IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2019 Term

_______________

No. 18-0841

_______________

STATE OF WEST VIRGINIA ex rel. WEST VIRGINIA UNIVERSITY 

HOSPITALS, INC., AND WEST VIRGINIA UNITED HEALTH SYSTEM, INC.,

Petitioners

v.

THE HONORABLE PHILLIP D. GAUJOT, JUDGE OF THE CIRCUIT COURT 

OF MONONGALIA COUNTY, CHRISTOPHER THOMACK, AND JOSEPH 

MICHAEL JENKINS,

Respondents

____________________________________________________________

ORIGINAL PROCEEDING IN PROHIBITION

WRIT GRANTED AS MOULDED

____________________________________________________________

Submitted: February 5, 2019

Filed: June 5, 2019

Marc E. Williams, Esq.

Alexander L. Turner, Esq.

Christopher D. Smith, Esq.

Nelson Mullins Riley & Scarborough 

LLP

Huntington, West Virginia

Christine S. Vaglienti, Esq.

West Virginia University Hospitals, Inc.

Morgantown, West Virginia

Counsel for the Petitioners

David E. Goddard, Esq.

Edmund L. Wagoner, Esq.

Goddard & Wagoner

Clarksburg, West Virginia

Christopher J. Regan, Esq.

Laura P. Pollard, Esq.

Bordas & Bordas PLLC

Wheeling, West Virginia

David J. Romano, Esq.

Jennifer L. Finch, Esq.

FILED

June 5, 2019

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
Romano Law Offices

Clarksburg, West Virginia

Counsel for Christopher Thomack and 

Joseph Michael Jenkins, on their own 

behalf and on behalf of all similarly 

situated persons consisting of a class of 

aggrieved persons

JUSTICE ARMSTEAD delivered the Opinion of the Court.

CHIEF JUSTICE WALKER, deeming herself disqualified, did not participate.

JUSTICE WORKMAN, deeming herself disqualified, did not participate.

JUDGE REEDER, sitting by temporary assignment.

JUDGE REGER, sitting by temporary assignment.
i

SYLLABUS BY THE COURT

1. “A class action may only be certified if the trial court is satisfied, after 

a thorough analysis, that the prerequisites of Rule 23(a) of the West Virginia Rules of Civil 

Procedure have been satisfied.” Syl. Pt. 8 (in part), State ex rel. Chemtall Inc. v. Madden, 

216 W. Va. 443, 607 S.E.2d 772 (2004) (italics added).

2. For purposes of Rule 23(a)(2) of the West Virginia Rules of Civil 

Procedure [2017], “a ‘question’ ‘common to the class’ must be a dispute, either of fact or 

of law, the resolution of which will advance the determination of the class members’

claims.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 369, 131 S. Ct. 2541, 2562, 180 L. 

Ed. 2d 374 (2011) (Ginsburg concurring in part and dissenting in part) (emphasis added).

3. For commonality to exist under Rule 23(a)(2) of the West Virginia 

Rules of Civil Procedure [2017], class members’ “claims must depend upon a common 

contention[,]” and that contention “must be of such a nature that it is capable of classwide 

resolution[.]” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350, 131 S. Ct. 2541, 2551, 

180 L. Ed. 2d 374 (2011). In other words, the issue of law (or fact) in question must be

one whose “determination . . . will resolve an issue that is central to the validity of each 

one of the claims in one stroke.” Id. (emphasis added).
ii

4. “When a circuit court is evaluating a motion for class certification 

under Rule 23 of the West Virginia Rules of Civil Procedure [1998], the dispositive 

question is not whether the plaintiff has stated a cause of action or will prevail on the merits, 

but rather whether the requirements of Rule 23 have been met.” Syl. Pt. 7, In re W. Va.

Rezulin Litig., 214 W. Va. 52, 585 S.E.2d 52 (2003).

5. Determining whether the requirements of Rule 23 of the West Virginia 

Rules of Civil Procedure [2017] have been met often involves, by necessity, some 

“coincidental” consideration of the merits. Gariety v. Grant Thornton, LLP, 368 F.3d 356, 

366 (4th Cir. 2004). 

6. “[C]lass determination generally involves considerations that are 

enmeshed in the factual and legal issues comprising the plaintiff[]s[’] cause of action.” 

Comcast Corp. v. Behrend, 569 U.S. 27, 34, 133 S. Ct. 1426, 1432, 185 L. Ed. 2d 515 

(2013) (cleaned up).

7. “Merits questions may be considered to the extent—but only to the 

extent—that they are relevant to determining whether the Rule 23 prerequisites for class 

certification are satisfied.” Amgen Inc. v. Connecticut Ret. Plans & Tr. Funds, 568 U.S. 

455, 466, 133 S. Ct. 1184, 1195, 185 L. Ed. 2d 308 (2013).

8. When consideration of questions of merit is essential to a thorough 

analysis of whether the prerequisites of Rule 23 of the West Virginia Rules of Civil 
iii

Procedure [2017] for class certification are satisfied, failing to undertake such 

consideration is clear error and an abuse of discretion.
1

Armstead, Justice:

This case is before the Court on a petition for writ of prohibition. 

Respondent Phillip D. Gaujot, Judge of the Circuit Court of Monongalia County, certified 

a class action against Petitioners, West Virginia University Hospitals, Inc. (“WVUH”), and 

West Virginia United Health System, Inc. (“WVUHS” and, together with WVUH, the

“Hospitals”). Judge Gaujot named Respondents Christopher Thomack and Joseph 

Michael Jenkins as lead plaintiffs. The Hospitals later moved to decertify the class, and

Judge Gaujot denied their motion. The Hospitals believe that Judge Gaujot erred, and they 

ask this Court to prohibit him from conducting any further proceedings until he has vacated 

his order denying their motion to decertify the class.

Based on the record before us, the arguments of the parties, and the 

applicable law, we find that the circuit court exceeded its jurisdiction by failing to conduct 

a sufficiently thorough analysis of whether the commonality required for class certification

under Rule 23 of the West Virginia Rules of Civil Procedure is present. Accordingly, we

grant the writ of prohibition as moulded, vacate the circuit court’s order denying the 

Hospitals’ motion to decertify the class, and remand this case for further actions consistent 

with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 2012, Mr. Thomack and Mr. Jenkins were injured in separate accidents. 

They were treated at Ruby Memorial Hospital. Each hired an attorney to seek damages for 

his injuries, and each attorney requested copies of his client’s medical records. Mr. 
2

Thomack alleges that WVUHS charged his attorney $514.40 for his medical records. Mr. 

Jenkins says that WVUHS charged his attorney $656.80. WVUHS arrived at these fees by 

charging “40 cents per page” plus an additional $10.00 fee for “[p]rocessing.” WVUHS 

charged by the page, though it provided the records as images on a computer disc. 

Mr. Thomack and Mr. Jenkins believe that these fees were illegal. On 

January 18, 2013, Mr. Thomack sued WVUH in the Circuit Court of Monongalia County.

1

 

Later, on June 27, 2013, Mr. Jenkins sued WVUHS2in the Circuit Court of Harrison 

County. Each plaintiff sued individually and as the (would be) representative of a class of 

similarly situated persons. Their cases were subsequently consolidated in the Circuit Court 

of Monongalia County.

On or about January 9, 2014, after consolidation, Mr. Thomack and Mr. 

Jenkins filed a consolidated and amended class action complaint against the Hospitals in 

the Circuit Court of Monongalia County. The consolidated complaint’s central allegation 

is that the Hospitals violated W. Va. Code § 16-29-2(a) [1999] by “charg[ing] Plaintiffs 

$0.40 ‘per page’ for copies of their already existing medical records[.]” 

In October 2013—before consolidation—Mr. Thomack moved for class 

certification under Rule 23. The Hospitals opposed the motion in a memorandum filed in 

March 2014, after consolidation. They argued that a “fact intensive, case-by-case analysis 

 

1 Mr. Thomack’s case was removed to the United States District Court for 

the Northern District of West Virginia, but the case was remanded to the Circuit Court of 

Monongalia County in October 2013.

2 Mr. Jenkins sued other parties as well, but those parties and his claims 

against them are not relevant to this case.
3

. . . will be required to determine whether the fees imposed by WVUH and paid by each 

class member were, in fact, reasonable or unreasonable.” They supported this argument

with an affidavit from Melissa Martin, WVUH’s director of health information 

management and chief privacy officer. In her affidavit, Ms. Martin described a variety of 

“electronic and/or physical storage systems” that must be searched when WVUH responds 

to a records request. 

Ms. Martin also described what happens after the records have been located. 

She reported that medical records “are extracted and copied into a production system[.]”3 

Then “a WVUH technician manually inspects the document bundle to ensure that the 

production complies with the scope of the request and that no images are duplicates or 

illegible.” She explained that this inspection process “can be very time consuming” 

because mental health information enjoys special protection and may be embedded in other 

records. Because of this concern, employees must actually “read the medical records” 

(emphasis added). Once this inspection is complete, WVUH counts the number of images 

and invoices the person who requested them. When WVUH receives payment, it saves the 

assembled records to a computer disc and conducts a further inspection to ensure that the 

records have been properly saved to the disc.

 

3 Paper records are produced as hard copies “or scanned into [an electronic 

storage system], then extracted from [the electronic storage system] and downloaded into 

a production system for electronic production.” Electronic records that “cannot be 

extracted electronically” are either printed and produced as hard copies or produced 

electronically, using a similar process of printing, scanning, extracting, and downloading.
4

The parties argued the certification motion on March 31, 2014. Mr. Thomack 

and Mr. Jenkins emphasized the Hospitals’ uniform charging practices and claimed the 

Hospitals were trying to “offset” their “search cost by charging 40 cents a page[.]” They 

proposed that an expert could determine the Hospitals’ “actual cost” of producing medical 

records. In arguing this, Mr. Thomack and Mr. Jenkins seemed to assume that the 

Hospitals’ actual cost could be determined on some basis—seemingly a “rate” per page—

that would allow liability to be shown by a simple comparison with the Hospitals’ fee per 

page. On their theory of the case, “whether or not [the Hospitals] are actually overcharging, 

that’s a merits issue.”

The Hospitals argued that commonality was “the crux of this case” and urged 

the circuit court to “look at . . . the kind of proof that’s going to be necessary for [the class 

plaintiffs] to prevail.” They conceded that “all” had been “charged 40 cents a page and a 

$10 search fee[,]” yet they believed that commonality remained absent. According to them,

deciding the case would require “look[ing] at each individual request [for medical records] 

and determin[ing] under the circumstances for the records that have been produced and the 

charges that were made, is that reasonable[?]” These arguments suggested to the circuit 

court that the Hospitals had strayed “into the subject matter of the lawsuit[,]” and the court 

agreed with Mr. Thomack and Mr. Jenkins that, at the certification stage, there was no need 

for them to show that they could “prevail on the merits[.]”

On April 16, 2014, the circuit court entered an order certifying a class of:

All individuals who have requested copies of their medical 

records from [the Hospitals] . . . , and their related entities, at 
5

any time during the five (5) years preceding the filing of this 

lawsuit, and who paid the fees charged by the [Hospitals] . . . ,

and their related entities, to obtain their medical records.

The court certified the class as to the claims raised in the consolidated 

complaint and noted that “the reasonableness of the forty (40) cents per page charged to 

patients” is “[t]he most significant issue” and one that “is common to every member of the 

class and dominates the litigation as a whole.” The court also found “a common issue of 

fact” in “the uniform nature of Defendants’ [pricing] policy[.]” 

The order expressly dismissed the Hospitals’ objections and factual claims, 

interpreting them as an argument about damages. According to the court, the Hospitals 

“argue that the Plaintiffs’ claims will be subject to individualized inquiries, as a result of 

the varying amounts charged to each individual to produce medical records” (emphasis 

added). The Hospitals’ assertion was wrong, according to the court, “because the claims 

are based on a readily identifiable, standard calculation of forty (40) cents per page.” These 

individual showings, the court held, “address the damages, and do not affect the underlying 

common issues regarding whether the charges are permissible under the applicable 

statute” (emphasis added).4

 

4 On June 25, 2014, the Hospitals challenged the circuit court’s certification 

order in a petition for writ of prohibition filed with this Court. We entered a summary 

order refusing the petition on August 26, 2014. State ex rel. W. Va. Univ. Hosp., Inc. v. 

Gaujot, No. 14-0611 (Aug. 26, 2014).
6

The circuit court revised the class definition in a subsequent order entered on 

November 12, 2015. The court clarified that the term “individuals” included both

“individual patients” and a “representative requesting records on behalf of the patient, if 

the patient could ultimately be held responsible to pay the cost[.]”

5

In 2017, we issued two decisions6that, according to the Hospitals, undercut 

the circuit court’s class certification decisions. The Hospitals moved to decertify the class, 

advancing a new argument that Mr. Jenkins7lacked standing because he had yet to 

reimburse his attorney for the cost of obtaining his medical records.8 They also renewed 

their attack on commonality, arguing that establishing “liability under W. Va. Code §16-

29-2 [would] require[] an individualized analysis of the amount WVUH charged each class 

member versus the amount [WVUH] actually expended to compile the class member’s 

records.”

Mr. Thomack and Mr. Jenkins responded that Mr. Jenkins had, indeed, 

“reimbursed his attorney” and that, for purposes of certification, standing on the part of a 

class representative is sufficient. Regarding commonality, they contended that each 

 

5 The circuit court also modified the window of time that determined 

membership in the class based on amendments to W. Va. Code §§16-29-1 and -2 that 

became effective on June 6, 2014.

6 State ex rel. Healthport Techs., LLC v. Stucky, 239 W. Va. 239, 800 S.E.2d 

506 (2017) (addressing standing); and State ex rel. Erie Ins. Prop. & Cas. Co. v. Nibert, 

No. 16-0884, 2017 WL 564160 (W. Va. Feb. 13, 2017) (memorandum decision)

(addressing commonality).

7 This argument did not apply to Mr. Thomack, because his deposition 

indicated that this cost was deducted from his personal injury settlement.

8 The Hospitals further argued that the words “if the patient could ultimately 

be held responsible to pay the cost” made the class unascertainable. 
7

member of the class had experienced “the same harm . . .—paying more for copies of their 

medical records than [the Hospitals] were permitted to charge” and that this harm “ar[ose] 

out of the same wrongful conduct—[the Hospitals’] systematic charging of a per-page 

amount, plus a maximum search fee, despite the actual costs incurred . . . in producing the 

requested copies.” They reiterated that “[a]ny ‘individualized’ finding is simply the 

calculation of the extent to which the charges were excessive[.]”

The circuit court heard oral argument on December 13, 2017. The Hospitals 

captured the essence of this case when their attorney observed, “we, frankly, have a 

disagreement as to what that statute means[.]” He explained,

Under the plaintiffs’ theory, we’re only allowed to recover the 

actual cost. So how do we determine that? We have to do an 

individualized assessment of what it took to pull the records 

from Mr. Thomack, the records from Mr. Jenkins, and how 

much it cost us to do that, and then compare that to what we 

charged them. . . .

This is the precise type of individualized 

determination for liability purposes which is not allowed under 

the commonality requirement[.]9

In response, Mr. Thomack and Mr. Jenkins accused the Hospitals of 

“argu[ing] the merits before we even get there” and challenged the Hospitals’ right to 

demand individual proof when they had “charged a flat rate to everybody.” Mr. Thomack 

 

9 The Hospitals also offered their own competing interpretation of W. Va. 

Code §16-29-2(a) [1999], which “is that . . . you can charge up to a certain thing and that’s 

a safe harbor, and as long as you don’t exceed the [sic] up to a certain cost in the statute, 

you’re okay.” The Hospitals do not appear, however, to have asked the circuit court to 

embrace their interpretation, and we take no position on whether it is or is not correct.
8

and Mr. Jenkins professed to have “experts that will . . . look at [the Hospitals’] system and 

say, I don’t care how you did it, this would be the amount[.]” 

The circuit court denied the Hospitals’ motion to decertify the class in an 

order entered on February 23, 2018. In the order, the court seemed to agree that the 

Hospitals’ uniform charging policy was “in direct violation of the” statute’s directive “to 

only charge the reasonable amount incurred to reimburse [the Hospitals] for the production 

of the records.” The Court again dismissed the Hospitals’ concerns about the need for 

individualized proof of liability. “Any ‘individualized’ finding is simply the calculation of 

the extent to which the charges were excessive” (emphasis added). According to the court, 

every plaintiff “claimed the same damages . . . , which is the difference between the amount 

that he or she was charged for copies . . . [and] the amount that was incurred by Defendants 

to produce them.” 

The circuit court did, however, determine that the class definition should be 

further modified to “includ[e] attorneys who have requested and paid for medical records 

on behalf of their patient clients” (emphasis in original). Pursuant to this determination, 

the circuit court entered a further order on July 5, 2018 that identified the class as follows:

Any person[] who, from January 18, 2008 until June 5, 2014,

(1) requested in writing copies of patient medical records from 

[WVUH], including the individual patient and any person who 

was an authorized agent or authorized representative of the 

patient through legal representation; and

(2) paid the fees charged by [WVUH] to obtain such requested 

medical records.
9

The Hospitals filed this petition for a writ of prohibition on October 1, 2018, 

challenging the circuit court’s February 23, 2018 order refusing to decertify the class.10 

Mr. Thomack and Mr. Jenkins filed a “summary response” on October 31, 2018.11

II. STANDARD OF REVIEW

Generally, “[t]his Court will review a circuit court’s order granting or 

denying a motion for class certification pursuant to Rule 23 of the West Virginia Rules of 

Civil Procedure [1998] under an abuse of discretion standard.” Syl. Pt. 1, In re W. Va.

Rezulin Litig., 214 W. Va. 52, 585 S.E.2d 52 (2003). However, the Hospitals are seeking 

a writ of prohibition,12 and we have said that “[a] writ of prohibition will not issue to 

prevent a simple abuse of discretion by a trial court. It will only issue where the trial court 

 

10 The Hospitals also challenge an August 9, 2018 order of the circuit court

that refused to accord preclusive effect to the settlement order in Guida v. Wierton Med. 

Ctr., Inc., No. 01-C-57 (Brooke Cty. Cir. Ct. Oct. 28, 2003). Guida required the Hospitals 

to charge “forty (40) cents per page, together with a fee not to exceed $10 per request” for 

the seven-year period from December 1, 2003, to December 1, 2010. Id. at 12. Because

we grant the writ as moulded on other grounds, we need not consider whether the circuit 

court erred.

11 In their response, and in an accompanying motion, Mr. Thomack and Mr. 

Jenkins begged “leave to submit full, substantive briefing” if this Court elected to hear oral 

argument on the writ petition. This request was improper. The West Virginia Rules of 

Appellate Procedure authorize respondents to file either the full response directed by Rule 

16(g) or the summary response permitted by Rule 16(h). Cf. W. Va. R. App. P. 16(g) and 

(h) [2010]. Rule 16(h) is clear that a summary response is filed “[i]nstead of a response[.]” 

W. Va. R. App. P. 16(h) (emphasis added). Thus, when Mr. Thomack and Mr. Jenkins 

elected to file a summary response, they waived their right to file a full response.

12

“‘An order denying class action standing under Rule 23 of the West 

Virginia Rules of Civil Procedure may be appealed by the party who asserts such class 

standing.’ Syllabus point 6, Mitchem v. Melton, 167 W.Va. 21, 277 S.E.2d 895 [1981]. 

Conversely, an order awarding class action standing is also reviewable, but only by writ of 

prohibition.” Syl. Pt. 2, McFoy v. Amerigas, Inc., 170 W. Va. 526, 295 S.E.2d 16 (1982).
10

has no jurisdiction or having such jurisdiction exceeds its legitimate powers.” Syl. Pt. 1, 

State ex rel. Healthport Techs., LLC v. Stucky, 239 W. Va. 239, 800 S.E.2d 506 (2017)

(cleaned up). When a petitioner claims that a circuit court has exceeded its powers, our 

test is:

(1) whether the party seeking the writ has no other adequate 

means, such as direct appeal, to obtain the desired relief; (2) 

whether the petitioner will be damaged or prejudiced in a way 

that is not correctable on appeal; (3) whether the lower 

tribunal’s order is clearly erroneous as a matter of law; (4) 

whether the lower tribunal’s order is an oft repeated error or 

manifests persistent disregard for either procedural or 

substantive law; and (5) whether the lower tribunal’s order 

raises new and important problems or issues of law of first 

impression. 

Syl. Pt. 4 (in part), State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996); 

see also Rezulin, 214 W. Va. at 62, 585 S.E.2d at 62. “These factors are general guidelines 

that serve as a useful starting point[.]” Id. While we need not find that all factors are 

present, we attach “substantial weight” to the factor that asks “whether the lower tribunal’s 

order is clearly erroneous as a matter of law[.]” Id. With these considerations in mind, we 

turn to the Hospitals’ petition.

III. ANALYSIS

The Hospitals argue that the class lacks the features of commonality and 

ascertainability required by Rule 23 of the West Virginia Rules of Civil Procedure. They 

also contend that the class, as defined, includes people who lack standing to participate in 

the class action. The Hospitals assert that all five Hoover factors weigh in favor of granting 

their requested writ. Foremost, according to the Hospitals, is the fact that they “have no 
11

other way of challenging the trial court’s denial of their Motion to Decertify Class.” We 

agree with the Hospitals that whether commonality exists for this class is “the crux of this 

case[.]” We proceed to consider that question now.

“Before certifying a class under Rule 23 of the West Virginia Rules of Civil 

Procedure [1998],13 a circuit court must determine that the party seeking class certification 

has satisfied all four prerequisites contained in Rule 23(a)—numerosity, commonality, 

typicality, and adequacy of representation[.]” Syl. Pt. 8 (in part), Rezulin, 214 W. Va. 52, 

585 S.E.2d 52 (emphasis added).

14

 Whether these prerequisites exist is a matter left to the

circuit court’s “sound discretion[,]” and we have said that “doubtful case[s] should be 

resolved in favor of allowing class certification.” Syl. Pt. 5, Rezulin, 214 W. Va. 52, 585 

S.E.2d 52 (cleaned up); and Rezulin, 214 W. Va. at 65, 585 S.E.2d at 65.

That does not mean, however, that certification determinations are 

perfunctory. The plaintiff or defendant who proposes certification bears the burden of

proving that certification is warranted. Syl. Pt. 4, Rezulin, 214 W. Va. 52, 585 S.E.2d 52. 

The circuit court must give careful consideration to whether the party has met that burden. 

“A class action may only be certified if the trial court is satisfied, after a thorough analysis, 

that the prerequisites of Rule 23(a) of the West Virginia Rules of Civil Procedure have been 

 

13 We amended Rule 23 on March 8, 2017, while the consolidated action was 

pending. The amendment added subsection (f) (residual funds) and is not relevant to the 

parties’ dispute. In re: Adoption of Amendment to Rule 23, Class Actions, of the West 

Virginia Rules of Civil Procedure, No. 16-Rules-18 (March 8, 2017).

14 Additional prerequisites are listed in Rule 23(b). Id.; and W. Va. R. Civ. 

P. 23(b) [2017].
12

satisfied.” Syl. Pt. 8 (in part), State ex rel. Chemtall Inc. v. Madden, 216 W. Va. 443, 607 

S.E.2d 772 (2004) (italics added). “[F]ailure to conduct a thorough analysis . . . amounts 

to clear error.” Chemtall, 216 W. Va. at 454, 607 S.E.2d at 783. It is also an abuse of 

discretion. Brown v. Nucor Corp., 785 F.3d 895, 902 (4th Cir. 2015) (“A district court 

abuses its discretion when it materially misapplies the requirements of Rule 23.”). The 

circuit court must approach certification decisions in a conscientious, careful, and 

methodical fashion.

As noted above, commonality is an essential criterion of class certification. 

We have observed that “[t]he ‘commonality’ requirement of Rule 23(a)(2) of the West 

Virginia Rules of Civil Procedure [1998] requires that the party seeking class certification 

show that ‘there are questions of law or fact common to the class.’” Syl. Pt. 11 (in part), 

Rezulin, 214 W. Va. 52, 585 S.E.2d 52. “The threshold of ‘commonality’ is not high, and 

requires only that the resolution of common questions affect all or a substantial number of 

the class members.” Id. “A common nucleus of operative fact or law is usually enough[.]” 

Id.

In this case, the circuit court found common questions of law and fact in the 

Hospitals’ uniform practice of charging forty cents per page (or per image) for medical 

records. Mr. Thomack and Mr. Jenkins’s case turns on the core allegation that the

Hospitals’ uniform charging practice violated W. Va. Code § 16-29-2(a) [1999]. At all

relevant times, section 2(a) said that a health care provider:

shall be reimbursed . . . for all reasonable expenses incurred in 

complying with this article: Provided, That the cost may not 
13

exceed seventy-five cents per page for the copying of any 

record or records which have already been reduced to written 

form[,] and a search fee may not exceed ten dollars.

Id.

However, not everything that may be loosely called a “question of fact” is 

sufficient to meet Rule 23’s “threshold” of commonality. Indeed, “a ‘question’ ‘common 

to the class’ must be a dispute, either of fact or of law, the resolution of which will advance 

the determination of the class members’ claims.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 

338, 369, 131 S. Ct. 2541, 2562, 180 L. Ed. 2d 374 (2011) (Ginsburg concurring in part 

and dissenting in part) (emphasis added). 

Similarly, it is not enough for Mr. Thomack and Mr. Jenkins to allege that 

they and others like them are victims of the same statutory violation. For commonality to 

exist, class members’ “claims must depend upon a common contention[,]” and that 

contention “must be of such a nature that it is capable of classwide resolution[.]” State ex 

rel. Erie Ins. Prop. & Cas. Co. v. Nibert, No. 16-0884, 2017 WL 564160, at *6 (W. Va. 

Feb. 13, 2017) (memorandum decision) (quoting Wal-Mart, 564 U.S. at 350, 131 S. Ct. at 

2551, 180 L. Ed. 2d 374). In other words, the issue of law (or fact) in question must be

one whose “determination . . . will resolve an issue that is central to the validity of each 

one of the claims in one stroke.” Id. (emphasis added). This is not a new doctrine. While 

a capacity to resolve “common questions” may be the “only” thing that commonality 

requires, commonality requires at least that much. Syl. Pt. 11 (in part), Rezulin, 214 W. 

Va. 52, 585 S.E.2d 52 (“The threshold of ‘commonality’ is not high, and requires only that
14

the resolution of common questions affect all or a substantial number of the class 

members.” (emphasis added)). 

In this case, the determination of commonality necessarily required a review 

of the alleged harm suffered by the plaintiffs. This, in turn, would require at least an initial 

review of the merits. “When a circuit court is evaluating a motion for class certification 

under Rule 23 of the West Virginia Rules of Civil Procedure [1998], the dispositive 

question is not whether the plaintiff has stated a cause of action or will prevail on the merits, 

but rather whether the requirements of Rule 23 have been met.” Syl. Pt. 7, Rezulin, 214 

W. Va. 52, 585 S.E.2d 52. However, determining whether the requirements of Rule 23 of 

the West Virginia Rules of Civil Procedure [2017] have been met often involves, by 

necessity, some “coincidental” consideration of the merits. Gariety v. Grant Thornton, 

LLP, 368 F.3d 356, 366 (4th Cir. 2004) (“The analysis under Rule 23 must focus on the 

requirements of the rule, and if findings made in connection with those requirements 

overlap findings that will have to be made on the merits, such overlap is only 

coincidental.”) The United States Supreme Court has observed that “class determination 

generally involves considerations that are enmeshed in the factual and legal issues 

comprising the plaintiff[]s[’] cause of action.” Comcast Corp. v. Behrend, 569 U.S. 27, 

34, 133 S. Ct. 1426, 1432, 185 L. Ed. 2d 515 (2013) (cleaned up). Our prior certification 

decisions bear that out. See, e.g., Chemtall, 216 W. Va. at 455, 607 S.E.2d at 784; Ways v. 

Imation Enterprises Corp., 214 W. Va. 305, 314, 589 S.E.2d 36, 45 (2003). 
15

“Merits questions may be considered to the extent—but only to the extent—

that they are relevant to determining whether the Rule 23 prerequisites for class 

certification are satisfied.” Amgen Inc. v. Connecticut Ret. Plans & Tr. Funds, 568 U.S. 

455, 466, 133 S. Ct. 1184, 1195, 185 L. Ed. 2d 308 (2013). We hold that when 

consideration of questions of merit is essential to a thorough analysis of whether the 

prerequisites of Rule 23 of the West Virginia Rules of Civil Procedure [2017] for class 

certification are satisfied, failing to undertake such consideration is clear error and an abuse 

of discretion.

Mr. Thomack and Mr. Jenkins believe—and the circuit court agreed with 

them—that the Hospitals’ uniform charging practices violated W. Va. Code § 16-29-2(a)

[1999]. They concede that some individualized proof may be necessary to determine 

damages, but they believe that the core issue of liability may be determined by aggregate 

proof. The Hospitals repeatedly challenged this assertion. On their reading of the statute,

individualized proof will be necessary to determine not just damages but liability itself. 

According to them, each separate request for medical records will have to be examined to 

determine whether the Hospitals charged more than “all reasonable expenses incurred in 

complying with [the statute.]” Id. Whether each charge for medical records exceeded the 

Hospitals’ actual “reasonable expenses incurred” raises questions that relate to both

liability and, if liability is determined, the amount of the damages incurred. The statute is 

framed such that liability and damages are two sides of the same coin, and we fail to see 

how a plaintiff could prove that a charge exceeded actual expenses, thus, establishing 
16

liability, without also proving by how much the charge exceeded actual expenses, and 

thereby establishing the amount of damages.

It may be, as the Hospitals contend, that the statute demands that “all 

reasonable expenses incurred” be determined on a per-request basis. While this is a 

question on the merits for the circuit court to determine, the Martin affidavit suggests that 

“all reasonable expenses incurred” to produce 1,000 pages (or images) of medical records 

for one person might be different from “all reasonable expenses incurred” to produce the 

same quantity of medical records for another person. In that case, a charge of $40015 might 

be lawful for one request and unlawful for another. The fact that the Hospitals charged all 

class members by the page (or by the image) does not change the statute or the fact that the 

statute’s terms define the boundary between lawful and unlawful charges.

These are questions that must be decided in the first instance by the circuit 

court. On the record before us, it does not appear that the circuit court has addressed the 

question of commonality with sufficient factual findings and conclusions to allow us to 

conclude that its certification decision and subsequent refusal to decertify the class were 

the product of “a thorough analysis[.]” Syl. Pt. 8 (in part), Chemtall, 216 W. Va. 443, 607 

S.E.2d 772.

The Hospitals repeatedly challenged Mr. Thomack and Mr. Jenkins’s claim 

that commonality could be found in the Hospitals’ uniform charging practices and in the 

 

15 This would be the charge for 1,000 pages (or images) at forty cents per 

page.
17

Hospitals’ alleged violation of W. Va. Code § 16-29-2(a) [1999]. Yet the circuit court 

persisted in finding commonality without ever truly addressing the Hospitals’ arguments

or indicating with clarity the rationale for such findings. Accordingly, and for the reasons 

set forth above, we grant the Hospitals’ writ of prohibition and vacate the circuit court’s 

order denying the Hospitals’ motion to decertify the class.

Because we grant the writ as moulded and vacate the circuit court’s order, 

we need not consider the Hospitals’ other grounds for seeking a writ of prohibition.

IV. CONCLUSION

For the foregoing reasons, we conclude that the circuit court has exceeded its 

legitimate powers by certifying the class while failing to conduct a sufficiently thorough 

analysis of the case to determine whether the commonality required for class certification

under Rule 23 of the West Virginia Rules of Civil Procedure is present. Upon remand, we 

urge the circuit court to determine whether the requirements of Rule 23, particularly as they 

relate to commonality, have been met and, if so, to craft a class definition consistent with 

such findings.16

 

16 We would note some concerns about the circuit court’s July 5, 2018 order 

defining a class of plaintiffs that includes attorneys who requested their clients’ medical 

records and “paid the fees[.]” The order would appear to mean that an attorney who 

requests and pays for a client’s medical records (at least until such time, if any, that the 

client reimburses the attorney) would personally be a member of the class and, therefore, 

a litigant in the action. If so, are the attorney’s efforts for the attorney or the client? Such 

a scenario raises questions regarding ethical standards governing the attorney’s role in the 

litigation. See W. Va. R. Prof. Conduct 1.8(i) [2015] (“A lawyer shall not acquire a 

proprietary interest in the cause of action or subject matter of litigation the lawyer is 
18

Accordingly, the Hospitals’ writ of prohibition is granted as moulded, the 

circuit court’s order denying the Hospitals’ motion to decertify the class is vacated, and 

this case is remanded for further actions consistent with this opinion.

Writ granted as moulded.

 

conducting for a client[.]”). We believe that the question of whether attorneys who pay for 

their clients’ records should be included in any class should be given careful consideration 

if, after further proceedings below, the circuit court determines that Mr. Thomack and Mr. 

Jenkins’s consolidated claims satisfy the commonality and other requirements of Rule 23.