from an order of the circuit court for Milwaukee County, No.
2017CV12998 ELLEN R. BROSTROM, Judge. Affirmed.
Brash, P.J., Kessler and Brennan, JJ.
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 "represent[ing] 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. §
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.
Because Wheaton Franciscan challenges the trial court's
ruling as an erroneous exercise of discretion, we include a
detailed background section to make clear what evidence and
arguments the parties presented to the trial court prior to
its decision to certify the class.
Harwood was injured in a car accident in August 2015 and
filed a personal injury claim. She signed HIPAA
releases authorizing the release of medical
information to her attorneys. Harwood's attorneys
requested certified medical bills from Wheaton Franciscan -
St. Francis and provided the HIPAA release signed by Harwood
to evidence her written consent. Wheaton Franciscan Services
responded to the request and charged $31.14 to be paid to
Wheaton Franciscan Medical Group. Harwood's attorneys
paid the charges to obtain the certified medical bills.
Harwood's attorneys also requested certified medical
records from St. Francis Hospital, again providing the HIPAA
release signed by Harwood. Wheaton Franciscan Services
responded to the request on behalf of St. Francis Hospital
and charged $61.31 to be paid to "St. Francis."
Again, Harwood's attorney paid the fee to obtain her
certified medical records. Harwood reimbursed her attorneys
"for all charges incurred from [Wheaton
Harwood alleged in the complaint that Wheaton Franciscan
charged Harwood and others "a certification fee,
processing fee, basic or retrieval fees" for both
medical record requests made by Harwood's attorneys, who
were persons authorized in writing by Harwood to access that
information. In the class certification motion, Harwood
provided copies of forty-four invoices from Wheaton
Franciscan entities that showed the certification and
retrieval charges for health care record requests that had
been made by persons who authorized counsel in writing to
request the records.
Harwood served on Wheaton Franciscan requests for admission.
In response to Request No. 3-"Admit that you charged a
person authorized in writing by Elizabeth Harwood basic,
processing, certification or retrieval fees"-two of the
Wheaton Franciscan entities provided the following response:
Object to the form and lack of foundation. Subject to the
objections and assuming the reference is to [Harwood's
counsel], admits that statutorily allowed certification and
retrieval fees, as well as statutorily allowed copying fees,
were charged. Denies that any charges for basic or processing
fees were presented.
In response to Request No. 9-"Admit that since July 1,
2011, you charged at least 100 persons authorized in writing
by the patient a certification, processing, basic or
retrieval fee to obtain the patient's medical
records"- the Wheaton Franciscan entities provided the
Object to the form, lack of foundation, and being beyond the
scope of the plaintiff's claim. Subject to the
objections, this defendant cannot reasonably ascertain as to
whether or not this request is true.
Harwood also issued a first set of interrogatories that
included a question as to who handled the relevant invoicing,
and the same Wheaton Franciscan entities (in a jointly filed
response) answered that "Wheaton Franciscan
Healthcare-St. Francis, Inc. personnel processed the request
for medical records and Wheaton Franciscan Medical Group
personnel processed the request for medical billing."
Asked whether defendants "made any errors or mistakes in
connection with" the relevant invoices, the entities
answered, "[I]f an error includes an interpretation of
the law retrospectively determined to be erroneous, it was
made in good faith." Asked to identify the methodology
Wheaton Franciscan used to determine when to charge basic
fees, retrieval fees, processing fees, and certification
fees, the Wheaton Franciscan entities first "den[ied]
that these answering defendants charged a basic fee or
processing fee[, ]" then added the following:
"Based on information discovered to date … and
based on state Department of Health Services and Wisconsin
Health Information Management Association guidance."
class certification motion.
On February 23, 2018, Harwood filed her class certification
On March 30, 2018, Wheaton Franciscan moved the trial court
to stay proceedings pending a decision by this court in a
separate case that also involved class certification issues.
The trial court granted Wheaton Franciscan's motion to
stay proceedings in part, permitting plaintiff to issue
interrogatories. After the separate case resolved in a way
that did not affect the questions presented in this case, the
trial court lifted the stay and set a briefing schedule and a
In its brief opposing the class certification motion, Wheaton
Franciscan objected to certification in part based on its
contention that certification was premature because the
proposed certification "raises several other issues that
need to be explored in discovery[.]"
First, Wheaton Franciscan argued that it was unclear whether
the holding in Moya v. Aurora Healthcare, Inc., 2017
WI 45, ¶2, 375 Wis.2d 38, 894 N.W.2d 405, "permits
any attorney with a client with a valid HIPAA authorization
to be a participant in the proposed class, including
attorneys representing defendants in personal injury
actions." Moya addressed 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."
Id. (emphasis added, footnote omitted). Our supreme
court answered that such an attorney may do so: "[A]n
attorney authorized by his or her client in writing via a
HIPAA release form to obtain the client's health care
records is a 'person authorized by the patient' under
Wis.Stat. § 146.83(3f)(b)4.-5. and is therefore exempt
from certification charges and retrieval fees under these
Second, Wheaton Franciscan argued that it was as yet
undetermined "whether the fees charged were based on
good faith guidance."
Third, Wheaton Franciscan argued that it was undetermined
whether Harwood was an adequate representative because,
"[f]or example, she listed her residence as being in
Milwaukee, but she in fact resides in Oak Creek,
Fourth, Wheaton Franciscan argued that it was undetermined
how many of the forty-four Wheaton Franciscan invoices were
Wheaton Franciscan also argued that further discovery was
necessary. It argued that this case was analogous to the
facts in Szabo v. Bridgeport Machines, Inc., 249
F.3d 672 (7th Cir. 2001), in which the appellate court
reversed the district court's sweeping class
certification and remanded for further proceedings,
inviting the district court "to deny Szabo's request
for class certification or certify a more limited
class." Id. at 678. The flaw in the district
court's analysis, Szabo held, was that it had
accepted as true all of the complaint's allegations when
deciding whether to certify the class. Id. at 675.
Wheaton Franciscan quoted the following language from
Certifying classes on the basis of incontestable
allegations in the complaint moves the court's
discretion to the plaintiff's attorneys-who may use it in
ways injurious to other class members, as well as ways
injurious to defendants. Both the absent class members and
defendants are entitled to the protection of independent
judicial review of the plaintiff's allegations.
Id. at 677 (emphasis added). In a sur-reply brief,
Wheaton Franciscan further argued that Wis.Stat. §
803.08, the statute governing class actions, had been
"substantively changed" by the revisions enacted by
the Wisconsin Supreme Court Order to harmonize Wisconsin law
with federal law and that this change "undermin[ed] the
legal basis" for granting plaintiff's motion. Noting
that the Judicial Council had stated that its "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 [Federal Rule of Civil
Procedure] 23 for guidance," see Judicial
Council Committee Notes, 2017, § 803.08, Wheaton
Franciscan argued that federal case law required more
discovery before a ruling on class certification in this
case. Finally, it argued that in addition to the four
requirements a plaintiff must satisfy, federal courts had
recognized a fifth requirement of
"ascertainability," and that federal case law had
recently adopted a more rigorous ascertainability
requirement, creating a heightened standard for plaintiffs to
meet. It cited language from cases that imposed on plaintiffs
additional burdens of proof about ascertainability-a 2014
Wisconsin district court case and a 2012 Third Circuit case,
Marcus v. BMW of North America, LLC, 687 F.3d 583,
593 (3rd Cir. 2012).
At the motion hearing, Harwood argued that she had satisfied
the requirements of Wis.Stat. § 803.08.
The statute requires the plaintiff to first establish three
facts about the proposed class and the
representative-referred to as numerosity, commonality, and
typicality-and one fact about the plaintiff's ability to
represent the class. A plaintiff must show that:
(a) The class is so numerous that joinder of all members is
(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 ...