Hammetter v. Verisma Sys., Inc.

• Decision Date: 30 July 2021
• Docket Number: Appeal No. 2019AP2423
• Parties: Derrick J. HAMMETTER and Antoinette M. Vinkavich, Plaintiffs-Respondents, v. VERISMA SYSTEMS, INC., Defendant-Appellant, Froedtert Memorial Lutheran Hospital, Inc., Defendant-Co -Appellant.
• Court: Wisconsin Court of Appeals

399 Wis.2d 211

963 N.W.2d 874

2021 WI App 53

Derrick J. HAMMETTER and Antoinette M. Vinkavich, Plaintiffs-Respondents,

v.VERISMA SYSTEMS, INC., Defendant-Appellant,^† Froedtert Memorial Lutheran Hospital, Inc., Defendant-Co -Appellant.^†

Appeal No. 2019AP2423

Court of Appeals of Wisconsin.

Submitted on Briefs: January 14, 2021

Opinion Filed: July 30, 2021

On behalf of the defendant-appellant, the cause was submitted on the briefs of David J. Hanus, Alyssa A. Johnson, and Andrew P. Trevino of Hinshaw & Culbertson LLP, Milwaukee.

On behalf of the defendant-co-appellant, the cause was submitted on the briefs of Susan E. Lovern, Kelly J. Noyes, Nicholas D. Castronovo, and Christopher E. Avallone of von Briesen & Roper, S.C., Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Brett A. Eckstein, Edward E. Robinson, and Allan M. Foeckler of Cannon & Dunphy, S.C., Brookfield.

Before Neubauer, C.J., Gundrum and Davis, JJ.

GUNDRUM, J.

¶1 Verisma Systems, Inc., and Froedtert Memorial Lutheran Hospital, Inc., appeal from an order of the circuit court certifying a class. The primary issue before us is whether the court erroneously exercised its discretion in certifying the class as it did. We consider and reject all of Verisma's and Froedtert's challenges to the certification, including those related to the findings necessary for certification, notice to potential class members, certification of common law claims, the statutory limitations period, and the voluntary payment doctrine. We conclude the court did not err.

Background

¶2 Derrick J. Hammetter and Antoinette M. Vinkavich each retained the Cannon & Dunphy law firm (Cannon) to represent him/her in separate personal injury actions. Related to such representation, each signed an authorization that allowed Cannon to secure release of his/her health care records. Cannon requested the records from Froedtert, and as the vendor responsible for releasing information on behalf of Froedtert, Verisma billed Cannon for costs related to the records release, including an $8 certification charge and $20 retrieval fee (collectively, $28 fee) charged pursuant to WIS. STAT. § 146.83(3f)(b)4.-5. (2019-20).¹ Cannon paid this fee and was later reimbursed by Hammetter and Vinkavich pursuant to a retainer agreement each had with Cannon requiring such repayment from any recovery.

¶3 WISCONSIN STAT . § 146.83(3f)(b)4.-5. respectively authorize health care providers to charge the $8 certification charge and $20 retrieval fee if the requestor of the records "is not the patient or a person authorized by the patient." On December 1, 2015, we decided Moya v. Aurora Healthcare, Inc. , 2016 WI App 5, 366 Wis. 2d 541, 874 N.W.2d 336 (2015) ( Moya I ). In that case, we interpreted WIS. STAT. § 146.83(3f)(b)4.-5. as not exempting from the $28 fee an attorney with a written authorization from a patient who requested records on behalf of the patient. Moya I , 366 Wis. 2d 541, ¶¶1, 11-12, 874 N.W.2d 336.

¶4 A year and one-half later, the supreme court reversed this decision and held that "any person," including an attorney, with a written authorization from a patient who requests records on behalf of a patient is exempt from this $28 fee. Moya v. Aurora Healthcare, Inc. , 2017 WI 45, ¶¶2, 21-22, 31, 375 Wis. 2d 38, 894 N.W.2d 405 ( Moya II ). Interpreting the "a person authorized by the patient" language of subdivisions 4. and 5., which the Moya II court observed was further statutorily defined to include "any person authorized in writing by the patient," see WIS. STAT. § 146.81(5), the court held that these phrases "require[ ] only a person with a written authorization from the patient." Moya II , 375 Wis. 2d 38, ¶¶6, 22, 894 N.W.2d 405. The court added that "no additional authorization [is required] for [a ‘person authorized in writing by the patient’] to qualify for the exemption from the certification charge and retrieval fee," id. , ¶22, and "[t]he legislature, with its use of ‘any person,’ chose not to place a limit on who could be authorized in writing by the patient under § 146.81(5)," id. , ¶30. Thus, the Moya II court held that not only does an attorney with a written authorization from a patient qualify as "a person authorized by the patient" for purposes of being exempt from the $28 fee, but that "any person" with a written authorization from a patient qualifies and is exempt. See id.

¶5 Following the release of the Moya II decision, Hammetter and Vinkavich filed this suit against Verisma claiming a violation of WIS. STAT. § 146.83(3f), unjust enrichment, and conversion and seeking compensatory and punitive damages "on their own behalf and on behalf of the members of a proposed class of individuals and entities that are similarly situated." Hammetter and Vinkavich later filed a second amended complaint, adding Froedtert as a defendant and specifically asserting that Froedtert "is vicariously liable for the acts of its authorized agent, Verisma." Hammetter and Vinkavich subsequently moved for class certification, but only against Verisma "as the release of information agent of Froedtert ... for thousands of violations of ... § 146.83."

¶6 Following extensive argument and briefing by the parties, including Froedtert, the circuit court granted the motion for class certification, defining the class as follows:

Any person or entity who:

1. Either

a. Requested his or her own patient health care provider records, or authorized another in writing to obtain his or her own health care provider records, from a health care provider in the State of Wisconsin; or

b. Was authorized in writing by the patient to request and obtain the patient's health care provider records from a health care provider in the State of Wisconsin; and

2. Was charged by Verisma, either directly or indirectly, a certification and/or retrieval fee at any time between July 1, 2011 and the date of trial; and

3. Incurred and ultimately paid the certification and/or retrieval charges.

(Emphasis omitted.) Verisma and Froedtert appeal.

Discussion

Class Certification Findings

¶7 The certification of a class action is governed by WIS. STAT. § 803.08.² To certify a class action, a circuit court must first find all of the following:

(a) The class is so numerous that joinder of all members is impracticable.

(b) There are questions of law or fact common to the class.

(c) The claims or defenses of the representative parties are typical of the claims or defenses of the class.

(d) The representative parties will fairly and adequately protect the interests of the class.

Sec. 803.08(1)(a)-(d). The first three findings are "referred to as numerosity, commonality, and typicality." Harwood v. Wheaton Franciscan Servs., Inc. , 2019 WI App 53, ¶23, 388 Wis. 2d 546, 933 N.W.2d 654.

¶8 As relevant to this case, to certify the class the circuit court also needed to find that "the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." See WIS. STAT. § 803.08(2)(c). These two findings are referred to as "the predominancy and superiority requirements." Harwood , 388 Wis. 2d 546, ¶24, 933 N.W.2d 654.

¶9 Ultimately, the circuit court has "broad discretion to determine whether certification of a class-action lawsuit is appropriate," and we will only reverse the certification decision if the court erroneously exercised its discretion. Harwood , 388 Wis. 2d 546, ¶¶5, 41, 933 N.W.2d 654. The court properly exercises its discretion "when it considers the facts of record and reasons its way to a rational, legally sound conclusion." Id. , ¶41. The circuit court here properly exercised its discretion.

Numerosity

¶10 In this case, neither Verisma nor Froedtert dispute that the numerosity requirement is met. Nor could they successfully do so. In Harwood we determined that for purposes of satisfying the numerosity requirement, forty-two identified class members was sufficient. Id. , ¶55. In this case, there appear to be thousands.

Commonality

¶11 As to the commonality requirement, here, all of the members of the proposed class allegedly suffered the same injury—that pursuant to WIS. STAT. § 146.83(3f)(b)4.-5., they were wrongfully charged the $8 certification charge and/or the $20 retrieval fee. The answer to whether Verisma wrongfully charged either fee will resolve the underlying liability issue for each class member. Thus, there are common issues of law and fact as this matter is governed by the same statutory provisions and proof of unlawful charging of these fees will be very similar for each member of the class.

¶12 Verisma and Froedtert contend that the commonality requirement is not met because some in the class may be entitled to up to $25,000 in exemplary damages while others may be entitled to up to $1000 in exemplary damages, depending on whether Verisma wrongfully charged the fees in a knowing and willful manner or negligently.³ Specifically, they posit that Verisma's mental state may have differed depending on whether Verisma charged the fees to a requestor before our decision in Moya I , after Moya I but before the supreme court's decision in Moya II , or after Moya II and/or whether the requestor was a patient seeking his/her own medical records or a third-party requestor seeking a patient's records (with an authorization from the patient) "in an antagonistic posture"—such as "defense law firms, insurance companies, employers."

¶13 As Hammetter and Vinkavich point out, however, Froedtert and Verisma point to no evidence indicating Verisma actually had a different mental state dependent on when the records were requested or the nature of the person who made the request. Speculation related to issues to be addressed later in the "merits" phase of a class-action lawsuit will not suffice to defeat certification of a class.⁴

Furthermore, the potential need for individual...