963 N.W.2d 874
Wis. Ct. App.2021Background
- Hammetter and Vinkavich each signed authorizations allowing their counsel (Cannon) to obtain medical records; Cannon requested records from Froedtert and Verisma (the records vendor) and paid an $8 certification charge plus a $20 retrieval fee per Wis. Stat. §146.83(3f)(b)4-5.
- Cannon initially advanced the $28 and was reimbursed by the plaintiffs from their settlements; plaintiffs contend these fees were unlawfully charged and sought recovery.
- The court of appeals previously (Moya I) held attorneys were not exempt from the fees; the Wisconsin Supreme Court reversed (Moya II), holding any person with a written authorization from a patient is exempt from the $28 fee.
- After Moya II, plaintiffs sued Verisma (and later added Froedtert on vicarious-liability theory) for statutory violation, unjust enrichment, and conversion and moved to certify a class of persons charged and who ultimately paid the fees between July 1, 2011 and trial.
- The circuit court certified the class; Verisma and Froedtert appealed, challenging numerosity/commonality/typicality, predominance/superiority, notice, certification of common-law claims, the applicable statute of limitations, and application of the voluntary-payment doctrine.
- The Court of Appeals affirmed the certification, rejecting defendants’ challenges and explaining that class treatment was appropriate and several defenses or merits issues (e.g., notice plan, subclasses) could be addressed post-certification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Class certification (numerosity/commonality/typicality/adequacy) | Class members suffered same statutory injury; named plaintiffs are typical; counsel adequate | Mental-state and factual differences (timing pre/post Moya I/II; different requestors) defeat commonality/typicality | Affirmed — findings satisfied; common issues predominate and typicality met; subclasses available if needed |
| Predominance & superiority | Single statutory question (improper fees) predominates; class is superior to thousands of small suits | Differences in intent/periods require individualized inquiries; damages vary | Affirmed — common nucleus of operative facts predominates; class superior for efficiency and policy reasons |
| Notice | Notice mechanics can be worked out later under §803.08(4) | Class definition too imprecise to permit individual notice now | Remand on notice unnecessary at certification stage; notice plan is premature and to be addressed by circuit court |
| Certification of conversion & unjust enrichment (common-law claims) | These claims arise from the same statutory violation and are suitable for class treatment | Unjust-enrichment and conversion require individualized equitable inquiries (consent/voluntariness) | Affirmed — common-law claims stem from the statute; individualized issues do not defeat certification now |
| Statute of limitations | Six-year limitations applies because remedies are primarily private (no clear legislative two-year mandate) | Two-year statute for private-party enforcement of statutory penalties applies (§893.93(2)(a)) | Affirmed — six-year rule controls absent clear legislative direction; two-year period not appropriate here |
| Voluntary-payment doctrine | Moya II precludes applying the doctrine to §146.83(3f) claims because it would undermine the statute's purposes | Doctrine requires mini-trials to determine protest before payment | Affirmed — voluntary-payment defense inapplicable to these statutory/common-law claims per Moya II |
Key Cases Cited
- Moya v. Aurora Healthcare, Inc., 375 Wis. 2d 38 (Wis. 2017) (Wis. Supreme Court held any person with written patient authorization is exempt from the certification and retrieval fees)
- Moya v. Aurora Healthcare, Inc., 366 Wis. 2d 541 (Wis. Ct. App. 2016) (Court of Appeals decision holding attorneys not exempt; later overruled)
- Harwood v. Wheaton Franciscan Servs., Inc., 388 Wis. 2d 546 (Wis. Ct. App. 2019) (class-certification precedent addressing same statutory scheme)
- Mullins v. Direct Digit., LLC, 795 F.3d 654 (7th Cir. 2015) (individual damage determinations do not automatically defeat class certification)
- Beaton v. SpeedyPC Software, 907 F.3d 1018 (7th Cir. 2018) (predominance asks whether claims arise from a common nucleus of operative facts)
- Cruz v. All Saints Healthcare Sys., Inc., 242 Wis. 2d 432 (Wis. Ct. App. 2001) (client who reimburses counsel "ultimately pays" costs; relevant to class-member definition)
- South Milwaukee Sav. Bank v. Barczak, 229 Wis. 2d 521 (Wis. Ct. App. 1999) (absent clear legislative mandate, six-year limitations applies)
- South Milwaukee Sav. Bank v. Barrett, 234 Wis. 2d 733 (Wis. 2000) (supreme court adopted Barczak principle on limitations)
- Dorr v. Sacred Heart Hospital, 228 Wis. 2d 425 (Wis. Ct. App. 1999) (conversion includes taking property without lawful authority)
- Smith v. RecordQuest, LLC, 989 F.3d 513 (7th Cir. 2021) (supports application of longer limitations where appropriate)