Derrick J. Hammetter v. Verisma Systems, Inc.

2021 WI App 53

COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2019AP2423

† Petition for Review filed

Complete Title of Case:

DERRICK J. HAMMETTER AND ANTOINETTE M. VINKAVICH,

PLAINTIFFS-RESPONDENTS,

V.

VERISMA SYSTEMS, INC.,

DEFENDANT-APPELLANT,†

FROEDTERT MEMORIAL LUTHERAN HOSPITAL, INC.,

DEFENDANT-CO-APPELLANT.†

Opinion Filed: July 7, 2021
Submitted on Briefs: January 14, 2021
Oral Argument:

JUDGES: Neubauer, C.J., Gundrum and Davis, JJ.
Concurred:
Dissented:

Appellant
ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the
briefs of David J. Hanus, Alyssa A. Johnson, and Andrew P. Trevino of
Hinshaw & Culbertson LLP, Milwaukee.
Co-Appellant
ATTORNEYS: On behalf of the defendant-co-appellant, the cause was submitted on
the briefs of Susan E. Lovern, Kelly J. Noyes, Nicholas D. Castronovo,
and Christopher E. Avallone of von Briesen & Roper, S.C.,
Milwaukee.

Respondent On behalf of the plaintiff-respondent, the cause was submitted on the
ATTORNEYS: brief of Brett A. Eckstein, Edward E. Robinson, and Allan M. Foeckler
of Cannon & Dunphy, S.C., Brookfield.

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2021 WI App 53

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
July 30, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2019AP2423 Cir. Ct. No. 2017CV768

STATE OF WISCONSIN IN COURT OF APPEALS

DERRICK J. HAMMETTER AND ANTOINETTE M. VINKAVICH,

PLAINTIFFS-RESPONDENTS,

V.

VERISMA SYSTEMS, INC.,

DEFENDANT-APPELLANT,

FROEDTERT MEMORIAL LUTHERAN HOSPITAL, INC.,

DEFENDANT-CO-APPELLANT.

APPEAL from an order of the circuit court for Waukesha County:
MICHAEL O. BOHREN, Judge. Affirmed.

Before Neubauer, C.J., Gundrum and Davis, JJ.
No. 2019AP2423

¶1 GUNDRUM, J. Verisma Systems, Inc., and Froedtert Memorial
Lutheran Hospital, Inc., appeal from an order of the circuit court certifying a class.
The primary issue before us is whether the court erroneously exercised its discretion
in certifying the class as it did. We consider and reject all of Verisma’s and
Froedtert’s challenges to the certification, including those related to the findings
necessary for certification, notice to potential class members, certification of
common law claims, the statutory limitations period, and the voluntary payment
doctrine. We conclude the court did not err.

Background

¶2 Derrick J. Hammetter and Antoinette M. Vinkavich each retained the
Cannon & Dunphy law firm (Cannon) to represent him/her in separate personal
injury actions. Related to such representation, each signed an authorization that
allowed Cannon to secure release of his/her health care records. Cannon requested
the records from Froedtert, and as the vendor responsible for releasing information
on behalf of Froedtert, Verisma billed Cannon for costs related to the records
release, including an $8 certification charge and $20 retrieval fee (collectively, $28
fee) charged pursuant to WIS. STAT. § 146.83(3f)(b)4.-5. (2019-20).1 Cannon paid
this fee and was later reimbursed by Hammetter and Vinkavich pursuant to a retainer
agreement each had with Cannon requiring such repayment from any recovery.

¶3 WISCONSIN STAT. § 146.83(3f)(b)4.-5. respectively authorize health
care providers to charge the $8 certification charge and $20 retrieval fee if the
requestor of the records “is not the patient or a person authorized by the patient.”
On December 1, 2015, we decided Moya v. Aurora Healthcare, Inc., 2016 WI App

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

2
No. 2019AP2423

5, 366 Wis. 2d 541, 874 N.W.2d 336 (2015) (Moya I). In that case, we interpreted
WIS. STAT. § 146.83(3f)(b)4.-5. as not exempting from the $28 fee an attorney with
a written authorization from a patient who requested records on behalf of the patient.
Moya I, 366 Wis. 2d 541, ¶¶1, 11-12.

¶4 A year and one-half later, the supreme court reversed this decision and
held that “any person,” including an attorney, with a written authorization from a
patient who requests records on behalf of a patient is exempt from this $28 fee.
Moya v. Aurora Healthcare, Inc., 2017 WI 45, ¶¶2, 21-22, 31, 375 Wis. 2d 38, 894
N.W.2d 405 (Moya II). Interpreting the “a person authorized by the patient”
language of subdivisions 4. and 5., which the Moya II court observed was further
statutorily defined to include “any person authorized in writing by the patient,” see
WIS. STAT. § 146.81(5), the court held that these phrases “require[] only a person
with a written authorization from the patient.” Moya II, 375 Wis. 2d 38, ¶¶6, 22.
The court added that “no additional authorization [is required] for [a ‘person
authorized in writing by the patient’] to qualify for the exemption from the
certification charge and retrieval fee,” id., ¶22, and “[t]he legislature, with its use of
‘any person,’ chose not to place a limit on who could be authorized in writing by
the patient under § 146.81(5),” id., ¶30. Thus, the Moya II court held that not only
does an attorney with a written authorization from a patient qualify as “a person
authorized by the patient” for purposes of being exempt from the $28 fee, but that
“any person” with a written authorization from a patient qualifies and is exempt.
See id.

¶5 Following the release of the Moya II decision, Hammetter and
Vinkavich filed this suit against Verisma claiming a violation of WIS. STAT.
§ 146.83(3f), unjust enrichment, and conversion and seeking compensatory and
punitive damages “on their own behalf and on behalf of the members of a proposed

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No. 2019AP2423

class of individuals and entities that are similarly situated.” Hammetter and
Vinkavich later filed a second amended complaint, adding Froedtert as a defendant
and specifically asserting that Froedtert “is vicariously liable for the acts of its
authorized agent, Verisma.” Hammetter and Vinkavich subsequently moved for
class certification, but only against Verisma “as the release of information agent of
Froedtert … for thousands of violations of … § 146.83.”

¶6 Following extensive argument and briefing by the parties, including
Froedtert, the circuit court granted the motion for class certification, defining the
class as follows:

Any person or entity who:

1. Either

a. Requested his or her own patient health care provider
records, or authorized another in writing to obtain his
or her own health care provider records, from a
health care provider in the State of Wisconsin; or

b. Was authorized in writing by the patient to request
and obtain the patient’s health care provider records
from a health care provider in the State of Wisconsin;
and

2. Was charged by Verisma, either directly or indirectly, a
certification and/or retrieval fee at any time between July
1, 2011 and the date of trial; and

3. Incurred and ultimately paid the certification and/or
retrieval charges.

(Emphasis omitted.) Verisma and Froedtert appeal.

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No. 2019AP2423

Discussion

Class Certification Findings

¶7 The certification of a class action is governed by WIS. STAT.
§ 803.08.2 To certify a class action, a circuit court must first find all of the
following:

(a) The class is so numerous that joinder of all members is
impracticable.

(b) There are questions of law or fact common to the class.

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

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

Sec. 803.08(1)(a)-(d). The first three findings are “referred to as numerosity,
commonality, and typicality.” Harwood v. Wheaton Franciscan Servs., Inc., 2019
WI App 53, ¶23, 388 Wis. 2d 546, 933 N.W.2d 654.

¶8 As relevant to this case, to certify the class the circuit court also
needed to find that “the questions of law or fact common to class members
predominate over any questions affecting only individual members, and that a class
action is superior to other available methods for fairly and efficiently adjudicating
the controversy.” See WIS. STAT. § 803.08(2)(c). These two findings are referred
to as “the predominancy and superiority requirements.” Harwood, 388 Wis. 2d 546,
¶24.

2
This statute was revised during the pendency of this case. Since all parties agree that the
revised version should govern this matter, we consider that version.

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No. 2019AP2423

¶9 Ultimately, the circuit court has “broad discretion to determine
whether certification of a class-action lawsuit is appropriate,” and we will only
reverse the certification decision if the court erroneously exercised its discretion.
Harwood, 388 Wis. 2d 546, ¶¶5, 41. The court properly exercises its discretion
“when it considers the facts of record and reasons its way to a rational, legally sound
conclusion.” Id., ¶41. The circuit court here properly exercised its discretion.

Numerosity

¶10 In this case, neither Verisma nor Froedtert dispute that the numerosity
requirement is met. Nor could they successfully do so. In Harwood we determined
that for purposes of satisfying the numerosity requirement, forty-two identified class
members was sufficient. Id., ¶55. In this case, there appear to be thousands.

Commonality

¶11 As to the commonality requirement, here, all of the members of the
proposed class allegedly suffered the same injury—that pursuant to WIS. STAT.
§ 146.83(3f)(b)4.-5., they were wrongfully charged the $8 certification charge
and/or the $20 retrieval fee. The answer to whether Verisma wrongfully charged
either fee will resolve the underlying liability issue for each class member. Thus,
there are common issues of law and fact as this matter is governed by the same
statutory provisions and proof of unlawful charging of these fees will be very similar
for each member of the class.

¶12 Verisma and Froedtert contend that the commonality requirement is
not met because some in the class may be entitled to up to $25,000 in exemplary
damages while others may be entitled to up to $1000 in exemplary damages,
depending on whether Verisma wrongfully charged the fees in a knowing and

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No. 2019AP2423

willful manner or negligently.3 Specifically, they posit that Verisma’s mental state
may have differed depending on whether Verisma charged the fees to a requestor
before our decision in Moya I, after Moya I but before the supreme court’s decision
in Moya II, or after Moya II and/or whether the requestor was a patient seeking
his/her own medical records or a third-party requestor seeking a patient’s records
(with an authorization from the patient) “in an antagonistic posture”—such as
“defense law firms, insurance companies, employers.”

¶13 As Hammetter and Vinkavich point out, however, Froedtert and
Verisma point to no evidence indicating Verisma actually had a different mental
state dependent on when the records were requested or the nature of the person who
made the request. Speculation related to issues to be addressed later in the “merits”
phase of a class-action lawsuit will not suffice to defeat certification of a class.4
Furthermore, the potential need for individual damage determinations later in the
litigation “does not itself justify the denial of certification.” Mullins v. Direct Digit.,

3
WISCONSIN STAT. § 146.84(1) provides in relevant part:

(b) Any person ... who violates [WIS. STAT. §§] 146.82 or
146.83 in a manner that is knowing and willful shall be liable to
any person injured as a result of the violation for actual damages
to that person, exemplary damages of not more than $25,000 and
costs and reasonable actual attorney fees.

(bm) Any person ... who negligently violates [§§] 146.82 or
146.83 shall be liable to any person injured as a result of the
violation for actual damages to that person, exemplary damages
of not more than $1,000 and costs and reasonable actual attorney
fees.
4
While we make no ruling related to this specific point, we do observe that at any time
after the legislature enacted the statute at issue and before we released the Moya I decision, see
Moya v. Aurora Healthcare, Inc., 2016 WI App 5, 366 Wis. 2d 541, 874 N.W.2d 336 (2015)
(Moya I), Verisma itself could have sought a declaratory judgment to clarify the circumstances
under which it could or could not lawfully charge the $8 certification charge and/or $20 retrieval
fee.

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No. 2019AP2423

LLC, 795 F.3d 654, 671 (7th Cir. 2015) (“It has long been recognized that the need
for individual damage determinations at [the damages] stage of the litigation does
not itself justify the denial of certification.”).

¶14 Verisma also contends that the language of the class definition
requiring a class member to have “incurred and ultimately paid the certification
and/or retrieval charges” is “overbroad and insufficient” because “not only [the]
patient[] but also the person authorized to request medical records, i.e., the
requestor,” are members of the class. Verisma claims, as an example, that the class-
certification language approved by the circuit court in this case would allow for not
only Hammetter and Vinkavich to be members of the class but also for their law
firm, Cannon, to be a member because Cannon initially “paid the certification or
retrieval charges on behalf of Hammetter and Vinkavich.”

¶15 By adding the requirement that a class member will have to have
actually “[i]ncurred and ultimately paid the certification and/or retrieval charges,”
(emphasis added) the circuit court appropriately addressed any overbreadth concern.
If a person did not “ultimately pa[y]” the fee, he or she will not be a member of the
class (nor would he or she even have suffered damage necessary to maintain an
individual claim). The “ultimately paid” language would specifically prevent
Cannon from being a class member because, as Verisma acknowledges,
“Hammetter and Vinkavich paid the certification or retrieval charges out of their
settlement and reimbursed Cannon based on their fee agreement.” See Cruz v. All
Saints Healthcare Sys., Inc., 2001 WI App 67, ¶14, 242 Wis. 2d 432, 625 N.W.2d
344 (“[T]he relevant fact is the incurring of the debt, not the payment. Although in
most cases, attorneys advance the expenses for medical records, it is the client who
ultimately pays the final cost by virtue of subtracting these expenses from the
settlement or verdict.” (emphasis added)). Indeed, this class certification language

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No. 2019AP2423

appears to be carefully and appropriately tailored to weed out persons or entities,
like Cannon, that may have simply “fronted” the money but did not ultimately pay
the debt.5 With this limiting language, no one should end up included as a class
member if he/she/it did not “ultimately pa[y]” the $8 certification charge and/or $20
retrieval fee.

Typicality

¶16 Hammetter’s and Vinkavich’s claims are certainly typical of the
claims of the class. Tracking the circuit court’s certification language, Hammetter
and Vinkavich each (1) “authorized another [Cannon] in writing to obtain his or her
own health care provider records, from a health care provider in the State of
Wisconsin”; (2) “[w]as charged by Verisma, either directly or indirectly, a
certification and/or retrieval fee at any time between July 1, 2011 and the date of
trial”; and (3) “[i]ncurred and ultimately paid the certification and/or retrieval
charges.” As the circuit court noted,

Each member of the class will have individually, or through
authorized persons requested the health care records of the
patient, and will have been charged the retrieval and
certification fees. Each of the 40-60,000 potential claims
would be a close image of the representative claims; the

5
Verisma makes the claim that Hammetter and Vinkavich suffered no “injury” because
the $28 fee was deducted from the settlement proceeds from their personal injury cases. Not
surprisingly, Verisma fails to support this outlandish claim with citation to any legal authority.
Because this claim is undeveloped and unsupported by legal authority, we need not spill any more
ink on it. See W.H. Pugh Coal Co. v. State, 157 Wis. 2d 620, 634, 460 N.W.2d 787 (Ct. App.
1990) (we do not consider arguments unsupported by legal authority); M.C.I., Inc. v. Elbin, 146
Wis. 2d 239, 244-45, 430 N.W.2d 366 (Ct. App. 1988) (We need not consider arguments which
are “unexplained and undeveloped.”). That said, we observe that Hammetter and Vinkavich each
obviously would have been $28 “wealthier” if Verisma did not impose this fee. Moreover, as
indicated above, we have already recognized in prior binding precedent—using the same
“ultimately paid” language used in the certification order here—that in such a circumstance “it is
the client who ultimately pays the final cost by virtue of subtracting these expenses from the
settlement or verdict.” See Cruz v. All Saints Healthcare Sys., Inc., 2001 WI App 67, ¶14, 242
Wis. 2d 432, 625 N.W.2d 344 (emphasis added).

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No. 2019AP2423

defenses to the representative claims are close to if not
identical to those asserted against the class members. The
conduct giving rise to each claim and the defense is similar,
if not identical.

¶17 In disputing that the typicality requirement is met, Verisma
surprisingly relies on quotations from Oshana v. Coca-Cola Co., 472 F.3d 506 (7th
Cir. 2006), and Insolia v. Philip Morris Inc., 186 F.R.D. 535 (W.D. Wis. 1998).
These quotations actually support Hammetter and Vinkavich’s position and the
circuit court’s order in this case.

¶18 Verisma asserts that the typicality requirement is satisfied if it

“arises from the same event or practice or course of conduct
that gives rise to the claims of other class members and …
[the representative’s] claims are based on the same legal
theory.” Oshana, 472 F.3d at 514. “The operative
considerations are defendants’ alleged conduct and
plaintiffs’ legal theories.” Insolia, 186 F.R.D. at 543-44.
The typicality requirement assures the named plaintiff’s
claims “have the same essential characteristics as the claims
of the class at large.” Id.

Here, the “practice or course of conduct that gives rise to the claims of other class
members” is the same as that giving rise to Hammetter’s and Vinkavich’s claims—
Verisma allegedly charged them all, either directly or indirectly, the $8 certification
charge and/or $20 retrieval fee. Furthermore, Hammetter’s and Vinkavich’s claims
are “based on the same legal theory” as all class members—that these charges were
in violation of WIS. STAT. § 146.83(3f)(b)4.-5. As Insolia indicates, these are “[t]he
operative considerations.” Insolia, 186 F.R.D. at 544-45.

¶19 Verisma and Froedtert note that in Moya I, we interpreted WIS. STAT.
§ 146.83(3f)(b)4.-5. as not exempting from the $28 fee an attorney who requested
records on behalf of a patient, but then a year and one-half later, in Moya II, the
supreme court reversed our decision and held that “any person,” including an

10
No. 2019AP2423

attorney, with a written authorization who requests records on behalf of a patient is
exempt from these fees. As previously noted, because of this, Verisma and
Froedtert claim Verisma may have had a different “state of mind” as it relates to
fees it charged (1) pre-Moya I, (2) post-Moya I but pre-Moya II, and (3) post-Moya
II. Because Hammetter and Vinkavich were both charged the $28 fee pre-Moya I,
Verisma and Froedtert assert that Hammetter’s and Vinkavich’s claims would only
relate to Verisma’s pre-Moya I state of mind and thus would not be typical of claims
of class members who were charged in either of the other two time periods. This
matters, Verisma and Froedtert argue, because if Verisma was merely negligent in
charging the $28 fee, exemplary damages would be capped at $1000, whereas if
Verisma intentionally charged the fees, the exemplary damages could be up to
$25,000.

¶20 The question on typicality, however, is not whether the claims of
Hammetter and Vinkavich are identical in every way with every potential class
member but whether their claims are typical. Again, as Verisma points, the
typicality requirement is met if Hammetter’s and Vinkavich’s claims “arise[] from
the same … practice or course of conduct that gives rise to the claims of other class
members,” “are based on the same legal theory,” and ultimately “have the same
essential characteristics as the claims of the class at large.” These factors are
satisfied here. Furthermore, as previously stated, Froedtert and Verisma point to no
evidence indicating Verisma actually had a different mental state dependent on
when the records were requested (or the nature of the person or entity who made the
request). Moreover, we note that WIS. STAT. § 803.08(7) provides that “[w]hen
appropriate, a class may be divided into subclasses that are each treated as a class.”
Thus, if after discovery on the merits, the circuit court determines that subclasses
are appropriate, it has the statutory authority to establish subclasses.

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No. 2019AP2423

Fair and Adequate Protection of Class Interests

¶21 “In determining adequacy of representation, the primary criteria are:
(1) whether the plaintiffs or counsel have interests antagonistic to those of absent
class members; and (2) whether class counsel are qualified, experienced and
generally able to conduct the proposed litigation.” Cruz, 242 Wis. 2d 432, ¶18.
Neither Verisma nor Froedtert develop an argument to convince us that Hammetter,
Vinkavich, or their counsel have an interest that is antagonistic to those of other
members of the class, nor do we see any. As to whether counsel representing
Hammetter and Vinkavich in this class action are qualified to adequately “conduct
the proposed litigation,” the circuit court found that the interests of the class will be
protected “by experienced and competent counsel who have achieved excellent
results in the past, and are familiar with the law and facts governing this
proceeding.” Verisma and Froedtert make no argument to the contrary, thus we
spend no more time on this consideration.

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No. 2019AP2423

Predominance and Superiority

¶22 We also consider whether “the questions of law or fact common to
class members predominate over any questions affecting only individual members”
and whether “a class action is superior to other available methods for fairly and
efficiently adjudicating the controversy.” See WIS. STAT. § 803.08(2)(c). In
addressing these considerations, the circuit court stated:

[L]itigating as a class is preferable to individual court
actions, in that consolidation in a single forum reduces
management difficulties. Filing separate claims and then
seeking joinder is not practical because of the size of the
proposed class; the class proceeding supports judicial
economy and financial economy for all parties.

There is a single fact circumstance underlying the class
and that is Defendant’s charging [of] the Retrieval and
Certification fees contrary to statute, and it is common to the
representatives and all class members. The issue is narrow,
and not subject to differences in application. Damages can
be easily determined from invoices and records.

A class action is a superior method to fairly and
efficiently legally resolve the issue of the alleged wrongfully
collected fees. Thousands of small claims proceedings is not
economical or efficient for any party or the court. A class
action … protects the rights of all involved [and] [e]nsures
that more persons who are potential class members will
receive compensation for incorrect fees charged. The class
action provides the best forum to manage the claims.

We agree in all respects.

¶23 Our decision in Harwood provides us significant guidance with regard
to predominance and superiority. Interpreting the same statutory provisions at issue
here on essentially the same facts, we stated that “the claims of all the class members
and the representative[s] are not only predominant[,] they are the only claims each
member makes.” Harwood, 388 Wis. 2d 546, ¶58. “The guiding principle behind
predominance is whether the proposed class’s claims arise from a common nucleus

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No. 2019AP2423

of operative facts and issues.” Beaton v. SpeedyPC Software, 907 F.3d 1018, 1029
(7th Cir. 2018). As we have already explained, that is certainly the case here. The
questions common to all members of the class predominate “over any questions
affecting only individual members.” See WIS. STAT. § 803.08(2)(c).

¶24 Considering that the issue in this case is essentially the same as that
in Harwood, we agree with the superiority-related statement we made in that case:
“[T]he case law is clear that public policy favors class actions especially where the
amount in controversy is so small that the wronged party is unlikely ever to obtain
judicial review of the alleged violation without a class action.” See Harwood, 388
Wis. 2d 546, ¶58. Additionally, as the circuit court also noted, if individuals did
choose to obtain judicial consideration related to the charging of the $28 fee and
thousands of such cases were filed, it would have a “staggering” impact on our court
system. See id. The circuit court correctly noted that class action is the superior
method for adjudicating the potential claims related to the fee.

¶25 Verisma and Froedtert contend that because of the different legal
decisions in Moya I and Moya II, class action is not the “superior” method for
adjudicating this matter. Verisma claims “[a] jury will need to conduct an
individualized inquiry into Verisma’s intent at the time of each transaction to
determine whether Verisma acted in good faith, negligently, or knowingly and
willfully.” It adds that the timing “could have an impact on how Verisma was acting
at the time.” (Emphasis added.) Similarly, Froedtert also notes that plaintiffs must
be able to prove Verisma violated WIS. STAT. § 146.83 “in a manner that is knowing
and willful” (WIS. STAT. § 146.84(b)) or “negligently” (§ 146.84(bm)) to receive
exemplary damages. We do not have concerns.

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No. 2019AP2423

¶26 First, although Verisma insists it has a “good faith” defense under
WIS. STAT. § 146.84(1)(a), that provision does not apply here. Section 146.84(1)(a)
states: “A custodian of records incurs no liability under par. (bm) [related to a
“person ... who negligently violates (WIS. STAT. §§) 146.82 or 146.83” being liable
for actual damages, exemplary damages up to $1000, and costs and attorney fees]
for the release of records in accordance with [§§] 146.82 or 146.83 while acting in
good faith.” (Emphasis added.) Here the issue is whether Verisma wrongly charged
fees for the release of records; the issue does not relate to harm caused as a result of
the release of the records. Verisma’s proposed interpretation would swallow up
§ 146.84(b) and (bm), and the language of § 146.84(1)(a) gives no indication
Verisma’s interpretation was intended by the legislature.

¶27 As to whether Verisma may have violated WIS. STAT. § 146.83
negligently as opposed to in a “knowing and willful” manner based upon whether it
charged the fee before or after the Moya I or Moya II decisions, Hammetter and
Vinkavich have the answer: “if, after merits discovery, there really are different
periods of time that warrant different considerations, the circuit court retains the
authority and discretion under WIS. STAT. § 803.08(3)(c) to alter or amend the scope
of the certified [c]lass at any time before final judgment, as well as the authority and
discretion under § 803.08(7) to divide the [c]lass into subclasses.” We do not,
however, see that an “individualized inquiry” of Verisma’s intent in relation to each
class member would be necessary. Rather, it appears likely that whether Verisma
acted negligently versus “knowingly and willfully” will be the same as to all persons
who were charged the fees during the particularly identified time period, and quite
possibly with regard to the entire time period. Regardless, as we stated in Harwood,
“[i]n the interest of simplifying the lawsuit and avoiding a multiplicity of litigation,
a class action is proper even if each member of the class has a separate cause of

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No. 2019AP2423

action for money damages.” Harwood, 388 Wis. 2d 546, ¶54 (citation omitted).
This applies here as well.

¶28 The predominance and superiority requirements are met.

Notice to Potential Class Members

¶29 Verisma tries to derail class certification by asserting that we should
“at the very least, remand for further proceedings and require Hammetter and
Vinkavich to present the plan addressing notice” to be provided to potential class
members. It claims that the circuit court’s class definition “is not precise enough to
allow for individual notice of the class action.”

¶30 Verisma seeks to put the cart before the horse as WIS. STAT.
§ 803.08(4)(b) provides that the question of proper notice need not be addressed
until the question of class certification is resolved.6 Furthermore, that statutory

6
WISCONSIN STAT. § 803.08(4)(b) provides:

(b) For sub. (2)(c) classes. For any class certified under sub.
(2)(c), the court must direct to class members the best notice that
is practicable under the circumstances, including individual notice
to all members who can be identified through reasonable effort.
The notice must clearly and concisely state in plain, easily
understood language, all of the following:

1. The nature of the action.

2. The definition of the class certified.

3. The class claims, issues, or defenses.

4. That a class member may enter an appearance through an
attorney if the member so desires.

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No. 2019AP2423

provision shows that perfection of the notice provided is not the standard as it states
that “the court must direct to class members the best notice that is practicable under
the circumstances, including individual notice to all members who can be identified
through reasonable effort.” Id. (emphasis added); see also Mullins, 795 F.3d at
665.

The rule does not insist on actual notice to all class members
in all cases. It recognizes it might be impossible to identify
some class members for purposes of actual notice.…

When class members’ names and addresses are known or
knowable with reasonable effort, notice can be accomplished
by first-class mail. When that is not possible, courts may use
alternative means such as notice through third parties[] [or]
paid advertising … without offending due process…. Due
process simply does not require the ability to identify all
members of the class at the certification stage.

Mullins, 795 F.3d at 665 (citations omitted). The matter of proper notice is
premature. The circuit court will have opportunity upon remand to ensure the
requirements of § 803.08(4) are satisfied.

Class Certification of Common Law Claims

¶31 Froedtert argues that “[t]he circuit court erroneously exercised its
discretion in certifying the class for plaintiffs’ common law claims” of conversion
and unjust enrichment. We disagree.

5. That the court will exclude from the class any member who
requests exclusion.

6. The time and manner for requesting exclusion.

7. The binding effect of a class judgment on members under
sub. (5).

(Emphasis added.)

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No. 2019AP2423

¶32 Froedtert asserts that “[p]laintiffs’ conversion claim requires proof
that each class member did not consent to pay the Fees.” As Hammetter and
Vinkavich point out, however, conversion can be committed not only by taking
property without the consent of the owner but also by taking property without lawful
authority, see Dorr v. Sacred Heart Hospital, 228 Wis. 2d 425, 455-56, 597 N.W.2d
462 (Ct. App. 1999), which is the relevant allegation that Hammetter and Vinkavich
make in this case.

¶33 Froedtert also asserts that Hammetter’s and Vinkavich’s unjust
enrichment claims “require[] an inquiry into the equities involved with each class
member” and that “[s]uch individual inquiries predominate here” and preclude class
certification. It claims

the equities involved in Verisma charging the Fees when
doing so was consistent with the court of appeals’ published
Moya I decision are entirely different than the equities of
charging the fees after the Supreme Court decided Moya II.
Similarly, the trier of fact could find that the equities of
charging a patient the Fees is different than charging an
insurance company or a law firm.

It further adds that “[w]ith the proposed class, the trier of fact would have to make
one liability determination for the class as a whole, and could not consider any of
these differences in assessing Verisma’s liability for unjust enrichment.”

¶34 Froedtert also puts the cart before the horse. At this stage of the
litigation, the only question before us is whether the circuit court erroneously
exercised its discretion in certifying the class as it did. Questions ultimately related
to potential subclasses or what verdicts should be utilized at the end of a trial are
premature and more appropriately addressed by the circuit court following
discovery on the merits. For purposes of class certification, however, Froedtert’s
arguments do not persuade us that the court erroneously exercised its discretion,

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No. 2019AP2423

particularly since Froedtert directs us to no record evidence suggesting Verisma
actually gave any consideration to the nature of the particular requestor or the time
period when the request was made.

Statute of Limitations

¶35 Froedtert argues that the two-year limitation period of WIS. STAT.
§ 893.93(2)(a) operates to bar Hammetter’s “and many of the other class member’s”
WIS. STAT. § 146.84 claims. We disagree.

¶36 WISCONSIN STAT. § 893.93(2)(a) provides a two-year limitation
period for “[a]n action by a private party upon a statute penalty, or forfeiture when
the action is given to the party prosecuting therefor and the state, except when the
statute imposing it provides a different limitation.” Froedtert claims this limitation
applies “because WIS. STAT. § 146.84: (1) allows private parties to seek penalties
of up to $25,000 for violations of WIS. STAT. § 146.83; (2) gives the state a right to
seek fines or imprisonment for certain violations of § 146.83; and (3) does not
prescribe a limitations period.” See § 146.84 (emphasis added). These concerns are
easily addressed.

¶37 To begin, we agree that WIS. STAT. § 146.84’s allowance for
exemplary damages of up to $25,000 (for a “knowing and willful” violation)
suggests a punitive intent; however, this alone does not demonstrate an intent by the
legislature that the two-year statute of limitations applies. See South Milwaukee
Sav. Bank v. Barczak, 229 Wis. 2d 521, 534, 600 N.W.2d 205 (Ct. App. 1999);
South Milwaukee Sav. Bank v. Barrett, 2000 WI 48, ¶24, 234 Wis. 2d 733, 611
N.W.2d 448. As to the right of the state “to seek [criminal] fines or imprisonment
for certain violations of WIS. STAT. § 146.83” (emphasis added), we note that the
“certain violations” in which such criminal penalties could apply are not violations

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No. 2019AP2423

related to a health care provider wrongly charging the $28 fee.7 Additionally, our
supreme court has strongly stated:

[U]nless the legislature clearly requires the application of a
specific statute of limitations, case law requires application
of the six-year statute of limitations. Reviewing courts must
interpret statutes of limitations so that “no person’s cause of
action will be barred unless clearly mandated by the
legislature.” Absent a clear legislative mandate, case law
instructs that the two-year statute of limitations must be
narrowly construed in favor of plaintiffs to avoid
extinguishing otherwise meritorious claims.

Barczak, 229 Wis. 2d at 535 (emphasis added; citations omitted) (language adopted
by our supreme court in Barrett, 234 Wis. 2d 733, ¶24). In this case, § 146.84
“[d]oes not prescribe a limitations period,” cutting against the conclusion that the
legislature intended a two-year period. To reiterate, where the legislature did not
“clearly require[]” the application of “a specific statute of limitations,” “application
of the six-year statute of limitations” is “require[d].” See Barczak, 229 Wis. 2d at
535. That is the case here.

¶38 Furthermore, a two-year statute of limitations is more likely to have
been intended by the legislature where the statutory provision is for the benefit of
the general public, as in the case of open records laws, see State ex rel. Leung v.
City of Lake Geneva, 2003 WI App 129, ¶6, 265 Wis. 2d 674, 666 N.W.2d 104,
and antitrust laws, see Open Pantry Food Marts v. Falcone, 92 Wis. 2d 807, 286
N.W.2d 149 (Ct. App. 1979). While WIS. STAT. § 146.83(3f)(b)’s restrictions as to
the amount that can be charged for retrieval of health care records no doubt benefits

7
The “certain violations” related to WIS. STAT. § 146.83(3f) that carry criminal penalties
are those in which a person “[r]equests or obtains confidential information” under subsec. (3f)
“under false pretenses.” WIS. STAT. § 146.84(2)(a)1. Thus, such penalties do not relate to a
healthcare provider wrongfully charging certification charges or retrieval fees under
§ 146.83(3f)(b), but appear to only relate to a person using “false pretenses” to request or obtain “a
patient’s health care records” from a health care provider under § 146.83(3f)(a).

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No. 2019AP2423

the “general public” to some extent, “the benefit derived by the general public … is
substantially outweighed by the benefits derived by individuals.” See Barczak, 229
Wis. 2d at 535; Barrett, 234 Wis. 2d 733, ¶24. The primary purpose of the statute
is obviously to benefit individual patients by ensuring they are not gouged by
unreasonable and excessive charges demanded by their health care provider for their
own medical records. As we have observed, “The Wisconsin Supreme Court has
held that the two-year statute of limitations applies where the action by a private
party upon a statute penalty is for the benefit of the public, while the six-year statute
of limitations applies when private individuals seek private relief.” See Leung, 265
Wis. 2d 674, ¶6. With the statutory provision at issue in this case, private
individuals seek private relief. The six-year statute of limitations applies. See also
Smith v. RecordQuest, LLC, 989 F.3d 513, 521-22 (7th Cir. 2021).

Voluntary Payment Doctrine

¶39 Lastly, Verisma and Froedtert argue that class certification is
inappropriate because “proof of [the voluntary payment] defense will require mini-
trials of each class members’ claims to determine if he or the requestor objected to
the charges before paying them.” This is a nonstarter as the voluntary payment
doctrine plays no role in the class-certification consideration in this case.

¶40 The voluntary payment doctrine

places upon a party who wishes to challenge the validity or
legality of a bill for payment the obligation to make the
challenge either before voluntarily making payment, or at
the time of voluntarily making payment. [T]he voluntariness
in the doctrine goes to the willingness of a person to pay a
bill without protest as to its correctness or legality.

Moya II, 375 Wis. 2d 38, ¶33 (citation omitted). However, when the issue of this
doctrine/defense was raised in Moya II, the court stated

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No. 2019AP2423

[T]he legislature’s expressed intent [is] that a person with a
written authorization from a patient does not have to pay the
certification charge or retrieval fee for obtaining health care
records. Thus, “[a]pplication of the common law voluntary
payment doctrine would undermine the manifest purposes of
[WIS. STAT. § 146.83(3f)].”

Moya II, 375 Wis. 2d 38, ¶34 (second and third alteration in original; citation
omitted). Because of this, the court stated that it could not apply the voluntary
payment doctrine to bar Moya’s claim. Id.

¶41 While Verisma indicates that it raises this defense in relation to
Hammetter’s and Vinkavich’s “common law claims” of unjust enrichment and
conversion, those claims directly stem from and would not exist without WIS. STAT.
§ 146.83(3f). Thus, we believe this holding of Moya II to be broad enough to
preclude application of the voluntary payment doctrine to these claims as well,
because application of the doctrine to these claims would just as readily “undermine
the manifest purposes” of § 146.83(3f).8 See Moya II, 375 Wis. 2d 38, ¶34.

¶42 For the foregoing reasons, we conclude that the circuit court did not
erroneously exercise its discretion in certifying the class in this case.

By the Court.—Order affirmed.

8
On appeal, Froedtert makes reference to the common law defense of waiver. Because
Froedtert fails to sufficiently develop this issue, however, we do not consider it. See M.C.I., Inc.,
146 Wis. 2d at 244-45.

22