State ex rel. W.Va. Univ. Hosps. v. Hammer

• Decision Date: 19 November 2021
• Docket Number: 21-0095
• Parties: STATE OF WEST VIRGINIA EX REL. WEST VIRGINIA UNIVERSITY HOSPITALS - EAST, INC., DOING BUSINESS AS BERKELEY MEDICAL CENTER; CITY HOSPITAL, INC., DOING BUSINESS AS BERKELEY MEDICAL CENTER; AND THE CHARLES TOWN GENERAL HOSPITAL, DOING BUSINESS AS JEFFERSON MEDICAL CENTER, Defendants Below, Petitioners v. THE HONORABLE DAVID M. HAMMER, JUDGE OF THE CIRCUIT COURT OF JEFFERSON COUNTY, AND DEBORAH S. WELCH AND EUGENE A. ROMAN, INDIVIDUALLY, AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiffs Below, Respondents
• Court: Virginia Supreme Court

STATE OF WEST VIRGINIA EX REL. WEST VIRGINIA UNIVERSITY HOSPITALS - EAST, INC., DOING BUSINESS AS BERKELEY MEDICAL CENTER; CITY HOSPITAL, INC., DOING BUSINESS AS BERKELEY MEDICAL CENTER; AND THE CHARLES TOWN GENERAL HOSPITAL, DOING BUSINESS AS JEFFERSON MEDICAL CENTER, Defendants Below, Petitioners v. THE HONORABLE DAVID M. HAMMER, JUDGE OF THE CIRCUIT COURT OF JEFFERSON COUNTY, AND DEBORAH S. WELCH AND EUGENE A. ROMAN, INDIVIDUALLY, AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiffs Below, Respondents

No. 21-0095

Supreme Court of Appeals of West Virginia

November 19, 2021

Submitted: September 28, 2021

PETITION FOR WRIT OF PROHIBITION

Marc E. Williams Robert L. Massie Thomas M. Hancock Nelson Mullins Riley & Scarborough, LLP Huntington, West Virginia Attorneys for the Petitioners

Troy N. Giatras Matthew Stonestreet The Giatras Law Firm, PLLC Charleston, West Virginia Attorneys for the Respondents

JUSTICE HUTCHISON and JUSTICE WOOTON dissent and reserve the right to file dissenting opinions.

SYLLABUS BY THE COURT

1. In order to bring a class action lawsuit, at least one named plaintiff must have standing with respect to each claim asserted, and the burden of establishing standing is on the plaintiff(s).

2. "Standing is comprised of 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." Syllabus point 5 Findley v. State Farm Mutual Automobile Insurance Co., 213 W.Va. 80, 576 S.E.2d 807 (2002).

3. "A patient does have a cause of action for the breach of the duty of confidentiality against a treating physician who wrongfully divulges confidential information." Syllabus point 4, Morris v. Consolidation Coal Co., 191 W.Va 426, 446 S.E.2d 648 (1994).

i 4. "An 'invasion of privacy' includes (1) an unreasonable intrusion upon the seclusion of another; (2) an appropriation of another's name or likeness; (3) unreasonable publicity given to another's private life; and (4) publicity that unreasonably places another in a false light before the public." Syllabus point 8, Crump v. Beckley Newspapers, Inc., 173 W.Va. 699, 320 S.E.2d 70 (1983).

5. "Before certifying a class under Rule 23 of the West Virginia Rules of Civil Procedure [2017], a circuit court must determine that the party seeking class certification has satisfied all four prerequisites contained in Rule 23(a)-numerosity, commonality, typicality, and adequacy of representation-and has satisfied one of the three subdivisions of Rule 23(b). As long as these prerequisites to class certification are met, a case should be allowed to proceed on behalf of the class proposed by the party." Syllabus point 8, In re West Virginia Rezulin Litigation, 214 W.Va. 52, 585 S.E.2d 52 (2003).

6. "'A class action may only be certified if the trial court is satisfied, after a thorough analysis, that the prerequisites of Rule 23(a) of the West Virginia Rules of Civil Procedure have been satisfied.' Syl. Pt. 8 (in part), State ex rel. Chemtall Inc. v. Madden, 216 W.Va. 443, 607 S.E.2d 772 (2004) (italics added)." Syllabus point 1, State ex rel. West Virginia University Hospitals, Inc. v. Gaujot, 242 W.Va. 54, 829 S.E.2d 54 (2019).

ii 7. "'The party who seeks to establish the propriety of a class action has the burden of proving that the prerequisites of Rule 23 of the West Virginia Rules of Civil Procedure have been satisfied.' Syllabus Point 6, Jefferson County Board of Education v. Jefferson County Education Association, 183 W.Va. 15, 393 S.E.2d 653 (1990)." Syllabus point 4, In re West Virginia Rezulin Litigation, 214 W.Va. 52, 585 S.E.2d 52 (2003).

8. "The 'typicality' requirement of Rule 23(a)(3) of the West Virginia Rules of Civil Procedure [2017] requires that the 'claims or defenses of the representative parties [be] typical of the claims or defenses of the class.' A representative party's claim or defense is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are based on the same legal theory. Rule 23(a)(3) only requires that the class representatives' claims be typical of the other class members' claims, not that the claims be identical. When the claim arises out of the same legal or remedial theory, the presence of factual variations is normally not sufficient to preclude class action treatment." Syllabus point 12, In re West Virginia Rezulin Litigation, 214 W.Va. 52, 585 S.E.2d 52 (2003).

9. "'When a circuit court is evaluating a motion for class certification under Rule 23 of the West Virginia Rules of Civil Procedure [2017], the dispositive question is not whether the plaintiff has stated a cause of action or will prevail on the merits, iii but rather whether the requirements of Rule 23 have been met.' Syl. Pt. 7, In re W.Va. Rezulin Litig., 214 W.Va. 52, 585 S.E.2d 52 (2003)." Syllabus point 4, State ex rel. West Virginia University Hospitals, Inc. v. Gaujot, 242 W.Va. 54, 829 S.E.2d 54 (2019).

10. "Determining whether the requirements of Rule 23 of the West Virginia Rules of Civil Procedure [2017] have been met often involves, by necessity, some 'coincidental' consideration of the merits. Gariety v. Grant Thornton, LLP, 368 F.3d 356, 366 (4th Cir. 2004)." Syllabus point 5, State ex rel. West Virginia University Hospitals, Inc. v. Gaujot, 242 W.Va. 54, 829 S.E.2d 54 (2019).

11. "'Merits questions may be considered to the extent-but only to the extent-that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.' Amgen Inc. v. Connecticut Ret. Plans & Tr. Funds, 568 U.S. 455, 466, 133 S.Ct. 1184, 1195, 185 L.Ed.2d 308 (2013)." Syllabus point 7, State ex rel. West Virginia University Hospitals, Inc. v. Gaujot, 242 W.Va. 54, 829 S.E.2d 54 (2019).

12. "When consideration of questions of merit is essential to a thorough analysis of whether the prerequisites of Rule 23 of the West Virginia Rules of Civil Procedure [2017] for class certification are satisfied, failing to undertake such

iv consideration is clear error and an abuse of discretion." Syllabus point 8, State ex rel. West Virginia University Hospitals, Inc. v. Gaujot, 242 W.Va. 54, 829 S.E.2d 54 (2019).

v

OPINION

JENKINS, CHIEF JUSTICE

In this original jurisdiction proceeding, petitioners, West Virginia University Hospitals - East, Inc., doing business as Berkeley Medical Center; City Hospital, Inc., doing business as Berkeley Medical Center; and the Charles Town General Hospital, doing business as Jefferson Medical Center (collectively "Hospitals"), seek a writ of prohibition to prohibit the Circuit Court of Jefferson County from enforcing its order granting class certification in the underlying civil action filed by the respondents, Deborah S. Welch ("Ms. Welch") and Eugene A. Roman ("Mr. Roman") (collectively "Welch and Roman"). The underlying suit arose after an employee of Hospitals misappropriated the private information of certain patients from Hospitals' medical records during the course of performing her authorized job duties. Welch and Roman successfully certified a class of approximately 7, 445 individuals, which represented every medical record accessed by the employee during the relevant period of her employment. Hospitals argue that the class representatives lack standing because they have suffered no injury-in-fact from the employee's legitimate access to their confidential records. We agree with respect to Ms. Welch, and, based upon our finding that she has suffered no injury-in-fact, we conclude that she lacks standing to bring the claims asserted in this matter. Hospitals additionally argue that certain prerequisites to class certification were not met in this case. We address this issue only as to Mr. Roman and the subclass of 109 individuals he represents and find that the circuit court failed to provide a thorough analysis of the typicality prerequisite in light of Mr. Roman's circumstances and claims. Accordingly, after considering the briefs and oral arguments of the parties, and the appendix record for this matter, we grant the requested writ and prohibit the circuit court from enforcing its order of December 23, 2020, granting class certification. We remand this case for additional proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL HISTORY

These facts are gleaned primarily from the circuit court's findings of fact contained in its order granting class certification. Angela Roberts ("Ms. Roberts") was hired in February 2014 to work as a registration specialist at the Berkeley Medical Center and the Jefferson Medical Center. Ms. Roberts's duties as a registration specialist involved assisting patients in scheduling their appointments with medical providers at Hospitals, which required her to access the patients' protected health information that was stored in Hospitals' electronic record system. Accordingly, Hospitals created a profile for Ms. Roberts giving her limited, role-based access to the patient information necessary for her job duties.

In March of 2016, two years after commencing her employment, Ms Roberts began a romantic relationship with Ajarhi "Wayne" Roberts ("Mr. Roberts").^[1] Mr. Roberts purportedly convinced Ms. Roberts to use her position as a registration specialist for Hospitals to steal personal information from patient files so that he could use the information in attempting...