McCleery v. Allstate Ins. Co., No. B282851 (D2d1 Dec. 14, 2018)
Plaintiffs in this wage and hour class action put forward a trial plan where the only evidence on liability would be statistical analyses of results obtained from an anonymous, double-blind survey of a sampling of class members. The survey seems like it was analytically rigorous, but that’s still not going to fly.
First, it didn’t take into account important factual aspects of the case, such as the fact that plaintiffs were employed by contracting companies whose services were used by, among others, the two insurance companies that are defendants in the case. Without any breakdown of time worked for each defendant (or some other non-defendant customer of the contractor) core liability questions—questions like “did this employee work more than eight hours for any particular defendant?”—can’t be answered.
More fundamentally, even if the expert was doing a good job as a statistician, the survey still depended on questions like: From 2005 to 2008, how many times did you fail to take a meal break less than thirty minutes long? How many weeks in 2008 did you work more than forty hours? The veracity of the respondents and the quality of their recollection were, essentially, presumed. And because all the survey participants were anonymous, even to the expert, the multiple hearsay inside his opinions can’t be impeached or cross-examined. Which is a pretty big problem; it flies in the face the way trials are supposed work in the common law adversarial system.
No doubt, that experts can sometimes rely on inadmissible hearsay. And it is also true that statistical techniques have a valid role to play in wage-and-hour class actions. But an expert can’t be a conduit that dumps huge amounts of hearsay into evidence while shielding it from any meaningful adversarial testing. As the court explains, no case “suggests a trial may be conducted solely on the evidence of an expert witness relying on an anonymous double-blind survey, no matter how scientific the survey may be.”
Denial of class cert affirmed.
Showing posts with label individual issues. Show all posts
Showing posts with label individual issues. Show all posts
Monday, December 17, 2018
Tuesday, December 16, 2014
Uninsured and Unascertainable
Hale v. Sharp Healthcare, No. D064023 (D4d1 Dec. 5, 2014)
In this UCL and CLRA case brought as a putative class action, plaintiff alleges that defendant, a hospital group, charged her and her fellow class members higher fees for medical services because they were uninsured. The trial court initially certified a class based on a common question: whether the defendant represented to uninsured patients that they would be charged “regular rates,” but failed to do so.
But defendant later filed a motion to decertify. It claimed that the class was not ascertainable, because its members could not be identified without an individualized examination of 120,000 patients’ billing records. Further, it said that class treatment was not a superior method to litigate the case because there was no manageable way to determine class-wide entitlement to damages. The trial court granted the motion and the plaintiff appealed.
The court of appeal affirms on both grounds. Because of the way the class was defined and the hospital’s practice of not obtaining insurance information until after treatment was provided, the class was unascertainable. The evidence showed that in many instances, uninsured patients ultimately paid rates that were far below what the hospital obtained from insurance companies, Medicare, and Medicaid. This could be due to rate reductions, charity payments, undiscovered coverage, or payments by third parties. But the hospital didn’t maintain information on ultimate payment outcomes on an aggregate basis, and, despite their efforts, the parties were unable to come up with a methodology for identifying patients who paid more than insured payments.
Further, there was a lack of predominance of common issues as to whether the class members were entitled to damages. In coming to this result, the court distinguishes a number of wage and hour cases requiring certification where the common issue is whether the employer maintained an unlawful policy. According to the court, these cases might have differed in the amount of damages, but if the plaintiff theory proved correct, the fact of damages could be determined on a classwide basis. In contrast, in this case, whether or not each plaintiff was damaged at all required a case-by-case assessment, which precluded any liability determination on a classwide basis.
This result seems mostly reasonable. But I don’t know if I’m entirely comfortable with a ruling that denies class certification based largely on the fact that the defendant maintained its business records in a way that makes it tough to ascertain who is in a plaintiff class. Seems like a bad incentive.
Affirmed.
In this UCL and CLRA case brought as a putative class action, plaintiff alleges that defendant, a hospital group, charged her and her fellow class members higher fees for medical services because they were uninsured. The trial court initially certified a class based on a common question: whether the defendant represented to uninsured patients that they would be charged “regular rates,” but failed to do so.
But defendant later filed a motion to decertify. It claimed that the class was not ascertainable, because its members could not be identified without an individualized examination of 120,000 patients’ billing records. Further, it said that class treatment was not a superior method to litigate the case because there was no manageable way to determine class-wide entitlement to damages. The trial court granted the motion and the plaintiff appealed.
The court of appeal affirms on both grounds. Because of the way the class was defined and the hospital’s practice of not obtaining insurance information until after treatment was provided, the class was unascertainable. The evidence showed that in many instances, uninsured patients ultimately paid rates that were far below what the hospital obtained from insurance companies, Medicare, and Medicaid. This could be due to rate reductions, charity payments, undiscovered coverage, or payments by third parties. But the hospital didn’t maintain information on ultimate payment outcomes on an aggregate basis, and, despite their efforts, the parties were unable to come up with a methodology for identifying patients who paid more than insured payments.
Further, there was a lack of predominance of common issues as to whether the class members were entitled to damages. In coming to this result, the court distinguishes a number of wage and hour cases requiring certification where the common issue is whether the employer maintained an unlawful policy. According to the court, these cases might have differed in the amount of damages, but if the plaintiff theory proved correct, the fact of damages could be determined on a classwide basis. In contrast, in this case, whether or not each plaintiff was damaged at all required a case-by-case assessment, which precluded any liability determination on a classwide basis.
This result seems mostly reasonable. But I don’t know if I’m entirely comfortable with a ruling that denies class certification based largely on the fact that the defendant maintained its business records in a way that makes it tough to ascertain who is in a plaintiff class. Seems like a bad incentive.
Affirmed.
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