STATE OF WEST VIRGINIA ex rel. WEST VIRGINIA UNIVERSITY HOSPITALS, INC., AND WEST VIRGINIA UNITED HEALTH SYSTEM, INC., Petitioners
THE HONORABLE PHILLIP D. GAUJOT, JUDGE OF THE CIRCUIT COURT OF MONONGALIA COUNTY, CHRISTOPHER THOMACK, AND JOSEPH MICHAEL JENKINS, Respondents
PROCEEDING IN PROHIBITION WRIT GRANTED AS MOULDED
Submitted: February 5, 2019
E. Williams, Esq. Alexander L. Turner, Esq. Christopher D.
Smith, Esq. Nelson Mullins Riley & Scarborough LLP
Huntington, West Virginia Christine S. Vaglienti, Esq. West
Virginia University Hospitals, Inc. Morgantown, West Virginia
Counsel for the Petitioners
E. Goddard, Esq. Edmund L. Wagoner, Esq. Goddard &
Wagoner Clarksburg, West Virginia Christopher J. Regan, Esq.
Laura P. Pollard, Esq. Bordas & Bordas PLLC Wheeling,
West Virginia David J. Romano, Esq. Jennifer L. Finch, Esq.
Romano Law Offices Clarksburg, West Virginia Counsel for
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
JUSTICE WALKER, deeming herself disqualified, did not
JUSTICE WORKMAN, deeming herself disqualified, did not
REEDER, sitting by temporary assignment.
REGER, sitting by temporary assignment.
BY THE COURT
"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).
purposes of Rule 23(a)(2) of the West Virginia Rules of
Civil Procedure , "a 'question'
'common to the class' must be a dispute,
either of fact or of law, the resolution of which
will advance the determination of the class members'
claims." Wal-Mart Stores, Inc. v. Dukes, 564
U.S. 338, 369, 131 S.Ct. 2541, 2562, 180 L.Ed.2d 374 (2011)
(Ginsburg concurring in part and dissenting in part)
commonality to exist under Rule 23(a)(2) of the West
Virginia Rules of Civil Procedure , class
members' "claims must depend upon a common
contention[, ]" and that contention "must be of
such a nature that it is capable of classwide
resolution[.]" Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338, 350, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374
(2011). In other words, the issue of law (or fact) in
question must be one whose "determination . . .
will resolve an issue that is central to the validity of each
one of the claims in one stroke." Id. (emphasis
"When a circuit court is evaluating a motion for class
certification under Rule 23 of the West Virginia Rules of
Civil Procedure , the dispositive question is not
whether the plaintiff has stated a cause of action or will
prevail on the merits, 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).
Determining whether the requirements of Rule 23 of the
West Virginia Rules of Civil Procedure  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).
"[C]lass determination generally involves considerations
that are enmeshed in the factual and legal issues comprising
the plaintiffs['] cause of action." Comcast
Corp. v. Behrend, 569 U.S. 27, 34, 133 S.Ct. 1426, 1432,
185 L.Ed.2d 515 (2013) (cleaned up).
"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).
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  for class certification are
satisfied, failing to undertake such consideration is clear
error and an abuse of discretion.
case is before the Court on a petition for writ of
prohibition. Respondent Phillip D. Gaujot, Judge of the
Circuit Court of Monongalia County, certified a class action
against Petitioners, West Virginia University Hospitals, Inc.
("WVUH"), and West Virginia United
Health System, Inc. ("WVUHS" and,
together with WVUH, the
"Hospitals"). Judge Gaujot named
Respondents Christopher Thomack and Joseph Michael Jenkins as
lead plaintiffs. The Hospitals later moved to decertify the
class, and Judge Gaujot denied their motion. The Hospitals
believe that Judge Gaujot erred, and they ask this Court to
prohibit him from conducting any further proceedings until he
has vacated his order denying their motion to decertify the
on the record before us, the arguments of the parties, and
the applicable law, we find that the circuit court exceeded
its jurisdiction by failing to conduct a sufficiently
thorough analysis of whether the commonality required for
class certification under Rule 23 of the West Virginia
Rules of Civil Procedure is present. Accordingly, we
grant the writ of prohibition as moulded, vacate the circuit
court's order denying the Hospitals' motion to
decertify the class, and remand this case for further actions
consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
2012, Mr. Thomack and Mr. Jenkins were injured in separate
accidents. They were treated at Ruby Memorial Hospital. Each
hired an attorney to seek damages for his injuries, and each
attorney requested copies of his client's medical
records. Mr. Thomack alleges that WVUHS charged his attorney
$514.40 for his medical records. Mr. Jenkins says that WVUHS
charged his attorney $656.80. WVUHS arrived at these fees by
charging "40 cents per page" plus an additional
$10.00 fee for "[p]rocessing." WVUHS charged by the
page, though it provided the records as images on a computer
Thomack and Mr. Jenkins believe that these fees were illegal.
On January 18, 2013, Mr. Thomack sued WVUH in the Circuit
Court of Monongalia County.Later, on June 27, 2013, Mr.
Jenkins sued WVUHS in the Circuit Court of Harrison County.
Each plaintiff sued individually and as the (would be)
representative of a class of similarly situated persons.
Their cases were subsequently consolidated in the Circuit
Court of Monongalia County.
about January 9, 2014, after consolidation, Mr. Thomack and
Mr. Jenkins filed a consolidated and amended class action
complaint against the Hospitals in the Circuit Court of
Monongalia County. The consolidated complaint's central
allegation is that the Hospitals violated W.Va. Code §
16-29-2(a)  by "charg[ing] Plaintiffs $0.40
'per page' for copies of their already existing
October 2013-before consolidation-Mr. Thomack moved for class
certification under Rule 23. The Hospitals opposed the motion
in a memorandum filed in March 2014, after consolidation.
They argued that a "fact intensive, case-by-case
analysis . . . will be required to determine whether the fees
imposed by WVUH and paid by each class member were, in fact,
reasonable or unreasonable." They supported this
argument with an affidavit from Melissa Martin, WVUH's
director of health information management and chief privacy
officer. In her affidavit, Ms. Martin described a variety of
"electronic and/or physical storage systems" that
must be searched when WVUH responds to a records request.
Martin also described what happens after the records have
been located. She reported that medical records "are
extracted and copied into a production
system[.]"Then "a WVUH technician manually
inspects the document bundle to ensure that the production
complies with the scope of the request and that no images are
duplicates or illegible." She explained that this
inspection process "can be very time consuming"
because mental health information enjoys special protection
and may be embedded in other records. Because of this
concern, employees must actually "read the
medical records" (emphasis added). Once this inspection
is complete, WVUH counts the number of images and invoices
the person who requested them. When WVUH ...