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McCracken, v. Verisma Systems, Inc.

United States District Court, W.D. New York

July 28, 2017

ANN McCRACKEN, JOAN FARRELL, SARAH STILSON, KEVIN McCLOSKEY, CHRISTOPHER TRAPATSOS, and KIMBERLY BAILEY, as individuals and as representatives of the classes, Plaintiffs,
v.
VERISMA SYSTEMS, INC., STRONG MEMORIAL HOSPITAL, HIGHLAND HOSPITAL, and UNIVERSITY OF ROCHESTER, Defendants.

          DECISION AND ORDER

          HON. MICHAEL A. TELESCA United States District Judge.

         INTRODUCTION

         This is a putative class action by Ann McCracken, Joan Farrell, Sara Stilson, Kevin McCloskey, Christopher Trapatsos, and Kimberly Bailey (collectively, “Plaintiffs”) against Verisma Systems, Inc. (“Verisma”), Highland Hospital (“Highland”), Strong Memorial Hospital (“Strong”), and the University of Rochester Medical Center (“URMC”).[1] Plaintiffs allege that Defendants systematically overcharged them and other patients who requested copies of their medical records from the Rochester Healthcare Defendants, in violation of New York Public Health Law (“PHL”) § 18.[2] Plaintiffs allege that Verisma and the Rochester Healthcare Defendants ignored the restriction in the statute that limits the amount that may be charged to produce the records “a reasonable charge . . . not exceeding the costs incurred, ” and not exceeding $0.75 per page. Instead, Plaintiffs allege, Verisma and the Rochester Healthcare Defendants imposed an across-the-board, uniform charge of $0.75 per page for all copies of medical records, even those produced electronically, in excess of their actual costs and in violation of PHL § 18. Additional facts will be set forth below as necessary to the Court's resolution of Plaintiffs' Motion for Class Certification pursuant to Federal Rule of Civil Procedure 23 (“Rule 23”).

         DISCUSSION

         I. Plaintiffs' Proposed Class and Sub-Classes

         Plaintiffs seek certification of one proposed class, the “URMC Medical Records Class, ” defined as follows:

All persons who (1) requested copies of medical records (either by themselves or through a lawyer, personal representative, or other qualified person acting on their behalf) from a health care facility owned and/or operated by the University of Rochester, (2) were charged by or through Verisma Systems, Inc. for copies of such records in accordance with Verisma's “NY Fee Schedule PHL 18, ” and (3) paid such charges (either directly or through the person making the request on their behalf) and had their records released by or through Verisma on or after May 14, 2011, excluding any principals or employees of Defendants.

         Plaintiffs also seeks certification of two proposed subclasses, defined as follows:

Highland Sub-Class: All persons in the URMC Medical Records Class who requested copies of medical records through Highland Hospital and whose records were released on or after May 14, 2011.
Strong Sub-Class: All persons in the URMC Medical Records Class who requested copies of medical records through Strong Memorial Hospital and whose records were released on or after May 14, 2011.

         (Plaintiffs Memorandum of Law (“Pls' Mem.”) (Dkt #72) at 14).

         II. Application of the Rule[3] 23(a) Factors

         Under Rule 23(a), a proposed class must satisfy the requirements of numerosity, commonality, typicality, and adequacy of representation. See Fed.R.Civ.P. 23(a)(1)-(4). “In addition to the express requirements of Rule 23(a), courts within the Second Circuit have consistently recognized the ‘implied requirement of ascertainability.'” Hughes v. The Ester C Co., 317 F.R.D. 333, 348-49 (E.D.N.Y. 2016) (citing Brecher v. Republic of Argentina, 806 F.3d 22, 24 (2d Cir. 2015) (quotations and citations omitted in original); other citations and footnote omitted). The Court addresses these five factors in turn, below.

         A. Numerosity

         “Numerosity” for purposes of Rule 23(a) means that the class is “so numerous that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1). Plaintiffs have established that at least 38, 000 medical record requests were fulfilled, invoiced, and paid pursuant to Verisma's NY Fee Schedule PHL 18 during the relevant time period. The Court finds that the numerosity requirement is readily met here. See Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995) (“Because numerosity is presumed at a level of 40 members, whether viewed as 700 tax-collecting jurisdictions or 300 assessing jurisdictions, the number of defendants vastly exceeds this threshold. Numerosity is therefore satisfied.”) (internal citation omitted).

         B. Commonality

         “Commonality” under Rule 23(a) exists when there are “questions of law or fact common to the class.” Fed.R.Civ.P. 23(a)(2). While “[c]ommonality requires the plaintiff to demonstrate that the class members ‘have suffered the same injury[, ]'” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349-50 (2011) (quotation omitted), “[t]his does not mean merely that they have all suffered a violation of the same provision of law.” Id. Rather, the class members' “claims must depend upon a common contention[, ]” id., which is “of such a nature that it is capable of classwide resolution[.]” Id. The determination of the common contention's “truth or falsity” in turn “will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id.

         The Court finds that Plaintiffs have “affirmatively demonstrate[d] [their] compliance with” Rule 23(a)(2)'s commonality requirement by “prov[ing] that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Id. (emphasis in original). Plaintiffs have identified several common questions, including whether PHL § 18 allows Defendants to charge per page for copies of medical records, even if their actual costs of producing such records are less; what actual costs did Defendants incur in fulfilling class members' records requests; which categories of costs are “reasonable” under PHL § 18; whether Defendants' actual and reasonable costs of producing medical records are less than the amount class members were charged pursuant to Verisma's NYPHL § 18 Fee Schedule; and whether Defendants' failure to disclose their actual costs of production would materially mislead a reasonable consumer, in violation of New York General Business Law (“GBL”) § 349. See Ruzhinskaya v. Healthport Technologies, LLC, 311 F.R.D. 87, 98 (S.D.N.Y. 2015) (“Ruzhinskaya I”) (commonality prerequisite for class certification met in action against hospital billing agent to recover for alleged violation of deceptive trade ...


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