author: KEATY, Judge.

text:
    Aaron EMIGH, et al. v. WEST CALCASIEU CAMERON HOSPITAL, et al.
    17-292
    Court of Appeal of Louisiana, Third Circuit.
    November 2, 2017

      J. Lee Hoffoss, Jr., Claudé' P. Devall, Donald W. McKnight, Hoffoss Devall, LLC, 517 W. College Street, Lake Charles, Louisiana 70605, (337) 433-2053, Counsel for Plaintiffs/Appellees: Aaron Emigh, Glynn Able Benoit, Laura Allison Delouche
    Michael G. Hodgkins, Veron, Bice, Palermo & Wilson, LLC, Post Office Box 2125, Lake Charles, Louisiana 70602, (337) 310-1600, Counsel for Plaintiffs/Appellees: Aaron Emigh, Glynn Able Benoit, Laura Allison Delouche
    Steven Broussard, Aaron Broussard, Broussard & Hart, LLC, 1301 Common Street, Lake Charles, Louisiana 70601, (337) 439-2450, Counsel for Plaintiffs/Ap-pellees: Aaron Emigh, Glynn Able Benoit, Laura Allison Delouche
    Robert E. Landry, Peter J. Pohorelsky, Scofield, Gerard, Pohorelsky, Gallaugher & Landry, 901 Lakeshore Drive, Suite 900, Lake Charles, Louisiana 70601, (337) 433-9436, Counsel for Defendant/Appellant: West Calcasieu Cameron Hospital
    Errol J. King, Jr., Layna C. Rush, Daniel P. Guillory, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, 450 Laurel Street, Chase Tower North, 20th Floor, Baton Rouge, Louisiana 70801, (225) 381— 7000, Counsel for Defendant/Appellant: UnitedHealthcare Insurance Company
    Jonathan M. Herman, Brian C. Roux, The Herman Law Firm, 1601 Elm Street, Suite 2002, Thanksgiving Tower, Dallas, Texas 75201, (214) 624-9805, Counsel for Defendant/Appellant: Louisiana Health Services and Indemnity Company d/b/a Blue Cross and Blue Shield of Louisiana
    Charles Á. O’Brien, Allison N. Pham, Post Office Box 98029, Baton Rouge, Louisiana 70898, (225) 295-2454, Counsel for Defendant/Appellant: Louisiana' Health Services & Indemnity Company d/b/a Blue Cross and Blue Shield of Louisiana
    Robert S. Kleinschmidt, Jr,, Attorney at Law, Post Office Box 1154, Lake Charles, Louisiana 70602, (337) 437-3440, Counsel for Defendant/Appellee: R. J. Moss Enterprises, Inc.
    Court composed of John D. Saunders, Billy Howard Ezell, and Phyllis M. Keaty, Judges.
   KEATY, Judge.

h Plaintiffs filed this putative elass action suit against various defendants, alleging violations of La.R.S. 22:1874, also known as the “Balance Billing Act.” Several of the defendants (hereafter “Appellants”) appeal a trial court judgment certifying this matter as a class action. Just over two years ago, the Louisiana Supreme Court determined that “the class action is superior to any other available method for a fair and efficient adjudication of the common controversy over the disputed billing and lien practices.” Baker v. PHC-Minden, L.P., 14-2243, p. 1 (La. 5/6/15), 167 So.3d 528, 532. Because Appellants have failed to distinguish this matter from Baker or other cases where this court endorsed the use of the class action procedure in cases involving alleged Violations of the Balance Billing Act, we affirm.

FACTS AND PROCEDURAL HISTORY .

This lawsuit began when Aaron Emigh filed a petition for damages against West Calcasieu Cameron Hospital (WCCH), alleging that he had received- medical treatment, after which WCCH refused to file a claim with his health insurance company and hired a third-party collection agency to collect payment from him directly, in an attempt to double bill him and his. insurance provider. Emigh filed a first amending and supplemental petition in July 2010, wherein he sought to have the matter certified as a class action. By way of a second amending and supplemental petition filed in June 2011, Glynn Able Benoit and Laura Allison DeLouche were named as additional putative class representatives. The second amending petition also named the following entities as additional defendants: Highmark, • Inc. d/b/a Highmark Blue Shield (Highmark); Louisiana Health Service |2& Indemnity Company d/b/a Blue Cross and Blue Shield of - Louisiana (BCBS); • UnitedHealthcare Insurance Company (United); and R.J. Moss Enterprises, Inc. d/b/a Credit Services of Southwest Louisiana (Credit Services).

Plaintiffs each received treatment at WCCH after being injured in a MVA. At the time of his accident, Emigh was insured through his employer by a BCBS plan that was administered by Highmark, Benoit was insured by his employer’s self-funded plan -that was administered by United, and DeLouche had a direct policy of insurance issued by .BCBS. .

After a two-day hearing, the trial court certified this matter as a class action pursuant to La.Code Civ.P. art: 591 by judgment dated November 10, 2016. Written reasons for judgment were issued approximately one month later. The judgment was appealed by WCCH, BCBS, and United. WCCH asserts the following errors:

1. The trial court erred in finding that plaintiffs satisfied the requirements of typicality and -adequacy of representation set forth in La. Code Civ. Proc. art, 591(A)(3) and.(4) for maintaining a class action.
2. The trial court erred in finding .that plaintiffs could maintain this action as a class action where plaintiffs seek mental anguish and/or emotional distress damages, and thereby individualized questions of causation and injury will, predominate over common issues making class certification inappropriate under La.Code Civ. Proc. art. 591(B)(1)(3) and Louisiana jurisprudence.
3. The trial court erred in adopting without modification the class definition proposed by the plaintiffs, as plaintiffs’ proposed class definition would allow individuals who have suffered neither injury nor any alleged violation of the Balanced Billing Act to recover damages in this matter, and therefore does not meet the standards of definability established by La. Code Civ. Proc. art. 591(A)(5) and Louisiana jurisprudence.

lain its sole assignment of error, BCBS alleges that “The District Court erred in certifying the plaintiff class because De-Louche failed to satisfy all of the elements for class certification.” United presents the following assignment of error:

Did the District Court incorrectly grant Plaintiffs’ request for class certification of Benoit’s claims against United, when: a) for each purported class member, there could be any number of different contracts, all of which may contain different provisions, which could be relevant to the claims asserted against United; b) Benoit has been made whole relating to his claim and,' is therefore, not an adequate class representative in this action because he has suffered no damage; and c) Plaintiffs fail to offer a definable class as it relates to their claims against United[?]

DISCUSSION

Standard of Review

A trial court has wide discretion in deciding whether to certify a class. Subject to the manifest error standard, "its factual findings can only be reversed upon finding, based on-the entire .record, no reasonable factual basis for the factu,al finding and the factfinder is clearly wrong. However, we review its ultimate decision of whether or not to certify the class, under the abuse of discretion standard.

Baker, 167 So.3d at 538(citations omitted).

Law

In Ford v. Murphy Oil U.S.A., Inc., 96-2913, 96-2917, 96-2929, p. 4 (La. 9/9/97), 703 So.2d 542, 544 (citation omitted), the supreme court explained:

The class action is a nontraditional litigation procedure -permitting a representative with typical claims to sue or defend on behalf of, and stand in judgment for,-a class of similarly situated persons when the question is one of common ok* general interest to persons so numerous as to make it impracticable to bring them all before the court. The purpose and intent of class action procedure is to adjudicate and obtain res judi-cata' effect on all common issues applicable not only to the representatives who bring the action» but to all others Who are “similarly situated,” provided they are given adequate notice of the pending class action and do not timely exercise the option of exclusion from the class action.

Louisiana Code of Civil Procedure Article 591, titled “Prerequisites; maintainable class actions,” provides in pertinent part:

UA. One or more members of a class 'may sue or be sued as representative parties on behalf of all, 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.
(4) The representative parties will fairly an¡d adequately protect the interests of the class.
(5) The class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the eonclusiveness of any judgment that may be rendered in the case. This prerequisite shall not be satisfied if it is necessary for the court to inquire into the merits of each potential class member’s cause of action to determine whether an individual falls within the defined class.

“Once these five prerequisites have been met, La.Code Civ.P. art. 591(B) lists three additional criteria, one of which must also be satisfied for certification depending on the type of class action sought.” Baker, 167 So.3d at 538. Plaintiffs herein sought class certification based on Article 591(B)(3) which provides:

The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to these findings include:
(a) The interest of the members of the class in individually controlling the prosecution or defense of separate actions;
(b) The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
(c) The desirability or undesirability of concentrating the litigation in the particular forum;
(d) The difficulties likely to be encountered in the management of a class action;
(e)The practical ability of individual class members to pursue their claims without class certification;
|s(f) The extent to which the relief plausibly demanded on behalf of or against the class, including the vindication of such public policies or legal rights as may be implicated, justifies the costs and burdens of class litigation[.]

“The burden of establishing the statutory criteria have been satisfied falls on the party seeking to maintain the class action.” Baker, 167 So.3d at 539.

The sole issue that a trial court and a reviewing court should consider is whether the class action procedure should be employed to try the matter. See Baker, 167 So.3d 528. Thus, courts need not be “concerned with whether the plaintiffs have stated a cause of action or the likelihood they ultimately will prevail on the merits, but whether the statutory requirements [for class certification] have been met.” Id. at 537; see also Duhe v. Texaco, Inc., 99-2002, p. 11 (La.App. 3 Cir. 2/7/01), 779 So.2d 1070, 1078 (“for purposes of certification, a court is not permitted to review the claims in a case on their substantive merit.”), writ denied, 01-637 (La. 4/27/01), 791 So.2d 637. Moreover, “[a]ny errors to be made in deciding class action issues should be in favor of and not against the maintenance of the class action, because a class certification order is always subject to modification or de-certification[.]” Baker, 167 So.3d at 537 (emphasis added). See also La.Code Civ.P. art. 592(A)(3)(d). Nevertheless, “[t]he determination of whether a class action meets the requirements imposed by law involves a rigorous analysis.” Brooks v. Union Pac. R.R. Co., 08-2035, p. 10 (La. 5/22/09), 13 So.3d 546, 554.

In Baker, 167 So.3d at 531, the Louisiana Supreme Court granted the plaintiffs’ writ application for the purpose of “re-solv[ing] a conflict among the appellate courts of this state on the issue of whether a class action is the superior method for adjudicating actions brought pursuant to the Health Care Consumer [[¡Billing and Disclosure Protection Act, La.Rev.Stat. § 22:1871 et seq. (“Balance Billing Act”).” The supreme court explained the issue before it as follows:

Across the state, plaintiffs are filing these actions against health care providers from whom they sought treatment following automobile accidents and with whom their health care insurers had contracted reimbursement rates for the services rendered. At issue is the legality of these providers’ policy of collecting or attempting to collect the undiscount-ed rate from the insured if a liability insurer may be liable, implemented through the filing of medical liens against plaintiffs’ lawsuits and settlements pursuant to the health care provider lien statute, La.Rev.Stat. § 9:4752. A review of the jurisprudence reveals plaintiffs in the Third Circuit Court of Appeal proceed pursuant to our class action provisions, while plaintiffs in the Second Circuit Court of Appeal have been denied class certification. After reviewing the record and the applicable law, we find the class action is superior to any other available method for a fair and efficient adjudication of the common controversy over the disputed billing and lien practices.

Id. at 531-532 (emphasis added). The third circuit cases referred to in the preceding quote were Vallare, 151 So.3d 984, and Desselle, 83 So.3d 1243.

In Vallare, a defendant hospital appealed the trial court’s certification of a class in a lawsuit brought by plaintiffs, alleging that the hospital and a health insurer had violated the Balance Billing Act. The class definition approved by the trial court- divided the class into two subclasses, an attempt to recover subclass and a payor subclass. On appeal, we affirmed the class certification but amended the class definition to delete the subclasses, reasoning that the plaintiffs in the subclasses “do not represent different issues.” Vallare, 151 So.3d at 988. In doing so, we noted that the “only difference” between'the subclasses was that one of them was “seeking reimbursement for sums paid,” while the sole issue to be decided was “whether the [hospital’s] billing practice violated La.R.S. 22:1874.” Id. We found significant in Vallare the fact that the “class definition [was] very similar to that approved by this court [several years prior] in Desselle,” wherein we “certified a class action where the claim concerned Acadian-Ambulance’s policy of ^[¡attempting to recover 'its full rate for services from the patient’s settlement or judgment with the tortfeasor rather than attempting to recover the discounted rate contracted for between itself and the patient’s health insurer.” Id.

In an opinion rendered upon'its grant of certiorari to review the trial court’s overruling of án exception of ho cause of action that BCBS filed against DeLouche in this very lawsuit, the supreme court astutely explained:

In this two-contract health care system that affects the majority of health insurance policies in this state, the insurance issuer, such as Blue Cross, promises to its insureds, such as De-louche, coverage and the availability of discounted rates based on the existence of its contract with its contracted providers, such as' WCCH. The purpose of a health insurance contract and the very reason insureds obligate themselves to the payment of premiums and a restricted choice of in-network providers, is to receive coverage and the benefits of negotiated, reduced health care costs* To narrowly- construe the object to mean only payment of covered charges, as Blue Cross argues, ignores the raison d’etre of the contract: an economic benefit to the insured. Holding otherwise is illogical based on the terms- of this high deductible policy, where the promised reduced rate attaches the instant a med: ical charge is incurred, regardless of whether a deductible has been satisfied. The insurance policy at issue promised . that even the out-of-pocket expenses that count towards Delouche’s deductible would be subject, to a discount. If all that was promised by Blue Cross was coverage of the maximum amount, the incentive to have insurance, specifically a high deductible policy, dissipates insofar .as the insured could simply pay the non-discounted bill herself without also incurring the costs of premiums. For these reasons, we find an object of the contract is the entitlement to discounted health care costs..

Emigh v. W. Calcasieu Cameron Hosp., 13-2985, pp. 7-8 (La. 7/1/14), 145 So.3d 369, 374-75 (footnotes omitted) (hereafter referred to as “Emigh I”). Although the class' certification hearing had not yet taken place when the supreme court decided Emigh 1, we note that the court, in dicta, stated that “[t]he liability of a health care provider for balance billing is the central issue in the underlying class action against WCCH[.]’’ Id. at 371 n.3.

^Analysis

Resolution of these appeals requires that we answer one question, i.e., was this matter properly certified as a class action. To answer that question, we will first review the trial court’s factual findings, as explained in its reasons for judgment, regarding whether Plaintiffs met their burden of proving the five prongs found in La.Code Civ.P. art. 591(A). If we find no manifest error in those factual findings, we will next examine the trial court’s -factual finding with regard to whether Plaintiffs met their burden of proving the requirement set forth in La.Code Civ.P. art. 591(B)(3). Finally, should we conclude that the trial court’s findings regarding the foregoing issue were not manifestly erroneous, we can only overturn its decision to certify the class if we find that such decision amounts to an abuse of the trial court’s wide discretion. See Baker, 167 So.3d 528.

1, Numerosity

“The numerosity requirement does not have a strict numbers threshold, rather. it is based on the facts and circumstances of each case and requires a showing that ‘joinder is impractical and there is a definable group of aggrieved persons.’ Doe v. Southern Gyms, LLC, 12-1566, p. 12 (La.3/19/13), 112 So.3d 822, 831.” Vallare, 151 So.3d at 989.

With regard to this factor, the trial court found joinder of the class members would be "impractical and that “[a] class action suit would be the most useful and judicially efficient way to proceed with these plaintiffs.” None of the Appellants have challenged this factual finding. Amy Johnson, who had previously been appointed as a corporate representative by WCCH, testified at the class certification hearing that the hospital determined that more than 3,000 patients sought treatment at WCCH after being injured in a MVA between 2000 and 2013. Of those, 254 had beén identified as potential class members. She explained that 19the criteria for determining those individuals were: they had sought treatment at WCCH after being injured in a MVA; they had private health insurance at the time and had presented their insurance .information at the time of treatment; and they were billed at the full undiseounted, i.e., “chargemaster,” rate rather than the contractual discounted rate negotiated between their insurer, or its third-party administrator and WCCH, and their -'bill had been paid by the liability insurer or private health insurance. Ms. Johnson noted that individuals who had government-issued or workers’ compensation insurance were excluded, as were those whose private insurance had lapsed due to non-payment, .et cetera. Patients who otherwise met the criteria but had been charged the contracted reimbursement rate were also excluded. No evidence was presented at the hearing to contradict the named Plaintiffs’ • evidence that they were proper class representatives or that any of the 254 potential class members identified--by WCCH should be excluded from the class. Moreover, the trial court would have to delve into the merits of an individual class member’s claim in order to exclude them from the class, which runs afoul of the dictates set forth by the supreme court in Baker and Duhe. Thus, we find no manifest error in the trial court’s conclusion that the numerosity requirement was met by Plaintiffs.

2, Córhmonality

The commonality requirement is met if plaintiffs can demonstrate that there is “one issue, the resolution of which -will affect all or a significant number of plaintiffs[,]” Duhe, 779 So.2d at 1078.... However, it is hot' necessary that all plaintiffs suffer identical damage and “individual questions of quantum do -not preclude a class action when predominate liability issues are common to the class.” McCastle v. Rollins Environmental Services of Louisiana, Inc. 456 So.2d 612, 620 (La.1984). This. Court in Duhe, 779 So.2d at 1085, stated:
The mere fact that varying degrees of damage may result from the same factual transaction and same legal relationship or that class members must individually Improve their right to recover, does not preclude class certification.
The Duhe court held once plaintiffs have demonstrated a course of conduct by the defendants giving rise to a “common nucleus of operative faets[,]” and there are common issues of liability, differences in individual damages while relevant in quantum will not defeat class certification.

Clark v. Trus Joist MacMillian, 02-676, 02-512, pp. 8-9 (La.App. 3 Cir. 12/27/02), 836 So.2d 454, 461, writ denied, 03-275 (La. 4/21/03), 841 So.2d 793. “The test of commonality is not a demanding one[.]” Duhe, 779 So.2d at 1078.

In its reasons, the trial court stated:

■ In the present case, all persons attempting to be made class members received services from West Calcasieu Cameron-Hospital (WCCH). All persons were subject to WCCH’s attempt to bill in excess of the contracted reimbursement rate and/or amounts that should have been paid by the patient’s health insurer. The Court finds commonality between all persons attempting to be certified as a class.

The testimony and evidence presented at the class certification hearing support the trial court’s finding that Plaintiffs met their-burden of proving commonality. Accordingly, we find no manifest error in the trial court’s conclusion that plaintiffs satisfied the requirement found in La. Code Civ.P. art. 591(A)(2).

8. Typicality

The element of typicality “is satisfied if the class representative[’s] .claims arise out of the same event, practice, or coux-se of conduct giving rise to the claims of the other class members and those claims arise from the same legal theory.” Desselle, 83 So.3d at 1251.

The trial court’s written reasons provide:

With regard to the third prong of typicality, the Court finds typicality exists. Typicality is satisfied if the representative plaintiffs’ claims arise out of the same event or course of conduct as the class members’ claims and are based on the same legal theory. [Duhe, 779 So.2d] at 1079. In the present case, the course of conduct that is the basis for this litigation is typical between the class representatives and the class members. In addition the claims are based on the same legal 11¶ theories. Both the representatives and the members of the prospective class were subject to WCCH’s attempt to bill in excess of the contracted reimbursement rate and/or amounts that should have been paid by the patient’s health insurer. In addition, each of the plaintiffs purchased health coverage based upon the promise that the contracted providers would not balance bill.
United Health Care argues that Mr. Benoit is not typical of the class because his claim was paid. The jurisprudence is clear that a Defendant cannot pay the claims of a class representative in order to render a class action suit moot. Davis v. Jazz Casino, LLC, 03-0005 (La.App. 4 Cir. 1/14/04), 864 So.2d 880 [writ denied, 04-572 (La. 4/23/04), 870 So.2d 304]. Mr. Benoit has stated that he still wants to continue with this trial to the end, regardless of the claims paid by United. In addition, Mr. Benoit still has remaining claims for general damages, attorney fees, etc. The Court finds that Mr. Be-noit’s claims are typical of the other plaintiffs.

Again, the testimony and evidence presented by Plaintiffs at the class certification hearing support their allegations that the Defendants acted in violation of the prohibitions set out in the Balance Billing Act. Although each individual Plaintiff may have suffered varying damages as a result of the Defendants’ conduct, they all allege that those damages were the result of the same actions, such that any finding of liability will apply to all of the proposed class members. With regard to Mr. Benoit, the evidence shows that his attorney paid WCCH’s bill out of the settlement he received in connection with his MVA. After this suit was filed, the trial court judge previously assigned to this matter ordered Mr. Benoit’s counsel to file a claim against United, and United reimbursed Mr. Benoit for the full amount that had been paid on his behalf, despite the fact that the deadline to file a claim with United. had past. In that vein, Christine O’Brien, United’s vice president of sales explained that a self-funded plan such as that • of Benoit’s employer can direct. its third-party claims processor, i.e., United, to pay a claim even, after the claim window has expired. Moreover, as correctly noted by the trial court, “[o]nce the damage has occurred and the class solidified, the tort-feasor cannot thereafter escape liability by correcting the problem ..., and; then claiming that damages as 112to th[at] class member[] ha[s] ceased. Davis, 864 So.2d at 890. The trial court committed no error in determining that typicality existed among the proposed class representatives.

Jp. Adequacy

In Duhe, 779 So.2d at 1079 (citation omitted), this court explained:

The purpose of the adequacy requirement is to protect the legal rights of the unnamed class members.... The test often used for adequate representation consists of three elements: (1) the chosen class representatives cannot have antagonistic or conflicting claims with other members of the class; (2) the named representatives must have a súf-ficient interest in the outcome to insure vigorous advocacy; and (3) counsel for the named plaintiffs must be competent, experienced, qualified, and generally able to conduct the proposed litigation vigorously. . . -

In the instant case, the trial court’s reasons for judgment note the following:

With regard to the fourth prong of adequacy, the Court finds the representative will fairly and adequately protect the interests of the class....
In the present case, there is no evidence that the class representatives' have conflicting claims with other members of the class. The evidence shows the named representatives have a sufficient interest in the outcome of the proceedings. The prospective class’s counsel are more than able to conduct the proposed litigation vigorously. Thus, the Court finds there is ample evidence to meet the adequacy requirement.

Each of the proposed class representatives testified that they intend to pursue this lawsuit until its conclusion. In addition, Defendants failed to produce any evidence to show that the named Plaintiffs’ claims are in any way antagonist with each other or with any other potential class members. Given the much discretion left to the trial court when deciding whether to certify class, we cannot say that the trial court manifestly erred in finding that the proposed class members adequately represent the class.

jjaff. Definability

This court discussed the requirement that a class be objectively definable in Duhe, 779 So.2d at 1080, wherein we stated:

“The class need not be so clearly defined that every class member can be identified at the commencement of the action.” Ashe v. Board of Elections in City of New York, 124 F.R.D. 45, 47 (E.D.N.Y. 1989). The trial court can modify the class as needed when discovery or the trial adds relevant facts to the record. This flexibility appears in the language of Article 591(A)(5) (emphasis supplied) “[T]he-class is or may be defined ....”

The trial court’s reasons state:

With regard to the fifth prong of de-■finability, the plaintiffs have established a sufficient class definition in their Fourth Amending and Supplemental Class Action Petition for Damages, Breach of Contract, Declaratory Judgment and Injunctive Relief, paragraph 71.

The class definition proposed by plaintiffs appears below: •

71.
The Plaintiff Class to be certified is defined as follows;
All individuals currently or formerly residing in the State of Louisiana during the relevant time period:
(1) Having “Health Insurance Coverage” [as defined by La. R.S. 22:1872(18) ] providing coverage for themselves or for others for whom they are legally responsible, with any “Health Insurance Issuer” [as defined by La. R.S. 22:1872(19) ] at the time “covered health care services” [as defined by La, R.S. 22:1872(8) ] were provided at West . Calcasieu Cameron Hospital; and,
(2) With-which “Health Insurance Issuer” West Calcasieu Cameron Hospital was a “contracted health care provider” at the time of service [as defined, by La. R.S. 22:1872(6)]; and,
(3) From whom West Calcasieu Cameron Hospital collected, and/or attempted to collect, the “Health insurance Issuer’s Liability [as defined by La. R.S. 22:1872(20) ], including, but not limited to, any collection or attempt to collect from any settlement, judgment or claim made against'any third person or insurer who may have been liable for any injuries sustained by the par tient (which insurers include those providing liability coverage to third pérsons, uninsured/underinsured coverage, and/or medical payments coverage); and/or
[<4(4) From whom West Calcasieu Cameron Hospital collected, and/or attempted to collect, any amount in excess of the “Contracted Reimbursement Rate” [as defined by La. R.S.22:1872(7) ], including but not limited to, any collection or attempt to collect from any settlement, judgment, or claim made against any third person or any insurer which may have been liable for any injuries sustained by the patient (which insurers include those providing liability coverage to third persons, uninsured/underinsured coverage, and/or medical payments coverage).

Appellants argue that the proposed class definition is, inadequate because it potentially includes members who suffered no damages. We reject this argument as this court and the supreme court have clearly stated that a court should not look to the merits when determining class certification. See Baker, 167 So.3d 528, Duhe, 779 So.2d 1070. Moreover, “because a class certification order is always subject to modification or decertification,”,. “[a]ny errors to be made in deciding class action issues should be .in favor of and not against the maintenance of the class action.” Baker, 167 So.3d at 537. We conclude that the class definition approved by the trial court has been sufficiently tailored to fit the facts of this matter. Therefore; mindful of the fact the trial court has the authority to later modify or decertify the class should it deem it necessary, we cannot say that it manifestly erred in concluding that Plaintiffs sufficiently defined the class.

6, Common Questions of Law and Fact Predominate

. After concluding that Plaintiffs had satisfied the: five requirements of La. Code Civ.P. art. 591(A), the trial court found that they, had also met the additional criteria set forth in La.Code Civ.P. art. 591(B)(3). In .that regard, the written reasons noted: . .

In the present case, the Court finds that the questions of law and fact common to the class members predominate over the questions affecting only individual members.. In addition, the Court is convinced that a class action is- the fairest and most efficient way. to adjudicate this matter, The main issues, in this matter are WCCH’s Imbalance bill procedure. and health insurers, which contracted with WCCH,. failure to protect its insureds and enrollees from WCCH’s practice. These are common issues of law and fact between the class representatives and the class members. There is no requirement .that every, question of law and fact has to be common between the members, only that the questions of law and fact of the class predominate those of any individual member.

At oral argument in this matter, Appellants complained that Plaintiffs focus on the jurisprudence rather than on the facts of this case. Plaintiffs, on the other hand, suggested that Appellants have incorrectly focused on the merits of Plaintiffs’ claims and avoided addressing the easelaw where the courts have found that the nature of actions brought under the Balance Billing Act makes them suitable for adjudication as class actions. Because we have found no manifest error in the trial court’s factual findings and because Appellants have failed to distinguish this matter from Baker, Vallare, and Desselle, we conclude that the trial court did not abuse its discretion in certifying this matter as a class action.

DECREE

For the foregoing reasons, the judgment of the trial court certifying this matter-as a class action is affirmed. All costs of this appeal are assessed against West Calca-sieu Cameron Hospitals Louisiana Health Service & Indemnity Company d/b/a Blue Cross and Blue Shield of Louisiana, and UnitedHealthcare Insurance Company.

AFFIRMED.

      . See Vallare v. Ville Platte Med. Ctr., LLC, 14-261 (La.App. 3 Cir. 11/5/14), 151 So.3d 984, writ denied, 15-121 (La. 8/28/15), 176 So.3d 401 and Desselle v. Acadian Ambulance Serv., Inc., 11-742 (La.App. 3 Cir. 2/1/12), 83 So.3d 1243, writ denied, 12-518 (La. 4/13/12), 85 So.3d 1253.

      ,' Credit Services served as WCCH's collection agency for the accounts of its patients who were injured in motor vehicle accidents (MVAs) during, the period relevant to the matter.


source: Caselaw Access Project

author: KYZAR, Judge.

license: Public Domain

text:
    STATE IN the INTEREST OF L.S.
    JAC 17-618
    Court of Appeal of Louisiana, Third Circuit.
    November 2, 2017

      S. Marie Johnson, Public Defender’s Office, St. Martin Parish — 16th JDC, 106 W. Berard Street, St. Martinville, LA 70582, (337) 394-1446, COUNSEL FOR APPELLANT: L. B. (father), K. S. (mother)
    Shentell Brown, Assistant District Attorney, 16th Judicial District Attorney Office, 415 S. Main Street, St. Martinville, LA 70582, (337) 394-2220, COUNSEL FOR APPELLEE: State of Louisiana
    Denise Henderson, Mental Health Advocates, 302 Dulles St., Rm-U47, Lafayette, LA 70506, (337) 262-2030, COUNSEL FOR APPELLEE: L. S. (child)
    Court composed of Marc T. Amy, D. Kent Savoie, and Van H. Kyzar, Judges.
   KYZAR, Judge.

|sThe appellants, K.S. and L.B., appeal from a judgment adjudicating their minor child, L.S., as being a child in need of care and ordering family services. On considering the record before us, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

The appellants, K.S. and L.B., are the mother and father, respectively, of the minor child, L.S., born October 6, 2016. Immediately following the birth of the child, the State of Louisiana, Office of Juvenile Justice, Department of Children and Family Services (“DCFS”), was notified the child was born positive for the presence of amphetamines in its system and that the mother had also tested positive for the same drug at the time of the birth. An investigator was assigned the case and immediately went to the hospital to commence an investigation into allegations of abuse or neglect. On January 31, 2017, a child in need of care petition was filed alleging as follows:

[L.S.] is a victim of Parental Neglect for being a drug exposed newborn when she was born on October 7, 2016 [sic]. The infant’s meconium was positive for amphetamines and the mother’s urine was positive for amphetamines* ' benzos and cocaine. [K.S.] admitted to using drugs throughout her pregnancy and could not provide prescriptions for the amphetamines. This is Ms. [K.S.’] second drug exposed newborn.
All reasonable, available and appropriate attempts and efforts have been made to encourage and assist- this family to deal with the allegations set forth herein and to provide all available services but to no avail and said attempts have been exhausted. Ms. [K.S.] admits to being overwhelmed with the issues in' her life. However, she does not feel she needs any of the recommended services such as Eaiiy Steps and Healthy Start.

14An adjudication hearing was held on April 3, 2017. At' the conclusion of the hearing, the trial court found the child to be a child in need of care and ordered family services. As part of the judgment, DCFS was ordered to look into the possibility of providing or finding financial assistance for the parents to offset the rehabilitative treatment services for the mother at an inpatient substance abuse rehabilitation facility. A review hearing was further set for October 19, 2017. This appeal was thereafter taken by the parents, K.S. and L.B.

ASSIGNMENT OF ERROR

The appellants assert one assignment of error on appeal, as follows:

Whether the trial court erred in granting judgment in favor of the State of Louisiana adjudicating the minor child, L.S., a child in need of care?

OPINION

In State In Interest of S.C., 16-740, p. 2 (La.App. 3 Cir. 4/19/17), 217 So.3d 642, 644, the standard of appellate review applicable in child in need of care cases was recognized as follows:

“We review the juvenile court’s findings of fact under the manifest error standard of review[.]” State ex rel J.Y.M., 09-1335, p. 5 (La.App. 3 Cir. 8/4/10), 45 So.3d 1128, 1132, In State ex rel. D.H., 04-2105, pp. 7-8 (La.App. 1 Cir. 2/11/05), 906 So.2d 554, 560, the first circuit noted:-
[1]t is important that the appellate court not substitute its own opinion when it is the juvenile court that is in the unique position to see and hear .the witnesses as they testify. [In re A.J.F., 00-948 (La. 6/30/00), 764 So.2d 47.] Where there is conflicting testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even when the appellate court may feel that its own evaluations and inferences are as reasonable as those of the juvenile court. Id.; see Rosell v. ESCO, 549 So.2d 840 (La.1989). If the 'juvenile court’s findings are reasonable in light of the record reviewed in its entirety, the appellate court may not reverse, even though convinced that had it been úsitting as the trier of fact, it would have weighed the evidence differently. Id.; see Pinsonneault v. Merchants & Farmers Bank & Trust Co., 2001-2217 (La. 4/3/02), 816 So.2d 270.
In order to reverse a fact finder’s determination of fact,’ an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and if such a basis does exist, (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. See Stobart v. State, through DOTD, 617 So.2d 880 (La.1993). If there are two permissible views of the evidence, the fact finder’s choice between them cannot be . manifestly erroneous or clearly wrong. Id.

Thus, in the instant case, we are tasked with determining whether the trial court committed manifest error in finding the minor L.S. to be a child in need of care based upon the evidence presented at the adjudication hearing on April 3, 2017. The grounds for finding that a child is in need of care are set out in La.Ch.Code art. 606, as follows: ■

A. Allegations that a child is in need of care must assert one or more of the following grounds:
(1) The child is thé victim of abuse perpetrated, aided, or tolerated by the parent or caretaker,' by a person who maintains an interpersonal dating or engagement relationship with the parent or caretaker, or by a person living in the same residence with the parent or caretaker as a spouse whether married or not, and his welfare is seriously endangered if he is left within the custody or control of that parent or caretaker.
(2) The child is a victim of neglect.
(3) The child is without necessary food, clothing, shelter, medical care, or supervision because of the disappearance or prolonged absence of his parent or when, for any other reason, the child is placed at substantial- risk of imminent harm because of the continuing absence of the parent.
(4) As a result of a-criminal prosecution, the parent has been convicted of a crime against the child who is the subject of this proceeding, or against another child of the parent, and the parent is | finow unable to retain custody or control or the child’s welfare is otherwise endangered if left within the parent’s custody or control.
(5) The conduct of the-parent, either as principal or accessory, constitutes a crime against the child or against any other child.
(6) The child is a victim' of human trafficking or trafficking-of children for sexual purposes. '
Subpar. (A)(7) effective when a child, who is a victim of commercial sexual exploitation, human trafficking, or trafficking of children for sexual purposes , perpetrated by someone other than a parent or caretaker, becomes an eligible victim for which federal match funds are available through Title TV-E of)7 U.S.C. 672
(7) The child is a victim of commercial sexual exploitation, human .trafficking, or trafficking of children for sexual purposes perpetrated by any person regardless of their relationship to the child.
B. A child whose parent is unable to provide basic support, supervision, treatment, or services due to inadequate financial resources shall not, for that reason alone, be determined to be a child in need of care.

Although the appellants assert that the trial court committed manifest error in its determination that L.S. is a child in need of care, the argument is narrowed by the claims that the trial court erred in allowing the State to introduce the drug screen reports showing that the baby and the mother tested positive for amphetamines, and as to the mother, other drugs as well. Without this evidence, appellants claim, the remaining evidence is insufficient to warrant the findings of the trial court.

Megan Elaire, an investigator for DCFS, was the only witness and testified on behalf of the Stat¿ at the adjudication hearing. She stated that she was called to the hospital to investigate allegations that L.S. was a drug exposed newborn and that the mother, K.S., had also tested positive for drugs¡ While testifying, the following colloquy occurred:

|7Q: And to what allegations were you called out to investigate?
A: We received the report on October 7, 2016, stating that [L.S.’] urine screen was positive ' for amphetamines and [K.S.’] drug screen was positive for amphetamines, [benzos] and cocaine.

Counsel for the parents objected to the results of the drug screen but not to the fact that she was called out for a substance exposed newborn, arguing the specific results of the screen' were hearsay. ■ The State countered that the evidence was admissible under the business records exception to the hearsay exclusionary rule. The trial court allowed the State to lay a foundation for the introduction of the evidence and ultimately allowed its introduction, as well as the State’s introduction of the drug screen report of the hospital showing that the child and the mother tested positive for amphetamines and that the mother tested positive for benzodiazepines and cocaine. The State contended, in addition to the business records exception, that the evidence was also admissible pursuant to La.R.S. 15:499, et seq. Counsel for the parents argued that La.R.S. 15:499, et seq. allows for the introduction of criminalistics laboratory reports and certificates in criminal proceedings, as opposed to non-investigatory drug screen records of a hospital in | juvenile courts. The trial court .ultimately-allowed the introduction of the reports of the drug screens, ruling as follows:

Well, I agree that the Melendez notice was not appropriate at this time because this is not a criminal matter and that is strictly limited to criminal investigations and documentations. On the other hand it was documents which were presented to the department of Children’s - and Family Services in connection with an ongoing investigation and I’m going to accept them at this time.

Appellants argue that without this evidence, the only other evidence offered by the State, through the testimony of ,Ms. Elaire, is that the child was released from the hospital to home after .only a couple of days with -no residual problems. Thus, appellants assert that the evidence does not support the finding that L.S. is a child in need of care in the absence of the improperly admitted hearsay evidence.

Louisiana Children’s Code Article 663(A) provides, with relation to the rules of evidence applicable to adjudication hearings in juvenile court, that the “hearing shall be conducted according to the rules of evidence applicable to civil proceedings.” As a result, we look to the Louisiana Code of Evidence to determine first whether the trial court erred in allowing Ms. Elaire’s testimony concerning receipt of the verbal report by the hospital staff that the mother and child tested positive for amphetamines and second whether it further erred in allowing the written drug screen reports showing the same results to be introduced.

Hearsay is defined as “a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.” La.Code Evid. art. 801(C). Given the unreliable nature of such evidence, hearsay is inadmissible at adjudication hearings unless it falls under one of the enumerated statutory exceptions found in La.Code Evid. art. 803. The Code of Evidence also provides in article 1101(A)(1) that “[jjuvenile adjudication | shearings in non-delinquency proceedings shall be governed by the provisions of this Code applicable to civil cases.” The general rule of the inadmissibility of hearsay evidence is one such rule of evidence enforceable in juvenile adjudication proceedings. State ex rel. D.H., 04-2105 (La. App. 1 Cir. 2/11/05), 906 So.2d 554; State In The Interest of Prestridge, 323 So.2d 868 (La.App. 2 Cir. 1975); State In The Interest of Garza, 388 So.2d 458 (La. App. 2 Cir. 1980); State In The Interest of Rotolo, 361 So.2d 468 (La.App. 4 Cir. 1978); and State In The Interest of Clark, 400 So.2d 334 (La.App. 4 Cir. 1981).

In Bandy v. Bandy, 07-849 (La. App. 3 Cir. 12/5/07), 971 So.2d 456, the defendant father in a child custody dispute offered as evidence a drug screen report showing that he tested negative for drugs in his system. The reports were part of his work records as the screens were required for his employment. The trial court allowed the evidence pursuant to the “business records” exception to the hearsay rule. We reversed, finding the evidence to be inadmissible hearsay, and therein provided the following:

In the present case, Patrick represented himself and introduced the drug test results into evidence without calling a single witness to testify as to their authenticity and to the practices under which the information was gathered. Patrick indicated that they were faxed to the court by the laboratories themselves, but there was no testimony regarding the collection process or the chain of command, and no testimony identifying the defendant, Patrick, as the contributor of the hair and urine samples. The Louisiana Supreme Court in State v. Juniors, 03-2425 (La.6/29/05), 915 So.2d 291, cert. denied, Juniors v. Louisiana, 547 U.S. 1115, 126 S.Ct. 1940, 164 L.Ed.2d 669 (2006), affirmed a trial court’s refusal to admit drug test results, stating as follows:
The witness laying the foundation for the admissibility of business records need not have been the preparer of the records; however, the witness must be familiar with and able to testify from personal knowledge about the bookkeeping and accounting procedures of the entity whose business records are sought to be | ¶ (Introduced. Cole Oil & Tire Co., Inc. v. Davis, 567 So.2d 122, 129 (La.App. 2 Cir.1990). “Under Art[icle] 803(6), it is essential that a custodian or other qualified witness testimonially explain the record-keeping procedures of the business and thus lay the foundation for the admissibility of the records.” Id. If the foundation witness cannot vouch that the requirements of the Code of Evidence have been met, the evidence must be excluded. Id. See also, State v. Borne, 96-1130 (La.App. 4 Cir. 3/19/97), 691 So.2d 1281, writ denied, 97-1021 (La. 10/3/97), 701 So.2d 197 [cert. denied, Borne v. Louisiana, 523 U.S. 1009, 118 S.Ct. 1196, 140 L.Ed.2d 325 (1998) ].

Bandy, 971 So.2d at 462.

In this case, as in Bandy, there was no foundation evidence as is required to allow the written reports of the drug screen results pursuant to the business records exception to the hearsay rule. No witness familiar with the sample-collecting or rec-oi’d-keeping practices of the hospital laboratory testified at trial. In fact, no one from the hospital, which administered the drug screens, testified at all. Further, the records did not meet the requirements to be admissible as criminal laboratory reports under La.R.S. 15:499, et seq. as correctly noted by the trial court. Thus, we find that the records were, in fact, hearsay and not admissible pursuant to any exception provided for by La.Code Evid. art. 803. Accordingly, we find the introduction of the drug screen reports, as allowed by the trial court, to be improper hearsay evidence. However, such a finding does not end our inquiry.

In Evans v. Lungrin, 97-0541, 97-0577 (La. 2/6/98), 708 So.2d 731, the supreme court recognized that where a legal error or ruling, particularly as to the introduction of evidence, so impacts the fact finding process that a manifest error review is not possible, appellate courts should then exercise a de novo review, stating:

| n[W]here one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the appellate court should • make its own independent de novo review of the record and determine a preponderance of the evidence. Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La.2/20/95); 650 So.2d 742, 747, rev’d in part, on other grounds, 96-3028 (La.7/1/97); 696 So.2d 569, reh’g denied, 96-3028 (La.9/19/97); 698 So.2d 1388. A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. See Lasha v. Olin Corp., 625 So.2d 1002, 1006 (La. 1993). Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. See Lasha, 625 So.2d at 1006. When such a prejudicial error of law skews the trial court’s finding of a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo. Lasha, 625 So.2d at 1006.

Lungrin, 708 So.2d at 735. This standard was applied in a similar child in need of care case in State in Interest of A.H., 51,053 (La.App. 2 Cir. 9/28/16), 206 So.3d 1081, reh’g denied (10/19/16), writ denied, 214 So.3d 867 (La. 1/9/17). There, the second circuit held that the trial court improperly allowed the introduction of hearsay testimony by the DCFS case worker and a detective with the sheriffs office as to the results of a drug screen on the mother and the 11 year old child showing positive for amphetamines. In reviewing the trial court’s decision in light of the improperly admitted evidence, the court stated as follows:

Although the testimony offered by the witnesses regarding the results of the drug tests was inadmissible hearsay and should not have been admitted during the adjudication hearing, the error alone does not warrant a reversal. A reversal requires application of the manifest error doctrine. The court must review the entire record de novo for properly admitted evidence that establishes a reasonable factual basis for the trial court’s finding. If such a basis does not exist, the appellate court must conclude that the fact finder is clearly wrong or manifestly erroneous.
At an adjudication hearing, the state has the burden to prove the allegations of the petition by a preponderance of evidence. La. Ch. C. art. 665; State in Int. of JK, 33,878 (La.App. 2 Cir. 6/23/00), 764 So.2d 287, writ denied, 2000-2637 (La. 10/6/00), 771 So.2d 83. haProof is sufficient to constitute a preponderance of the evidence when the entirety of the evidence, both direct and circumstantial, establishes that the fact or causation sought tio be proved is more probable than not. Talbot v. Talbot, 2003-0814 (La. 12/12/03), 864 So.2d 590; Pearce v. Medallion Const., 36,351 (La.App. 2 Cir. 11/6/02), 830 So.2d 576.

Id. at 1087.

In the instant case, we find that there was sufficient evidence properly before the court to support the finding that the child, L.S., was a child in need of care. Pursuant to the investigation by DCFS, Ms. Elaire testified that she -questioned K.S., the mother, and stated as follows:

From there we staffed the case and placed [K.S.] into family services. [K.S.] did admit to using opioids. She said she was using Oxycodone that she was getting off the streets at the time. She was willing to [cooperate] with the agency and seek substance abuse treatment. You know she stated to me at the hospital that in fact she had an appointment with Dr. John on 10/13/2016 at 9:00 a.m. for mental health and substance abuse treatment. She notified me while I was visiting her at the ho'spital as well.

In addition, Ms. Elaire testified that K.S. had previously been involved with the agency in another casé involving a child born with drugs in its system. Although the appellant objected to later questioning concerning this case, the fact of the prior drug positive birth was not objected to. Ms. Elaire further testified that K.S. was in drug treatment at the time of the hearing. Indeed, the ruling of the trial court indicates that more emphasis was placed on the referenced evidence than on the specific drug screen results, as the following statement of the court reflects:

All right. We went in a roundabout way of getting to where we needed to be, but we’re here. The documentation is sufficient for the Court to indicate that at the time of this little one’s birth he had been exposed to some type of drug. There was no indication that this drug was prescribed to mom at this time, in fact there was some indications that mom may have been acquiring it outside of the prescription procedure. In any case there’s no doubt'that the little one has had some difficulties because of the ingestion of the drugs by mom.' There was some brief indication that mom may have sought' some type of |1sréKab' which I think is a magnificent thing to 'hear, but thirty (30) days doesn’t cure a difficulty, so therefore I believe family services are going to be necessary at this time. So the Court is going to order family services for the little one at this time.

Accordingly, we find sufficient admissible evidence was presented to meet the preponderance of the evidence standard of proof required of the State in the adjudication hearing.

DECREE

For the reasons assigned herein, we affirm the judgment of the trial court. AFFIRMED.

      . The initials of the children aqd their parents are used to protect the identity of the minor child. Uniform Rules — Courts of Appeal, Rules 5-1, 5-2.

      . The original petition set forth the full names of the parties. We have only included their initials herein.

      . Louisiana Revised Statutes 15:499 provides in pertinent part as follows: ,
      A. All criminalistics laboratories established by laws of this state or by laws of the United States, and all coroners, forensic pathologists, and other persons, partnerships, corporations, and other legal entities practicing in fields of knowledge and expertise in the gathering, examination, and analysis of evidence by scientific means are authorized to make proof of examination and analysis of physical evidence by the certificate of the person making the examination or analysis. Such certificate shall list:
      (1) The date and time such evidence was delivered to such facility. ■
      (2) The name of the person making such delivery, and the person receiving same.
      (3) A brief description of. the evidence.
      (4) The type of examination or analysis requested.
      (5) The name of the person making the examination or analysis,
      (6) The date or dates of the examination or analysis.
      (7) The results of the examination or analysis,
      Louisiana Revised Statutes. 15:500 provides;
      In all criminal cases ánd in all cases in juvenile or family courts which are of a criminal nature, and in civil forfeiture proceedings arising from criminal activity, the courts of this state shall receive as evidence any certificate made in accordance with R.S. 15:499 subject to the conditions contained in this Section and R.S. 15:501. The certificate shall be received in evidence as prima facie proof of the facts shown thereon, and as prima facie proof of proper custody of the physical evidence listed thereon from time of delivery of said evidence to the facility until its removal therefrom.