933 N.W.2d 654
Wis. Ct. App.2019Background
- Harwood sued Wheaton Franciscan entities alleging they charged impermissible $8 certification and $20 retrieval fees for copies of patient health records requested by persons authorized in writing, despite WIS. STAT. § 146.83(3f)(b)4-5 exempting such requesters from those fees.
- Harwood’s counsel produced 44 invoices showing charges for certification/retrieval fees; Harwood and counsel paid those fees and sought class certification for Wisconsin patients (or persons they authorized) charged such fees in the prior six years, excluding persons who did not pay and third‑party billers.
- The trial court applied the revised WIS. STAT. § 803.08 (amended to track Fed. R. Civ. P. 23) and certified the class, finding numerosity, commonality, typicality, adequacy, predominance, and superiority satisfied.
- Wheaton Franciscan argued the court applied insufficiently rigorous analysis, the class improperly included non‑attorney requesters beyond Moya, evidence was inadequate on numerosity/typicality/adequacy, ascertainability and more discovery were required, and some invoices implicated separate entities.
- The trial court issued a written decision addressing the statutory criteria, relied on the invoices and discovery responses, rejected merits defenses as improper at certification, and certified the class; the court of appeals affirmed, finding no erroneous exercise of discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether class certification under the revised WIS. STAT. § 803.08 was appropriate | Harwood: invoices and discovery show at least 40 similarly injured persons; common legal issue and manageable damages; class superior | Wheaton Franciscan: plaintiff relied on pleadings/invoices prematurely; more discovery needed; federal "rigorous" analysis required | Affirmed: trial court applied correct law, relied on record evidence, and did not abuse discretion |
| Scope of class regarding who is a "person authorized by the patient" | Harwood: class tracks statute; Moya confirms attorneys with HIPAA releases are included but does not limit class to attorneys | Wheaton Franciscan: Moya addressed attorneys only; class improperly broad if it encompasses unrepresented patients | Affirmed: class definition consistent with statutory language and Moya; no basis to limit to attorneys |
| Sufficiency of evidence for numerosity, commonality, typicality, adequacy | Harwood: 44 invoices show multiple similar overcharges; representative’s claim aligns with class claims; counsel experienced | Wheaton Franciscan: some invoices from different entities; plaintiff’s proof speculative; representative/address conflicts unclear | Affirmed: 42+ invoices suffice for numerosity; commonality/typicality/adequacy met given identical legal theory and small, easily computed damages |
| Whether more discovery or heightened ascertainability was required before certification | Harwood: defendants had opportunity to respond and had made discovery responses; no need for further delay | Wheaton Franciscan: federal cases (Szabo, Livingston, Marcus) show certification premature without more discovery and heightened ascertainability | Affirmed: federal authorities distinguishable; no heightened ascertainability required; defendants had opportunity to litigate and cannot now claim lack of access to billing records |
Key Cases Cited
- Messner v. Northshore Univ. HealthSystem, 669 F.3d 802 (7th Cir.) (courts should not treat certification as a merits trial)
- Ervin v. OS Rest. Servs., Inc., 632 F.3d 971 (7th Cir.) (deferential review of class certification; abuse‑of‑discretion standard)
- Mullins v. Direct Dig., LLC, 795 F.3d 654 (7th Cir.) (rejecting heightened ascertainability requirement)
- Szabo v. Bridgeport Machs., Inc., 249 F.3d 672 (7th Cir.) (warning against certifying classes solely on complaint allegations)
- Livingston v. Associates Fin., Inc., 339 F.3d 553 (7th Cir.) (reversing certification where defendants were denied adequate opportunity to respond)
- Wal‑Mart Stores, Inc. v. Dukes, 564 U.S. 338 (U.S.) (commonality requires a contention capable of classwide resolution)
- Cruz v. All Saints Healthcare Sys., Inc., 242 Wis. 2d 432 (Wis. Ct. App.) (class action appropriate where individual damages are small)
- Moya v. Aurora Healthcare, Inc., 375 Wis. 2d 38 (Wis.) (attorneys with a HIPAA release are "person[s] authorized by the patient" under § 146.83)
- Marcus v. BMW of N. Am., LLC, 687 F.3d 583 (3d Cir.) (articulated a stricter ascertainability standard relied on by some courts)