HomeMy WebLinkAbout2019-13625
TAYLOR WOOLEY, : IN THE COURT OF COMMON PLEAS OF
KRISTINA SAGE, LISA : CUMBERLAND COUNTY, PENNSYLVANIA
KNOTT, and CASSIDY :
ALLISON, individually and on :
behalf of all persons similarly : CIVIL ACTIONMEDICAL PROFESSIONAL
situated, : LIABILITY ACTION
Plaintiffs :
: CLASS ACTION
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
IN RE: PLAINTIFFNOTICE
BEFORE HYAMS, J.
OPINION and ORDER OF COURT
1
For disposition in this medical professional liability action is a motion filed by
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Plaintiffs for class notice. This matter was argued on May 4, 2022.
For the reasons stated in this opinion, Plainion will be granted, subject to
certain conditions.
STATEMENT OF FACTS
August 14, 2020, may be summarized as follows. While in the employ of Defendants, a
certain hospital emergency room nurse surreptitiously videotaped more than 200 adult
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and minor female patients in various states of undress. In the course of this conduct, the
1
See Second Amended Class Action Complaint, file
Amended Complaint).
2
Plaintiffs Motion for Class Notice Pursuant to Pa.R.C.P. 1712, filed December 21, 2021 (hereinafter
ion for Class Notice).
3
ded Complaint, ¶¶1, 9, 11, 20-21.
1
letely remove clothing when there was no reason
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The conduct resulted in direct and vicarious liability on the part of Defendants
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to the affected patients. Premises for direct liability include negligent hiring, training,
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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.
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As the result of a motion filed by Plaintiffs for class certification, the following
order was issued by the court:
AND NOW, this 29th day of October, 2021, upon consideration of
Motion for Class Certification, filed May 13, 2021, as modified, following oral argument
on 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
Pennsylvania Office of Attorney Ge
possessed images and/or videos of them created at UPMC-
Carlisle.
4
Pla
5
PlaintiffSecond Amended Complaint, Counts I and II.
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Amended Complaint, ¶57.
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Answer and New Matter to Pecond Amended Class Action Complaint \[of Defendant UPMC\],
¶¶66-68, filed October 22, 2020; Answer and New Matter to PlaintiffSecond Amended Class Action
Complaint \[of Defendant UPMC Pinnacle\], ¶¶66-68, filed October 22, 2020; Answer and New Matter to
Plction Complaint \[of Defendant UPMC Carlisle\], ¶¶66-68, filed
October 22, 2020.
8
Plaintiffs Motion for Class Certification, filed May 13, 2021.
2
3. This case shall be bifurcated on liability and causation/damages. The case shall
initially proceed to trial on a class basis regarding UP
and thereafter, if UPMC is found liable, the Court will work with the parties to schedule
trials for individuals regarding causation and the 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 the 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
ims shall continue as
class-members only. The caption is hereby amended to reflect same.
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7. Andreozzi + Foote is appointed Class Counsel.
Plaintiffs motion for class notice sub judice was filed on December 21, 2021. It
notes that the class in this case has been defined as \[a\]ll 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 Pennsylvania Office of Attorney
GeAGossessed images and/or videos of them created at
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UPMC-Carlisle. It further notes that this class consists of 206 persons, of whom 51
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have been identified, leaving 155 unidentified. It appears that the identities of the latter
individuals are not ascertainable through orthodox investigative techniques, which have
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included a press release by the office of the Pennsylvania Attorney General; however,
according to the attorney generals office, \[s\]ome of the . . . \[the nurses confiscated\]
videos and/or images \[of as yet unidentified individuals\] contain identifying
characteristics of the Jane Doe victims which would allow the PA \[Office of Attorney
9
Order of Court, dated October 29, 2021 (Hyams, J.)
10
Plaintiffs Motion for Class Notice, ¶17 (emphasis added).
11
Plaintiffs Motion for Class Notice, ¶22.
12
Plaintiffs Motion for Class Notice, ¶24.
13
See Plaintiffs Motion for Class Notice, Exhibit A (affidavit of deputy attorney general).
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General\] to potentially identify these individuals should they come forward believing
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they were a victim.
The period of employment of the nurse in question in the emergency department
of the hospital where the alleged offenses are said to have occurred was from July 1,
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2017 to April 19, 2019. Of this period, his precise hours of employment have been
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determinable only from May 1, 2018, to April 17, 2019. During those hours, 3,805
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different females were processed in the emergency department.
Plaintiff proposes a notice of the class action to the 51 individuals identified as
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alleged victims, sent by e-mail and to last known addresses, in the following form:
CLASS ACTION NOTICE
YOU ARE RECEIVING THIS NOTICE BECAUSE YOU HAVE BEEN
IDENTIFIED AS SOMEONE RECORDED BY MICHAEL D. BRAGG
WHILE YOU WERE A PATIENT AT UPMC-CARLISLE
BETWEEEN JULY 2017 AND APRIL 2019
This Notice Contains Important Information About Your Legal Rights
What is this about?
On December 18, 2019, the Pennsylvania Office of Attorney General (OAG) announced criminal
charges against former UPMC-Carlisle nurse Michael D. Bragg (Bragg) related to secret videos Bragg
allegedly created of women in the UPMC-Carlisle emergency room.
On December 27, 2019, several women identified by the OAG as Bragg victims filed a class action
lawsuit in Cumberland County, Pennsylvania against UPMC, UPMC-Pinnacle, and UPMC-Carlisle
(UPMC) on behalf of all women similarly situated. The class action lawsuit alleges UPMC is legally
responsible for Braggs conduct. On October 29, 2021, the Court of Common Pleas of Cumberland
County granted class certification. The Court of Common Pleas also ordered that notice be sent to
women identified by the OAG as a victim of Bragg. You are one of these individuals.
What does this mean for me?
Because you were identified by the OAG as someone Bragg recorded at UPMC-Carlisle, you are
considered a member of the class action lawsuit unless you affirmatively opt-opt within sixty days of
receiving this notice. In other words, you are part of the lawsuit until you tell the Court you do not want to
participate.
14
Plaintiffs Motion for Class Notice, ¶27 and Exhibit A affidavit of deputy attorney general).
15
See Plaintiffs Motion for Class Notice, Exhibit D (joint stipulated facts).
16
See Plaintiffs Motion for Class Notice, Exhibit D (joint stipulated facts), Exhibit L (deposition of Jo
Evans, RN) and Exhibit N (answer to interrogatory).
17
See Plaintiffs Motion for Class Notice, Exhibit N (answer to interrogatory).
18
Plaintiffs Motion for Class Notice, ¶43 and Exhibit F (proposed class action notice).
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Do I have to do anything? What lawyer represents me as a class member?
The law firm of Andreozzi + Foote has been appointed as class counsel, meaning until you opt-out of the
class action, Andreozzi + Foote represents you for purposes of your legal claim against UPMC related to
Bragg. You should contact Andreozzi + Foote as soon as possible. Call (717) 525-9124, e-mail
nate@vca,law, or visit victimscivilattorneys.com for more information about Andreozzi + Foote and this
case. You can also write to Andreozzi + Foote at 4503 North Front Street, Harrisburg, PA 17110.
What are my options?
As stated above, unless you affirmatively opt-out within sixty days of receiving this notice, you will
be a member of the class and thus part of the lawsuit. In other words, you are part of this lawsuit until
you tell the Court you do not want to participate. This is important, because if you fail to opt out, things
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that occur in the class action case will impact your legal rights.
It is suggested that this notice be accompanied by a Class Opt-Out Form,
reading as follows:
CLASS OPT-OUT FORM
I hereby wish to opt-out of the class action certified by this Court on October 29, 2021
related to Michael Bragg.
Print Name: _________________
Signature: _________________
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Date: _________________
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The following form of notice, to be sent to last known addresses, is proposed by
Plaintiffs to the aforesaid 3,805 individuals processed in the emergency department
during the nurses hours on duty from May 1, 2018, to April 17, 2019:
CLASS ACTION NOTICE
YOU ARE RECEIVING THIS NOTICE BECAUSE YOU HAVE BEEN
IDENTIFIED AS SOMEONE WHO OVERLAPPED WITH MICHAEL
D. BRAGG WHILE YOU WERE A PATIENT AT UPMC-CARLISLE
BETWEEN MAY 1, 2O18 AND APRIL 17, 2019
THIS NOTICE CONTAINS IMPORTANT INFORMATION
ABOUT YOUR LEGAL RIGHTS
1. What is this about?
On December 18, 2019, the Pennsylvania Office of Attorney General (OAG)
announced criminal charges against former UPMC-Carlisle nurse Michael D. Bragg
(Bragg) related to secret videos Bragg allegedly created of women in the UPMC-
Carlisle emergency room.
19
Plaintiffs Motion for Class Notice, Exhibit F (proposed class action notice).
20
Plaintiffs Motion for Class Notice, prayer for relief and Exhibit Q.
21
Plaintiffs Motion for Class Notice, prayer for relief.
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On December 27, 2019, several women identified by the OAG filed a class action
lawsuit in Cumberland County, Pennsylvania against UPMC, UPMC-Pinnacle, and
UPMC-Carlisle (UPMC) on behalf of all women similarly situated, alleging UPMC is
legally responsible for Braggs conduct. On October 29, 2021, the Court of Common
Pleas of Cumberland County granted class certification. The Court of Common Pleas
ordered that notice be sent to women who are, or may be, part of the class lawsuit against
UPMC related to Bragg. You are one of the women who was treated in UPMC Carlisles
emergency department when Bragg was working between May 1, 2018, and April 17,
2019.
2. What does this mean for me?
During the lawsuit, you have been identified as someone who was a patient at UPMC
Carlisles ER on a date and time Bragg worked in the ER. You have not yet been
identified as someone Bragg recorded. However, as of now, some of the individuals
recorded by Bragg have not been identified by the OAG. It is possible you are one of
these individuals.
To determine if you were impacted by Bragg and are thus a member of the class
action lawsuit, call the OAG Child Predator Hotline at 800-385-1044. The OAG will
work with you to determine if you were a victim of Bragg.
Once identified, you should receive an additional notice from UPMC with information
regarding how to opt-out. If you are identified by the OAG as someone Bragg recorded at
UPMC-Carlisle, you are considered a member of the class action lawsuit unless you
affirmatively opt-out of the case. In other words, once you are identified by the OAG,
you are part of the lawsuit until you tell the Court you do not want to participate.
3. Do I have to do anything else? What lawyer represents me if I am a class
member?
The law firm of Andreozzi + Foote has been appointed as class counsel, meaning if the
OAG identifies you as a victim, until you opt-out of the class action Andreozzi + Foote
represents you for purposes of your legal claim against UPMC related to Bragg. Call 833-
201-3825 for more information about Andreozzi + Foote and this case. Andreozzi +
Foote will initially refer you to the OAG for determination if you are a victim. Until
that occurs, you are not a class member nor a client of Andreozzi + Foote.
4. What are my options? Do I have to participate?
You do not have to call the OAG if you chose not to. Also, if the OAG does not identify
you as a Bragg victim, you are not part of the case. However, if you call the OAG hotline,
and are identified as a Bragg victim, unless you affirmatively opt-out, you will be a
member of the class and thus part of the lawsuit. In other words, all identified Bragg
victims are part of the lawsuit until they tell the court you do not want to participate. You
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have the right to opt out if you so choose.
22
Plaintiffs Motion for Class Notice, Exhibit P (proposed class action notice).
6
23
In an answer to Plaintiffs motion for class notice, Defendants argue that (a)
\[n\]either the Pennsylvania Rules of Civil Procedure nor due process require that
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unidentified class members receive direct, individual notice, (b) Plaintiffs plan of
direct notice to a simultaneously over-inclusive and under-inclusive list of patients is
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improper, (c) \[t\]he possibility of identifying additional victims of Michael Bragg is
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based only on speculation, and (d) \[t\]his Honorable Court should adopt a notice plan
consisting of direct notice to identified victims sent by Plaintiffs counsel and notice by
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publication to any remaining unidentified victims.
DISCUSSION
Statement of law. With respect to class notice, Pennsylvania Rule of Civil
Procedure 1712 provides as follows:
(a) After the entry of the order of certification and after hearing the parties with
respect to the notice to be given, the court shall enter a supplementary order which shall
prescribe the type and content of notice to be used and shall specify the members to be
notified. In determining the type and content of notice to be used and the members to be
notified, the court shall consider the extent and nature of the class, the relief requested,
the cost of notifying the members and the possible prejudice to be suffered by members
of the class or by other parties if notice is not received. The court may designate in the
notice a person to answer inquiries from, furnish information to or receive comments
from members or potential members of the class with respect to the notice.
(b) The court may require individual notice to be given by personal service or by
mail to all members who can be identified with reasonable effort. For members of the
class who cannot be identified with reasonable effort or where the court has not required
individual notice, the court shall require notice to be given through methods reasonably
calculated to inform the members of the class of the pendency of the action. Such
methods may include using a newspaper, television or radio or posting or distributing
through a trade, union or public interest group.
(c) The notice shall be prepared by and given at the expense of the plaintiff in the
manner required by the order. A proposed form of notice shall be submitted for approval
to the court and to all named defendants, who may file objections thereto within ten days.
23
Response in Opposition to Plaintiffs Motion for Class Notice Pursuant to Pa. R.C.P. 1712, filed
January 20, 2022 (hereinafter Defendants Answer to Plaintiffs Motion for Class Notice).
24
Defendants Answer to Plaintiffs Motion for Class Notice, at 6-11.
25
DefendantsAnswer to Plaintiffs 11-16.
26
DefendantsAnswer to Plaintiffs 16-19.
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DefendantsAnswer to Plaintiffstion for Class Notice, at 19-22.
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The court may require a defendant to cooperate in giving notice by taking steps which
will minimize the plaintiff's expense including the use of the defendant's established
methods of communication with members of the class, provided, however, that any
additional costs thereby incurred by the defendant shall be paid by the plaintiff.
(d) If a defendant asserts a counterclaim against a plaintiff class or subclass, the
expense of a combined notice of the plaintiff's claim and of the defendant's counterclaim
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shall be allocated between the parties as the court may order.
This rule contemplates the adoption of the best practicable means of
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accomplishing actual notice to members of the class. In this regard, the notice
must provide minimal procedural due process protection. The plaintiff must receive
notice plus an opportunity to be heard and participate in the litigation, whether in person
or through counsel. The notice must
all the circumstances, to apprise interested parties of the pendency of the action and
. . . The notice should describe
the action and the plaintiffs' rights in it. Additionally, . . . due process requires at a
minimum that an absent plaintiff be provided with an opportunity to remove himself from
court. Finally, the Due Process Clause of course requires that the named plaintiff at all
times adequately represent the interests of the absent class members. . . .
Phillips Petroleum co. v. Shutts, 472 U.S. 797, 811-812, 105 S. Ct. 2965, 2974, 86 L. Ed.
2d 628, ___ (1985) (citations omitted). However, \[a\]ctual receipt of notice is not the
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measure of the constitutionality of the notice method employed, and there is some
federal authority for the proposition that belatedly identified class members may retain
some rights to relief. Walney v. SWEPI LP, 2017 WL 319801 (W.D. Pa. Jan. 23, 2017).
Under federal practice, if the names and addresses of the persons to be provided
notice are ascertainable (not just readily available), then specific notice is to be provided
to each of them by first class mail. Higgins v. Public School Employes Retirement
System, 736 A.2d 745, 753 (Pa. Cmwlth. Ct. 1999 (emphasis added). In some cases, a
combination of individual notice to identifiable class members combined with notice by
publication may be appropriate. See What constitutes best notice practicable, required
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Pa. R.C.P. 1712 (Order. Notice of Action).
29
See Prince George Center, Inc. v. U.S. Gypsum Co., 704 A.2d 141, 148 (Pa. Super. Ct. 1997).
30
Prince George Center, Inc. v. U.S. Gypsum Co., 704 A.2d 141, 148 (Pa. Super. Ct. 1997) (citation
omitted).
8
by Rule 23(c)(2) of Federal Rules of Civil Procedure, in class actions brought under Rule
23(b)(3), 32 A.L.R. Fed. 102, §6 (1977).
The federal Health Insurance Portability and Accountability Act of 1996 provides
that a covered entity may not disclose protected health information, except as permitted
or required by the regulations. U.S. v. Jafari, 648 Fed. Appendix. 226, 231 n.5 (3rd Cir.
2016). The term covered entities is defined to include . . . health care providers. . . .
Protected health information includes all individually identifiable health information
maintained or transmitted in any form, as well as any oral statement made about medical
treatment or conditions. . . . Generally, HIPPA \[sic\] prohibits the use and disclosure of an
individual's protected health information unless the individual has authorized its use and
disclosure. U.S. v. Elliott, 676 F. Supp. 2d 431, 436-37 (D. Md. 2009).
However, otherwise protected health information may be disclosed by a covered
entity without the consent of a patient in the course of any judicial . . . proceeding . . . in
response to an order of court, provided that the covered entity discloses only the
protected health information expressly authorized by such order . . . . 45 C.F.R.
§164.512(e)(i).
Application of law to facts. Without suggesting that the issue presented is without
difficulty, the court is of the view that several factors militate in favor of Plaintiffs
position. First, the class as designated in this action includes both known and unknown
individuals. Second, the unknown individuals in the class represent three fourths of its
membership, the identities of some of that group can potentially be ascertained if they
subject themselves to review, and direct notice to all such persons whose membership in
the class accrued during the major period of its generation is not unfeasible. Third, an
official solicitation to the general public has not previously materially advanced the
search for such persons. Fourth, otherwise protected health information under the federal
Health Insurance Portability and Accountability Act of 1996 can be disclosed pursuant to
court order for good reason. Fifth, and most importantly, the provision of notice of the
class action is for the benefit of the class members.
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Furthermore, it appears to the court that a form of direct notice to the group
containing potentially ascertainable class members can be fashioned in a way that is not
unduly alarming or confusing to the recipients. It also appears, however, that a
willingness on the part of the Office of the Pennsylvania Attorney General to participate
in the process as proposed by Plaintiffs is essential to its efficacy.
Accordingly, the following order will be entered (a) approving in principle the
process of notice proposed by Plaintiffs, involving direct notice to known class members,
direct notice to a group containing potentially ascertainable class members, and notice by
publication to class members in general, and (b) scheduling a hearing to establish the
precise forms of notice in each case, to afford the Office of the Pennsylvania Attorney
General an opportunity to indicate its position as to the plan, to designate the entity which
will transmit the notices, and to designate the points and frequency of publication.
ORDER OF COURT
th
AND NOW, this 20 day of June, 2022, upon consideration of Plaintiffs Motion
for Class Notice Pursuant to Pa.R.C.P. 1712, filed December 21, 2021, following oral
argument held on May 4, 2022, and for the reasons stated in the accompanying opinion, it
is ordered and directed as follows:
1. Plaintiffs motion is granted to the extent that notice to known and
unknown members of the class of plaintiffs in this action shall be provided
(a) directly by e-mail and last known addresses to known members of the
class, (b) directly by mail to the last known addresses of other persons in
the group of 3,085 known individuals whose treatment in the emergency
department associated with Defendants coincided with the hours of duty of
nurse Michael D. Bragg, and (c) by publication to members of the class in
general; provided, that this adoption of Plaintiffs notification scheme is
conditioned upon the courts approval of the forms of notice to be utilized,
the willingness of the Office of the Pennsylvania Attorney General to
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cooperate in the process, and designation of the entity responsible for
transmission of the notices and the point(s)and frequencyof publication;
2.A hearing is scheduled forThursday, September8, 2022 at 1:00
p.m. in Courtroom No. 7of the Cumberland CountyCourthouseto address
the matters referred to in the aboveproviso;and
3.Plaintiffs shall serve a copy of this order and accompanying
opinion upon the appropriate counsel in the Office of the Pennsylvania
Attorney General to facilitate that officeparticipation in the said hearing,
andshallfile a proof of serviceof the same.
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
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
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Hubert X. Gilroy, Esq.
MARTSON LAW OFFICES
10 East High Street
Carlisle, PA 17013
Attorney for Defendants
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