United States Court of Appeals

Fifth Circuit

FILED

July 19, 2007

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 06-30573

_______________________

EILEEN MALDONADO; DARRYL SOIGNET, SR.; and

CAROL VERLANDER EISWIRTH, on Behalf of Themselves

and All Others Similarly Situated,

Plaintiffs-Appellants,

versus

OCHSNER CLINIC FOUNDATION,

Defendant-Appellee.

On Appeal from the United States District Court

for the Eastern District of Louisiana, New Orleans Division

No. 2:04-CV-2635

Before JONES, Chief Judge, and BENAVIDES and STEWART, Circuit

Judges.

EDITH H. JONES, Chief Judge:

Three appellants seek to represent a class of uninsured

patients who received treatment from Appellee Ochsner Clinic

Foundation (“Ochsner”) during a period of at least ten years. The

district court denied class certification. Finding no reversible

error of fact or law in the court’s careful and thorough

consideration of this case, we affirm. See Maldonado v. Ochsner,

237 F.R.D. 145 (E.D. La. 2006). Our opinion highlights the

essential grounds for affirmance.
1 The “chargemaster” is an exhaustive and detailed price list for each

of the thousands of services and items provided by Ochsner. 

2

I. BACKGROUND

Appellants received medical treatment from Ochsner, a

non-profit corporation receiving tax exemptions under 26 U.S.C.

§ 501(c)(3) and LA. REV. STAT. § 47:287:501, at a time in which they

were uninsured. They were then billed Ochsner’s standardized

“chargemaster”1 rates for their care. Because Ochsner offers

discounts from the standardized rates to patients with private

insurance plans, Medicare, or Medicaid, Appellants claim that the

undiscounted charges are unreasonable. 

Appellants sued Ochsner and the American Hospital

Association (“AHA”) in state court, alleging numerous state law

causes of action, including breach of contract. Appellants allege,

for instance, that by charging unreasonable rates, Ochsner violated

the contract entered into between Ochsner and the state of

Louisiana when Ochsner accepted tax exemptions as a charitable

organization. Appellants further contend that Ochsner violated

articles 2053 and 2055 of the Louisiana Civil Code, which require

charges in open price contracts to be equitable. See Grimaldi

Plumbing & Heating Co. v. Doucette, 414 So. 2d 832, 833 (La. App.

1982).

The defendants removed the case to federal court, where

AHA was voluntarily dismissed. Appellants then sought class

certification under Federal Rules of Civil Procedure 23(b)(2) or
3

(3). The proposed class would be composed of: “all persons who

received any form of health care treatment and were charged an

undiscounted amount for the services at Ochsner from September 1,

1993, through the date of commencement of class notice or entry of

judgment and who were uninsured at the time of treatment.” After

a hearing and briefing, the district court denied Appellants’

motion for class certification. This court subsequently granted

Appellants’ petition for permission to appeal. See FED. R. CIV. P.

23(f).

II. DISCUSSION

This court reviews a district court’s denial of class

certification for abuse of discretion. Bell Atl. Corp. v. AT&T

Corp., 339 F.3d 294, 301 (5th Cir. 2003). “Implicit in this

deferential standard is a recognition of the essentially factual

basis of the certification inquiry and of the district court’s

inherent power to manage and control pending litigation.” In re

Monumental Life Ins. Co., 365 F.3d 408, 414 (5th Cir. 2004)(quoting

Allison v. Citgo Petroleum Corp., 151 F.3d 402, 408 (5th Cir.

1998)). We review de novo whether the district court applied the

correct legal standards. Id.

To obtain class certification, parties must satisfy Rule

23(a)’s four threshold requirements, as well as the requirements of
2 We need not review the district court’s finding that Maldonado is not

a “typical” member or an adequate representative of the proposed class.

4

Rule 23(b)(1), (2), or (3). See Amchem Prods., Inc. v. Windsor,

521 U.S. 591, 613-14, 117 S. Ct. 2231, 2245 (1997). The party

seeking class certification bears the burden of establishing that

Rule 23 is appropriate. O’Sullivan v. Countrywide Home Loans,

Inc., 319 F.3d 732, 737-38 (5th Cir. 2003). The district court

must “conduct a rigorous analysis of the Rule 23 prerequisites

before certifying a class.” Id. at 738 (internal quotation marks

omitted).

A. Rule 23(a) 

Rule 23(a) requires initially that the proposed class

representatives demonstrate numerosity, commonality, typicality,

and adequacy of representation. FED. R. CIV. P. 23(a). The district

court found that Appellants generally satisfied this burden, see

Maldonado, 237 F.R.D. at 148-49, and Ochsner focuses its appeal on

Rule 23(b)’s requirements.2 We will assume arguendo that

Appellants meet the Rule 23(a) requirements. See Allison, 151 F.3d

at 411 n.2.

B. Rule 23(b)(2)

Class certification under Rule 23(b)(2) is appropriate if

the requirements of 23(a) are satisfied and:

the party opposing the class has acted or refused to act

on grounds generally applicable to the class, thereby

making appropriate final injunctive relief or

corresponding declaratory relief with respect to the

class as a whole.
5

FED. R. CIV. P. 23(b)(2). To qualify for class-wide injunctive

relief, class members must have been harmed in essentially the same

way, and injunctive relief must predominate over monetary damage

claims. Bolin v. Sears, Roebuck & Co., 231 F.3d 970, 975 (5th Cir.

2000). Additionally, the injunctive relief sought must be

specific. FED. R. CIV. P. 65(d); see also Ala. Nursing Home Ass’n

v. Harris, 617 F.2d 385, 387-88 (5th Cir. 1980).

Appellants cannot satisfy these standards. In addition

to monetary damages, Appellants seek an injunction requiring

Ochsner, in part, to provide them with “mutually affordable health

care” and to cease and desist charging them a higher amount than

that charged to insured patients. See Maldonado, 237 F.R.D. at

149-50. They have failed, however, to identify any way to

determine what a reasonable or “mutually affordable” rate is for

the wide variety of medical services offered by Ochsner.

The difficulty in specifying exactly what Appellants seek

from an injunction highlights the fact that individualized issues

here overwhelm class cohesiveness. See Allison, 151 F.3d at 414.

The amount patients were charged and the amount that is

“reasonable” for the services they received is necessarily an

individual inquiry that will depend on the specific circumstances

of each class member, the time frame in which care was provided,

and both Ochsner’s and other hospitals’ costs at that time.

See Howard v. Willis-Knighton Med. Ctr., 924 So. 2d 1245, 1263 (La.

App. 2006)(“reasonableness of charges inquiry requires individual
3 This is not a case where Ochsner charges one “insured” rate and one

“uninsured” rate. Cf. Monumental, 365 F.3d at 412 (insurance company charged

black policyholders a higher premium than white policyholders). There is no set

charge to which Appellants can point to as being the “reasonable” fee.

4 Among these are “prompt pay” discounts, charity care considerations,

discounts provided during the collection process, service discounts for

dissatisfied patients, and discounts pertaining to particular treatments.

5 Approximately eighty-three percent of the over 39,000 uninsured

patients treated by Ochsner during the proposed ten-year class period, including

Maldonado, paid nothing for their treatment. Many of the remaining seventeen

percent did not pay the full amount of the charges.

6

considerations that may include . . . the patient’s financial

status, the actual hospital services rendered, their customary

value, and the amount of a recovery from a third party”). Other

variables exist. The discount from the chargemaster rate paid by

Ochsner’s insured patients varies widely depending on the insurance

provider and the particular procedure involved.3 Similarly, the

amount paid by the class members themselves varies significantly,

as Ochsner offered numerous discounts to uninsured patients.4 In

fact, the vast majority of uninsured patients paid nothing,

5 making

it unclear what they would gain from an injunction. Appellants are

unable to explain how a court could define or enforce meaningful

injunctive relief.

Rule 23(b)(2) certification is also inappropriate when

the majority of the class does not face future harm. See Bolin,

231 F.3d at 978. Before suit was filed, Ochsner instituted an

automatic thirty-five percent discount to uninsured patients, on

top of the numerous other discounts already provided to uninsured

patients. An injunction prohibiting Ochsner from charging the
6 Pointedly, the named Plaintiffs are not at risk for future harm.

Since she initially received treatment, Maldonado returned to Ochsner, and,

despite receiving the thirty-five percent discount, has again paid nothing.

Soignet has received Medicare coverage since the filing of the suit, and Eiswirth

has switched to another hospital due to dissatisfaction with her Ochsner doctor.

7

“full” chargemaster rate in the future would be meaningless, while

an injunction requiring Ochsner to afford the discount that it has

instituted serves no purpose. This situation leaves monetary

claims for retrospective damages predominant in the case.

Therefore, the “declaratory relief [Appellants] seek serves only to

facilitate the award of damages,” and Rule 23(b)(2) certification

is improper.6 Id.

C. Rule 23(b)(3)

To gain class certification under Rule 23(b)(3), a

proposed class must satisfy Rule 23(a), and “[c]ommon questions

must ‘predominate over any questions affecting only individual

members’[,] and class resolution must be ‘superior to other

available methods for the fair and efficient adjudication of the

controversy.’” Amchem, 521 U.S. at 615, 117 S. Ct. at 2246

(quoting FED. R. CIV. P. 23(b)(3)). The predominance inquiry is

“more demanding than the commonality requirement of Rule 23(a)” and

requires courts “to consider how a trial on the merits would be

conducted if a class were certified.” Bell Atl., 339 F.3d at 301,

302 (internal quotation marks omitted). Additionally, the

superiority analysis “requires an understanding of the relevant
7 Notably, all patients are charged the same rate, regardless of

insured or uninsured status. What Appellants take issue with is that insurance

companies, as well as Medicare and Medicaid, generally are not expected to pay

the full chargemaster rate.

8 See supra Section II(B).

8

claims, defenses, facts, and substantive law presented in the

case.” Allison, 151 F.3d at 419.

This case cannot pass muster under the Rule 23(b)(3)

criteria, as Appellants present no sensible way to resolve the

dispute on a class-wide basis. The district court fully explained

these problems. We begin by acknowledging that class-wide breaches

of state law are alleged and raise some “common” issues of law and

fact. Suffice it to emphasize here, however, that given the state

court’s dictate that the reasonableness of medical fees depends on

multiple factors, including the services rendered, patient’s

financial status, and customary fee for similar services, see

Howard, 924 So. 2d at 1263, it is unlikely Appellants could ever

demonstrate that the chargemaster rates are unreasonable.

Moreover, the court cannot simply require Ochsner to refund to

uninsureds the difference between what they paid, if anything, and

what insured patients paid7 because, as Appellants admit, insured

patients paid a wide variety of discounts from the chargemaster

rates depending on the individual contracts and the specific

procedures involved in their care.8 At this level, there is not

one charge for insured patients and one charge for uninsured

patients, but an array of charges tailored to each patient’s
9 See Howard, 924 So.2d at 1263.

10 To avoid the latter difficulty, Appellants suggest that a “reasonable

rate” consists of a weighted average of the amounts paid by insurance companies,

Medicare, and Medicaid. Under this approach, contrary to common sense,

approximately half of the insurers would have negotiated an “unreasonable” rate.

This proposal also ignores that the court would still need to calculate this

average amount for each of the countless number of procedures and combination of

procedures class members received. Similarly, Appellants’ emphasis on the

thirty-five percent discount Ochsner now gives uninsured patients is unavailing.

The fact that Ochsner has voluntarily chosen to give patients a discount, perhaps

in a desire to receive some compensation for its services, in no way proves that

it was legally obliged to give the across-the-board fee reduction.

9

treatment. In addition, the percentage of the chargemaster rate

paid by an individual insurance company may vary from procedure to

procedure. The fact-specific rather than class-oriented nature of

the claims thus predominates not only at the plaintiffs’ level,

since two patients’ care and financial circumstances are hardly

ever comparable,9 but also in determining a “reasonable” charge for

each service from among the melange of third-party payer

discounts.10 Both the district court here and a Florida district

court that recently rejected a similar class action persuasively

concluded that neither predominance nor superiority are satisfied

in this type of case. See Colomar v. Mercy Hospital, Inc., No.

05-22409, 2007 WL 1784118, at *8-11 (S.D. Fla. April 11, 2007);

Maldonado, 237 F.R.D. at 152-55.

III. CONCLUSION

For the foregoing reasons, Appellants have not satisfied

the requirements of either Rule 23(b)(2) or (b)(3). The district

court properly denied class certification.

AFFIRMED.