IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA January 201 9 Term

_______________ No. 18
- 0841

_______________ STATE OF WEST VIRGINIA ex rel. WEST VIRGINIA UNIVERSITY HOSPITALS, INC., AND WEST VIRGINIA UNITED HEALTH SYSTEM, INC. , Petitioner s

v. THE HONORABLE PHILLIP D. GAUJOT, JUDGE OF THE CIRCUIT COURT OF MONONGALIA COUNTY, CHRISTOPHER THOMACK, AND JOSEPH MICHAEL JENKINS , Respondent s

____________________________________________________________

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 Petitioner s 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 VIRGINIARomano Law Office s Clarksburg, West Virginia
C ounsel 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 37 4 (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. E d. 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 Lit ig. , 214 W. Va. 52, 585 S.E.2d 52 (2003).

5. D etermining whether the requir ements 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. “ M erits 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, 4 66, 133 S. Ct. 1184, 11 95, 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 Civiliii

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 . T he 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 de nying their motion to decertify the class.

Based on the record befo re 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 th is opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND In 2012, Mr. Thomack and Mr. Jenkins were injured in separate acc idents. They were treated at Ruby Memorial Hospital. Each hired an attorney to seek damages for his injuries , and each attorney request ed 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]ro cessing. ” 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 . O n January 18, 2013, Mr. Thomack sued WVUH in the Circuit Court of Monongalia County

. 1 Later, o n June 27, 2013, Mr. Jenkins sued WVUHS 2 in the Circuit Court of Harrison County. Each plaintiff sued individually and as the (would be) representative of a class of similarly situated persons . Thei r cases were subsequently consolidated in the Circuit Court of Monongalia County.

O n or about January 9, 2014, a fter con solid ation, Mr. Thomack and Mr.
Jenkins filed a consolidated and amended class action com plaint against the Hospitals in
the Circuit Cou rt 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 al ready 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 Circu it 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 d etermine whether the fees imposed by WVUH and paid by each class member were, in fact, reasonable or unreasonable.” The y supported this argument with an affidavit from Melissa Martin, WVUH’s director of health information management and chief privacy offi cer. 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 reporte d 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 illegibl e.” 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” (emp hasis 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 th e 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 downlo aded 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, an d downloading.4 The parties argu ed the certification motion on Marc h 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 Hospital s’ 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 overchar ging, that’s a merit s 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” h ad been “charged 40 cents a page and a $10 search fee[,]” yet they believed that commonality remained absent

. A ccording to them, deciding the case would require “ look [ing] at each individual request [fo r medical records] and determin[ing] under the circum stances 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, at5 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 consoli dated complaint and noted that “the reasonableness of the forty (40) cents per page charged to patients” is “[t]h e most signi ficant 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 Hospi tals’ 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 i ndividual 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 , th e 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 prohibit ion 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 re vised 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 decisions 6 that , according to the Hospitals, undercut the circuit court’s class certification decisions

. The Hospitals moved to decertify the class , advancing a new argument t hat Mr. Jenkins 7 lacked standing because h e had yet t o reimburse his attorney for the cost of obtaining his medical records. 8 They also renewed
the ir 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 comp ile the class member’s records.” Mr. Thomack and Mr. Jenkins responded that Mr. Jenkins had, indeed , “reimbursed his attorney” and t hat, 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 deter mined 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 e x 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 c ost” 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. T he 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 a ssessment 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 th e [sic] up to a certain cost in the statute, you’re okay.” The Hospitals do not appear , however, to have asked t he 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 ‘individ ualized’ finding is simply the calculation of
the extent to whi ch 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 charge d 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

o n 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 [WVU H] to obtain such requested medical records.9 The Hospitals filed this petition for a writ of prohibit ion 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 Co urt 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 w e have said that “[a] writ of prohibition will not issue to
prev ent a simple abuse of discretion by a trial court. It will only issue where the trial court

10 The Hospitals also challenge a n 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 gr ounds, we ne ed 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 req uest 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 cl ear that a summary response is filed “[ i ] nstead of a resp onse[.]” 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 w ho 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, 80 0 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 dis regard 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 cla ss lacks the features of c ommonality 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 weig h in favor of granting their requested writ. Foremost, according to the Hospitals, is the fact that they “have no11

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[. ]” W e 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,
5 85 S.E.2d 52 (emphasis added)

. 14 Whether these prerequisites exist is a matter left to the circuit court’s “sound discretion [ , ] ” and w e 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.
T he 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 satisfie d, 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 act ion was pending. The amendm ent 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 l isted 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 misappli es the requirements of Rule 23.”). The
circuit court must approach certification decisions in a conscientious, careful, and
methodical fashion.

As noted above, c ommonality 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 cir cuit court found common questions of law and fact in the Hosp ital s ’ uniform practice of charging forty cents per page (or per image) for medical
records. Mr. Tho mack 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 not13 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 e ver y thing 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 37 4 (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. E d. 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). Th is is no t a new doctrine. W hile

a capacity to resolve “common questions” may be the “only” thing that commonality requires, commonal ity 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 that14

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 Ru le 23 have been met.” Syl. Pt. 7, Rezulin , 214 W. Va. 52, 585 S.E.2d 52. However, d etermining whether the requir ements 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 “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). 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 “ M erits 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. ” Am gen Inc. v. Connecticut Ret. Plans & Tr. Funds , 568 U.S. 455, 4 66, 133 S. Ct. 1184, 11 95, 185 L. Ed. 2d 308 (2013)

. We hold that w hen 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
pr oof. T he Hospitals repeatedly challenge d this assertion . On their reading of the statute , individual ized proof will be necessary to determine not just damages but liability itself. According to them, each separate request for medical records will have t o be examined to
determine whether the Hospitals charged more than “ all reasonable expenses incurred in complying with [the statute

. ]” Id

. W hether 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, establishing16

liability, without also proving by h ow 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 determin ed 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 medi cal 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 $400 15 might be lawful for one request and unlawful for another. The fact t hat 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 firs t instan ce by the circuit
court. O n 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 decer tify the class w ere 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 Hosp itals’ 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’ argument s or indicating with clarity the rational e 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
l egitimate 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 pa ys 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 cli ent? 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 l itigation the lawyer is18 Accordingly, t he 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 remand ed 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 circu it court determines that Mr. Thomack and Mr. Jenkins’s consolidated claims satisfy the commonality and other requirement s of Rule 23.