RENDERED: MAY 27, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2021-CA-0804-ME

SUMMIT MEDICAL GROUP, INC. 

D/B/A ST. ELIZABETH PHYSICIANS 

APPELLANT 

v. 

APPEAL FROM KENTON CIRCUIT COURT

HONORABLE KATHLEEN S. LAPE, JUDGE

ACTION NO. 12-CI-02683

LISA COLEMAN APPELLEE 

OPINION

REVERSING

**   **  **

BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND JONES, JUDGES.

JONES, JUDGE: The Appellant, Summit Medical Group, Inc. d/b/a St. Elizabeth

Physicians (“St. Elizabeth”), seeks interlocutory review of the Kenton Circuit 

Court’s July 6, 2021, order certifying a class action pursuant to CR1 23.01 and CR 

1 Kentucky Rules of Civil Procedure.
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23.02(c), and appointing attorney Alan J. Statman as class counsel pursuant to CR 

23.07.2 The Appellee, Lisa Coleman, is the named class representative. St. 

Elizabeth argues the circuit court abused its discretion in concluding: (1) that 

Coleman, the sole named class member, as represented by Attorney Statman, “will 

fairly and adequately protect the interests of the class”; and (2) that this action 

meets the superiority and predominance requirements of CR 23.02(c). Having 

reviewed the record, we conclude the circuit court abused its discretion when it 

concluded that Coleman is adequate to serve as the named representative of this 

class. 

I. BACKGROUND

Dr. Shaun Jennings, who is employed by St. Elizabeth, was Lisa 

Coleman’s primary-care physician during the relevant time period. On June 26, 

2012, Coleman was scheduled to see Dr. Jennings for her annual preventive

care/wellness check (hereinafter referred to as the “Office Visit”). As part of the 

wellness check portion of her Office Visit, Coleman received a preventative exam, 

provided a urine sample, underwent an electrocardiogram (EKG) test, had her 

blood drawn, and received a Tdap vaccination. During the examination, Coleman 

2 Pursuant to CR 23.03(1), “the court must determine by order whether to certify [an] action as a 

class action.” Jones v. Clark County, 635 S.W.3d 54, 56 n.3 (Ky. 2021). CR 23.06 allows an 

immediate, interlocutory appeal “of an order granting or denying class action certification . . .

within 10 days after the order is entered.” 
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brought up some additional concerns she had to Dr. Jennings, which included 

issues with menopausal tiredness, anxiety, depression, and her thyroid. Dr. 

Jennings addressed these additional concerns by reviewing Coleman’s medications 

and her past treatment as documented in her chart. He diagnosed Coleman as 

suffering from anxiety and depression and wrote her a prescription for fluoxetine 

(Prozac). Dr. Jennings also prescribed Coleman medication for her thyroid. 

On September 9, 2012, Coleman received a bill from St. Elizabeth for 

the Office Visit. Upon review, Coleman was surprised to see that St. Elizabeth had 

charged her two separate fees for the single visit: (1) a fee for the wellness 

examination and related services (labs, EKG, and vaccination), which was fully 

covered by Coleman’s insurance; and (2) a separate office visit fee for the 

additional treatment she received for her depression/anxiety and thyroid, which 

Coleman’s insurance only partially covered, leaving her with a balance of $104.69. 

After receiving notice from St. Elizabeth that failure to pay the bill could result in 

the account being referred to a collections agency, Coleman paid St. Elizabeth 

$54.69, leaving her with a $50.00 outstanding balance. 

Prior to paying the balance of her bill, Coleman did some research on

the internet which led her to believe that she had been wrongly billed by St. 

Elizabeth. Before paying the remainder of her bill, Coleman decided to seek the 

advice of legal counsel regarding whether she might have any recourse against St. 
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Elizabeth. She ultimately contacted the Deters Law Firm and met with thenlicensed attorney Eric Deters.3 With the assistance of Mr. Deters, Coleman filed a 

putative class action complaint against St. Elizabeth in Kenton Circuit Court on or 

about October 25, 2012, alleging that she was “double billed.”4 

The case was originally assigned to Kenton Circuit Court Judge 

Martin J. Sheehan. Coleman filed a first amended complaint in December 2012. 

In January 2013, St. Elizabeth filed a motion to deny class certification. This 

kicked off a brief flurry of activity in the case that lasted through August 2013, 

when Judge Sheehan recused from the case and entered an order certifying the 

need for the appointment of a special judge. For reasons that are not clear from the 

record, the case was not assigned to a new judge for over two years. 

In October 2015, the case was finally reassigned to Kenton Circuit 

Court Judge Kathleen Lape, who continues to preside over the case. Even though

there were several motions pending at the time the case was reassigned to Judge 

3 Mr. Deters has a tumultuous history of practicing law in this Commonwealth. On February 23, 

2012, the Kentucky Supreme Court upheld the Bar Association Board of Governors’ 61-day 

suspension of Mr. Deters’s law license. Kentucky Bar Ass’n v. Deters, 360 S.W.3d 224 (Ky. 

2012). On June 15, 2012, the Kentucky Supreme Court granted Deters’s application for 

reinstatement, restoring his ability to practice law in the Commonwealth. Deters v. Kentucky 

Bar Ass’n, 408 S.W.3d 71 (Ky. 2012). Mr. Deters’s license was again suspended in May of 

2013. Kentucky Bar Ass’n v. Deters, 406 S.W.3d 812 (Ky. 2013). To date, Deters’s law license 

has not been reinstated. Deters v. Kentucky Bar Ass’n, 627 S.W.3d 917 (Ky. 2021).

4 Although 2012-2013 was punctuated with suspensions and reinstatements of Mr. Deters’s law 

license, it appears that he was licensed when the complaint was filed in this action. 
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Lape, including St. Elizabeth’s motion to dismiss the class claims, it does not 

appear that the pending motions were ever brought to Judge Lape’s attention as 

part of the reassignment process or by way of motion by the parties, and sometime 

thereafter the file was apparently misplaced somewhere in the Clerk’s Office.5 As 

a result, the case lay dormant for another two years. At some point, the file 

resurfaced. On January 25, 2017, the circuit court issued a show cause notice for 

failure to prosecute pursuant to CR 77.02(2); at the time the circuit court issued its 

notice, there had not been any filings by the parties since May 29, 2013, a period

lasting three years, seven months and twenty-seven days. 

In February of 2017, Coleman, now represented by Stephanie L. 

Collins, a different attorney at Deters Law Firm, filed a terse, three-sentence

objection to the circuit court’s notice, stating: “There were pending Motions. The 

case was reassigned and the motions were not ruled upon. Plaintiffs [sic] object to 

the dismissal.”6 Still, the case continued to languish with no additional filings for 

another one year, five months and fifteen days. Then, on August 10, 2018, the 

5 Among others, the pending motions included: (1) St. Elizabeth’s January 29, 2013, motion to 

deny class certification; (2) Coleman’s motion to file a second amended complaint; and (3) St. 

Elizabeth’s April 16, 2013, motion for summary judgment on all claims. 

6 As noted previously, Mr. Deters’s license to practice law had remained in suspension since 

May of 2013, making him unable to continue representing Coleman.
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circuit court entered an order allowing Coleman leave to file her second amended 

complaint,7certifying a class, and appointing Attorney Collins as class counsel.8

St. Elizabeth immediately appealed the circuit court’s August 2018 

certification order to this Court, Case Number 2018-CA-1238-ME. Around this 

same time, Attorney Collins left the Deters Law Firm, and Coleman’s case was 

reassigned to another attorney at the firm, Frederick Johnson. Counsel Johnson 

represented Coleman throughout the first appeal, which culminated in this Court 

vacating the circuit court’s August 2018 certification order and remanding for 

additional proceedings. While we found no error with respect to the circuit court’s

determinations as to numerosity, commonality, and typicality, we determined 

additional findings were necessary with respect to adequacy. Specifically, we held 

as follows:

We agree with [St. Elizabeth] that the issue regarding 

appointment of counsel requires further analysis by the 

circuit court. “[The adequacy] prong necessarily requires 

an analysis of class counsel’s ability to adequately 

protect the class’s interests. ‘It tests the qualifications of 

class counsel and the class representatives. It also aims 

7 Coleman’s second amended complaint modified the substance of her allegations against St. 

Elizabeth. Instead of basing her claim against St. Elizabeth on its alleged practice of “double 

billing” its patients as alleged in the prior complaints, the second amended complaint asserted a 

claim pursuant to Kentucky Revised Statute (“KRS”) 367.220(1), the Kentucky Consumer 

Protection Act (“KCPA”), predicated on St. Elizabeth’s failure to notify its patients regarding its 

billing practices. 

 

8 This case is somewhat unusual in that the class certification issue was before the circuit court as 

part of a motion to dismiss the class claims. For reasons that are not clear from the record, 

Coleman never actually affirmatively moved for class certification. 
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to root out conflicts of interest within the class to ensure 

that all class members are fairly represented in the 

negotiations.’” Nebraska Alliance, 529 S.W.3d [307] at 

315 [Ky. App. 2017] (citation omitted). Here there was 

no such analysis, and, even if there had been, the issue 

would need revisiting because of the proposed 

substitution of current counsel in place of [Attorney] 

Collins. “[W]e would be usurping the trial court’s 

discretionary power if we were to make factual findings 

and legal conclusions[.]” Id.

“[B]ecause the typicality, commonality, and adequacy 

prongs overlap in analysis, the trial court should revisit 

all prongs on remand to determine whether to certify a 

class. Cf. CR 23.03(3) (‘An order that grants or denies 

class certification may be altered or amended before final 

judgment.’).” Id. (citation omitted). Therefore, we 

vacate the circuit court’s appointment of counsel and 

remand the matter for full consideration under CR

23.01 and CR 23.07 (“Class counsel”). 

. . .

We decline to examine the circuit court’s CR 23.02 

findings until such time as the CR 23.01 issues are 

addressed on remand. Nebraska Alliance, 529 S.W.3d at 

316 (“[I]f the trial court finds the CR 23.01 prerequisites 

are met, it must then examine whether one of the three 

requirements of CR 23.02(a)-(c) is met.”).

Summit Medical Group, Inc. v. Coleman, 599 S.W.3d 445, 451 (Ky. App. 2019)

(emphasis added).

Following denial of Coleman’s petition to reconsider and expiration 

of the time to petition for discretionary review from the Kentucky Supreme Court, 

this Court entered a designation of finality and returned the record to the Kenton 
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Circuit Court on or about June 23, 2020. Shortly thereafter, Attorney Johnson 

unexpectedly passed away, at which time Dominick Romeo, also an attorney at 

Deters Law Firm, took over the case with the assistance of another attorney at the 

firm, Alexander Pertaglia.

9

 For the next several months the parties took additional 

discovery in preparation for the upcoming certification hearing, which the circuit 

court scheduled for November 5, 2020. The hearing, which lasted approximately 

two hours, was conducted in accordance with this Court’s remand order directing 

the circuit court to reassess class certification under CR 23.01, and, if certified, for 

appointment of class counsel pursuant to CR 23.07. 

Attorney Alan J. Statman was the first witness to testify. Attorney

Statman is the managing member of Statman, Harris & Eyrich, LLC, a Cincinnati, 

Ohio law firm. He seeks to be appointed class counsel. The first portion of 

Attorney Statman’s testimony focused on his professional qualifications. Attorney

Statman graduated from the University of Dayton School of Law in 1983, and is 

currently licensed to practice law in Ohio, Kentucky, and Illinois. He has tried 

numerous cases to verdict, securing millions of dollars on behalf of his clients. He 

has substantial experience in class actions and other types of complex litigation, 

specializing in cases involving banking, finance, consumer rights, and mass torts. 

9 On August 27, 2021, Attorney Pertaglia withdrew as counsel for Coleman.
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He testified that this case is relatively simple as related to other, more complex 

litigation he has successfully handled. 

Attorney Statman testified that if appointed class counsel, he would 

oversee the litigation with the assistance of the Deters Law Firm, including its 

three attorneys, two outside contractors, and its full support staff in combination 

with an associate and two senior members at his law firm. Attorney Statman 

testified that he would rely on Deters Law Firm to finance the litigation and assist 

in the substantive aspects of the case. He explained: “So I think between the 

Deters [Law Firm’s] resources, my firm, and the Deters [Law Firm’s] bank

account, we’re in good shape to get this case through its finish line.” 

When asked to explain his relationship with Deters Law Firm,

Attorney Statman stated that while he is not a member of Deters Law Firm or one 

of its full-time employees, he has an “of counsel” arrangement with the firm to 

work on certain cases as requested. He explained that his fee for that work is 

covered by an agreement he has with Deters Law Firm. Attorney Statman testified 

that he did not have an individual agreement with Coleman because he had not yet 

been appointed class counsel. At this point, any agreement would be between 
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Coleman and Deters Law Firm.10 Attorney Statman testified that his of counsel 

agreement places the burden of financing any litigation on Deters Law Firm. 

Attorney Statman additionally testified that he first met Coleman at 

the courthouse that day, shortly before the class certification hearing, and spent 

about twenty minutes talking to her. He had no specific recollection of speaking 

with Coleman prior to the November 5, 2020, hearing, but noted he could possibly

have spoken to her on the telephone at some point over the years. Lastly, Attorney 

Statman testified that he understood the legal and factual issues in this litigation

and would easily be able to handle the case from a substantive standpoint. 

Lisa Coleman, the named class representative, was the next witness to 

testify. Coleman explained that her claim against St. Elizabeth arose out of the bill 

she received for her 2012 Office Visit. She asserted that she did not believe that 

St. Elizabeth should have “double billed” her for a preventative exam and an office 

visit when the care she received from Dr. Jennings occurred as part of an 

uninterrupted, single appointment, and does not recall being advised by Dr. 

Jennings that she would be so billed. 

10 Attorney Statman testified that he had consulted with outside ethics counsel, George Johnson, 

who advised him it was not necessary to have sperate agreements with the clients he assisted in 

his of counsel capacity, and that he could rely on the contract those clients had with the Deters 

Law Firm. 
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Regarding serving as the class representative, Coleman explained that 

she understood that the purpose of bringing her claim as part of a class action was 

to protect her and other patients “from what was done – you know, what I feel was 

done wrong.” She testified that she believes the class, if certified, would consist of 

approximately 700 members who received bills similar to hers, and she “would be 

their voice.” She explained that in this role she understood her responsibility to be 

“just to come forward and – with the advice of counsel and do what was asked,

make appearances.” She indicated that she would supply whatever information 

was needed and make herself available for court appearances and depositions as 

requested. 

Cross-examination of Coleman focused largely on her involvement

(or lack thereof) with the litigation to date. While Coleman testified that she had 

read the original complaint, she did so only after it had been filed; she could not 

recall whether she had read either the first or second amended complaints filed on 

her behalf. She denied having any fee agreement with the Deters Law Firm. She 

further testified that other than Eric Deters, she did not know any of the other 

attorneys who had represented her since 2012. She testified that she met Attorney

Statman that day shortly before the hearing, but had reviewed his resume at some 

point prior. She felt that based on that review and her meeting that Attorney

Statman was competent to serve as class counsel. She testified that if appointed 
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class representative she would protect the interests of the other class members by 

making sure that she “was involved and educated.” She further testified that she 

understood that as class representative she would owe a fiduciary duty to the other 

class members which she explained was a duty “to make sure everybody gets a fair 

share.” She affirmed that she had and would continue to rely on counsel to 

investigate and prosecute her case. After cross-examination, Coleman requested 

permission to be excused from the remainder of the hearing, which the circuit court 

granted. 

Dr. Jennings was called by St. Elizabeth to testify next. Dr. Jennings 

testified that the bill Coleman received accurately and correctly reflected the care 

and services she received during her Office Visit. As related to the additional 

charges, Dr. Jennings explained that treating Coleman’s anxiety/depression and 

thyroid issues was outside the realm of the wellness examination, and required him 

to spend approximately twenty-five additional minutes with Coleman. Dr. 

Jennings further testified that while St. Elizabeth did not have a mandatory notice 

requirement, it is his standard practice to orally inform his patients of St. 

Elizabeth’s billing practices whenever a patient brings up matters outside the scope 

of a wellness examination, and that he does so ninety-nine percent of the time. Dr. 

Jennings has no specific recollection of whether he followed his standard practice 

during Coleman’s Office Visit, but believes he would have likely done so. Dr. 
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Jennings was unaware whether other St. Elizabeth physicians followed this same 

practice. 

St. Elizabeth’s vice president of revenue and cycle services, Maria 

Rankin, testified by deposition about St. Elizabeth’s billing and coding practices. 

Rankin testified that the charges reflected on Coleman’s statement accurately 

detailed the service she received, and that like other patients Coleman was billed in 

accordance with the Current Procedural Terminology (“CPT”) billing codes 

published by the American Medical Association.

11 She further testified that as of 

June 26, 2012, St. Elizabeth did not have a disclosure policy regarding its billing 

practices; it was up to the individual physicians whether to the inform the patients 

of billing matters prior to dispensing treatment. 

Following the hearing and submission of post-hearing briefs and other 

documentary evidence, the circuit court entered an order certifying a class and 

11 “Starting in the 1960s, shortly after Congress created Medicare, the need for a uniform system 

of medical billing became apparent. In response to this growing need, the American Medical 

Association (“AMA”), with industry input, developed the first version of the Current Procedural 

Terminology (“CPT”) Codes.” United States ex rel. Montcrieff v. Peripheral Vascular 

Associates, P.A., 507 F. Supp. 3d 734, 742 (W.D. Tex. 2020). “The CPT Codes are a series of 

alphanumeric sequences used by healthcare providers to describe the procedures and services 

that they perform.” Id. “In 1996, Congress passed the Health Insurance Portability and 

Accountability Act, which required the U.S. Department of Health and Human Services (“HHS”) 

to adopt uniform standards of coding for electronic transactions involving healthcare 

information. HHS adopted as one of the standards of coding the AMA’s CPT Codes, which had 

undergone significant revision and updating. In 2002, the CPT Codes formally became one of 

the methods by which healthcare providers must bill Medicare for medical services[.]” Id.

(citations omitted); 45 Code of Federal Regulations (“C.F.R.”) § 162.1002. 
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appointing Attorney Statman as class counsel. As certified by the circuit court, the 

class includes:

All current and former patients of [St. Elizabeth] who 

went to [St. Elizabeth] for a preventative care exam and 

were subsequently charged both a preventative care visit 

fee and an additional office visit fee for same-day service 

and who incurred a debt for or paid out-of-pocket for the 

additional fee. 

7/6/2021 class cert. order at 12. St. Elizabeth filed this interlocutory appeal of the 

circuit court’s certification order pursuant to CR 23.06. 

II. STANDARD OF REVIEW

We review the circuit court’s determination as to class certification for 

abuse of discretion. Hensley v. Haynes Trucking LLC, 549 S.W.3d 430, 444 (Ky. 

2018). “The test for abuse of discretion is whether the trial judge’s decision was 

arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” 

Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). While the test for 

abuse of discretion is easily stated, the definition is amorphous and applying the 

test in practice is exceedingly difficult. It requires appellate courts to walk a fine 

line by engaging “in a meaningful review without resorting to retrying the issue[.]” 

Miller v. Eldridge, 146 S.W.3d 909, 917 (Ky. 2004). 

While we must accord respectful deference to the circuit court’s

discretionary decisions, we must be careful not simply to rubber stamp them. This 

is especially important in the class action setting because we are dealing not only 
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with the rights of the named representative but also the rights of the absent class 

members who the named representative seeks to represent. With this standard in 

mind, we now turn to the class certification order at issue in this appeal. 

III. ANALYSIS

The class action device is “an exception to the usual rule that litigation 

is conducted by and on behalf of the individual named parties only.” Wal-Mart 

Stores, Inc. v. Dukes, 564 U.S. 338, 348, 131 S. Ct. 2541, 2550, 180 L. Ed. 2d 374 

(2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-01, 99 S. Ct. 2545, 2557, 

61 L. Ed. 2d 176 (1979)); Imhoff v. House, 628 S.W.3d 88, 93 (Ky. 2021). Class 

actions in Kentucky are governed by CR 23.01 through CR 23.08. “Taken 

together, the rules provide a comprehensive roadmap to class certification.” 

Manning v. Liberty Tire Services of Ohio, LLC, 577 S.W.3d 102, 110 (Ky. App. 

2019). 

As related to this appeal, we are primarily concerned with the circuit 

court’s determinations under CR 23.01 and CR 23.02. As explained in United 

Propane Gas, Inc. v. Purcell, 533 S.W.3d 199 (Ky. App. 2017):

When read in concert, CR 23.01 and CR 23.02 create a 

two-step analysis for the circuit court to undertake when 

determining if certification of a class is appropriate.

First, the circuit court must determine if all four of the 

requirements set out in CR 23.01 – numerosity, 

commonality, typicality, and adequacy of representation

– are present. Pyro Mining Co. v. Kentucky Comm’n on 

Human Rights, 678 S.W.2d 393, 395 (Ky. 1984). If they 
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are not, the circuit court cannot certify the class. If all 

four are present, the circuit court looks to CR 23.02 and 

determines if one of the three conditions listed therein is 

present. If none of the three is satisfied, the court must 

deny class certification; . . . 

If all the requirements are met for class certification, the 

circuit court “must determine by order whether to certify 

the action as a class action.” CR 23.03. In that order, the 

circuit court “must define the class and the class claims, 

issues, or defenses, and must appoint class counsel under 

CR 23.07.” CR 23.03(2). 

Id. at 202-03.

Coleman sued St. Elizabeth seeking to represent a class of similarly 

situated individuals. As such, “at an early practicable time” the circuit court was 

required to “determine by order whether to certify the action as a class action.” CR 

23.03. While this is typically done after the named representative moves for class 

certification, there is no requirement in the Civil Rules which requires the named 

representative to move for certification. See Picus v. Wal-Mart Stores, Inc., 256 

F.R.D. 651, 655 n.1 (D. Nev. 2009) (“[A]lthough the plaintiff typically moves for 

class certification, the parties do not dispute that a defendant can move to deny 

class certification before a plaintiff moves for certification. Rule 23 does not 

preclude this.”). 

Even when, as here, the class certification issue is raised by the 

defendant, if sufficient discovery has taken place, the court should conduct the 

certification proceeding as if it were before the court as part of a “regular, plaintiff-
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initiated class certification motion.” WILLIAM B. RUBENSTEIN, NEWBERG ON 

CLASS ACTIONS § 7:22 Movant’s burden of proof – Defendant’s burden of proof on 

a motion to deny class action (5th ed. 2021). Most importantly, no matter which 

party triggers the certification decision, the burden of demonstrating compliance 

with the requirements of CR 23.01 and CR 23.02 remains with the plaintiff. 

Dukes, 564 U.S. 338 at 350, 131 S. Ct. at 2551 (“A party seeking class certification 

must affirmatively demonstrate [her] compliance with the Rule – that is, [s]he must 

be prepared to prove that there are in fact sufficiently numerous parties, common 

questions of law or fact, etc.”). 

On remand, as instructed by this Court, the circuit court reassessed 

each of the CR 23.01 requirements, and concluded that the putative class as alleged 

in Coleman’s second amended complaint satisfied each.12 With respect to CR 

23.01, St. Elizabeth contests only the circuit court’s conclusion that Coleman, as 

represented by Attorney Statman, can adequately and fairly protect the class’s 

interests. 

12 CR 23.01 states: “Subject to the provisions of Rule 23.02, one or more members of a class 

may sue or be sued as representative parties on behalf of all only if (a) the class is so numerous 

that joinder of all members is impracticable, (b) there are questions of law or fact common to the 

class, (c) the claims or defenses of the representative parties are typical of the claims or defenses 

of the class, and (d) the representative parties will fairly and adequately protect the interests of 

the class.”
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Adequacy in class action litigation refers to the idea that the class 

representative will fairly and adequately protect the class’s interests. “The

adequacy prong has two separate criteria: ‘1) the representative must have 

common interests with unnamed members of the class[;] and 2) it must appear that 

the representatives will vigorously prosecute the interests of the class through 

qualified counsel.’” Nebraska Alliance, 529 S.W.3d at 313 (quoting Senter v. 

General Motors Corp., 532 F.2d 511, 525 (6th Cir. 1976)). “Adequate 

representation is [] the capstone of the Rule 23(a) requirements: it ensures that the 

class’s champion will pursue its interests sufficiently well so as to produce a 

judgment that can fairly bind all members of a group who cannot appear before the 

court individually.” NEWBERG ON CLASS ACTIONS § 3:50 Introduction to Rule 

23(a)(4) – Adequacy of representation (5th ed. 2021).

With respect to the first prong of the adequacy analysis, we are mainly 

concerned with determining whether “there is any antagonism between the 

interests of the [representative] and other members of the class [she] seek[s] to 

represent.” In re American Medical Systems, Inc., 75 F.3d 1069, 1083 (6th Cir. 

1996).

13

 Antagonism commonly arises in cases where the named class 

13 To date, our appellate courts have not elaborated with any degree of specificity regarding the 

factors a trial court should consider in assessing the ability of the proposed class representative to 

vigorously prosecute the interests of the class. Given the similarity between CR 23 and its 

federal counterpart and in the absence of controlling Kentucky precedent, we look to federal 

cases for guidance. Nebraska Alliance, 529 S.W.3d at 311; Curtis Green & Clay Green, Inc. v. 

Clark, 318 S.W.3d 98, 105 (Ky. App. 2010) (“It is well established that Kentucky courts rely 
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representative seeks to represent a class composed of individuals who may have an 

interest in pursuing different types of relief such as prospective versus 

retrospective relief. 

The second prong of the adequacy analysis, which is the focus of this 

appeal, requires the court to determine whether the proposed representative is 

properly qualified to assume the role of class representative and whether she will 

vigorously prosecute the interests of the class if named the class representative. 

This analysis entails considerations such as the proposed representative’s 

knowledge of the case, her interest in and enthusiasm for the litigation and for 

representing the class, her willingness to respond to interrogatories and 

depositions, her understanding of the role and duties of a class representative and 

ability to carry out those duties, and the relationship between the representative and 

class counsel. See NEWBERG ON CLASS ACTIONS § 3:54 Introduction to adequacy 

standard (5th ed. 2021).

St. Elizabeth argues the circuit court’s abuse of discretion in finding 

Coleman to be an adequate representative is evinced by (1) Coleman’s lack of a 

written fee agreement with any attorney or law firm; (2) her lack of knowledge 

regarding the legal basis of her claims; (3) her uncertainty regarding who was 

upon Federal caselaw when interpreting a Kentucky rule of procedure that is similar to its federal 

counterpart.”).
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representing her at various points in the litigation; and (4) her lack of overall 

involvement in the litigation to date, including allowing the case to languish for 

several years. 

We cannot agree with St. Elizabeth that Coleman’s alleged lack of a 

fee agreement with the Deters Law Firm is a basis for finding her to be an 

inadequate representative.14 St. Elizabeth’s argument in this regard confuses the 

role of individual counsel and class counsel. Even if a fee agreement did exist, it 

would not govern Coleman’s relationship with class counsel nor bind the absent 

class members. “[R]egardless of whether the class representative was initially an 

individual client of class counsel, once a court certifies a class and appoints class 

representatives and class counsel, those parties have an attorney-client relationship 

with one another.” NEWBERG ON CLASS ACTIONS § 19:2 Attorney-client 

14

 In her appellee brief, Coleman now asserts that she misspoke at the certification hearing and 

that she does in fact have an agreement with the Deters Law Firm. Her brief states: “The written 

fee agreement was executed on October 6, 2012, and Deters Law’s records show that the matter 

was in connection with a St. Elizabeth billing issue and that Coleman was a new client.” Of 

course, Coleman should be well aware that we are limited to the record below and that the 

argument of counsel is not evidence. See White v. White, 883 S.W.2d 502, 505 (Ky. App. 1994) 

(“The insertion of the promissory note in the hospital’s brief at this stage of the proceedings is an 

improper attempt to introduce evidence outside the record. Since our review is limited to the 

pleadings and evidence considered by the circuit court, we decline to consider the promissory 

note in reaching our decision, although to do so would not change the result.”); Deal v. First and 

Farmers National Bank, Inc., 518 S.W.3d 159, 173, n.14 (Ky. App. 2017) (“The arguments of 

counsel in briefs are not evidence.”). Additionally, if such a fee agreement does in fact exist, we 

are at a complete loss to understand why Coleman did not seek to correct the record while the 

case was still pending before the circuit court. Coleman testified on November 5, 2020. There 

were numerous opportunities for Coleman to file the alleged fee agreement in the circuit court 

before the circuit court rendered its certification decision in July of 2021. Yet, she waited until 

this matter was on appeal to claim the existence of the agreement. 
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relationships in class actions (5th ed. 2021). After certification, the relationship 

and class counsel’s fees are largely governed by CR 23, and not any individual fee 

agreement the named representative may have had prior to certification. 

We also cannot agree that Coleman’s lack of knowledge regarding the 

exact legal theory behind her claims is indicative of the fact that she is not an 

adequate class representative. Courts are mostly concerned that the class 

representative has an adequate factual understanding of the case; the class 

representative does not need to understand the legal theories of the case and is 

entitled to rely on counsel’s expertise and advise. Surowitz v. Hilton Hotels Corp., 

383 U.S. 363, 370, 86 S. Ct. 845, 850, 15 L. Ed. 2d 807 (1966). While Coleman 

may not have been able to articulate the precise legal theory underpinning her 

claim, she demonstrated an acute awareness of the underlying facts.

St. Elizabeth’s final arguments center on Coleman’s lack of 

involvement in the case as demonstrated by her inability to identify the various 

lawyers who have represented her and her general passivity as related to this 

litigation. It points out that Coleman was so uninvolved in the case that it 

languished for several years prior to any decision on certification. The circuit 

court excused Coleman’s lack of diligence by attributing the delays in this case to 

events which occurred at Deters Law Firm and the courthouse “which were not 

within Coleman’s control.” In so doing, the circuit court failed to consider how 
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Coleman’s response to the delays indicates her ability (or lack thereof) to protect 

the interests of the absent class members in the future. 

A court must consider the willingness and ability of the class 

representative to be actively involved with the litigation; a class representative 

should not be simply “lending” her name as the representative. While the events 

themselves may not have been within Coleman’s control, we cannot accept that 

this excuses the fact that between May of 2013 and August of 2018, nothing was 

accomplished in this case. It languished needlessly. A simple phone call or 

motion seeking a status conference could have prevented years of needless delay

by alerting court staff to the missing file. Even after the court issued a show cause 

order, Coleman’s response was limited to three short sentences noting that there 

were pending motions. She did not identify the pending motions by name, request 

a status conference, or even call to the court’s attention that this was a putative 

class action. 

Coleman failed to offer any explanation whatsoever for her past 

dilatory conduct during her testimony. From the record, it is unclear whether 

Coleman sought any case updates from counsel during this time or whether she had 

simply forgotten about the case altogether. If she did inquire and those inquiries 

went unanswered, it would have been prudent for her to search for different 

counsel; if she did not inquire, one must question why she was so unconcerned 
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with the action. Obviously, as a layperson, Coleman must rely on the legal advice 

of counsel. However, this does not absolve her from staying updated on the 

litigation and ensuring that counsel are diligently pursuing the class claims. 

Coleman testified that going forward she would do what was asked of 

her by counsel. Certainly, this is important. Perhaps, more important, especially 

in light of past delays such as occurred in this case, is the class representative’s

ability and willingness to oversee class counsel. Nothing in this record supports 

that Coleman has the willingness or the ability to prevent future similar delays as 

have occurred in this case. In fact, the record suggests precisely the opposite. 

“[T]he failure of the representative to move for class certification in a 

timely fashion or otherwise to prosecute the action is a clear indication that the 

named party is not an adequate representative.” MARY KAY KANE, 7A FED. PRAC.

& PROC. CIV. § 1766 The Representatives Will Protect the Interests of the Class –

Quality Not Quantity Is Significant (4th ed. 2022); East Texas Motor Freight 

System Inc. v. Rodriguez, 431 U.S. 395, 405, 97 S. Ct. 1891, 1897, 52 L. Ed. 2d 

453 (1977) (“[T]he named plaintiffs’ failure to protect the interests of class 

members by moving for certification surely bears strongly on the adequacy of the 

representation that those class members might expect to receive.”). Coleman did 

nothing for almost five years to advance this case beyond the pleading stage. 

While she may not be responsible for creating the reasons for the initial delay, her 
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lack of attention to and involvement in this case undisputedly prolonged it by 

several years. 

Allowing this case to proceed with Coleman as the named class 

representative would risk the rights of the unnamed class members whom she 

would represent. They would be at the mercy of Coleman and her counsel, who, to 

date, have demonstrated either an unwillingness or an inability to move this case 

along.15 In light of these most unusual facts, we must conclude that the circuit 

court abused its discretion when it found that Coleman is able to vigorously 

prosecute the interests of the class as the named the class representative. See Nagel 

v. ADM Inv’r Services, Inc., 217 F.3d 436, 443 (7th Cir. 2000) (affirming district 

court’s sua sponte dismissal of class claims where “the case had been pending for 

several years when the court ruled, and the plaintiffs had never during that period 

moved for class certification, even though Rule 23 of the Federal Rules of Civil 

Procedure and the cases interpreting it require that the issue of class certification be 

resolved as quickly after the suit is filed as practicable.”); Harriston v. Chicago 

Tribune Co., 992 F.2d 697, 704 (7th Cir. 1993) (holding that delay in moving for 

class certification showed that named representative was not adequate because it 

15 Attorney Statman testified that, if appointed class counsel, he would rely fully on the Deters 

Law Firm to finance the litigation and partially rely on the Deters Law Firm’s staff, including its 

attorneys, paralegals, consultants, and support staff to assist him with the litigation. These are 

the same attorneys, paralegals, and support staff who were complicit in the extraordinary delay

that plagued this case from 2013 to 2018. 
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demonstrated that she was unable to “timely protect the interests of the class 

members”). 

Having concluded that Coleman fails CR 23.01’s adequacy prong, we 

need not consider her additional argument under CR 23.02(c). 

IV. CONCLUSION

For the reasons set forth above, we reverse the Kenton’s Circuit 

Court’s July 6, 2021, order on class certification. 

ALL CONCUR.

BRIEFS FOR APPELLANT:

David V. Kramer

Mark D. Guilfoyle

Christopher B. Markus

Crestview Hills, Kentucky

ORAL ARGUMENT FOR 

APPELLANT:

BRIEF FOR APPELLEE:

Alan J. Statman

Cincinnati, Ohio

A. Dominick Romeo

Independence, Kentucky

ORAL ARGUMENT FOR 

APPELLEE:

Christopher B. Markus Alan J. Statman

Crestview Hills, Kentucky Cincinnati, Ohio