Class Action – Certification

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WI Court of Appeals – District I

Case Name: Elizabeth Harwood v. Wheaton Franciscan Services, Inc., et al.

Case No.: 2018AP1836

Officials: Brash, P.J., Kessler and Brennan, JJ.

Focus: Class Action – Certification

Wheaton Franciscan Services, Inc., (Wheaton Franciscan) and two other defendants appeal an order certifying a class and appointing plaintiff Elizabeth Harwood as class representative. Harwood alleged that Wheaton Franciscan violated WIS. STAT. § 146.83(3f)(b)4.-5. (2017-18) by charging Harwood and others at least $28 each in illegal added fees for copies of their health records. Harwood moved to certify a class that included all persons in Wisconsin who were Wheaton Franciscan patients (or persons they authorized in writing to obtain their medical records) who were charged retrieval fees or certification fees for the six years preceding the filing of the complaint. The proposed class excluded certain persons and entities, including any persons who did not pay the fees.

The trial court decided the motion, applying the newly revised version of the class certification rule, WIS. STAT. § 803.08, which went into effect after this action was filed. The parties do not dispute the application of the current statute and they do not dispute that it was adopted with the express purpose of harmonizing Wisconsin’s class action statute with the federal class action statute and federal case law. They dispute only whether the trial court erroneously exercised its discretion when it ruled that Harwood had satisfied the requirements for the class to be certified under the current version.

The trial court rejected Wheaton Franciscan’s arguments as “representing] defenses to the merits of the Plaintiff’s case [that] do not preclude certifying the class,” and quoted Messner v. Northshore University HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012), which stated that “[a] court should not turn the class certification proceedings into a dress rehearsal for the trial on the merits.” Its decision focused on the fact that Harwood had “provided a list of forty-four invoices, as well as the invoices themselves with the patient names redacted, representing separate clients … that have been allegedly charged improper fees for certified medical records in violation of WIS. STAT. § 146.83.”

Noting that the revised class action statute that took effect July 1, 2018, “imposes more stringent requirements than the prior version of WIS. STAT. § 803.08 and applicable case law,” the trial court concluded that Harwood had satisfied the requirements—that the proposed class is large enough to make it impractical to proceed without a class action, that the members of the proposed class share a common interest, that Harwood’s claim is typical of the claims of the class, and that Harwood, the named party, will provide adequate representation to the proposed class. The trial court further concluded that “questions of law and fact predominate over any questions affecting only individual members, and that a class action is superior to individual actions for fairly and efficiently adjudicating the controversy.” It therefore certified the class.

The revised class certification rule directed Wisconsin courts to look to federal case law for guidance. Just like Wisconsin law, federal appellate courts “review class-certification decisions deferentially, in recognition of the fact that [Federal Rule of Civil Procedure] 23 gives the district courts broad discretion to determine whether certification of a class-action lawsuit is appropriate.” Ervin v. OS Rest. Servs., Inc., 632 F.3d 971, 976 (7th Cir. 2011) (citation omitted). Federal appellate courts will “reverse the class-certification decision only when [they] find an abuse of discretion.” Id. For the reasons set forth, we conclude that the trial court correctly considered the relevant facts, applied the legal standard set forth in the newly revised WIS. STAT. § 803.08 consistent with federal law on class certification, kept its analysis focused on the class certification question, and reached a reasonable decision. We affirm.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.