HomeMy WebLinkAbout2019-13625
TAYLOR WOOLEY; RUTH : IN THE COURT OF COMMON PLEAS OF
HORICK; KRISTINA SAGE; : CUMBERLAND COUNTY, PENNSYLVANIA
LISA KNOTT; and, K.F., a :
Minor, by A.F., Guardian; C.A., :
a Minor, by K.A., Guardian; :
G.S., a Minor, by L.W., : CIVIL ACTIONMEDICAL PROFESSIONAL
Guardian; L.B., a Minor, by : LIABILITY ACTION
M.B., Guardian; and F.B., a :
Minor, by M.B., Guardian; : CLASS ACTION
individually and on behalf :
of all persons similarly :
situated, :
Plaintiffs :
:
v. :
:
UPMC; UPMC PINNACLE; :
and, UPMC CARLISLE, d/b/a :
UPMC PINNACLE CARLISLE, :
d/b/a PINNACLE HEALTH :
CARLISLE REGIONAL :
MEDICAL CENTER, :
Defendants : NO. 2019-13625 CIVIL TERM
BEFORE HYAMS, J.
OPINION and ORDER OF COURT
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For disposition in this medical professional liability action is a motion filed by
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Plaintiffs for class certification. The parties have submitted a stipulation of facts on the
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issue, and the matter was argued on September 28, 2021.
For the reasons stated in this opinion, Plain.
1
See
Amended Complaint).
2
Plaintiffs Motion for Class Certification, filed May 13,
Certification).
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Joint Stipulated Facts for Purposes of Class Certification Hearing, filed September 27, 2021.
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STATEMENT OF FACTS
August 14, 2020, may be summarized as follows. While in the employ of Defendants
from January, 2016, to April 19, 2019, a certain hospital emergency room nurse
surreptitiously videotaped more than 200 adult and minor female patients in various
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phases of undress. In the course of this conduct, the nurse directed female patients to
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The conduct resulted
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in direct and vicarious liability on the part of Defendants to the affected patients.
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Premises for direct liability include negligent hiring, training, policies and supervision.
I second amended complaint, Defendants assert, inter alia,
that
66. Plaintiffs have failed to state a claim for negligence upon which relief may be
granted against th\[e\] defendant.
67. Th\[e\] defendant pleads that, without admitting any liability, the alleged
damages and injuries, if any, were caused by intervening and/or superseding causes.
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part, by the conduct of persons or entities other than th\[e\] defendant and over whom th\[e\]
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defendant exercised no control and/or for whom th\[e\] defendant cannot be legally liable.
reads as follows:
I. BACKGROUND ON MICHAEL BRAGG
as hired as a registered
nurse by Pinnacle Health Carlisle Regional Medical Center,
which became UPMC Carlisle, effective July 1, 2017.
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-21.
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Pla
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plaint \[of Defendant UPMC\],
¶¶66-68, file
Complaint \[of Defendant UPMC Pinnacle\], ¶¶66-68, filed October 22, 2020; Answer and New Matter to
f Defendant UPMC Carlisle\], ¶¶66-68, filed
October 22, 2020.
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2. Bragg was so employed until Bragg was terminated from
his position on April 19, 2019.
nurse on the dates and times attached hereto as Exhibit A
April 19, 2019.
II. BACKGROUND ON PLAINTIFFS
4. All but one of the putative Plaintiffs received medical
treatment in the Emergency Department of UPMC Carlisle
between July 1, 2017 and April 19, 2019.
within the emergency Department was secretly recorded by
Bragg.
6. Bragg recorded these medical encounters using a hidden
camera device.
7. the hidden camera device used by Bragg was the property
of Bragg.
III. INVESTIGATION BY THE PENNSYLVANIA ATTORNEY GENERAL (AS
SET FORTH IN THE DISCLOSURES BY THE PENNSYLVANIA OFFICE OF
ATTORNEY GENERAL
8. On April 19, 2019, the Pennsylvania Office of Attorney
Michael Bragg for all computer hardware belonging to Bragg.
9. While examining
warrant, the PA OAG discovered secretly recorded videos of
hospital patients in various stages of undress at UPMC Carlisle.
10. On April 19, 2019, investigators from the PA OAG
appeared at UPMC Carlisle with a war
work locker. The investigators performed a thorough search of
evidence.
11. Although the PA OAG estimated that approximately 200
UPMC Carlisle patients were illegally recorded by Bragg, the
PA OAG was able to identify 51 of these individuals.
12. The UPMC Defendants have never taken possession of
13. The PA OAG exclusively managed and oversaw the law
enforcement investigation reg
Carlisle.
14. The UPMC Defendants provided the PA OAG with all
assistance that was requested.
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15. Employees of UPMC Pinnacle and/or UPMC Carlisle
met with the PA OAG on three separate occasions to attempt to
identify individuals recorded by Bragg.
16. Thereafter, the PA OAG undertook to affirmatively
identify and notify each potential victim.
17. The PA OAG showed all but one representative Plaintiff
18. The videos illegally recorded by Michael Bragg have at
all times remained in the exclusive custody and control of the
PA OAG.
19. On December 27, 2019, UPMC Pinnacle/Carlisle sent a
letter to each of the 50 of the UPMC Carlisle patients identified
including Plaintiffs.
20. Bragg was charged by the PA OAG with criminal counts
related to his conduct at UPMC Carlisle. The charges are
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pending in this Court at CP-21-CR-0000885-2020.
sub judice was filed on May 13, 2021,
and has since been effectively modified to limit the request for certification to the issue of
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liability, bifurcating trial on that issue from trial on the issues of causation and damages.
An order to the following effect is requested by Plaintiffs:
1. The Court certifies this matter as a class action.
2. The class is defined as:
All individuals, known and/or unknown, who were recorded
and/or photographed by Michael D. Bragg within UPMC-
Carlisle between July 1, 2017 and May 1, 2019. Individuals are
qualified for class membership only after they have been
mages and/or videos of them
created at UPMC-Carlisle.
3. This case shall be bifurcated on liability and damages. The case shall initially
thereafter, if UPMC is found liable, the Court will work with the parties to schedule trials
for individual class members regarding the extent of their damages and injuries, and
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Joint Stipulated Facts for Purposes of Class Certification Hearing, filed September 27, 2021.
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See
2021.
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causation thereof. Discovery shall be similarly bifurcated into a liability phase, and a later
damages phase after a liability trial.
4. Every member of the class shall be included in the matter as a class member
unless by sixty (60) days from date of the mailing of class notice the individual class
member files of record a written election to be excluded from the class pursuant to Pa.
R.C,.P. 1711.
5. Plaintiffs shall file a motion pursuant to Pa. R.C.P. 1712 regarding class notice
within sixty (60) days from the date of the entry of this Order.
6. Cassidy Allison, Lisa Knott, Kristina Sage, and Taylor Wooley are appointed
class-members only. The caption is hereby amended to reflect same.
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7. Andreozzi + Foote is appointed Class Counsel.
As noted, an argument on Plain
September 28, 2021. At this proceeding, Plaintiffs were represented by Nathaniel L.
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Foote, Esq., and Defendants were represented by John C. Conti, Esq.
In the oral argument, counsel for the parties primarily focused primarily on issues
as to the emergency room operation
pon which liability was premised,
was common to members of the proposed class, and predominated over other issues. He
also drew attention to the prospect of inconsistent adjudications on the same factual
predicate in the absence of a class certification on the issue of liability.
maintained that
\[t\]his class certification should be denied because there are individual questions relating
to negligence, to causation, and damages which predominate over class questions.
Plaintiff has failed to satisfy the elements of commonality, predominance or typicality,
and the key is this: personal injury lawsuits, as the phrasing implies, are personal to the
individual plaintiff. The cases rest on a fact-
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proposed order, filed August 12,
2021.
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A transcript of this argument has not been prepared as of the filing of this opinion.
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DISCUSSION
Statement of law. With respect to class actions, Pennsylvania Rule of Civil
Procedure 1702 provides as follows:
One or more members of a class may sue or be sued as representative parties on
behalf of all members in a class action only if
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or
defenses of the class;
(4) the representative parties will fairly and adequately assert and protect the
interests of the class . . . ; and
(5) a class action provides a fair and efficient method for adjudication of the
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controversy . . . .
For purposes of the fifth prerequisite (fair and efficient method of adjudication),
(1) whether common questions of law or fact predominate over any question
affecting only individual members;
(2) the size of the class and the difficulties likely to be encountered in the
management of the action as a class action;
(3) whether the prosecution of separate actions by or against individual members
of the class would create a risk of
(i) inconsistent or varying adjudications with respect to
individual members of the class which would confront the
party opposing the class with incompatible standards of
conduct;
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Pa. R.C.P. 1702 (Prerequisites to a Class Action) (emphasis added).
For purposes of the fourth prerequisite for certification (fair and adequate representation), the court
is to consider
(1) whether the attorney for the representative parties will fairly and adequately assert and
protect the interests of the class,
(2) whether the representative parties have a conflict of interest in the maintenance of the class
action, and
(3) whether the representative parties have or can acquire adequate financial resources to
assure that the interests of the class will not be harmed.
Pa. R.C.P. 1709 (Criteria for Certification. Determination of Fair and Adequate Representation).
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(ii) adjudications with respect to individual members of the
class which would as a practical matter be dispositive of the
interests of other members not parties to the adjudications or
substantially impair or impede their ability to protect their
interests;
(4) the extent and nature of any litigation already commenced by or against
members of the class involving any of the same issues;
(5) whether the particular forum is appropriate for the litigation of the claims of
the entire class;
(6) whether in view of the complexities of the issues or the expenses of litigation
the separate claims of individual class members are insufficient in amount to support
separate actions;
(7) whether it is likely that the amount which may be recovered by individual
class members will be so small in relation to the expense and effort of administering the
action as not to justify a class action.
Pa. R.C.P. 1708 (Criteria for Certification. Determination of Class Action as Fair and
Efficient Method of Adjudication) (emphasis added).
,in the context of class action certification, has been discussed by
the Pennsylvania Supreme Court in the following terms:
To establish the commonality requirement, \[a movant must\] identify common
questions of law and fact . . . Simply contending that all
putative members of a class have a complaint is not sufficient if the complaints are
disparate personal allegations arising from different circumstances and requiring different
evidence, i.e., quiring more, the one not indicative of the
. . . Commonality
. . . The critical inquiry for the certifying court is whether the material
facts and issues of law are substantially the same for all class members. . . The court
should be able to envision that the common issues could
one claimant would be proof a
Samuel-Bassett v. Kia Motors America, Inc., 613 Pa. 371, 408-09, 3 A.3d 1, 22 (2011)
(citations omitted).
by the Court as follows:
. . . The purpose of the typicality requirement is
representative's overall position on the common issues is sufficiently aligned with that of
the absent class members to ensure that \[his or\] her pursuit of \[his or\] her own interests
will advance those of the proposed class members. . . . Typicality exists if the class
representative's claims arise out of the same course of conduct and involve the same legal
theories as those of other members of the putative class. . . . The requirement ensures
that the legal theories of the representative and the class do not conflict, and that the
interests of the absentee class members will be fairly represented. . . . But, typicality
does not require that the claims of the representative and the class be identical, and the
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met despite the existence of factual distinctions between the claims
Samuel-Bassett v. Kia Motors America, Inc., 613 Pa. 371, 421-22, 3 A.3d 1, 30-31 (2011)
must be clear and must be such that the interests of the
Klusman v. Bucks County Court of Common
Pleas, 128 Pa. Cmwlth. 616, 625, 564 A.2d 526, 531 (1989).
as follows:
\[A movant is\] not required to prove that the claims of all class members \[are\]
ation. . . .
The common questions of fact and law merely must predominate over individual
questions. Pa.R.C.P. No. 1708(a)(1). The standard for showing predominance is more
demanding than that for showing commonality, . . . but is not so strict as to vitiate
Pennsylvania's policy favoring certification of class actions. . . .
cohesive to warrant adjudication by representation. . . . Thus, a class consisting of
members for whom most essential elements of its cause or causes of action may be
proven through simultaneous class-wide evidence is better suited for class treatment than
one consisting of individuals for whom resolution of such elements does not advance the
interests of the entire class. See . . . Delaware County v. Mellon Fin. Corp., 914 A.2d
469, 475 (Pa.Cmwlth.2007) (exi
claims does not foreclose class certification) . . . .
Samuel-Bassett v. Kia Motors America, Inc., 613 Pa. 371, 409, 3 A.3d 1, 23 (2011) (some
citations omitted). n be clearly identified, varying
amounts of damage among the plaintiffs will not preclude class certification. . . Cook v.
Highland Water and Sewer Authority, 108 Pa. Cmwlth. 222, 233, 530 A.2d 499, 505
(1987) (citation omitted).
n important social device that makes possible the effective
Bell v. Beneficial
Consumer Discount Co., 241 Pa. Super. 192, 205, 360 A.2d 681, 688 (1976).
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in favor of maintaining a c
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case . . . any error . . . should be committed in favor of allowing the class action,
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Bell v. Beneficial Consumer Discount Co., 241 Pa. Super. 192, 205, 360 A.2d 681, 688 (1976).
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Esplin v. Hirschi, 402 F.2d 94, 101 (10th Cir. 1968), quoted with approval in Cambanis v. Nationwide
Insurance Company, 348 Pa. Super. 41, 45, 501 A.2d 635, 637 (1985).
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to review the matter during the course of the
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proceeding. Thus, al
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Cambanis v.
Nationwide Insurance Company, 348 Pa. Super. 41, 45, 501 A.2d 635, 637 (1985).
The moving party need only present evidence sufficient to make out a prima
facie case from which the court can conclude that the five class certification requirements
are met.
Board v. SEPTA, 14 Pa. D. & C.5th 301, 307, 2010 WL 4556975, at __ (Philadelphia
County 2010) (citations omitted).
In Trujillo v. City of Ontario, 428 F. Supp. 2d 1094 (E.D. Cal. 2006), where a
video recorder was installed in a
surreptitiously recorded persons therein in various states of undress, a federal district
court in a civil action against the municipality, supervisors, officer who ordered the
videotaping, and private person who installed the camera granted class action
certification, with the following description of membership in the class to be represented:
\[A\]ll persons Police Department or
volunteered for the . . . Department, used the Department's men's locker room during the
period in which the surveillance equipment was installed, and were recorded by the
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surveillance equipment.
Finally, bifurcation of issues in class action certifications is expressly authorized.
Thus, Pennsylvania Rule of Civil Procedure 1710 provides that
\[w\]hen appropriate, in certifying . . . a class action the court may order that . . . the action
be maintained as a class action limited to particular issues . . . .
Pa. R.C.P. 1710(c)(1); see Samuel-Bassett v. Kia Motors America, Inc., 613 Pa. 371, 420-
21, 3 A.3d 1, 29 (2011) (noting option of bifurcated trials for liability and damages).
Application of law to facts. In this case, the prerequisites for class action
certification as they relate to numerosity and capacity of the representative parties to
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See Pa. R.C.P 1710 (Order Certifying or Refusing to Certify a Class Action. Revocation. Amendment.
Findings and Conclusions).
17
Cambanis v. Nationwide Insurance Company, 348 Pa. Super. 41, 45, 501 A.2d 635, 637 (1985).
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Trujillo v. City of Ontario, 428 F. Supp. 2d 1094, 1097 (E.D. Cal. 2006),
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fairly and adequately protect the interests of the class do not appear to be in dispute. The
claims of the representative parties appear to be typical of the claims of the class, and
allegedly irresponsible facilitation of
misconduct and vicarious responsibility related to
inappropriate actions are common to the class. These questions are predominant, in the
liability, and separate adjudications on them for
individual members of the proposed class would almost certainly confront Defendants
with incompatible standards of conduct. A limitation of the class certification to the issue
of liability will obviate, to a large degree, concerns expressed by Defendants that tend to
discourage class certification in perso
motion, thus limited, will be consistent with
actions where appropriate.
Accordingly, pursuant to Pennsylvania Rule of Civil Procedure 1710(a), the
following Findings of Fact, Conclusions of Law, and Order of Court are found and made,
and will be entered:
FINDINGS OF FACT
Purposes of Class Certification Hearing are adopted by the court;
2. The class of allegedly injured parties in this case is so numerous
that joinder of all members is impracticable;
common to the class exist in the case; and these predominate over any
question affecting only individual members, on that issue;
4. The claims of the representative parties are typical of the claims of
the class;
5. A class action provides a fair and efficient method for
adjudication of the controversy on the issue of liability in this case under
the criteria set forth in Pennsylvania Rule of Civil Procedure 1708; and
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to the issue of liability, would create a substantial risk of inconsistent
adjudications with respect to individual members of the class which would
confront the parties opposing the class with incompatible standards of
conduct.
CONCLUSIONS OF LAW
1. The court has jurisdiction over the parties and controversy herein.
2. Plaintiffs have met their burden of proof with respect to class
certification in this case, limited to the issue of liability.
ORDER OF COURT
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AND NOW, this day of October, 2021, upon consideration of
for Class Certification, filed May 13, 2021,asmodified, following oral argumenton
September 28, 2021, and for the reasons stated in the accompanying opinion, it is ordered
and directed as follows:
1. The Court certifies this matter as a class action, limited to the issue of
liability.
2. The class is defined as:
All individuals, known and/or unknown, who were recorded
and/or photographed by Michael D. Bragg within UPMC-
Carlisle between July 1, 2017 and May 1, 2019. Individuals
are qualified for class membership only after they have been
informed by the PennsylvaniaOffice of Attorney General
them created at UPMC-Carlisle.
3. This case shall be bifurcated on liability and causation/damages. The case
shall initially proceed to trial on a class basis regarding UP
with the parties to schedule trials for individualsregarding causation and the
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extent of their damages and injuries,if any.Discovery shall be similarly
bifurcated into a liability phase, and a later causation/damages phase after a
liability trial.
4. Every member of the class shall be included in the matter as a class member
unless by sixty (60) days from thedate of the mailing of class notice the
individual class member files of record a written election to be excluded from the
class pursuant to Pa. R.C.P. 1711.
5. Plaintiffs shall file a motion pursuant to Pa. R.C.P. 1712 regarding class
notice within sixty (60) days from the date of the entry of this Order.
6. Cassidy Allison, Lisa Knott, Kristina Sage, and Taylor Wooley are
shall continue as class-members only. The caption is hereby amended to reflect
same.
7. Andreozzi + Foote is appointed Class Counsel.
BY THE COURT,
_______________
Carrie E. Hyams, J.
DISTRIBUTION:
Benjamin D. Andreozzi, Esq.
Nathaniel L. Foote, Esq.
Veronica N. Hubbard, Esq.
ANDREOZZI + FOOTE
4503 North Front Street
Harrisburg, PA 17110
Attorneys for Plaintiffs
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John C. Conti, Esq.
Grant W. Cannon, Esq.
Steven L. Ettinger, Esq.
Cassandra L. Boyer, Esq.
DICKIE, McCAMEY & CHILCOTE, P.C.
Suite 400
Two PPG Place
Pittsburgh, PA 15222-5402
Attorneys for Defendants
Hubert X. Gilroy, Esq.
MARTSON LAW OFFICES
10 East High Street
Carlisle, PA 17013
Attorney for Defendants
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