Timothy Rave v. SVA Healthcare Services, LLC

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 27, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP2236 Cir. Ct. No. 2018CV609

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

TIMOTHY RAVE,

PLAINTIFF-RESPONDENT,

V.

SVA HEALTHCARE SERVICES, LLC,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
MARY E. TRIGGIANO, Judge. Affirmed.

Before Brash, P.J., Donald and White, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. SVA Healthcare Services, LLC, (“SVA”) appeals
an order certifying a class and appointing plaintiff Timothy Rave as class
No. 2019AP2236

representative. SVA argues that there are factual and legal issues that preclude
Rave from satisfying the requirements set forth in WIS. STAT. § 803.08 (2019-20).1
We disagree and affirm.

I. BACKGROUND

¶2 In 2013, Rave was injured in a car crash. He retained Welcenbach
Law Offices, S.C. (“Welcenbach”), to handle a personal injury claim on his
behalf. Rave authorized his attorneys to obtain his health care records by signing
a HIPAA release form. Welcenbach subsequently requested certified copies of
Rave’s complete medical billing records from Wisconsin Radiology Specialists.
SVA responded to the request and, as set forth in SVA’s responses to Rave’s
requests for admission, invoiced Welcenbach “$20.35, which included a $15.00
charge, plus $0.35 for one page, and $5.00 for certified records,” which
Welcenbach paid.

¶3 In 2018, Rave filed the underlying lawsuit alleging that SVA
improperly charged Welcenbach “certification” and “retrieval” fees under WIS.
STAT. § 146.83(3f)(b)4. and 5. for copies of his medical bills.2 Rave also made a

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted. The current version of WIS. STAT. § 803.08 harmonizes Wisconsin’s class action statute
with Rule 23 of the Federal Rules of Civil Procedure. “The Judicial Council’s intent was to craft
a Wisconsin class action rule that tracks as closely as possible federal practice so that Wisconsin
courts and practitioners can look to the well-developed body of federal case law interpreting Rule
23 for guidance.” Judicial Council Committee Note, 2017, § 803.08.
2
WISCONSIN STAT. § 146.83 governs access to patient health care records. As we
explained in Harwood v. Wheaton Franciscan Servs., 2019 WI App 53, 388 Wis. 2d 546, 933
N.W.2d 654:

(continued)

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claim for unjust enrichment. He sought statutory damages under the health care
records penalty provision found at WIS. STAT. § 146.84(1). Rave made his claims

Under § 146.83(3f), a health care provider shall, subject to
exceptions that are inapplicable here, provide copies of a
patient’s health care records “if a person requests copies of a
patient’s health care records, provides informed consent, and
pays the applicable fees under par. (b).” Sec. 146.83(3f)(a).

Pursuant to WIS. STAT. § 146.83(3f)(b), health care
providers may impose certain costs on the person requesting
health care records under § 146.83(3f)(a):

(b) Except as provided in sub. (1f), a health care
provider may charge no more than the total of all of the
following that apply for providing the copies requested
under par. (a):

….

4. If the requester is not the patient or a person
authorized by the patient, for certification of copies, a
single $8 charge.

5. If the requester is not the patient or a person
authorized by the patient, a single retrieval fee of $20
for all copies requested.

….

Sec. 146.83(3f)(b) (emphasis added). According to
§ 146.83(3f)(b) 4[.] and 5[.], the patient or a person authorized
by the patient are exempt from the certification charge and
retrieval fee.

As noted above, a recent case raised the question of
“whether an attorney whose client authorized him via a HIPAA
release form to obtain her health care records may benefit from
this fee exemption.” Moya [v. Aurora Healthcare, Inc.], [2017
WI 45, ¶2,] 375 Wis. 2d 38, … 894 N.W.2d 405 (emphasis
added, footnote omitted). Our supreme court answered that they
may[.]

Harwood, 388 Wis. 2d 546, ¶¶42-44 (emphasis in Harwood).

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on behalf of himself and on behalf of a purported class of similarly situated
individuals.

¶4 Rave subsequently sought to certify a class that included him “and
thousands of other Wisconsin citizens similarly situated [who] were wrongfully
charged basic, retrieval, processing and/or certification fees by … SVA[.]” The
proposed class (which includes a number of exceptions) consists of all persons in
Wisconsin who were a patient of a health care provider or a person authorized in
writing by a patient of a health care provider to obtain the patient’s medical
records and were charged a retrieval and/or a certification fee by SVA, directly or
indirectly, in violation of WIS. STAT. § 146.83(3f)(b)4.-5., between July 1, 2011
and the date of trial.

¶5 The circuit court found that Rave met his burden of satisfying the
fundamental requirements set forth in WIS. STAT. § 803.08. SVA appeals that
determination. See § 803.08(11).

II. DISCUSSION

¶6 The sole issue on appeal is whether the circuit court properly
exercised its discretion when it granted Rave’s motion for class certification. See
WIS. STAT. § 803.08. The “decision to grant or deny a motion for class
certification is committed to the [circuit] court’s discretion.” Harwood v.
Wheaton Franciscan Servs., 2019 WI App 53, ¶41, 388 Wis. 2d 546, 933 N.W.2d
654. We will affirm so long as “the [circuit] court applied the correct law to the
facts of record and reached a reasonable decision.” See id.

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¶7 WISCONSIN STAT. § 803.08 provides a two-part test for determining
whether a circuit court should certify a class. First, it requires the plaintiff to
establish the following prerequisites:

(1) PREREQUISITES. One or more members of a class may
sue or be sued as representative parties on behalf of all
members only if the court finds 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.

Id. If numerosity, commonality, typicality, and adequacy are established, the
second part of the test is to determine if § 803.08(2) is satisfied.

(A) The circuit court properly concluded that Rave satisfied the
prerequisites for class certification.

¶8 SVA contends that it has unique defenses that preclude the circuit
court’s determinations as to typicality and adequacy.3 See CE Design Ltd. v. King
Architectural Metals, Inc., 637 F.3d 721, 724 (7th Cir. 2011) (noting that the
typicality and adequacy prerequisites under Federal Rule of Civil Procedure 23,
i.e., WIS. STAT. § 803.03’s federal analog, often merge). Specifically, SVA
contends: (1) the statute of limitations bars Rave’s claim against it; and (2) “Rave
knew, or had constructive knowledge, that payment of a certification and retrieval

3
SVA does not challenge the other statutory prerequisites. Consequently, we will not
address them further.

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fee was allegedly illegal at the time of payment yet he paid it anyway and
wrongfully created a cause of action for himself.”

¶9 SVA, therefore, challenges Rave’s standing to bring a claim against
it—and asserts that if Rave has no valid claims, he cannot be a class
representative. According to SVA, the circuit court erroneously exercised its
discretion when it granted class certification without considering its defenses.

¶10 We begin by reviewing the circuit court’s determinations, as set
forth in its written decision, regarding typicality and SVA’s claimed defenses:

In this case, Rave’s claims arise from the same events or
pattern of practice as those of the proposed class. Rave and
the class members advance the same legal theory—that
they were illegally charged the same retrieval and/or
certification fees. Moreover in response to Rave’s request
for an admission, after objecting to the allegedly
ambiguous term “differently,” SVA denied that it treated
Rave differently than other persons in connection with
providing copies of his medical records.

SVA claims that the typicality requirement has not
been satisfied because it has “unique” defenses related to
waiver, voluntary payment and the statute of limitations
that would not apply to the other members of the proposed
class. SVA essentially presupposes the resolution of these
defenses must be resolved at the class certification stage,
rather than at a later date. In any event, a unique defense
will render the proposed class representative’s claims
atypical only if it is likely to be a “major focus” in the
litigation, and not if it is insignificant or improbable.
[1 WILLIAM B. RUBENSTEIN,] NEWBERG ON CLASS ACTIONS
§ 3:45 (5th ed.) (“Presence of unique defenses.”). In this
case, SVA has not made a sufficiently clear showing at
such an early stage of the proceedings that three allegedly
“unique” defenses will play a substantial role in the
litigation. The [c]ourt finds that the typicality requirement
has been satisfied.

(Citation formatting for NEWBERG ON CLASS ACTIONS altered.) The circuit
court’s decision belies SVA’s contention that the circuit court failed to consider its

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unique defenses. In actuality, the circuit court considered—and rejected—SVA’s
claim that they defeated class certification.

¶11 By doing so in the fashion that it did, SVA suggests that the circuit
court gave its defenses short shrift. SVA contends that “these merits issues are
dispositive and have been found dispositive in other cases brought under WIS.
STAT. § 146.83 before class certification was even considered.” As support for
this proposition, SVA cites one unreported federal decision, which is not binding
on this court. See State v. Wood, 2010 WI 17, ¶18, 323 Wis. 2d 321, 780 N.W.2d
63 (noting that federal district court cases are not binding authority on Wisconsin
courts).

¶12 SVA devotes a significant portion of its briefing to the merits of its
claimed unique defenses, and yet, we are not convinced that they will be a “major
focus” in this litigation. See Koos v. First Nat’l Bank of Peoria, 496 F. 2d 1162,
1164 (7th Cir. 1974) (holding that typicality is defeated only when “a major focus
of the litigation will be on an arguable defense unique to the named plaintiff”).
Rave contends, and we agree, that “[t]he statute of limitations [defense] presents a
straightforward issue that will be decided as a matter of law,” and to the extent
SVA wants to pursue a defense that Rave wrongfully created a cause of action for
himself “[i]t can be resolved by a single motion.” See generally NEWBERG ON
CLASS ACTIONS § 3.45 (explaining that “typicality will generally not be defeated
by allegations that the proposed class representative … may face a statute of
limitation defense” and providing as an example, “the unique defense that a
proposed representative’s claims are based on an invalid assignment of legal
interest will not destroy typicality because it presents a question of law that can
readily be resolved by the court without skewing the focus of the litigation”
(emphasis added; one set of quotation marks and footnote omitted)).

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¶13 Although SVA sought to distinguish it, this court’s decision in
Harwood guides our analysis. In that case, Wheaton Franciscan argued—among
other things—that Harwood did not satisfy the typicality and adequacy
requirements for reasons that included Harwood’s interests being adverse to the
class and a related lack of evidence. Id., 388 Wis. 2d 546, ¶¶30, 57.

¶14 Upon review, we focused on the heart of the claim; namely, “that
individuals were charged $28 in fees that the statute does not permit Wheaton
Franciscan to charge[.]” See id., ¶57. We highlighted Harwood’s allegation that
she was charged $28 in fees that were not allowed under WIS. STAT.
§ 146.83(3f)(b)4. and 5. and noted that she supplied invoices that supported her
allegation, Harwood, 388 Wis. 2d 546, ¶57. We explained that the plaintiff
additionally alleged “that others were charged these fees despite the statute’s
prohibition, and she has provided evidence of at least forty-two such charges.” Id.
From this, the circuit court and this court concluded that the prerequisites were
satisfied:

The [circuit] court concluded that her claim was
substantially similar in that each was overcharged by $28,
each had the same legal basis for the claim, and each had
the same claim to statutory damages if the violation is
established. There is evidence to support the [circuit]
court’s conclusion that the claims of the representative and
the class members shared commonality and typicality, and
that the adequacy requirement has been met.

Id.

¶15 The straightforward analysis applied in Harwood is also appropriate
here. As detailed above, the circuit court employed a similar rationale and
reasonably determined that Rave met the typicality and adequacy requirements
under WIS. STAT. § 803.08(1).

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No. 2019AP2236

(B) The circuit court properly concluded that Rave satisfied the
predominance and superiority requirements of WIS. STAT.
§ 803.08(2)(c).

¶16 Next, we consider whether the circuit court properly determined
“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). According to the statute, “[t]he matters pertinent
to these findings include all of the following”:

1. The class members’ interests in individually
controlling the prosecution or defense of separate actions.

2. The extent and nature of any litigation
concerning the controversy already begun by or against
class members.

3. The desirability or undesirability of concentrating
the litigation of the claims in the particular forum.

4. The likely difficulties in managing a class action.

Id. These requirements are commonly referred to as predominance and
superiority. Harwood, 388 Wis. 2d 546, ¶24.

¶17 The circuit court addressed each of these required findings:

Rave claims that the predominancy and superiority
requirements have been satisfied because “[t]he single and
most predominant issue” is whether Rave [sic SVA]
“illegally charge[d] basic, retrieval or certification fees to
patients who requested records directly or through persons
they authorized in writing.”

As to whether the class action is “superior to other
available methods for fairly and efficiently adjudicating the
controversy,” Rave asserts that this [c]ourt could resolve in
one proceeding what would otherwise require thousands of
individual lawsuits. He also asserts that “potentially many
individual claimants would never recover their money
because they would not find a lawyer to sue over relatively

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No. 2019AP2236

small individual amounts of approximately $28.00.” This
[c]ourt agrees. Because individual compensatory awards
would be low, the interests of members of the class in
individually controlling the prosecution of separate actions
is minimal and weighs in favor of certifying the class.

As to “[t]he extent and nature of any litigation
concerning the controversy already begun by or against
class members,” neither party is aware of any other cases
filed against SVA for these claims. This weighs in favor of
class certification.

With respect to “[t]he desirability or undesirability
of concentrating the litigation of the claims in the particular
forum,” the [c]ourt is unaware of any valid reason why it
would be undesirable to concentrate and streamline the
litigation in this forum.

With respect to “[t]he likely difficulties in
managing a class action,” Rave asserts that “[t]he common
use of accounting software means the records showing the
type of charges and the amounts are electronically stored
and easily accessible.” The exhibits attached to Rave’s
brief support this assertion…. [T]he proposed class shares
the same kind of compensatory damages, differing only in
specific amount, which weighs in favor of certifying the
class.

¶18 SVA asserts that the circuit court “completely failed to address” the
issues it raised concerning superiority and predominance. In its eleven-page
written decision, the circuit court pointed out that “[i]n deciding this motion, the
[c]ourt has considered SVA’s lengthy and comprehensive submissions, including
its supplemental briefing,” and later, reiterated that “[a]fter thoroughly considering
the parties’ submissions, the [c]ourt concludes that Rave and class counsel have
met the requirements for class certification.” To the extent that the circuit court
did not expressly address each issue that SVA raised, it implicitly deemed them
unpersuasive. That determination is supported by the record. See Harwood, 388
Wis. 2d 546, ¶48 (noting that “if the [circuit] court ‘fails to set forth its reasoning
in exercising its discretion … the appellate court should independently review the

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record to determine whether it provides a basis for the [circuit] court’s exercise of
discretion’” (citation omitted)).

¶19 The circuit court applied the correct law to the facts of record and
reached a reasonable decision when it certified the class in this matter.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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