' 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

EILEEN FOX-QUAMME, individually 

and on behalf of all others 

similarly situated; LISA HESS, 

individually and on behalf of all 

others similarly situated; MARY 

REDFIELD, individually and on 

behalf of all others similarly 

situated; O.W., a minor child, 

individually and on behalf of all 

others similarly situated; JEFF 

CLARK, individually and on behalf 

of all others similarly situated; 

and LEIGH ANN CHAPMAN, 

individually and on behalf of all 

others similarly situated, 

Plaintiffs, 

v. 

HEALTH NET HEALTH PLAN OF OREGON, 

INC., an Oregon corporation, and 

AMERICAN SPECIALTY HEALTH GROUP, 

INC., a California corporation, 

Defendants. 

THOMAS K. DOYLE 

RICHARD B. MYERS 

Bennett, Hartman, Morris & Kaplan, LLP 

210 S.W. Morrison St., Suite 550 

Portland, OR 97204 

(503) 227-4600 

Attorneys for Plaintiffs 

1 - OPINION AND ORDER 

3:15-cv-01248-BR 

OPINION AND ORDER 

Case 3:15-cv-01248-BR Document 90 Filed 03/09/17 Page 1 of 33
STEVAN D. PHILLIPS 

BRAD S. DANIELS 

REED W. MORGAN 

Stoel Rives LLP 

760 S.W. Ninth Ave., Suite 3000 

Portland, OR 97205 

(503) 224-3380 

Attorneys for Defendant Health Net Plan of Oregon, Inc. 

KERRY J. SHEPHERD 

HARRY B. WILSON 

Markowitz Herbold PC 

1211 S.W. Fifth Ave., Suite 3000 

Portland, OR 97204 

(503) 295-3085 

ELIZABETH MANN 

ANDREW Z. EDELSTEIN 

Mayer Brown LLP 

350 South Grand Ave., 25th Floor 

Los Angeles, CA 90071 

(213) 229-9500 

Attorneys for Defendant American Specialty Health 

Group, Inc. 

BROWN, Judge. 

This matter comes before the Court on Plaintiffs' Motion 

(#62) for Class Certification and the Motions (#80, #81) to 

Strike Certain Evidence in Support of Plaintiffs' Reply by 

Defendants Health Net Health Plan of Oregon and American 

Specialty Health Group (ASH). 

For the reasons that follow, the Court DENIES Plaintiffs' 

Motion for Class Certification and DENIES as moot Defendants' 

Motions to Strike. 

2 - OPINION AND ORDER 

Case 3:15-cv-01248-BR Document 90 Filed 03/09/17 Page 2 of 33
BACKGROUND 

On July 7, 2015, Plaintiffs filed a Class Action Allegation 

Complaint (#1) in which they allege Defendants violated § 2706 of 

the Patient Protection and Affordable Care Act (ACA) (codified at 

42 u.s.c. § 300gg-5). 

On September 9, 2015, Defendants each filed a Motion to 

Dismiss Plaintiffs' Complaint on the grounds that Plaintiffs 

lacked standing, failed to state a claim, and failed to join a 

necessary party. 

On January 7, 2016, following oral ~rgument, the Court 

dismissed Plaintiffs' Complaint on the ground that Plaintiffs 

failed to allege sufficient facts to state a claim and granted 

Plaintiffs leave to amend their Complaint. 

On February 26, 2016, Plaintiffs filed their First Amended 

Class Action Allegation Complaint (FAC) (#38) alleging three 

claims against Defendants. In Claim One Plan Participant 

Plaintiffs Eileen Fox-Quamme, Lisa Hess, Mary Redfield, and O.W. 

seek recovery of benefits, enforcement of terms, and 

clarification of terms pursuant to 29 U.S.C. § 1132 (a) (1) (B) 

based on Defendants' alleged violation of § 2706 of the ACA for 

discrimination against naturopathic physicians with respect to 

participation in or coverage of services under the health-care 

plans issued and administered by Defendants. In Claim Two Plan 

Participant Plaintiffs seek injunctive and equitable relief 

3 - OPINION AND ORDER 

Case 3:15-cv-01248-BR Document 90 Filed 03/09/17 Page 3 of 33
pursuant to 29 U.S.C. § 1132(a) (3) also based on Defendants' 

alleged violation of § 2706 of the ACA for discrimination against 

naturopathic physicians with respect to participation in or 

coverage of services under the health-care plans issued and 

administered by Defendants. In Claim Three Practitioner 

Plaintiffs Jeff Clark and Leigh Ann Chapman seek declaratory 

judgment pursuant to 28 U.S.C. § 2201 on .the ground that the 

contracts between Defendants contain provisions that violate 

§ 2706 of the ACA, and those provisions are, therefore, 

unenforceable. 

On March 18, 2016, Defendants filed further Motions (#41, 

#42) to dismiss Practitioner Plaintiffs' Claim Three for lack of 

standing. On April 29, 2016, the Court granted those Motions by 

Order (#49) and dismissed both Practitioner Plaintiffs and their 

Third Claim. 

On September 30, 2016, Plan Participant Plaintiffs 

(hereinafter referred to as Plaintiffs) filed a Motion for Class 

Certification. In their Motion Plaintiffs seek certification of 

a class of persons "who at any time from January 1, 2014, through 

the present were enrolled in an employer-issued health plan 

administered by Health Net Health Plan of Oregon." 

On December 13, 2016, Defendants filed Motions to Strike 

Certain Evidence submitted in support of Plaintiffs' Motion for 

Class Certification. 

4 - OPINION AND ORDER 

Case 3:15-cv-01248-BR Document 90 Filed 03/09/17 Page 4 of 33
STANDARDS 

Federal Rule of Civil Procedure 23 governs class 

certification and provides: 

(a) Prerequisites. One or more members of a class may 

sue . as representative parties on behalf of 

all members only if: 

(1) the class is so numerous that joinder of all 

members is impracticable; 

(.2) there are questions of law or fact common to 

the class; 

(3) the claims or defenses of the representative 

parties are typical of the claims or defenses 

of the class; and 

(4) the representative parties will fairly and 

adequately protect the interests of the 

class. 

(b) Types of Class Actions. A class action may be 

maintained if Rule 23(a) is satisfied and if: 

* * * 

(3) the court finds that the questions of law or 

fact common to class members predominate over 

any questions affecting only individual 

members, and that a class action is superior 

to other available methods for fairly and 

efficiently adjudicating the controversy. 

The matters pertinent to these findings 

include: 

(A) the class members' interests in 

individually controlling the prosecution 

or defense of separate actions; 

(B) the extent and nature of any litigation 

concerning the controversy already begun 

by or against class members; 

5 - OPINION AND ORDER 

Case 3:15-cv-01248-BR Document 90 Filed 03/09/17 Page 5 of 33
(C) the desirability or undesirability of 

concentrating the litigation of the 

claims in the particular forum; and 

(D) the likely difficulties in managing a 

class action. 

In Wal-Mart Stores, Inc. v. Dukes the United States Supreme 

Court addressed class-action certification and set out general 

standards under Rule 23: 

The class action is "an exception to the usual rule 

that litigation is conducted by and on behalf of the 

individual named parties only." Califano v. Yamasaki, 

442 U.S. 682, 700-701 (1979). In order to justify a 

departure from that rule, "a class representative must 

be part of the class and 'possess the same interest and 

suffer the same injury' as the class members." East 

Tex. Motor Freight System, Inc. v. Rodriguez, 431 U.S. 

395, 403 (1977) (quoting Schlesinger v. Reservists Comm. 

to Stop the War, 418 U.S. 208, 216 (1974)). Rule 23(a) 

ensures that the named plaintiffs are appropriate 

representatives of the class whose claims they wish to 

litigate. The Rule's four requirements - numerosity, 

commonality, typicality, and adequate representation -

"effectively 'limit the class claims to those fairly 

encompassed by the named plaintiff's claims.'" General 

Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 156 

(1982) (quoting General Telephone Co. of Northwest v. 

EEOC, 446 U.S. 318, 330 (1980)). 

564 U.S. 338, 348 (2011). 

The decision to grant or to deny class certification is 

within the discretion of the trial court. Bateman v. Am. MultiCinema, Inc., 623 F.3d 708, 712 (9th Cir. 2010). The plaintiff 

has the burden to comply with Federal Rule Civil Procedure 23. 

Narouz v. Charter Commc'ns, LLC, 591 F.3d 1261, 1266 (9th Cir. 

2010). A class may be certified only if the court is satisfied 

"after a rigorous analysis that the prerequisites of Rule 23(a) 

6 - OPINION AND ORDER 

Case 3:15-cv-01248-BR Document 90 Filed 03/09/17 Page 6 of 33
have been satisfied." Wal-Mart, 564 U.S. at 350-51 (citing Gen. 

Tel. Co. of S.W. v. Falcon, 457 U.S. 147, 161 (1982)). A class 

may be certified as to one or more claims without certifying the 

entire complaint. Fed. R. Civ. P. 23(c) (4). 

The court must determine whether certification is based on 

actual as opposed to presumed compliance with the requirements of 

Rule 23. Wal-Mart, 564 U.S. at 350 (citing Falcon, 457 U.S. at 

160). Because Rule 23 "is not a mere pleading standard," a party 

seeking class certification "must affirmatively demonstrate 

compliance with the Rule." Wal-Mart, 564 U.S. at 351. This 

inquiry may in some cases overlap into the "merits of plaintiff's 

underlying claim" because "class determination generally involves 

considerations that are enmeshed in the factual and legal issues 

comprising plaintiff's cause of action." Id. (quoting Falcon, 

457 U.S. at 160). 

Plaintiffs "bear the burden of demonstrating that they have 

met each of the requirements of Federal Rule of Civil Procedure 

23(a) and at least one of the requirements of Rule 23(b) ." Ellis 

v. Costco Wholesale Corp., 657 F.3d 970, 979-80 (9th Cir. 2011) 

(citing Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 

1186 (9th Cir. 2001), amended by 273 F.3d 1266 (9th Cir. 2001)). 

7 - OPINION AND ORDER 

Case 3:15-cv-01248-BR Document 90 Filed 03/09/17 Page 7 of 33
DISCUSSION 

I. Plaintiffs' Motion for Class Certification 

Defendants oppose Plaintiffs' Motion for Class Certification 

on the ground that Plaintiffs lack standing under Article III of 

the United States Constitution. Even if Plaintiffs have 

standing, Defendants also assert: 

(1) the proposed class definition is improper; 

(2) the proposed class fails to meet the requirements of 

Rule 23(a) for numerosity, commonality, typicality, or adequacy 

of representation; and 

(3) Plaintiffs' claims do not meet the requirements of Rule 

2 3 (b) ( 3) for predominance and superiority. 

A. Plaintiffs do not have standing under Article III. 

Defendants contend the Court must determine whether 

Plaintiffs have standing under Article III before considering the 

merits of class certification. Defendants assert Plaintiffs lack 

standing because the allegations in their FAC are "sham," none of 

these Plaintiffs are obligated to pay their providers for any 

services rendered, Plaintiffs have not suffered any economic 

injury, and Defendants have not denied Plaintiffs any medical 

care. Defendants also contend Plaintiffs are not entitled to 

injunctive relief because (1) three out of four Plaintiffs are no 

longer Health Net members, (2) the remaining Plaintiff who is a 

member no longer sees a naturopath, and (3) Oregon House Bill 

8 - OPINION AND ORDER 

Case 3:15-cv-01248-BR Document 90 Filed 03/09/17 Page 8 of 33
3301 now requires insurers to allow naturopathic physicians to 

apply for credentials as primary-care providers. 

In addition, Defendants note the naturopathic physicians 

agreed by contract with Defendants that they would not "balancebill" members for services not covered without a signed agreement 

made in advance with the member. Defendants contend tl\,e letters 

subsequently sent by the naturopathic physicians to Plaintiffs 

demanding payment for services that Defendants did not cover were 

merely a pretense to establish Plaintiffs' standing by showing 

they were injured. Defendants point out that each Plaintiff 

testified during deposition that they understood they were not 

obligated to pay any of these bills from those providers. 

Plaintiffs, in turn, contend the Court is not required to 

address Article III standing before addressing class 

certification. Plaintiffs assert they were injured by 

Defendants' alleged discriminatory practices when Plaintiffs 

received billing statements from the naturopathic physicians 

requiring Plaintiffs to pay for services not covered by their 

health plans, Plaintiffs subsequently incurred out-of-pocket 

expenses, and Plaintiffs reduced or discontinued medical care by 

their naturopathic physicians. Regardless of their payment 

obligations, Plaintiffs did not receive care after Defendants 

denied Plaintiffs coverage for services provided by the 

naturopathic physicians. 

9 - OPINION AND ORDER 

Case 3:15-cv-01248-BR Document 90 Filed 03/09/17 Page 9 of 33
1. Standards 

In Easter v. American West Financial the Ninth Circuit 

held the district court properly addressed the issue of standing 

before addressing the issues of class certification. 381 F.3d 

948, 962 (9th Cir. 2004). The court held the borrowers of second 

mortgage loans failed to establish investment trusts that 

purchased borrowers' loans were juridically linked, and, 

therefore, the named borrowers lacked standing to bring a class 

action against the trusts. The borrowers, however, relied on 

Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999), to support their 

contention that courts must consider class certification before 

addressing Article III standing. Id. The Easter court held: 

Fibreboard examined class issues before the 

question of Article III standing, [and] it 

did so in the very specific situation of a 

mandatory global settlement class. 

Fibreboard does not require courts to 

consider class certification before standing. 

See Id. [527 U.S.] at 831 (noting that a 

"court must be sure of its own jurisdiction 

before getting to the merits."). 

381 F.3d at 962. 

In Bates v. UPS the Ninth Circuit stated: 

In a class action, standing is satisfied if 

at least one named plaintiff meets the 

requirements. See Armstrong v. Davis, 275 

F.3d 849, 860 (9th Cir. 2001). The plaintiff 

class bears the burden of showing that the 

Article III standing requirements are met. 

See id. at 860-61. As we know from the oftrepeated passages in Lujan, standing requires 

that (1) the plaintiff suffered an injury in 

fact, i.e., one that is sufficiently 

10 - OPINION AND ORDER 

Case 3:15-cv-01248-BR Document 90 Filed 03/09/17 Page 10 of 33
"concrete and particularized" and "actual or 

imminent, not conjectural or hypothetical," 

(2) the injury is "fairly traceable" to the 

challenged conduct, and (3) the injury is "likely" 

to be "redressed by a favorable decision." Lujan 

v. Defenders of Wildlife, 504 U.S. 555 (1992) 

(quotation marks and citations omitted). 

511 F.3d 974, 985 (9th Cir. 2007) 

In Lierboe v. State Farm Mutual Automobile Insurance 

Company the court held plaintiffs who purport to represent a 

class may not seek relief on behalf of themselves or any other 

member of the class if they are unable to establish the requisite 

case or controversy against the defendants. 350 F.3d 1018, 1022 

(9th Cir. 2003). In addition, the court in Mazza v. American 

Honda Motor Co., Inc., held Article III standing requires the 

plaintiffs to have "suffered an injury-in-fact" and that "the 

injury is likely to be addressed by a favorable decision." 666 

F.3d 581, 594-95 (9th Cir. 2012) (quoting Bates, 511 F.3d at 985). 

2. Analysis 

Although the Court may not be required to address 

standing before addressing class certification, the Ninth Circuit 

and Supreme Court have made it clear that the Court also is not 

required to consider class certification without considering the 

issue of standing. Indeed, the Court must ensure it has 

jurisdiction before addressing the merits of a dispute. 

Accordingly, the Court first analyzes the standing issues 

beginning with the following undisputed facts: 

11 - OPINION AND ORDER 

Case 3:15-cv-01248-BR Document 90 Filed 03/09/17 Page 11 of 33
Plaintiffs testified at deposition that they understood 

there could be an outstanding balance owed to their naturopathic 

physician, but they also understood they were not obligated and 

would not be required to pay for any services that were denied or 

beyond the co-payments that they made. 

For example, on October 27, 2014, Plaintiff Fox-Quamme 

received care from Dr. Angela Rademacher, N.D., her naturopathic 

physician. On November 4, 2014, Defendants denied coverage for 

that care. According to Fox-Quamme, she did not receive any 

further billing for these services until February 2016 when 

Dr. Rademacher called to request payment of $1.00. Fox-Quamme 

paid that sum, but she did not make any further payments. In 

November 2014 Plaintiff Hess received care from Dr. Anne Hill, 

N.D., her naturopathic physician. Defendant denied coverage for 

those services. Hess, however, continued to see Dr. Hill until 

July 2015. Hess only discontinued Dr. Hill's care after Hess was 

in a motor-vehicle accident, Dr. Hill "didn't take ASH anymore," 

and Hess would have had to make a larger co-payment. In December 

2015 Defendants initially denied Plaintiff Redfield's claim for 

care by Dr. Thomas Messinger, N.D., her naturopathic physician. 

Redfield appealed the denial of coverage, and Defendants paid the 

claim in March 2015 at the contract rate. Redfield was only 

responsible for the co-payment. In November 2014 Plaintiff O.W. 

saw Dr. Leigh Ann Chapman, N.D., his naturopathic physician. 

12 - OPINION AND ORDER 

Case 3:15-cv-01248-BR Document 90 Filed 03/09/17 Page 12 of 33
Defendants denied O.W.'s claim for services in December 2014, but 

O.W. appealed and Defendants paid the claim in April 2015. 

The Court notes Plaintiffs also allege they reduced or 

discontinued care with their naturopathic physicians as a result 

of Defendants' denials of coverage. Plaintiff O.W., however, is 

the only Plaintiff to testify that he did not go back to his 

doctor "because of the lack of coverage, and not wanting to incur 

further out-of-pocket medical expenses . 

other providers." 

we had to go to 

On this undisputed record, the Court concludes 

Plaintiffs have not suffered any economic injury as a result of 

the denial of coverage for any care that they received. Thus, 

Plaintiffs have not met the requirement of "an injury-in-fact" 

inasmuch as none of the Plaintiffs are realistically threatened 

with a "likelihood of substantial and immediate irreparable 

injury" that is traceable to Defendants' conduct or that is 

likely to be redressed by a favorable decision. 

Accordingly the Court concludes Plaintiffs lack Article 

III standing. 

B. Plaintiffs' proposed class definition is overbroad. 

Defendants contend even if Plaintiffs have standing, 

Plaintiffs' proposed class definition is overbroad and unrelated 

to these particular facts or to Plaintiffs' legal theory. 

Defendants assert the proposed class includes (1) members who do 

13 - OPINION AND ORDER 

Case 3:15-cv-01248-BR Document 90 Filed 03/09/17 Page 13 of 33
not have naturopathic services as part of their insurance 

benefit, (2) members who have not seen a naturopathic physician, 

(3) members who saw a naturopathic physician and whose claims 

were accepted, and (4) members who lacked standing under the 

Employee Retirement Income Security Act (ERISA), 19 U.S.C. 

Ch. 18, as of the date the Complaint was filed. Defendants 

assert the proposed class is "untethered to whether putative 

class members had naturopathic benefits, sought naturopathic 

services, will seek naturopathic services, submitted claims for 

naturopathic service and had their claims denied in the past, or 

are likely to have their claims denied in the futuren and 

includes those who have not been nor may be harmed in the future 

by Defendants' alleged wrongdoing. Thus, even if the Court were 

to certify such a class, Defendants contend the Court would be 

required to have "hundreds, if not thousandsn of hearings to 

determine whether an individual class member qualified for 

recovery. 

Plaintiffs, in turn, contend their claims against Defendants 

are for violation of § 2706 of the ACA, which prohibits 

discrimination with respect to coverage against any health-care 

provider who is acting within the scope of its license. 

Plaintiffs assert the proposed class encompasses those who have 

suffered from Defendants' alleged discriminatory practices with 

regard to naturopathic physicians who provide "conventional caren 

14 - OPINION AND ORDER 

Case 3:15-cv-01248-BR Document 90 Filed 03/09/17 Page 14 of 33
that falls within the coverage of Defendants' health plans. 

Plaintiffs' proposed class definition as stated in their FAC 

includes: 

"[A]ll enrollees in Defendants' benefit plans 

established by an employer engaged in 

commerce (the "Class"). 

Plaintiffs also contend Defendants' failure to comply with § 2706 

reduced patients' access to care by naturopathic physicians and 

has had a direct impact on whether naturopathic physicians join 

or remain a part of the provider network. 

1 . Standards 

"It is well settled that in addition to meeting the 

explicit requirements of Rule 23, a party seeking class 

certification must meet certain implicit 'threshold' 

requirements, namely, those of establishing that an identifiable 

class exists and that the representative plaintiff is a member of 

the proposed class. See 5 Moore's Federal Practice§ 23.20 

(Matthew Bender 3d ed.) (citing, inter alia, In re A.H. Robins 

Co., Inc., 880 F.2d 709, 728 (4th Cir. 1989)) ." Tidenberg v. 

Bidz.com, No. CV 08-5553 PSG FMOX, 2010 WL 135580, at *2 (C.D. 

Cal. Jan. 7, 2010). 

A proposed class is overly broad when the class 

definition includes those who have not been harmed by a 

defendant's alleged wrongful conduct. "[I]f the [class] 

definition is so broad that it sweeps within it persons who could 

15 - OPINION AND ORDER 

Case 3:15-cv-01248-BR Document 90 Filed 03/09/17 Page 15 of 33
not have been injured by the defendants' conduct, it is too 

broad." Moore v. Apple, Inc., 309 F.R.D. 532, 542 (N.D. Cal. 

2015) (quoting Kohen v. Pac. Inv. Mgmt, Co., LLC, 571 F.3d 672, 

677 (7th Cir. 2009). 

2. Analysis 

The Court finds Plaintiffs' definition of the proposed 

class includes persons who could not have suffered any injury as 

a result of the alleged discriminatory conduct of Defendants 

because Plaintiffs' definition includes all persons who were 

members in a Health Net plan regardless whether the plan included 

coverage for services by a naturopath or whether the person 

actually used such services. The definition also includes 

members who saw a naturopathic physician; whose claims were 

accepted and paid; and who, therefore, did not suffer any injury. 

In addition, the definition includes members who lacked ERISA 

standing as of the date the Complaint was filed. 

On this record the Court concludes even if Plaintiffs 

had Article III standing, their proposed class definition is 

overbroad. 

C. Plaintiffs do not meet Federal Rule of Civil Procedure 

23(a) requirements. 

Defendants also contend even if Plaintiffs have standing, 

Plaintiffs do not meet the requirements of Rule 23(a): 

numerosity, commonality, typicality, and adequacy of 

representation. 

16 - OPINION AND ORDER 

Case 3:15-cv-01248-BR Document 90 Filed 03/09/17 Page 16 of 33
1 . Numerosi ty 

Plaintiffs must establish the class is so large that 

joinder of all members is impractical. Fed. R. Civ. P. 

23 (a) (1). 

In their FAC Plaintiffs allege "there are several 

thousand persons in the class." In their Motion for Class 

Certification Plaintiffs state: "Numerous individuals have also 

been denied coverage of [naturopathic physician] services since 

January 2014, several of which have submitted appeals to ASH that 

are in the record. By any standard the proposed class exceeds 40 

individuals .. II Plaintiffs also contend Plaintiff FoxQuamme's employer-issued group plan alone comprises more than 50 

individuals. Plaintiffs rely on the Declaration of their counsel 

submitted in support of Plaintiffs' Motion in which he states: 

I conferred with Defendant's counsel on May 5, 

2016, regarding the scope of Plaintiffs' proposed 

class. Defense counsel has asserted that since 

January 1, 2014, Health Net and ASH denied 120 

claims of coverage for [naturopathic physician] 

services. In that same time period Health Net and 

ASH received 384 requests for coverage of 

[naturopathic physician] services. The 

approximate value of those denied claims is 

$12,000. Based on belief and counsel's 

representations, Plaintiffs rely on those facts. 

Deel. of Thomas K. Doyle (#79-1) at ~ 19. 

Defendants, however, contend Plaintiffs fail to provide 

any actual evidence of numerosity, and the information given by 

defense counsel was merely an estimate. 

17 - OPINION AND ORDER 

Case 3:15-cv-01248-BR Document 90 Filed 03/09/17 Page 17 of 33
a. Standards 

"A party seeking class certification must 

affirmatively demonstrate his compliance with the Rule - that is, 

he must be prepared to prove that there are in fact sufficiently 

numerous parties. " Wal-Mart Stores v. Dukes, 564 U.S. 338, 

350 (2011) (emphasis in original). 

The numerosity prerequisite does not impose an 

absolute requirement on the number of individuals comprising the 

class. Gen. Tel. Co. of the NW v. EEOC, 446 U.S. 318, 330 

(1980). The plaintiffs, however, must provide "reliable 

evidence" to show the number of potential members of the class. 

See Smith v. City of Corvallis, No. 6:14-cv-01382, 2016 WL 

3193190, at *10 (D. Or. June 6, 2016). 

b. Analysis 

The Court has concluded Plaintiffs' proposed class 

definition of all persons enrolled in Health Net plans is 

overbroad, and neither that definition nor counsel's hearsay 

declaration as to the number of denied claims constitutes 

"reliable evidence" to show the number of potential class members 

that may exist beyond the Plaintiffs themselves. 

On this record, therefore, the Court concludes 

Plaintiffs have not met the numerosity requirement of Rule 

23 (a) (1). 

18 - OPINION AND ORDER 

Case 3:15-cv-01248-BR Document 90 Filed 03/09/17 Page 18 of 33
2. Commonality 

Plaintiffs also must establish there are one or more 

questions of law or fact common to the class. Fed. R. Civ. P. 

23 (a) (2). 

In their FAC Plaintiffs allege their claims raise the 

following common questions of law and fact: 

FAC at <JI 45. 

a. Whether Defendants discriminated against 

[naturopathic physicians] with respect to 

participation under the Plans or coverage of 

services provided under the Plans; 

b. Whether Defendants' varying reimbursement 

rates for [naturopathic physicians] were based on 

credential type rather than objective quality or 

performance measures; and 

c. Whether participants in the Plans are 

entitled to relief under 29 U.S.C. § 1132 for 

violations of 42 U.S.C. § 300gg-5. 

Defendants contend Plaintiffs' questions of unspecified 

"discriminatory practices" with regard to participation by 

naturopathic physicians, coverage of services, and reimbursement 

rates are so broad that they cannot satisfy the commonality 

requirement. Moreover, Defendants assert liability cannot be 

determined absent individual factual inquiries because of the 

various factors involved in the handling of each participant's 

claims. 

a. Standards 

Commonality requires "claims must depend upon a 

19 - OPINION AND ORDER 

Case 3:15-cv-01248-BR Document 90 Filed 03/09/17 Page 19 of 33
common contention ... of such a nature that it is capable of 

classwide resolution - which means that determination of its 

truth or falsity will resolve an issue that is central to the 

validity of each one of the claims in one stroke." Wal-Mart 

Stores v. Dukes, 564 U.S. 338, 350 (2011). "[T]his provision 

requires plaintiffs to 'demonstrate that the class members have 

suffered the same injury,' not merely violations of 'the same 

provision of law.'" Parsons v. Ryan, 754 F.3d 657, 674-75 (9th 

Cir. 2014) (citing Wal-Mart, 563 U.S. at 349). 

b. Analysis 

Here Plaintiffs' claims revolve "around the 

central question of whether Defendants' discriminatory practices 

against [naturopathic physicians] violated Section 2706." 

Resolution of that question would not establish class members 

"suffered the same injury" from the same discriminatory 

practices. Indeed, in order to determine whether "discriminatory 

practices" occurred and what injuries such practices may have 

caused would require a case-by-case analysis of the facts related 

to each individual member of the class, which would defeat the 

requirement of commonality for certification of a class. 

On this record the Court concludes Plaintiffs have not 

established class members suffered the same (or, in fact, any) 

injury as a result of the same allegedly discriminatory practices 

even if Defendants violated § 2706. 

20 - OPINION AND ORDER 

Case 3:15-cv-01248-BR Document 90 Filed 03/09/17 Page 20 of 33
3. Typicality 

Plaintiffs also must establish the named parties' 

claims are typical of the class. Fed. R. Civ. P. 23(a) (3). 

In their FAC Plaintiffs allege the prerequisite of 

typicality has been met "because [Plaintiffs'] claims and the 

claims of the members of the Class are substantially similar in 

that they arise from Defendants' standard and uniform provider 

reimbursement policy." FAC at ~ 46. Plaintiffs contend they, 

together with all class members, are participants in the plans 

administered by Defendants and all of those plans contain a 

provision requiring compliance with state and federal laws. In 

addition, Plaintiffs assert all plan participants were injured by 

Defendants' alleged discriminatory practices against naturopathic 

physicians, which resulted in reduced access to such services. 

Defendants, in turn, contend Plaintiffs' claims are not 

typical of class members and none of the Plaintiffs have 

sustained an injury (as previously discussed under Article III 

standing) . 

a. Standards 

"The test of typicality 'is whether other members 

have the same or similar injury, whether the action is based on 

conduct which is not unique to the named plaintiffs, and whether 

other class members have been injured by the same course of 

conduct. Typicality refers to the nature of the claim or defense 

21 - OPINION AND ORDER 

Case 3:15-cv-01248-BR Document 90 Filed 03/09/17 Page 21 of 33
of the class representative, and not to the specific facts from 

which it arose or the relief sought.'" Ellis v. Costco Wholesale 

Corp., 657 F.3d 970, 984 (9th Cir. 2011) (quoting Hanon 

v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992)). 

b. Analysis 

Defendants initially denied the claims of two 

Plaintiffs (Redfield and O.W.), but later Defendants paid those 

claims. Three Plaintiffs (Fox-Quamme, Redfield, and O.W.) are no 

longer Health Net members, and two Plaintiffs (Fox-Quamme and 

O.W.) lack ERISA standing because they were not Health Net 

members at the time the original Complaint was filed. See Hansen 

v. Harper Excavating, 641 F.3d 1216, 1223-24 (10th Cir. 2011) 

("ERISA standing is assessed as of the filing of a complaint.") 

(citing Harris v. Provident Life & Accident Ins. Co., 26 F.2d 

930, 933 (9th Cir. 1994)). The Court concludes none of named 

Plaintiffs' claims are typical of members who have health plans 

effective after January 1, 2016, when the fundamental benefit 

plan was modified as a result of a change in Oregon law. 1 Even 

if named Plaintiffs could prove Defendants discriminated against 

them, the Court concludes it would still be necessary to 

determine as to each class member whether such discrimination was 

Oregon House Bill 3301 (2015) modified Oregon Revised 

Statute § 7438.407 to require that insurers allow naturopathic 

physicians the choice of applying to be credentialed as a 

primary-care provider or as a specialty-care provider. 

22 - OPINION AND ORDER 

Case 3:15-cv-01248-BR Document 90 Filed 03/09/17 Page 22 of 33
the basis for Defendants' denial of their individual claims. 

Having already determined named Plaintiffs lack 

standing under Article III on the basis that they have not 

sustained an injury, the Court also concludes their claims would 

not be typical claims for all class members. Moreover, it is not 

clear from this record that other potential class members have 

been injured by Defendants' conduct. 

Accordingly, the Court concludes named Plaintiffs' have 

not established their claims are necessarily typical of potential 

class members' claims. 

4. Adequacy of Representation 

Finally, Plaintiffs must establish the class 

representatives will fairly and adequately protect the interests 

of other members of the class. Fed. R. Civ. P. 23(a) (4). 

In their FAC Plaintiffs allege they meet this 

requirement "because they share the same interests as members of 

the Class and have retained . . counsel who is competent and 

experienced in complex class actions." FAC at ~ 47. Plaintiffs 

contend they are motivated to resolve the legal issues affecting 

all class members, they do not have any conflicts that would 

interfere with representation, and they have retained competent 

counsel. 

Defendants, however, contend named Plaintiffs do not 

adequately represent the class members because they do not have 

23 - OPINION AND ORDER 

Case 3:15-cv-01248-BR Document 90 Filed 03/09/17 Page 23 of 33
standing under Article III, they have interests that conflict 

with the interests of the class, and they do not have sufficient 

knowledge of the litigation process or their claims to adequately 

represent potential class members. Defendants point out that 

named Plaintiffs testified in their depositions that they 

represent the interests of naturopathic physicians (Practitioner 

Plaintiffs, however, are no longer parties to this action) and 

view the case as vindicating the interests of third parties 

(naturopathic physicians). Moreover, Plaintiffs do not appear to 

have a basic understanding of the process or their role in this 

litigation; for example, Plaintiff Fox-Quamme stated her role as 

class representative was to "be honest and answer questions," 

Plaintiff Redfield similarly stated her role as class 

representative was to "speak the truth of what happened," and 

neither Plaintiffs Hess nor Redfield had read the Complaints 

filed in this case. 

a. Standards 

To determine whether named Plaintiffs adequately 

represent a class, the Court must resolve two questions: "(1) do 

the named plaintiffs and their counsel have any conflicts of 

interest with other class members and (2) will the named 

plaintiffs and their counsel prosecute the action vigorously on 

behalf of the class? Adequate representation depends on, among 

other factors, an absence of antagonism between representatives 

24 - OPINION AND ORDER 

Case 3:15-cv-01248-BR Document 90 Filed 03/09/17 Page 24 of 33
and absentees and a sharing of interests between representatives 

and absentees." Ellis v. Costco Wholesale Corp., 657 F.3d 970, 

985 (9th Cir. 2011) (citations omitted). 

b. Analysis 

Although there is not any basis in the record to 

suggest that Plaintiffs and their counsel would fail to prosecute 

this action vigorously, there is a question as to the real 

interests at the heart of this case. As noted, the crux of 

Plaintiffs' claims is the denial of services or access to 

services based on Defendants' alleged discriminatory conduct as 

to naturopathic physicians. The named Plaintiffs have expressed 

their view that they are here to "vindicate" those physician's 

rights. Indeed, Plaintiff Fox-Quamme testified in her deposition 

that "[w]e're representing the naturopathic physicians," and she 

stated Plaintiffs were seeking "justice" for the naturopathic 

physicians. Fox-Quamme also described this case as a 

"discrimination lawsuit because we feel like the naturopathic 

physicians have been discriminated against." Fox-Quamme Dep. at 

25. Plaintiff Hess also testified in her deposition that she 

believes she represents herself and the naturopathic physicians. 

Hess Dep. at 19-20. Plaintiff Redfield appears to be pursuing a 

personal grievance based on Defendants' denial of her follow-up 

care. Redfield Dep. at 16-17. Erika Weisensee, Plaintiff O.W.'s 

mother, was unable to state what she is seeking as she plans to 

25 - OPINION AND ORDER 

Case 3:15-cv-01248-BR Document 90 Filed 03/09/17 Page 25 of 33
"never have coverage from Health Net again." Weisensee Dep. at 

82-83. 

In summary, on this record the Court concludes even if 

named Plaintiffs and their counsel vigorously prosecute this 

matter, there appears to be a conflict regarding whose interests 

are paramount in the prosecution of this case. Thus, the Court 

concludes named Plaintiffs do not satisfy the requirements of 

Rule 23(a). 

D. Plaintiffs do not meet Federal Rule of Civil Procedure 

23(b) (3) requirements. 

Even if Plaintiffs had satisfied the requirements of Rule 

23(a), under Rule 23(b) (3) the Court must determine whether 

"questions of law or fact common to class members predominate 

over any questions affecting only individual members, and . 

[whether] a class action is superior to other available methods 

for fairly and efficiently adjudicating the controversy." 

1. Predominance 

In their FAC Plaintiffs allege they are in compliance 

with the predominance requirement of Rule 23(b) (3) "because the 

questions of law and fact common to the Class predominate over 

questions affecting individual members of the Class." FAC at 

~ 48. Plaintiffs assert the central legal issue as to 

Defendants' discrimination against naturopathic physicians 

applies to all class members and health-plan participants and 

that issue has not been addressed by any court. 

26 - OPINION AND ORDER 

Case 3:15-cv-01248-BR Document 90 Filed 03/09/17 Page 26 of 33
Defendants, however, contend the individualized 

circumstances of the claimants predominate in light of the fact 

that the determination of liability cannot be made without 

considering each claimant's circumstances. To ascertain 

liability Defendants assert the Court must determine, among other 

things (1) whether the class member's plan has naturopathic 

services as part of its benefits; (2) whether the class member 

was interested in seeing, attempting to see, or seen by a 

naturopath; (3) whether the class member has standing by being 

enrolled in a plan as of July 7, 2015, when the initial Complaint 

was filed; (4) whether the class member saw a naturopath and 

received care; (5) the grounds for denial if Defendants denied 

services to a class member; (6) whether the class member has any 

out-of-pocket losses; and (7) whether the class member exhausted 

the member's administrative remedies and what was the outcome of 

that exhaustion. According to Defendants, each of these issues 

is an individualized inquiry and, therefore, questions of law or 

fact common to class members do not predominate. 

a. Standards 

A "central concern of the Rule 23(b) (3) 

predominance test is whether 'adjudication of common issues will 

help achieve judicial economy.'" Vinole v. Countrywide Home 

Loans, Inc., 571 F.3d 935, 944 (9th Cir. 2009) (quoting Zinser v. 

Accufix Research Inst., Inc., 253 F.3d 1180, 1189 (9th Cir. 

27 - OPINION AND ORDER 

Case 3:15-cv-01248-BR Document 90 Filed 03/09/17 Page 27 of 33
2001)). The predominance inquiry is far "more demanding" than 

the commonality requirement of Rule 23(a) and imposes on the 

Court the "duty to take a 'close look' at whether common 

questions predominate over individual ones." Comcast Corp. v. 

Behrend, 133 S. Ct. 1426, 1432 (2013). 

When "determining whether common issues 

predominate in accordance with Rule 23 (b) (3), differences 

among class members' claims are crucial." Ginsburg v. Comcast 

Cable Commc'ns Mgmt., LLC, No. Cll-1959RAJ, 2013 WL 1661483, at 

*5 (W.D. Wash., Apr. 17, 2013). 

b. Analysis 

Here liability cannot be determined without 

considering the individual circumstances of named Plaintiffs and 

any other class member. As noted by Defendants, individual 

issues would have to be resolved; for example, what a particular 

member's plan provided, whether the class member saw or tried to 

see a naturopathic physician, the reason for any denial of 

coverage, whether the class member appealed the denial, and 

whether the individual has proper standing. 

On this record the Court concludes Plaintiffs fail to 

show that "common questions predominate over individual ones." 

2. Superiority 

In their FAC Plaintiffs allege they are in compliance 

with the superiority requirement of Rule 23(b) (3) on the basis 

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Case 3:15-cv-01248-BR Document 90 Filed 03/09/17 Page 28 of 33
that "[a] class action is a superior method to adjudicate those 

claims because the expense and burden required to pursue this 

litigation will likely exceed the damages suffered by any one 

member of the Class." FAC at ~ 48. Plaintiffs assert the low 

value of each individual plan member's claim points to a class 

action as the most efficient method to resolve this dispute. 

Defendants, however, contend Plaintiffs' argument of 

"low value" is conclusory without any evidence of the amount of 

the alleged damages at issue. Moreover, because 29 U.S.C. 

1132(g) (1) provides for recovery of attorneys' fees and costs, 

Defendants contend there is "no lack of incentive" for class 

members to sue individually. 

a. Standards 

When considering the superiority requirement, the 

Court must determine (1) the class members' interest in 

controlling their own actions, (2) "the extent and nature of any 

litigation concerning the controversy already begun by or against 

class members," (3) "the desirability or undesirability of 

concentrating the litigation of the claims in the particular 

forum," and (4) "the likely difficulties in managing a class 

action." Fed. R. Civ. P. 23 (b) (3) (A) - (D). 

b. Analysis 

Although the low value of each individual member's 

claim would support the efficiency of a class action, the Court 

29 - OPINION AND ORDER 

Case 3:15-cv-01248-BR Document 90 Filed 03/09/17 Page 29 of 33
has already concluded actual liability cannot be determined 

without considering facts unique to each individual. As a 

result, significant resources would be required. Thus, the 

benefit of a single action would be defeated by the factintensive consideration of each individual's claim. 

On this record the Court concludes Plaintiffs fail to 

show the superiority of a class action over the individual claims 

of potential class members. 

In summary, the Court concludes Plaintiffs have failed to 

meet the requirements for certification of a class action, and, 

therefore, the Court denies Plaintiffs' Motion for Class 

Certification. 

II. Defendants' Motions to Strike 

Defendants move to strike Exhibits 22 and 26-29, which are 

declarations of several naturopathic physicians 2 submitted with 

Plaintiffs' Reply (#79) in support of their Motion for Class 

Certification. Defendants note Plaintiffs bear the burden to 

produce evidence that meets the requirements of Rule 23, and any 

such evidence should have been submitted with Plaintiffs' 

original Motion for Class Certification. Thus, according to 

Defendants, this evidence is now untimely, and, in any event, 

Defendants have not had the opportunity to respond to the 

2 None of these physicians treated any named Plaintiffs in 

this case, and only one of them (Dr. Jeff Clark) was previously a 

party to this litigation. 

30 - OPINION AND ORDER 

Case 3:15-cv-01248-BR Document 90 Filed 03/09/17 Page 30 of 33
I . 

evidence. In addition, Defendants contend this evidence is 

inadmissible, irrelevant, and/or unreliable. Defendants further 

contend the declarations do not show Plaintiffs suffered an 

injury and the naturopathic physicians' statements are 

speculative, are conclusory, lack foundation, are improper 

opinion testimony, are inadmissible because they contain hearsay 

as to unnamed patients' states of mind, and are irrelevant to the 

Court's analysis under Rule 23. 

A. Standards 

To the extent that an affidavit submitted with a reply 

presents new information, it is improper and may be stricken and 

disregarded. See Tovar v. U.S. Postal Serv., 3 F.3d 1271, 1273 

n.3 (9th Cir. 1993). A witness may testify to a matter only if 

evidence is introduced sufficient to support a finding that the 

witness has personal knowledge of the matter. Fed. R. Evid. 602. 

A declaration must be based on personal knowledge and set out 

admissible facts. Fed. R. Civ. P. 56(c) (4). Opinion testimony 

of a lay witness must be "predicated upon concrete facts within 

the witness's own observation and recollection - that is facts 

perceived from their own senses, as distinguished from their 

opinions or conclusions drawn from such facts." U.S. v. Durham, 

464 F.3d 976, 982 (9th Cir. 2006). 

B. Analysis 

In the case of In re Flash Memory Antitrust Litigation the 

31 - OPINION AND ORDER 

Case 3:15-cv-01248-BR Document 90 Filed 03/09/17 Page 31 of 33
plaintiffs submitted the declaration of an expert with their 

reply in support of their motion for class certification. 

No. C 07-0086 SBA, 2010 WL 2332081, at *15 (N.D. Cal. June 9, 

2010). The California court stated: 

Id. 

[T]he Court does not consider new arguments or evidence 

presented for the first time in a reply. See In re 

Rains, 428 F.3d 893, 902 (9th Cir. 2005). Since it is 

Plaintiffs' initial burden to demonstrate the existence 

of an ascertainable class, such evidence should have 

been proffered with Plaintiff's moving papers in order 

to afford Defendants a full and fair opportunity to 

respond. 

Here the declarations submitted with Plaintiffs' Reply 

introduce new evidence that Defendants have not had the 

opportunity to rebut. Moreover, none of the declarants refer to 

named Plaintiffs nor indicate they treated named Plaintiffs. The 

Court concludes the declarations are speculative and conclusory 

as to why other patients may not have sought care from 

naturopathic physicians, and the declarations include hearsay by 

other patients offered for the truth of the matter asserted. 

The Court, therefore, has not considered the declarations 

submitted with Plaintiffs' Reply. Accordingly, the Court denies 

as moot Defendants' Motions to Strike these declarations. 

CONCLUSION 

For these reasons, the Court DENIES Plaintiffs' Motion (#62) 

for Class Certification and DENIES as moot Defendants' Motions 

32 - OPINION AND ORDER 

Case 3:15-cv-01248-BR Document 90 Filed 03/09/17 Page 32 of 33
.... 

(#80, #81) to Strike Certain Evidence in Support of Plaintiffs' 

Reply. 

The Court directs the parties to confer and to submit a 

Joint Status Report no later than March 24, 2017, summarizing the 

issues that remain for resolution together with a jointly 

proposed case-management schedule to do so. 

IT IS SO ORDERED. 

DATED this q fv'day of March, 2017. 

United States District Judge 

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