is beyond the control of class counsel because they
are not privy to the contractual relationship between class members and those class members'
private counsel in matters where medical records were requested. Indeed, Respondents themselves
4 These attorneys, as described above, lack standing to pursue claims in this case.
24
concede that actually finding data sufficient to determine who is actually in the class is "tricky."
AR. 784. Therefore, producing sufficient documentation to identify who exactly the class
members are is the very sort of logistical nightmare the Fourth Circuit sought to avoid when it
condemned classes that are "impossible to identify without extensive and individualized fact-
finding or mini-trials." Id. at 358.
Indeed, it is important to note that the Respondents were actually required to produce
deposition testimony, financial documents, and affidavits to show that they were actually members
of the class and that they had standing to pursue a claim under Healthport. AR. 228 (pg. 49: 11-
17); 484-85. Requiring this sort of documentation for a class that could number in the tens of
thousands runs counter to class action litigation's central goal of efficiency. Cf Gill v. Glaxo
Wellcome, PLC, No. CIV.A 00-C-245M, 2004 WL 3770050, at *2 (W. Va. Cir. Ct. July 22,2004)
(decertifying class because it was no longer economically efficient). Accordingly, because the trial
court created a class comprised of unascertainable "whos," the Petitioners request this Court issue
a rule to show cause why a writ of prohibition should not be issued and expeditiously order an
automatic stay pursuant to Rule 16 of the West Virginia Rules of Appellate Procedure. Further,
WVUH and WVUHS ask that, after there has been an opportunity to show cause, a Writ of
Prohibition be issued prohibiting the Honorable Phillip D. Gaujot, Judge of the Circuit Court of
Monongalia County, from conducting any further proceedings in this class action until the Order
denying the Petitioners' Motion to Decertify Class has been vacated.
d. The trial court misapplied West Virginia law when it certified a class that lacks the ability to generate common answers.
The trial court also misapplied West Virginia law when it refused to decertify a class that
lacks the capability of generating cornmon answers as to liability. The party seeking to maintain a
25
class action must demonstrate "commonality" within the scope of Rule 23(a)(2) of the West
Virginia Rules of Civil Procedure, establishing that the resolution of common questions of law or
fact will affect "all or a substantial number of the class members." Syl. Pt. 11, In re West Virginia
Rezulin Litig., 214 W. Va. 82,585 S.E.2d 52 (W. Va. 2003). However, it is not enough to merely
allege that a defendant violated the same law in a repeated fashion. Indeed, this Court found that
"a violation of law as a common issue may not support class certification in a setting where
individualized fact-finding is necessary." State ex reI. Erie Ins. Prop. & Cas. Co. v. Nibert, No.
16-0884,2017 WL 564160, at *6 (W. Va. Feb. 13,2017). The crucial inquiry, then, "is not the
raising of common questions - even in droves - but, rather the capacity of a classwide proceeding
to generate common answers apt to drive the resolution of the litigation." Id. at *6 (citing Wal
Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350,131 S. Ct. 2541, 2551,180 L. Ed. 2d 374 (2011)).
Put simply, the commonality requirement of Rule 23(a)(2) is satisfied where the "determination of
its truth or falsity [of the Respondents' common contention] will resolve an issue that is central to
the validity of each one of the claims in one stroke." Id. at *6 (citing Dukes, 564 U.S. at 349-50);
see also CLECKLEY, DAVIS, & PALMER, LITIGATION HANDBOOK ON WEST VIRGINIA RULES OF
CIVIL PROCEDURE § 23(a)[4] (5th ed. 2017) ("The correct standard for determining if common
questions of law or fact exist for class action purposes is whether common or individual questions
would be the object of most of the efforts ofthe litigants and the court.").
Here, the Respondents contend that the Petitioners violated W. VA. CODE § 16-29-1, et
seq. by charging a $0.40 per page fee instead of individually calculating the cost of each medical
26
record production and recovenng only the reasonable expenses incurred. 5 A.R. 165. The
Respondents' own theory dooms their case. Although they assert the Petitioners' $0.40 per page
fee as the common issue in this case, liability under the Respondents' theory stems from whether
the Petitioners charged an amount in excess of the reasonable expenses incurred in producing
medical records. In order to determine liability under this theory, the parties must determine how
much it cost to produce the requested records and compare that production cost to the cost assessed
to the class member. Only once this highly individualized inquiry is undertaken will the parties be
able to determine the Petitioner's liability to a particular class member. Needless to say, this
cumbersome inquiry will take considerable time, effort, and resources, requiring the Petitioners to
survey countless employees who mayor may not still be employed by the Petitioners, determine
the method of compilation, accumulation, and communication for each record request, ascertain
the extent of the search into both digital and electronic files, and assign a cost to each and every
action taken to put together each set of records for each individual plaintiff. Despite the
considerable resources required to ascertain liability, each liability determination is applicable to
only a single class member because the costs associated with producing each requestor's medical
records varies from requestor to requestor. The class's inability to generate common answers as to
class-wide liability determinations defeats commonality and dooms the Respondents' class. See
Nibert, No. 16-0884, 2017 WL 564160, at *6 (determining that commonality is based on "the
capacity of a classwide proceeding to generate common answers apt to drive the resolution of the
5 The Petitioners, on the other hand, contend that they are protected by the statute's $0.75 per page safe
harbor provision. See W. VA. CODE § 16-29-2 (1999-June 5, 2014) ("Provided, That, the cost may not
exceed seventy-five cents per page for the copying of any record or records which have already been
reduced to written form.").
27
litigation"); see also CLECKLEY, DAVIS, & PALMER, LITIGATION HANDBOOK ON WEST VIRGINIA
RULES OF CIVIL PROCEDURE § 23(a)[4] (5th ed. 2017) ("The more a trial will involve individual
proof for each of the plaintiff s allegations, the less appropriate it becomes for class action
treatment."). Accordingly, the trial court misapplied West Virginia law when it refused to decertify
a class premised on a claim that requires extensive individualized proof and cannot "generate
common answers apt to drive the resolution of the litigation."
The Court's recent memorandum decision in State ex ref. U-Haul Co. of W Virginia v.
Tabir, No. 17-1052, 2018 WL 2304282, at *4 (W. Va. May 21, 2018) does not save the
Respondents' commonality argument. U-haul is distinguishable from this case. Although, much
like U-Haul, this case involves a common business practice, the class in this case is distinct from
the class in U-Haul because there is no uniform harm in this case. In U-haul, this Court determined
that commonality existed because the "harm suffered by the named Plaintiffs [merely] "differ[ ed]
in degree from that suffered by other members of the class [but] the harm suffered [was] of the
same type." Here, the harm suffered across the class is far from uniform; indeed, given the
disparate costs of individual medical records production, it is entirely possible that some class
members suffered no harm at all and no liability exists.6 Therefore, commonality does not exist in
this case because the determination ofthe "whats" are unique to each individual class member and
do not drive class-wide answers to questions such as liability. Accordingly, the Petitioners request
this Court issue a rule to show cause why a Writ of Prohibition should not be issued and
6 The trial court utterly failed to discuss the possibility of disparate liability rulings among the class and
essentially presupposed damages, stating that "[a]ny 'individualized finding' is simply the calculation of
the extent to which the charges were excessive, and differences in the amount of damages to be awarded to
different class members." A.R. 15 (~35).
28
expeditiously order an automatic stay pursuant to Rule 16 of the West Virginia Rules of Appellate
Procedure. Further, WVUH and WVUHS ask that, after there has been an opportunity to show
cause, a Writ of Prohibition be issued prohibiting the Honorable Phillip D. Gaujot, Judge of the
Circuit Court of Monongalia County, from conducting any further proceedings in this class action
until the Order denying the Petitioners' Motion to Decertify Class has been vacated.
e. The trial court misapplied West Virginia law when it refused to decertify the Respondents' class as to their fraud claim-a tort that requires extensive individualized fact finding.
Furthermore, the trial court erred when it refused to decertify the Respondents' class as to
their fraud claim because fraud claims are fraught with the very sort of individualized fact finding
that is anathema to class action adjudication. To prove fraud in West Virginia, plaintiffs must show
that they relied on a defendant's misrepresentations. Syl. Pt. 1, Lengyel v. Lint, 167 W. Va. 272,
273,280 S.E.2d 66,67 (1981). Given the individualized proof required for reliance, it suffers from
the same commonality issues described above. See supra Sect.V(d). To that end, Courts have
routinely ruled that fraud cases involving reliance elements are improper for class adjudication on
commonality or other grounds. See, e.g., Mick v. Ravenswood Alum. Corp., 178 F.R.D. 90, 94
(S.D. W. Va. 1998) (denying class certification of a fraud claim because the individualized reliance
requirement defeated commonality and typicality); Bear v. Oglebay, 142 F.R.D. 129, 132 (N.D.
W. Va. 1992) (denying class certification because fraud's reliance element defeated typicality).
Indeed, the Respondents actually conceded that their fraud claims were inappropriate for class
adjudication. A.R. 448. Despite all of this, the trial court refused to apply settled law and decertify
the Respondents' fraud claim-a claim that courts have repeatedly determined is utterly unsuited
for class adjudication. Accordingly, the Petitioners request this COUli issue a rule to show cause
29
why a Writ of Prohibition should not be issued and expeditiously order an automatic stay pursuant
to Rule 16 of the West Virginia Rules of Appellate Procedure. Further, WVUH and WVUHS ask
that, after there has been an opportunity to show cause, a Writ of Prohibition be issued prohibiting
the Honorable Phillip D. Gaujot, Judge of the Circuit Court of Monongalia County, from
conducting any further proceedings in this class action until the Order denying the Petitioners'
Motion to Decertify Class has been vacated.
f. The trial court incorrectly certified a class of individuals asserting that the Petitioners overcharged them from January 18,2008 through December 1, 2010-a time period when the Petitioners' charges were governed an injunctive order determining what they could charge.
Finally, the trial court erred when it certified a class that encompassed the wrong "when."
Specifically, the trial court certified a class that included individuals charged from January 18,
2008 through December 1, 2010-a time period when the Petitioners' conduct was governed by
and compliant with Judge Recht's binding settlement Order in Guida. The trial court ignored Judge
Recht's binding Order, committing numerous errors when it determined that the Order had no
preclusive effect on the instant proceeding.
Because Judge Recht's Order issued prospective injunctive relief, the Petitioners
acknowledge that res judicata does not bar subsequent suits for money damages. See, e.g., Hiser
v. Franklin, 94 F.3d 1287, 1291 (9th Cir. 1996). Issue preclusion, however, applies whenever
members of a previous class awarded injunctive relief bring a subsequent suit for money damages.
6 NEWBERG ON CLASS ACTIONS § 18:18 (5th ed.) ("[E]ven if the later money damages suit is not
claim precluded by virtue of the injunctive class action, certain issues in the later suit may be issue
precluded by virtue of the earlier action."). Therefore, Petitioners claim that the issue of the
30
reasonableness of its forty cent per page charge was issue precluded from January 18, 2008 through
December 1, 2010 because Judge Recht's binding injunctive Order encompassed those dates.
Issue preclusion requires a pariy to show that
(1) The issue previously decided is identical to the one presented in the action in question; (2) there is a final adjudication on the merits of the prior action; (3) the party against whom the doctrine is invoked was a party or in privity with a party to a prior action; and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action.
Syl. Pt. 1, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). Petitioners contend that each of
these elements is satisfied here, and that issue preclusion bar re-litigation of what constituted a
reasonable charge from January 18, 2008 through December 1, 2010.
Despite Petitioners' contention that the issue of the reasonableness of its forty cent per page
charge was precluded by Judge Recht's binding injunctive Order establishing that amount as a
reasonable charge until December 1, 2010, the trial court ruled that Judge Recht's Order had no
effect on the instant proceeding. A.R. 18-30. In so ruling, the trial court committed numerous
errors. First, it erred when it determined that Judge Recht's binding settlement Order in Guida was
not an "adjudication on the merits." Id. at 24. Second, it erred when it determined that "WVUH
has failed to produce any evidence that the Guida class involved either the same parties or persons
in privity with the same parties involved in the present class." Id. Finally, the trial court erred when
it determined that "individuals who were not members of the Guida class on October 28, 2003
were not provided meaningful notice that: (a) the lawsuit had been filed; (b) a settlement was
31
reached; ( c) that they had an opportunity to opt out; or (d) that they had an opportunity to appear
or object."7 Id. The Petitioners will address each of these errors in tum.
i. The trial court erred when it determined that the Guida settlement was not a binding adjudication on the merits because class actions may only be settled through judicial approvaL
The trial court first erred when it detelmined that the Guida Order did not constitute a
binding adjudication on the merits. Admittedly, settlements typically do not constitute final
adjudications on the merits of a case. Class action settlements, however, are fundamentally
different. "Unlike a private settlement between individual litigants, a class action settlement
requires that a court affirmatively exercise its authority and enter judgment upon the settlement
after finding that the settlement is fair, reasonable and adequate." 2 McLAUGHLIN on CLASS
ACTIONS § 6:29 (14th ed.); see Bd. of Educ. ofjUonongalia Cty. v. Starcher, 176 W. Va. 388, 392,
343 S.E.2d 673,677 (1986) (reversing circuit court's denial of a class settlement where circuit
failed in its duty to assure class settlement was fair, reasonable, and adequate); W. VA. R. Civ. P.
23(e). Therefore, court orders approving class actions have preclusive effect. § 6:29. Preclusive
effect of judgment entered on class action settlement, 2 McLAUGHLIN on CLASS ACTIONS § 6:29
(14th ed.) ("[O]nce judgment is entered upon a class action settlement, 'under elementary
principles of prior adjudication a judgment in a properly entertained class action is binding on class
members in any subsequent litigation. ''').
7 The "same issue" and "full and fair opportunity to litigate" elements were not raised by the
Respondents.
32
Despite the overwhelming weight of authority and West Virginia Rule of Civil Procedure
23(e)-a rule that specifically requires courts to approve class action settlements-the trial court
determined that Judge Recht's Order did not constitute a final adjudication on the merits. That is
simply wrong---courts in West Virginia must approve class action settlements based on the merits
of the case. W. VA. R. Civ. P. 23(e). Accordingly, the trial court erred when it determined that
Judge Recht's Order did not constitute a final adjudication on the merits of that case.
ii. The trial court erred when it determined that individuals charged from January 18, 2008 through December 1, 2010 were not members of the Guida class.
The trial court also erred when it determined that "WVUH has failed to produce any
evidence that the Guida class involved either the same parties or persons in privity with the same
parties involved in the present class." A.R. 24. Although Guida settled in 2003, Judge Recht, in
his binding injunctive settlement Order, retained jurisdiction to enforce that Order until it expired
on December 1, 2010. See id. at 679. Indeed, Judge Recht determined that the relief he ordered
was "to be applied on a prospective basis for a seven (7) year period beginning on December 1,
2003." A.R. 671. Therefore, the class he certified continued until the expiration of that Order. 8
8 Importantly, the class certified by Judge Recht did not include an end date, indicating that it extended
until the expiration ofthe injunctive relief ordered by Judge Recht. See A.R. 667 (determining that the
class in Guida included
All patients, authorized agents of patients, and authorized representatives
of patients of any health care provider in West Virginia who have made
requests of such health care provider for medical records pursuant to the
provisions of W. VA. CODE 16-29-1, since March 2, 1996 and, in
response to said requests, were assessed charges by any defendant health
care provider or any defendants copy company).
33
Such prospective classes are not odd. Courts may create classes including those individuals
who will become class members in the future. See Rodriguez v. Hayes, 591 F.3d 1105, 1118 (9th
Cir. 2010) ("The inclusion of future class members in a class is not itself unusual or
objectionable."); Wetzel v. Liberty Mut. Ins. Co., 508 F.2d 239,254 (3d Cir. 1975) ("[T]he district
court may well conclude that affirmative relief is necessary to completely dissipate the effects of
the Company's discriminatory policies. If it so finds, the inclusion of future employees in the class
may be useful."); Rodriguez v. Carlson, 166 F.R.D. 465, 476-77 (E.D. Wash. 1996) (certifying a
class including future members where the class sought injunctive relief); 1 Newberg on Class
Actions § 3:15 (5th ed.) (,"Future' class members may be individuals exposed to a potentially
harmful product in whom no disease has yet manifest; or future claimants might simply be
individuals who may work at a particular workplace or inhabit an institution (such as a jailor
hospital) at a later time."). Indeed, the inclusion of future class members is effective in ensuring
that injunctive relief won by the class action is enforceable by those who are not presently members
of the class but will become members of the class in the future. See Wilmington Firefighters Local
1590 v. City of Wilmington, 109 F.R.D. 89, 92 (D. Del. 1985) ("However, these future members
are properly included within the class definition, in order to insure that any injunctive relief won
by the named plaintiffs runs in their favor."). This ensures protection not only for class members,
but also for defendants who are attempting to ascertain and conform their conduct with the
strictures of the law.9
9 This is especially true where, as in Guida, the class was certified pursuant to West Virginia Rule of Civil
Procedure 23(b)(1), which is appl icable where
34
The Guida Order plainly encompassed all individuals charged until December 1,2010. The
central piece of Judge Recht's settlement Order is the injunctive relief provision that limited the
fees the Guida defendants could charge "on a prospective basis for a seven (7) year period
beginning on December 1, 2003." A.R. 671. Despite this, the trial court determined that the class
in Guida did not include all individuals charged until December 1, 2010. This is plainly wrong.
Under the trial court's interpretation the only individuals who could avail themselves of the
prospective injunctive relief ordered in Guida were those individuals who were charged during the
pendency of the Guida lawsuit. This undermines the very notion of injunctive class relief.
Accordingly, the trial court erred when it determined that individuals charged in the instant case
from January 18, 2008 through December 1, 2010 were not members of the Guida class.
(1 )The prosecution of separate actions by or against individual members
of the class would create a risk of
(A)Inconsistent or varying adjudications with respect to individual
members of the class which would establish incompatible standards of
conduct for the party opposing the class, or
(B) Adjudications with respect to individual members of the class which
would as a practical matter be dispositive of the interests of the other
members not parties to the adjudications or substantially impair or impede
their ability to protect their interests.
35
Ill. The trial court erred when it determined that future class members were denied due process because they did not receive adequate notice because the court in Guida deployed adequate safeguards to ensure that parties received notice.
Although courts may consider whether courts issuing a class settlement order ensured that
absent class members "received the requisite notice, opportunity to be heard, and adequate
representation," many courts typically make those determinations "by referencing the state court's
findings." Hesse v. Sprint Corp., 598 F.3d 581,588 (9th Cir. 2010); see also, e.g., Moody v. Sears
Roebuck & Co., 191 N.C. App. 256, 273, 664 S.E.2d 569,581 (2008) (noting that "limited review
serves important judicial interests in the efficiency and finality of class-action litigation"). Some
courts, on the other hand, embrace a far broader standard of review and review the decision of the
court issuing a class action settlement order in light of the circumstances surrounding and
following that order. See, e.g., Stephenson v. Dow Chern. Co., 273 F.3d 249,258 (2d Cir. 2001),
affd in part, vacated in part, 539 U.S. 111, 123 S. Ct. 2161, 156 L. Ed. 2d 106 (2003) (conducting
a broad review when determining the preclusive effect of a class action judgment). Regardless of
what standard applies, future litigants received adequate notice based on Judge Recht's Order.
In entering his settlement Order, Judge Recht took ample steps to ensure that the settlement
in Guida was widely publicized. A.R. 668-670. Importantly, notice continued after the publication
ordered by Judge Recht pursuant to the fact that the Guida Order was a public document on file
with the Brooke County Circuit Clerk's Office. Individuals who were charged by the Petitioners
after that Order were entered could still receive notice of the settlement via Judge Recht's Order,
a document filed and publicly available through the court system. Although the Respondents will
almost certainly assert that this publication is inadequate, the United States Supreme Court, in a
case involving a considerable number of trusts, noted that it
36
has not hesitated to approve of resort to publication as a customary substitute in another class of cases where it is not reasonably possible or practicable to give more adequate warning. Thus it has been recognized that, in the case of persons missing or unknown, employment of an indirect and even a probably futile means of notification is all that the situation permits and creates no constitutional bar to a final decree foreclosing their rights.
Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 317 (1950). This makes sense, especially
in the case of class relief involving future class members. If publication is insufficient, then classes
involving future relief would never take hold. Accordingly, because Judge Recht ensured that the
settlement Order in Guida was widely publicized to affect notice, the Guida Order remained
publicly available at the courthouse, and the United States Supreme Court has approved
publication as a method to notify missing or unknown class members, the trial court erred when it
determined that future class members did not receive adequate notice of the settlement in Guida.
Based on the trial court's errors, it erroneously ruled that the Guida Order did not prohibit
individuals who were charged from January 18,2008 through December I, 2010 from re-litigating
the reasonableness of charges previously litigated in Guida. Judge Recht entered a binding
injunctive Order determining what the Petitioners could charge until December 1, 2010. The
Petitioners complied with that Order. They should not now be subjected to liability for their efforts
to follow the law. To hold otherwise puts defendants who settle class actions and agree to conform
their behavior to a standard established as fair by the court adjudicating the class in a Catch-22
situation: either comply with the court's injunctive order to avoid being charged with contempt of
court or violate the court's injunctive order in an effort to avoid lawsuits arising from the same
issue. That is anathema to the rule of law-parties should be able to comply with court orders
without incurring liability for complying with those orders. Therefore, the Petitioners must not be
held liable for complying with Judge Recht's binding Order. Accordingly, because the trial court's
37
Order encompassed the \vrong "when"-specifically, by including individuals charged from
January 18, 2008 through December 1, 201 O-the Petitioners request this Court issue a rule to
show cause why a Writ of Prohibition should not be issued and expeditiously order an automatic
stay pursuant to Rule 16 of the West Virginia Rules of Appellate Procedure. Further, WVUH and
WVUHS ask that, after there has been an opportunity to show cause, a Writ of Prohibition be
issued prohibiting the Honorable Phillip D. Gaujot, Judge of the Circuit Court of Monongalia
County, from conducting any further proceedings in this class action until the Order denying the
Petitioners' Motion to Decertify Class has been vacated.
VI. CONCLUSION
The trial court misapplied established West Virginia law when it refused to decertify the
Respondents' class. Instead of creating a streamline vehicle to answer common questions, the trial
court created an amended class that raises a plethora of disparate questions by including "whos"
which this Court explicitly stated lack standing to bring a lawsuit, unascertainable "whos," a series
of "whats," and a previously decided "when" that will create wildly disparate liability rulings
throughout the class. Accordingly, the Petitioners request this Court issue a rule to show cause
why a Writ of Prohibition should not be issued and expeditiously order an automatic stay pursuant
to Rule 16 of the West Virginia Rules of Appellate Procedure. Further, WVUH and WVUHS ask
that, after there has been an opportunity to show cause, a Writ of Prohibition be issued prohibiting
the Honorable Phillip D. Gaujot, Judge of the Circuit Court of Monongalia County, from
conducting any further proceedings in this class action until the Order denying the Petitioners'
Motion to Decertify Class has been vacated.
38
. Williams, Esq. (WVSBN 4062) A,xander L. Turner, Esq. CWVSBN 10839) ;bristopher D. Smith (WVSBN 13050)
WEST VIRGINIA UNITED HEALTH SYSTEM, INC. and WEST VIRGINIA UNIVERSITY HOSPITALS, INC.
/NELSON MULLINS RILEY & SCARBOROUGH LLP 949 Third Ave. Suite 200 Huntington, West Virginia 25701 Telephone: (304) 526-3501 Email: [email protected]
Alex.turner(cV,nelsonmullins.com [email protected]
and
Christine S. Vaglienti, Esq. (WVSBN 4987) WEST VIRGINIA UNIVERSITY HOSPITALS, INC. 1238 Suncrest Towne Centre Morgantown, West Virginia 26505 Telephone: (304) 598-4199
COUNSEL FOR DEFENDANTS, WEST VIRGINIA UNITED HEALTH SYSTEM, INC. and WEST VIRGINIA UNIVERSITY HOSPITALS, INC.
39
VERIFICATION
STATE OF WEST VIRGINIA,
COUNTY OF KANAWHA, to-wit:
I, Marc E. Williams, after being first duly sworn, depose and say that the facts contained
in the foregoing Petition for Writ of Mandamus are true, except insofar as they are therein stated
to be upon information and belief, and that as they are therein stated to be upon information and
belief, I believe them to be true.
Taken, subscribed and sworn to before me,
Day of October, 2018.
OFFICIAL SEAL NOTARY PUBLIC
flATE OF WEST VIRGINIA JANE COX
II1JON M\l1lNS RILEY. SCAAI()I!OUQH UP 141 THIRD AVENUE/SUITE 200
HUNTINGTON, wv 25701 My Commlatlon ExpIm APRIL 26, 2021
40
/sl--e undersigned Notary Public, this ___ _
NOTARY PUBLIC
IN THE SUPREME COURT OF ApPEALS OF WEST VIRGINIA
CASE No. ____________ _
STATE OF WEST VIRGINIA, ex ref. WEST VIRGINIA UNIVERSITY HOSPITALS, INC. and WEST VIRGINIA UNITED HEALTH SYSTEM, INC. d/b/a WVU Healthcare and any related entities of WVU Healthcare acting in concert with WVU Healthcare, Petitioners,
v.
THE HONORABLE PHILLIP D. GAUJOT, CHRISTOPHER THOMACK, and JOSEPH MICHAEL JENKINS, on their own behalf and on behalf of all similarly situated persons consisting of a class of aggrieved persons, Respondents.
Relief sought from an Order of the Circuit Court of Monongalia County (13-C-53) Denying Defendants' Motion to Decertify Class
CERTIFICATE OF SERVICE
The undersigned counsel for Respondent, hereby certifies that on this 151 day of October, 2018, a
true copy of the foregoing "Petition for Writ of Prohibition" upon the following individuals by
u.s. Mail, postage prepaid at Huntington, West Virginia:
The Honorable Phillip D. Gaujot
Monongalia County Courthouse
75 High Street, Suite 31
Morgantown, v.,rv 26505
41
David E. Goddard, Esq.
Edmund L. Wagoner, Esq.
GODDARD & WAGONER
Chase Bank Center
229 West Main Street, Suite 1100
Clarksburg, WV 26301
Fax: 855-329-1411
dave@goddardlav,,\vv.com
Counsel for Plaintiff Christopher TllOmack
Christopher J. Regan, Esq.
Laura Pollard, Esq.
BORDAS & BORDAS, PLLC
1358 National Road
Wheeling, WV 26003
Fax: 304-242-3936
Counsel for Plaintiff Christopher Thomack
David J. Romano, Esq.
Jennifer L. Finch, Esq.
ROMANO LAW OFFICES
363 Washington Avenue
Clarksburg, WV 26301
Fax: 304-624-5627
Counselfor Plaintiff Joseph Michael Jenkins