Timothy Rave v. SVA Healthcare Services, LLC

2022 WI 3, 968 N.W.2d 703, 400 Wis. 2d 88

• Court: Wisconsin Supreme Court
• Decided: January 19, 2022
• Docket: 2019AP002236
• Status: Published

Opinion

2022 WI 3

SUPREME COURT OF WISCONSIN CASE NO.: 2019AP2236

COMPLETE TITLE: Timothy Rave, Plaintiff-Respondent, v. SVA Healthcare Services, LLC, Defendant-Appellant-Petitioner.

REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 398 Wis. 2d 384,960 N.W.2d 631 2021 - Unpublished

OPINION FILED: January 19, 2022 SUBMITTED ON BRIEFS: ORAL ARGUMENT:

SOURCE OF APPEAL: COURT: Circuit COUNTY: Milwaukee JUDGE: Mary E. Triggiano

JUSTICES: Per Curiam. NOT PARTICIPATING:

ATTORNEYS: For the defendant-appellant-petitioner, there were briefs filed by David J. Hanus, Corey J. Swinick and Hinshaw & Culbertson LLP, Milwaukee.

For the plaintiff-respondent, there was a brief filed by Robert J. Welcenbach and Welcenbach Law Offices, S.C., Milwaukee; with whom on the brief was Scott C. Borison and Legg Law Firm LLC, Baltimore, Maryland; with whom on the brief was Jon Craig Jones and Jones & Hill, LLC, Oakdale, Louisiana. An amicus curiae brief was filed on behalf of the Wisconsin Hospital Association, Inc. and the Wisconsin Civil Justice Council, Inc. by Sara J. Maccarthy, Stephane P. Fabus, Heather D. Mogden and Hall, Render, Killian, Heath & Lyman, P.C., Milwaukee.

An amicus curiae brief was filed on behalf of the Wisconsin Association for Justice by William C. Gleisner, Brookfield.

2 2022 WI 3 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2019AP2236 (L.C. No. 2018CV609)

STATE OF WISCONSIN : IN SUPREME COURT

Timothy Rave,

Plaintiff-Respondent, FILED v. JAN 19, 2022

SVA Healthcare Services, LLC, Sheila T. Reiff Clerk of Supreme Court

Defendant-Appellant-Petitioner.

REVIEW of a decision of the Court of Appeals. Dismissed.

¶1 PER CURIAM. This case is before the court on a

petition for review filed by the defendant-appellant-petitioner,

SVA Healthcare Services, LLC ("SVA"). In the underlying suit, plaintiff-respondent Timothy Rave alleged that SVA, a medical

records vendor, charged him and others similarly situated a fee

for copies of medical records that exceeded the fee restrictions

in Wis. Stat. § 146.83(3f)(b) (2019-20).1 In its petition for

review, SVA seeks review of an unpublished decision of the court

of appeals, Rave v. SVA Healthcare Servs., LLC, No. 2019AP2236,

1All subsequent references to the Wisconsin Statutes are to the 2019-20 version unless otherwise indicated. No. 2019AP2236

unpublished slip op. (Wis. Ct. App. Apr. 27, 2021), affirming a

circuit court order that certified a class and appointed Rave as

class representative. The sole issue before us is whether the

circuit court properly exercised its discretion when it granted

Rave's motion for class certification. See Wis. Stat. § 803.08.

¶2 On November 26, 2021, this court issued Townsend v.

ChartSwap, LLC, 2021 WI 86, 399 Wis. 2d 599, 967 N.W.2d 21.

There, we held that the fee restrictions in Wis. Stat.

§ 146.83(3f)(b) apply only to "health care providers" as defined

in § 146.81(1). Id., ¶37.

¶3 Following the issuance of Townsend, Rave filed a

motion to dismiss or alternatively stay this matter. In the

motion, Rave describes SVA as "a records retrieval company

acting on behalf of a healthcare provider." Rave states that

"[a]lthough this appeal addresses another issue"——i.e., the

propriety of class certification——"Rave recognizes that his

underlying claims, which are identical to those alleged in

[Townsend], ultimately fail based on this Court's recent ruling. As such, this appeal is moot." Rave asks this court to dismiss

the appeal, and further states that he "has agreed to dismiss

the underlying action with prejudice." Rave alternatively seeks

a stay of this matter.

¶4 SVA Healthcare Services has responded to Rave's

motion. It writes that it "wholeheartedly agrees that this

Court's decision in [Townsend] will ultimately be dispositive of

Rave's claims against SVA in this action." Nevertheless, SVA claims that, notwithstanding Townsend, this appeal is not moot, 2 No. 2019AP2236

and even if it were, this case falls within two of the

established exceptions to the mootness doctrine given the number

of other pending cases, challenging charges for medical records,

in which the propriety of class certification is at issue. See

generally Portage County v. J.W.K., 2019 WI 54, ¶12, 386

Wis. 2d 672, 927 N.W.2d 509 (listing five exceptions to the

mootness doctrine, including when "the situation arises so often

'a definitive decision is essential to guide the trial courts,'"

and when "'the issue is likely to arise again and should be

resolved by the court to avoid uncertainty'") (citation

omitted).

¶5 We agree with Rave that Townsend renders this matter

moot. Rave does not argue that SVA is a health care provider,

and nothing before us suggests that SVA meets the definition of

a health care provider provided in Wis. Stat. § 146.81(1).

Consistent with Townsend, then, Rave has not stated a plausible

claim that SVA is directly liable for a violation of Wis. Stat.

§ 146.83(3f)(b). ¶6 We note, too, that Townsend's holding applies equally

to every other member of the class that Rave represents, which

consists of individuals whom SVA billed for copies of medical

records in amounts that allegedly exceeded the fee caps in Wis.

Stat. § 146.83(3f)(b). The effect is to moot the only question

on appeal: whether Rave's suit was properly certified as a

class action. Under Townsend, the answer is "no": neither Rave

nor any of the unnamed class members have a plausible claim that SVA is directly liable for a violation of § 146.83(3f)(b). 3 No. 2019AP2236

¶7 It is true, as SVA points out in its response to

Rave's motion, that we may overlook mootness when a case

presents questions that are recurring or likely to recur, and

that signal a need for guidance and certainty. See J.W.K., 386

Wis. 2d 672, ¶12. But SVA does not meaningfully explain what

essential guidance would be provided, or what uncertainty would

be avoided, if we were to continue with this appeal and further

discuss the propriety of class litigation of a claim made under

a statute that does not, by its terms, apply to SVA, as Townsend

makes clear and both parties now agree.

¶8 Given the above, we accept Rave's concession that our

decision in Townsend makes this case moot. We therefore grant

Rave's motion to dismiss, and dismiss the petition for review.

The review of the decision of the court of appeals is hereby

dismissed.

By the Court.——Appeal dismissed.

4 No. 2019AP2236