Government Employees Insurance Company, Geico General Insurance Company, Geico Indemnity Company, Criterion Insurance Agency, Inc., and Colonial County Mutual Insurance v. Jon P. Patterson, D.C., Individually and on Behalf of All Others Similarly Situated

• Court: Court of Appeals of Texas
• Decided: November 29, 2007
• Docket: 13-06-00259-CV
• Status: Published

Opinion

NUMBERS 13-06-258-CV & 13-06-259-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

GOVERNMENT EMPLOYEES INSURANCE

COMPANY, ET AL., Appellants,

v.

JON P. PATTERSON, D.C., INDIVIDUALLY

AND ON BEHALF OF ALL OTHERS SIMILARLY

SITUATED, Appellees.

On appeal from the 332nd District Court of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Justices Yañez, Rodriguez, and Garza

Memorandum Opinion by Justice Yañez

In this interlocutory appeal, appellants ⁽¹⁾ challenge two April 24, 2006 class certification orders issued by the trial court: (1) one certifying a "patient class" ⁽²⁾ and (2) one certifying a "physician class." ⁽³⁾ We conclude the trial court abused its discretion in certifying both classes. Accordingly, we (1) reverse the order certifying the "patient class" and dismiss the claim, and (2) reverse the order certifying the "physician class" and remand to the trial court.

I. Background

In 1999, appellee, Jon. P. Patterson, D.C., a chiropractor, sued appellants, alleging libel per se, tortious interference with contract, and breach of a duty of confidentiality. Appellee's claims are based on language contained in letters sent to two of his patients, Chris Olson and Juan Leal, by claims adjusters for Government Employees. ⁽⁴⁾ Appellee asserts that the letters are defamatory because they assert "malpractice and malfeasance" in his business and profession and suggest he is "incompetent and dishonest in the exercise of his profession." According to appellee, the letters are false insofar as they state or infer that he "gave the patient medically unnecessary treatment and charged too much for it." Appellee claims the letters also constitute tortious interference with the patient/physician relationship because the letters induced the patient/recipient to breach his relationship with appellee and refrain from paying for treatment received. Appellee asserts his libel and tortious interference claims on behalf of a "physician class." Appellee asserts his breach of the duty of confidentiality claims on behalf of a "patient class," contending that the "defendants' practice of disclosing [patient] identities and confidential communications is unlawful."

On December 17, 2004, appellants filed a motion for summary judgment and a combined plea to the jurisdiction and motion to dismiss. In their plea to the jurisdiction, appellants argued that appellee lacked standing to sue four appellants for libel and tortious interference because the only two patients identified as receiving the complained-of letter (Olson and Leal) were insured by Government Employees, and had no relationship to the other appellants. ⁽⁵⁾ With respect to appellee's breach of the duty of confidentiality claim, appellants argued that appellee lacked standing as to all appellants because he is a chiropractor, not a patient, and any injury resulting from a breach of a patient's confidentiality is suffered by the patient, not the chiropractor. Appellants also disputed appellee's assertion that the statute providing that a chiropractor may assert a privilege on a patient's behalf authorizes a chiropractor to file suit on a patient's behalf. ⁽⁶⁾

On March 25, 2005, the trial court held a hearing on appellants' motion for summary judgment and plea to the jurisdiction. At the hearing, appellants argued, among other things, that the trial court must determine the issue of appellee's individual standing before considering whether to certify the class. Appellants also argued that appellee lacked standing as to some appellants; in response, appellee argued that all five appellants were "juridically linked" because one regional office administered claims for all five insurance companies. Appellants noted that appellee had failed to assert any "juridical link" claim in his petition, that the pleading deadline had passed, and that the court should therefore not consider the argument. The trial court agreed that the pleading deadline had passed and took the matter under advisement. The record does not reflect that the trial court ever ruled on appellants' plea to the jurisdiction.

On April 14, 2005, the trial court held a hearing on appellee's motion for class certification. In her opening remarks, appellants' counsel reminded the court that the plea to the jurisdiction remained pending and that the court should rule on the plea to the jurisdiction before ruling on certification of the classes. Appellee presented expert testimony by Jack Ratliff, a former law school professor and an expert in class actions. In the course of testifying, Ratliff identified numerous obstacles to class certification. With regard to the "patient" class and alleged "wrongful disclosure" of confidential information, Ratliff noted that the proposed class "would seem to include people who had signed authorizations [to disclose information] and people who had not;" thus, the proposed class lacked "the requisite cohesiveness." He also noted that the multi-state nature of both classes raises an issue regarding the application of multiple statutes of limitations, and that the trial plan does not specify how this issue would be addressed. Ratliff also noted that because of the multi-state scope of the "patient" class, there is "a conflict of laws problem," and that the issue "could derail this case."

Ratliff also opined that appellee lacked standing as the representative of the patient class because he is not a patient. When appellee's counsel suggested that he could remedy the problem by naming a new class representative and presenting the new representative's affidavit to show he is qualified, Ratliff responded that absent an opportunity for appellants to depose and cross-examine the new representative, such a procedure "would stand a great chance that that would be thought to be a reversible error because otherwise there--it's--it's a sort of a stealth representative, nobody has an opportunity really to test their qualifications."

With regard to the "physician" class, Ratliff also noted that the scope of the multi-state class raises the issue of multiple state statutes of limitations. As to appellee's libel claim, Ratliff testified that in his view, individual questions will overwhelm the common questions:

So it seems to me you've got a dual problem with libel. You've got the question of whether the statement is true or false. And each one of these cases, what the libel has [sic] said to be is you accused me of overcharging or you accused me of charging more than people around me charge for this kind of service.

Well, in order to know whether that charge was reasonable or not, you've got to know what the service was, how bad the patient hurt, what the patient's needs were, what other people in the community are--are charging, how many visits there were, how many visits were really required. Those are quintessentially individual in [sic] issues that have to be done, in my opinion, class member by class member. I don't see any way that you could ask class wide the damages question.

Ratliff observed that with respect to appellee's libel claim, "[n]othing supports your view that you can make this case without proving falsity." As to appellee's tortious interference claim, Ratliff opined that the class could not be appropriately certified because an element of the claim is causation, which would require individual determination:

[Ratliff]: In this case what that means is, you have to show that the letter that went out from GEICO kept people--kept a patient from paying the patient's bill. That involves knowledge of whether the patient ever, in fact, got the letter, whether the patient read it, what the patient thought it meant. . . . And after reading it, whether the patient relied on the letter in not paying the bill. That's not a question that can be answered once for Ms. Olson and be--and be answered for everybody in the class as we know the requirement to be.

Further more, in this case you have other evidence, I believe, which makes this even more problematic, and that is, if I understand it correctly, as to at least one or two of these class reps, I think the evidence was that Dr. Patterson never sent them a bill. It's entirely possible that the failure to receive a bill is the reason they didn't pay this amount and it may not be the reason. That's an argument between you and the defendants. But it's an argument they are entitled to make based on these specific facts. . . . That's why I think causation is essential to your case. I think it's missing and I see no way for it to be asked and answered class wide.

Appellee also testified at the certification hearing. On cross-examination, he testified he was unaware that his counsel had proposed a new representative of the patient class. Appellee also testified that he does not always bill a patient when the bill has not been paid in full by an insurance company. With regard to the two patients named in the lawsuit (Olson and Leal), appellee testified he had "no idea" whether a bill was sent to those patients.

The final witness at the certification hearing was appellee's counsel, Bryan Powers, who testified as to his qualifications as class counsel. On cross-examination, appellants' counsel asked Powers to admit that he had "now [the morning of the hearing] changed the definition of the class as well as substituted in a new class rep taking the place of Dr. Patterson on the patient class[.]" Powers responded that the rules allow the court "at any time" to "consider who a representative should be" and "make modifications at any time . . . on what's appropriate for a class definition."

Appellants' counsel made several arguments against certification, including the following: (1) appellee's actions in changing the definition of both classes and naming a new class representative for the patient class--Chris Olson, who was not present to testify or answer questions--circumvented appellants' due process rights; (2) the proposed certification order for the physician class states that it does not consider appellants' affirmative defenses "because this is not the proper time;" (3) appellee presented no evidence on choice of law for either of the eight-state classes; (4) appellee is unable to show causation with regard to the tortious interference claim because there is no evidence he sent a bill to either of the two named plaintiffs; and (5) appellee has failed to present an adequate trial plan showing how the claims and defenses will be tried.

The trial court took the matter under advisement, and more than a year later, on April 24, 2006, certified both classes. The order certifying the patient class (1) defines the class as "all patients whose identity and/or medical records were disclosed to Medata, Inc. or any medical bill reviewer by the GEICO Dallas Regional Office since May 17, 1997"; (2) appoints Chris Olson as class representative; (3) states that "[t]he geographical dispersal of the members of the Patient Class throughout the eight States comprising the GEICO Dallas Region makes it impracticable to join the individual patients who are in the Patient Class"; and (4) states that Chris Olson will fairly and adequately represent the interests of the patient class, and that his interests are "coincident with" those of the patient class. ⁽⁷⁾ The "trial plan" states, in its entirety, that:

1. The Patient Class Representative will present the case to a jury on behalf of the Patient Class.

2. Unless a directed verdict is appropriate at Plaintiff's rest, the Defendants will present their defenses, if any, to the jury.

3. Unless a directed verdict is appropriate at the parties' close, the case will be submitted to the jury based on the evidence admitted at trial.

4. The Plaintiffs' causes of action to be tried are for (1) declaratory judgment and (2) injunction.

5. The elements of Plaintiffs' declaratory judgment case are (1) there exists an actual controversy regarding the parties' privacy rights under statute, (2) a declaratory judgement [sic] will terminate the controversy, (3) Plaintiffs' attorney fees are equitable and just, and (4) injunctive relief is proper.

6. The jury will be asked to decide all factual issues presented. The court will determine equitable and just attorney fees, if any.

7. Final judgment will be based on the jury verdict, if any, and the court's findings.

The order certifying the physician class (1) defines the class as "all medical practitioners to whose patient or other person the GEICO Dallas Regional Office, since May 12, 1997, sent a form letter with the same wording as the attached form letter Bates-stamped G 0020, enclosing a GEICO Explanation of Benefits"; (2) names appellee as class representative; (3) states that "[t]he geographical dispersal of the medical-practitioner members of the Physician Class throughout the eight States comprising the GEICO Dallas Region makes is impracticable to join the individual medical providers in the Physician Class"; (4) identifies seven "questions of law or fact" common to the class; (5) states that appellee's claims are typical of the class; (6) states that "[t]he court does not here consider defendants' affirmative defenses because this is not the proper time"; (7) states that issues common to the class predominate over individual issues "because the only individual question for each Physician Class member is the amount of damages"; and (8) states that a class action is superior to other methods to adjudicate this case because the members of the class "are geographically scattered in various jurisdictions of Texas, New Mexico, South Dakota, North Dakota, Wyoming, Colorado, Kansas, and Nebraska." ⁽⁸⁾ The one-and-a-half-page "trial plan" lists the elements of libel per se and tortious interference "in this case," ⁽⁹⁾ states that the jury will be asked to determine whether certain provisions of the form letters constitute libel per se or tortious interference, and states that "[t]he jury will also be asked to determine the defendants' affirmative defenses of justification and privilege."

In two issues, appellants challenge the trial court's order certifying the patient class, contending: (1) the trial court lacked subject matter jurisdiction over appellee's claim for breach of the duty of confidentiality because appellee lacks standing to bring the claim; and (2) the trial court abused its discretion in certifying the patient class. Similarly, in two issues, appellants challenge the order certifying the physician class, contending: (1) the trial court lacked subject matter jurisdiction over appellee's libel and tortious interference claims with regard to four appellants (GEICO Indemnity, Colonial, Criterion, and GEICO General) because appellee lacks standing to bring claims for libel and tortious interference against these four appellants; and (2) the trial court abused its discretion in ordering class certification of the physician class.

II. Jurisdiction, Standard of Review, and Applicable Law

We have jurisdiction over interlocutory appeals of class certification orders under section 51.014(a) of the Texas Civil Practice and Remedies Code. ⁽¹⁰⁾ Class certification is governed by rule 42 of the Texas Rules of Civil Procedure. ⁽¹¹⁾ The decision to grant or deny class certification is within the discretion of the trial court, and we will not reverse the trial court's decision unless an abuse of that discretion is evident from the record. ⁽¹²⁾ However, unlike typical abuse of discretion review, when reviewing the grant or denial of class certification, we do not indulge every presumption in favor of the trial court's ruling. ⁽¹³⁾ While some of the trial court's determinations, such as those based on assessment of the credibility of witnesses, "must be given the benefit of the doubt," ⁽¹⁴⁾ "actual, not presumed, conformance with [rule 42] remains . . . indispensable." ⁽¹⁵⁾ There is no inherent right to proceed as a class action. ⁽¹⁶⁾ Therefore, compliance with rule 42 must be demonstrated, ⁽¹⁷⁾ and we do not err in favor of certification. ⁽¹⁸⁾ The trial court must perform a rigorous analysis and provide a specific explanation for how class claims will proceed to trial. ⁽¹⁹⁾ A trial plan is required in every class certification order "to allow reviewing courts to assure that all requirements for certification under Rule 42 have been satisfied." ⁽²⁰⁾ To make a proper analysis, "going beyond the pleadings is necessary, as a court must understand the claims, defenses, relevant facts, and applicable substantive law in order to make a meaningful determination of the certification issues." ⁽²¹⁾

In Bernal, the supreme court stated:

All class actions must satisfy four threshold requirements: (1) numerosity ("the class is so numerous that joinder of all members is impracticable"); (2) commonality ("there are questions of law or fact common to the class"); (3) typicality ("the claims or defenses of the representative parties are typical of the claims or defenses of the class"); and (4) adequacy of representation ("the representative parties will fairly and adequately protect the interests of the class"). In addition to these prerequisites, class actions must satisfy at least one of the three subdivisions of rule 42(b). ⁽²²⁾

In this case, the trial court certified the patient class under rule 42(b)(2) ⁽²³⁾ and the physician class under rule 42(b)(3). ⁽²⁴⁾

III. Analysis

A. The patient class

We begin by addressing the trial court's order certifying the patient class. In their first issue, appellants contend the trial court lacks subject matter jurisdiction over appellee's claim for breach of the duty of confidentiality because appellee lacks standing to bring such a claim. We agree.

In his live petition, appellee asserts that he has standing to bring his claim of breach of the duty of confidentiality on behalf of his patient, Olson, and the patient class because state and federal law authorizes him to act on Olson's behalf to protect Olson's confidential communications with appellee. Although appellee's petition cites only "the laws of Texas and of the United States" in support of his contention, appellee asserted that his standing to assert a breach-of-the-duty-of-confidentiality claim on his patients' behalf derives from section 201.402 (e) of the occupation code. ⁽²⁵⁾ As noted, however, appellee argued at the class certification hearing that he could "take care of" the standing "problem" by naming Olson as the representative of the patient class, notwithstanding that appellee, not Olson, remains the named plaintiff. As appellee requested, the trial court's order certifying the patient class names Olson as the class representative; accordingly, appellee argues in his brief that Olson has standing to represent the patient class.

"Standing is a prerequisite to subject-matter jurisdiction, and subject-matter jurisdiction is essential to a court's power to decide a case." ⁽²⁶⁾ "'Standing focuses on the question of who may bring an action.'" ⁽²⁷⁾ "In contrast, whether a plaintiff would be an appropriate class representative is determined by Rule 42's requirements that the representative's claims be typical of the class and that the representative will fairly and adequately protect the interests of the class." ⁽²⁸⁾ "[W]hether the named plaintiff is a proper class representative is not part of the standing inquiry." ⁽²⁹⁾ A named plaintiff must first satisfy the threshold requirement of individual standing at the time suit is filed, without regard to the class claims. ⁽³⁰⁾ In other words, a plaintiff who lacks individual standing when suit is filed cannot maintain a class action. ⁽³¹⁾ "[E]ven named plaintiffs who represent a class 'must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.'" ⁽³²⁾ To have standing, the pleader bears the burden of alleging facts that affirmatively demonstrate the court's jurisdiction to hear the case. ⁽³³⁾

Here, appellee was the named plaintiff at the time suit was filed, and remains the named plaintiff. Thus, unless appellee can show that he has personally been injured by the alleged breach of his patients' privilege of confidentiality, he has no standing to bring such a claim and the claim must be dismissed. ⁽³⁴⁾

We conclude that appellee has failed to show he has standing to bring his breach-of-the-duty-of-confidentiality claim. Other than simply asserting that section 201.402(e) of the occupation code authorizes him to bring suit on his patients' behalf to protect their privilege of confidentiality, appellee offers no authority in support of his argument, and we have found none. Moreover, absent an express provision for a private right of action in a statute, as is the case with section 201.402, a breach of a statutory duty normally gives rise to a private right of action on behalf of the injured person (or group of persons) for whose benefit the statute was enacted. ⁽³⁵⁾ Here, presumably, the statute was enacted to protect the chiropractic information of patients. We hold that appellee lacks standing to bring his breach-of-confidentiality claim. We sustain appellants' first issue and dismiss appellee's claim in appellate cause number 13-06-258-CV.

B. The "physician" class ⁽³⁶⁾

In two issues, appellants contend (1) the trial court lacked subject matter jurisdiction over appellee's libel and tortious interference claims with regard to four appellants (GEICO Indemnity, Colonial, Criterion, and GEICO General) because appellee lacked standing as to those appellants, and (2) the trial court abused its discretion in certifying the physician class.

In their first issue, appellants contend appellee lacked standing as to all appellants except Government Employees because appellee's two patients in this case (Olson and Leal) were insured only by Government Employees, not by the other four appellants. Thus, the two letters which are the basis of appellee's claims were sent only by Government Employees to adjust the claims of its insureds. Appellants argue that with respect to the libel claim, appellee cannot show that any of the other four appellants published any statement, or that he suffered any actual or threatened injury by anything that they did. Similarly, with respect to the tortious interference claim, none of the four appellants took any action with respect to appellee or his two patients which could have caused any injury to appellee or interference with his relationship with his patients.

In response to appellants' lack-of-standing argument, appellee contends that by finding his claims "typical of the claims of the Physician class because the claims are identical," the trial court found he had standing to sue for the physician class. According to appellee, "as one of those medical practitioners about whom the letters were sent out by the GEICO Dallas regional office, [appellee] clearly has standing to represent other medical practitioners about whom the same letters were sent out by the GEICO Dallas regional office."

In several sub-issues, appellants argue, among other things, that: (1) although the proposed physician class is a multi-state class, the trial court did not conduct a choice of law analysis, a failure that defeats the predominance requirement of rule 23(b)(3); (2) the proposed physician class is not properly defined or objectively determinable; (3) the trial court erred in certifying the physician class because none of the rule 42(a) requirements-- numerosity, commonality, typicality, and adequacy of representation--were met; (4) the proposed class fails to satisfy rule 42(b) requirements because challenges to the "reasonableness" of medical expenses are inappropriate for class certification; and (5) the proposed trial plan is inadequate because it fails to show how appellee's libel and tortious interference claims and appellants' defenses will be tried.

We begin by addressing appellants' argument that the trial court erred in certifying the multi-state physician class without conducting a choice-of-law analysis. Initially, we note that appellee's brief does not include any argument in response to appellants' contention that the trial court failed to conduct the required choice-of-law analysis. In the section addressing "numerosity," however, appellee acknowledges that "the geographical scope of the medical provider distribution includes Texas, New Mexico, South Dakota, North Dakota, Wyoming, Colorado, Kansas, and Nebraska." Inexplicably, however, in his reply brief, appellee asserts that "[t]here is no evidence that the Physician Class is a multi-state class." This assertion, however, is contrary to the language of the certification order, which explicitly refers to the "geographical dispersal of the medical-practitioner members of the Physician Class throughout the eight States comprising the GEICO Dallas Region." The order also states that "the medical practitioners in the Physician Class are geographically scattered in various jurisdictions of Texas, New Mexico, South Dakota, North Dakota, Wyoming, Colorado, Kansas, and Nebraska." ⁽³⁷⁾ We conclude that the trial court order certifying the physician class unequivocally creates a multi-state class.

When ruling on motions for class certification, the trial court must conduct an extensive choice of law analysis before it can determine predominance, superiority, cohesiveness, and even manageability. ⁽³⁸⁾ If a court does not know which states' laws must be applied, it cannot determine whether variations in the applicable laws would defeat predominance in a (b)(3) class action or destroy the cohesiveness of a (b)(2) class. ⁽³⁹⁾ The class representative bears the burden of presenting the trial court with an extensive analysis of state law evaluating any differences. ⁽⁴⁰⁾ Here, nothing in the trial court's order certifying the physician class suggests that the trial court conducted a choice-of-law analysis. ⁽⁴¹⁾ The trial court's certification of the physician class was based on predominance. As the supreme court noted in Compaq, "nothing in the record demonstrates that the court critically analyzed how variations in state law would affect predominance." ⁽⁴²⁾ We conclude the trial court erred in certifying the physician class without conducting the choice-of-law analysis required by Compaq. ⁽⁴³⁾

Appellants also contend that the trial court erred in certifying the physician class because neither the "commonality" requirement of rule 42(a) nor the "predominance" requirement of rule 42(b)(3) was met. Appellants argue there are no "common" issues of law and fact that can establish their defenses to either the libel or tortious interference claims. With respect to the libel claim, appellants assert the defenses of (1) truth of the alleged defamatory statement (i.e., the "reasonableness" of each medical provider's medical charges) and (2) that any allegedly defamatory statement was justified by a qualified or absolute privilege. With regard to appellee's tortious interference claim, appellants challenge the court's finding that there is a "common" question regarding whether the letters "attempted to induce the Physician Class members' patients to breach the contracts to pay the medical practitioners for [their] treatment." Appellants argue that in a tortious interference claim, a plaintiff must demonstrate causation--that the defendant's actions proximately caused the plaintiff's loss. ⁽⁴⁴⁾ Appellants argue that "thus each provider will have to prove that the reason a given patient did not pay the balance of a bill was because of GEICO's letter to the patient." According to appellants,

Thus, each Class member will have to show (a) that the patient received the bill, (b) that the patient read the letter and understood it to mean that the patient should not pay the bill, (c) that the patient did not pay the bill, and (d) that the patient's refusal to pay was the result of (caused by) the letter. These elements would be required to prove causation and are specific to each patient and each letter and cannot be proved on a class-wide basis.

Before a reviewing court can determine whether individual issues predominate over common ones, it must consider how to apply the predominance requirement. ⁽⁴⁵⁾ Therefore, it is improper to certify a class without knowing how the claims can and will likely be tried. ⁽⁴⁶⁾ "A trial court's certification order must indicate how the claims will likely be tried so that conformance with Rule 42 may be meaningfully evaluated." ⁽⁴⁷⁾ A trial plan is a part of the rigorous analysis a trial court performs before ruling on class certification. ⁽⁴⁸⁾

Here, the certification order states, in part:

THE COURT FURTHER FINDS that the Physician Class meets the requirements of Rule 42(b)(3) for its request for damages because the common issues predominate over the individual issues. The court does not here consider defendants' affirmative defenses because this is not the proper time.

The certification order's "trial plan" states, in part, that:

7. The jury will be asked to determine whether certain provisions of the form letters with enclosures sent to the Physician Class members from the GEICO Dallas Regional Office constitute libel per se ⁽⁴⁹⁾ or tortious interference. . . . The jury will be asked to determine the defendants' affirmative defenses of justification and privilege. ⁽⁵⁰⁾

8. By damage issues hooked to affirmative findings of defendants' liability and negative findings on defendants' defenses, the jury will also be asked to determine (1) presumed damages resulting from for [sic] libel per se, (2) exemplary damages based on defendants' libel per se and malice.

9. Because the putative defamatory and interfering statements are contained in the same form letters and enclosures, proof of liability and damages likely can be established on a broad basis as to the Physician Class, using documents and summaries of documents retrievable from the defendants' computer records. ⁽⁵¹⁾

We conclude that the certification order's "trial plan" for the physician class does not adequately address how individual issues will be considered, and thus, does not meet the requirements of Bernal. "Bernal clearly requires that the certification order contain a plan for dealing with individual issues, and for the specifics of the plan to be considered by the trial court in determining whether common issues will predominate over individual issues." ⁽⁵²⁾

We hold that the trial court abused its discretion in certifying the physician class without formulating a trial plan that adequately deals with individual issues. We sustain appellants' second issue challenging certification of the physician class.

Conclusion

In appellate cause number 13-06-258-CV, we hold appellant lacks standing to bring his breach-of-the-duty-of-confidentiality claim and dismiss the claim.

In appellate cause number 13-06-259-CV, we hold the trial court abused its discretion in certifying the physician class without conducting a choice-of-law analysis and without formulating a trial plan that adequately deals with individual issues. We note that appellants have filed a plea to the jurisdiction in the trial court challenging appellee's standing with respect to four appellants (GEICO Indemnity, Colonial, Criterion, and GEICO General), and the record reflects no ruling on appellants' plea. If, as appellants contend, appellee lacks standing as to these four appellants, dispositive issues should be resolved by the trial court before certification is considered. ⁽⁵³⁾ We reverse the order certifying the physician class and remand to the trial court for further proceedings consistent with this opinion.

LINDA REYNA YAÑEZ,

Justice

Memorandum Opinion delivered and filed

this the 29th day of November, 2007.

1. Appellants are five insurance companies: Government Employees Insurance Company ("Government Employees"), GEICO General Insurance Company ("GEICO General"), GEICO Indemnity Company ("GEICO Indemnity"), Criterion Insurance Company ("Criterion"), and Colonial County Mutual Insurance Company ("Colonial"). We will refer to appellants collectively as "GEICO."

2. The order certifying a "patient class" pertains to appellate cause number 13-06-258-CV.

3. The order certifying a "physician class" pertains to appellate cause number 13-06-259-CV. Both orders were issued by the same trial court in cause number C-2673-99-F, styled Jon P. Patterson, et al. v. Government Employees Insurance Company, et al., in the 332nd District Court of Hidalgo County, Texas.

4. Both Olson and Leal were insured under policies issued by Government Employees. The "form letter," sent by GEICO to its insureds, states, in pertinent part:

We are enclosing a copy of the explanation of reimbursement that was sent to your health provider for treatment of injuries you received in the above referenced accident.

The charges were reviewed using a current medical cost and medical utilization data base. Our explanation of any adjustment is enclosed. This amount should be considered full payment for the service indicated. Unless the audit indicates further documentation is needed, then our audit reflects a reasonable value for service.

Your health provider has been advised this is full payment of services. We have also advised the provider to contact us directly if there is any disagreement, and we will resolve the matter for you.

5. Appellants' Motion and Plea to the Jurisdiction also addresses another claimant, represented by Attorney Lemuel Lopez. At the class certification hearing, however, appellee's counsel stated that the letter to Lopez was not included in the claim.

6. See Tex. Occ. Code Ann. § 201.401(e) (Vernon 2004) (providing that a chiropractor may assert a privilege on a patient's behalf, but not authorizing a chiropractor to assert a private right of action on a patient's behalf).

7. The order states that the patient class is certified under rule 42(b)(2). See Tex. R. Civ. P. 42(b)(2).

8. The order states that the physician class is certified under rule 42(b)(3). See Tex. R. Civ. P. 42(b)(3).

9. The order states, in relevant part:

5. The elements of libel per se in this case are (1) publishing a writing that tends to blacken the memory of the dead or that tends to injure a living person's reputation and thereby expose the person to public hatred, contempt, or ridicule, or to financially injure the person, or to impeach the person's honesty, integrity, virtue, or reputation, or to publish the natural defects of anyone, and thereby expose the person to public hatred, ridicule, or financial injury and (2) damages presumed to result from the publishing.

6. The elements of tortious interference in this case are (1) the existence of a doctor-patient contract implied-in-fact to provide treatment for a fee; (2) the defendant intentionally hindered performance of the contract by making performance impossible, more burdensome, difficult, or expensive; and (3) foreseeably causing the medical practitioner a financial loss.

10. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(3) (Vernon Supp. 2006); Cent. Power & Light Co. v. City of San Juan, 962 S.W.2d 602, 607 (Tex. App.-Corpus Christi 1998, pet. dism'd w.o.j.).

11.

Tex. R. Civ. P. 42. Rule 42 was patterned after the federal rule on class actions; therefore, "federal decisions and authorities interpreting federal class action requirements are persuasive in Texas actions." Ford Motor Co. v. Sheldon, 22 S.W.3d 444, 452 (Tex. 2000).

12. Nissan Motor Co. v. Fry, 27 S.W.3d 573, 580 (Tex. App.-Corpus Christi 2000, pet. denied) (citing Gen. Motors Corp. v. Bloyed, 916 S.W.2d 949, 955 (Tex. 1996)).

13. Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 691 (Tex. 2002) (citing Sw. Ref. Co. v. Bernal, 22 S.W.3d 425, 435) (Tex. 2000)).

14.

Stromboe, 102 S.W.3d at 691.

15.

Bernal, 22 S.W.3d at 435 (quoting Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 160 (1982)).

16.

Id. at 439; Philadelphia Am. Life Ins. v. Turner, 131 S.W.3d 576, 584 (Tex. App.-Fort Worth 2004, no pet.).

17.

Stromboe, 102 S.W.3d at 691; Bernal, 22 S.W.3d at 435.

18.

Bernal, 22 S.W.3d at 434-35; Turner, 131 S.W.3d at 585.

19.

Stromboe, 102 S.W.3d at 689 (citing Bernal, 22 S.W.3d at 429).

20.

State Farm Mut. Auto Ins. Co. v. Lopez, 156 S.W.3d 550, 555 (Tex. 2004).

21. Bernal, 22 S.W.3d at 435 (quoting Castano v. Am. Tobacco Co., 84 F.3d 734, 742 (5th Cir. 1996)).

22.

Id. at 433 (quoting Tex. R. Civ. P. 42(a)).

23. See Tex. R. Civ. P. 42(b)(2). Subsection (b)(2) of rule 42 requires that "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." Id.

24.

See Tex. R. Civ. P. 42(b)(3). Subsection (b)(3) of rule 42 requires that "questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy." Id.

25.

In his "Response to GEICO's Motion to Show Authority," appellee identified section 201.402(e) as granting him "the authority to assert Chris Olson's confidentiality rights in this litigation." See Tex. Occ. Code Ann. § 201.402(e) (Vernon 2004).

26. M.D. Anderson Cancer Ctr. v. Novak, 52 S.W.3d 704, 708 (Tex. 2001) (citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex. 2000)).

27. Id. (quoting Patterson v. Planned Parenthood, 971 S.W.2d 439, 442 (Tex. 1998)).

28. Id. (citing Tex. R. Civ. P. 42(a)).

29. Id. at 710.

30. Id.

31. Id. at 711 ("[I]f the named plaintiff lacks individual standing, the court should dismiss the entire suit for want of jurisdiction."); Basham v. Audiovox Corp., 198 S.W.3d 9, 14 (Tex. App.-El Paso 2006, pet. denied).

32. M.D. Anderson, 52 S.W.3d at 708 (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 40 n.20 (1976) (quoting Warth v. Seldin, 422 U.S. 490, 502 (1975))).

33. Tex. Ass'n. of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).

34. See M.D. Anderson, 52 S.W.3d at 711.

35. Lively v. Carpet Servs., 904 S.W.2d 868, 871 (Tex. App.-Houston [1st Dist.] 1995, writ denied) (emphasis added).

36. At the certification hearing, appellee admitted that under Texas law, he is neither a "physician" nor a "medical practitioner." In Texas, a "physician" is defined as "a person licensed to practice medicine" in Texas. See Tex. Occ. Code Ann. § 151.002(a)(12) (Vernon Supp. 2006). The terms "practitioner" and "practitioner of medicine" include physicians and surgeons. See id. § 151.002(b).

37. We also note that in appellee's reply brief in his breach-of-the-duty-of-confidentiality claim, he similarly asserts there is "no evidence that the Patient Class is a multi-state class," despite the fact that the order certifying the patient class specifically refers to the "geographical dispersal of the members of the Patient Class throughout the eight States comprising the GEICO Dallas Region."

38. Compaq Computer Corp. v. Lapray, 135 S.W.3d 657, 672 (Tex. 2004); Lopez, 156 S.W.3d at 556 (noting "courts must resolve any choice-of-law issues the parties have raised before certifying a class in order to determine how the case will be tried.").

39. Compaq, 135 S.W.3d at 672.

40.

Id.

41. We also note there is no evidence suggesting the trial court conducted a choice-of-law analysis for the multi-state patient class.

42. Compaq, 135 S.W.3d at 673 (quoting Castano v. Am. Tobacco Co., 84 F.3d 734, 743 (5th Cir. 1996)).

43. See id. at 681; Lopez, 156 S.W.3d at 556.

44. See ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997).

45. Bernal, 22 S.W.3d at 434.

46. Id. at 435.

47. Id.

48.

See N. Am. Mortgage Co. v. O'Hara, 153 S.W.3d 43, 44 (Tex. 2004); Lopez, 156 S.W.3d at 556.

49. We note that the Texas libel statute establishes a cause of action for libel if the evidence shows that the writing tended to injure the reputation of the person defamed. See Tex. Civ. Prac. & Rem. Code Ann. § 73.001 (Vernon 2005); Swate v. Schiffers, 975 S.W.2d 70, 74 (Tex. App.-San Antonio 1998, pet. denied). The effect of pleading libel per se is to eliminate the requirement for pleading or proving special damages, not to shift the burden for proving the falsity of the allegedly defamatory statements. Schiffers, 975 S.W.2d at 74 (citing Leyendecker & Assoc., Inc. v. Wechter, 683 S.W.2d 369, 374 (Tex. 1984)). The plaintiff still bears the burden of proving falsity, as well as the other elements of his cause of action. Id. Thus, we agree with appellants that "the jury will be faced with deciding if each class member's medical expenses are in fact 'reasonable' in order to determine the defense of truth to the libel claim."

50. Appellants argued that Texas statutes requiring insurers to notify a claimant in writing of the acceptance or rejection of a claim (and if rejected, the reasons for the rejection) impart a qualified privilege upon insurers when they send the required notices.

51. (Emphasis added.).

52.

Nissan, 27 S.W.3d at 592 (citing Bernal, 22 S.W.3d at 435-36) (emphasis added)).

53. See Lopez, 156 S.W.3d at 557 (holding where record contains no ruling on defendant's special exceptions and plea to the jurisdiction, trial court should resolve dispositive issues before considering certification).