Silver v. Greater Baltimore Med. Ctr.

Enoch Silver, III v. Greater Baltimore Medical Center, Inc., et al., No. 3491, September Term 2018. Opinion by Kehoe, J. Civil Procedure — Class Actions — Standard of Review: Maryland appellate courts exercise de novo review to determine whether the circuit court applied the correct legal standard in granting or denying class certification. Appellate courts review the circuit court’s ultimate decision to grant or deny class certification for abuse of discretion. Civil Procedure — Class Actions — Appellate Relief: If the appellate court decides that the circuit court’s decision to deny class certification was based upon a legal error but that there are other grounds in the record that might support denial of class certification, the proper appellate remedy is to vacate the circuit court’s judgment and remand the case for the circuit court to consider the alternative grounds.

It is not appropriate for appellate judges to exercise the discretion that is reserved to the circuit court. Civil Procedure — Class Actions — Certification — Md. Rule 2-231(b) and (c): Md. Rule 2-231(b) sets out four threshold requirements for class certification: numerosity, commonality, typicality, and adequacy of representation. While these prerequisites are necessary, they are not alone sufficient. In addition to Rule 2-231(b)’s threshold requirements, Rule 2-231(c) sets out additional criteria and a proposed class must usually satisfy at least one of them.

The criteria include: (i) whether issues common to the members of the class predominate over issues affecting individual members and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy or (ii) the defendant has acted or refused to act on grounds generally applicable to the class so that injunctive or declaratory relief would be appropriate to the class as a whole. Civil Procedure — Class Actions — Certification — “Predominance”: In deciding whether potential class issues predominate over individual issues, a court must first classify issues as common to members of the class or confined to one or more individual members of the proposed class. In this exercise, courts should not focus on legal and factual issues in the abstract but rather on how these questions would be answered at trial. To predominate, a class issue need not pertain to all aspects of the action but rather to significant aspects of individual cases.

Civil Procedure — Class Actions — Certification —“Superiority”: In deciding whether a proposed class action would be superior to other means of dispute resolution, the circuit court should consider “the interest of members of the class in individually controlling the prosecution of separate actions,” “the extent and nature of any pending litigation,” “the desirability . . . of concentrating the litigation of the claims in the particular forum,” and “the difficulties likely to be encountered in the management of a class action.” Md. Rule 2-231(c). Answering these questions requires the court to weigh the relative advantages and disadvantages of a class action as opposed to other procedures. Civil Procedure — Class Actions — Subclasses: A circuit court is under no obligation to sua sponte propose subclasses when the court declines to certify the class as proposed by the plaintiff Civil Procedure — Class Actions: The plaintiff in this action proposed a single class to adjudicate all claims for damages based on the assertion that four large Maryland hospitals had violated Md. Code Health Gen. § 4-304 by overcharging patients and former patients for copies of medical records over a four-year period. The circuit court did not abuse its discretion in concluding that the plaintiff had not demonstrated that class issues would predominate over individual issues or that a class action would be an efficient and economical method of adjudicating the claims of class members.

The plaintiff also proposed a separate class for injunctive relief against the hospitals. The court concluded that, because the damages class had not been certified, it was inappropriate to certify a hybrid class action, that is one in which a class could be certified under more than one section of Md. Rule 2-231(c). Therefore, the court declined to certify the injunctive relief class. But the plaintiff had never requested hybrid class certification, and the court did not consider his request for certification of an injunctive relief class under Md. Rule 2-231(c)(2) alone.

In so doing, the court erred. 2 Circuit Court for Baltimore City Case No. 24-C-16-004995 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 3491 September Term, 2018 ____________________________________ ENOCH SILVER, III v. GREATER BALTIMORE MEDICAL CENTER, INC., ET AL. ____________________________________ Kehoe, Arthur, Moylan, Charles E., Jr. (Senior Judge, Specially Assigned) JJ. ____________________________________ Opinion by Kehoe, J. ____________________________________ Filed: December 21, 2020 * Fader, C.J., did not participate in the decision to report this opinion pursuant to Md. Rule 8- 605.1. Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2020-12-21 10:45-05:00 Suzanne C. Johnson, Clerk Contents Introduction Background The medical-records charges The complaint The motion for class certification The circuit court’s denial of the class-certification motion Analysis A. Class certification B. The standard of review C. The damages class: certification under Md. Rule 2-231(c)(3) 1. Predominance 2.

Superiority 3. Certification of subclasses D. The injunctive-relief class: certification under Md. Rule 2-231(c)(2) Conclusion and proceedings on remand Introduction Enoch Silver, who paid to receive copies of his medical records from each of the appellee hospitals, filed a putative class-action lawsuit against them. He alleged that the hospitals had violated, and were continuing to violate, Maryland statutory law by assessing unreasonable charges for the copies and by engaging in related illegal and unfair trade practices. The Circuit Court for Baltimore City denied Silver’s motion to certify two proposed classes for the action—one for damages and another for injunctive relief.

And because Silver’s individual claims against the hospitals did not meet the circuit court’s -1- amount-in-controversy threshold, the court ultimately granted an unopposed motion to dismiss Silver’s case for lack of jurisdiction. Silver’s brief presents three issues which we have consolidated into one: Did the circuit court abuse its discretion in denying Silver’s class-certification motion?1 Our answer is no as to the proposed damages class. However, we do not agree with the circuit court’s reasoning as to the proposed class for injunctive relief. We will affirm the circuit court’s judgment in part, vacate it in part and remand this case for further proceedings.

Background The medical-records charges Silver’s lawsuit arises out of three separate requests for medical records from three unaffiliated hospitals: Greater Baltimore Medical Center (“GBMC”), Medstar Union Memorial Hospital, and The Johns Hopkins Hospital. On August 20, 2014, Silver, through his attorney, sent GBMC a written request for copies of his personal medical records dating back to July 1, 2014. In his letter to the 1 In his brief, Silver articulates the issues as follows: 1. Whether the Circuit Court erred in denying class certification on the basis that consumers’ damages would have to be proven separately, even though both parties demonstrated that costs and charges could be calculated on a class-wide basis without individualized review? 2.

Whether the Circuit Court erred in denying class certification of an injunctive class on the basis of an erroneous legal conclusion concerning hybrid class actions? 3. Whether dismissal of the case on jurisdictional grounds should be vacated as it was predicated on the erroneous denial of class certification? -2- hospital, Silver asked that any records available in electronic format be sent to him on a CD. Within a few days, GBMC delivered the requested records, but in paper format and for a considerable price. The $573.39 invoice for fulfilling the records request included per-page copying fees totaling $506.16 ($0.76 per page, for an estimated 666 pages); a “Basic Fee” of $22.88; a “Handling Fee” of $1.00; a shipping fee of $12.23; and sales tax of $31.12.

On July 15, 2015, more than nine months after receiving this invoice, Silver, through his attorney, complained about the amount of these fees. The hospital didn’t budge. Silver’s second medical-records request was made to Union Memorial on March 25, 2015. Through his attorney, Silver made a written request for his personal medical records dating back to January 1, 2007.

As he had done with GBMC, Silver asked that any records available in electronic format be delivered on a CD. Union Memorial responded as GBMC had: with paper records and an invoice. The bill, for $277.47, included per-page copying fees totaling $228.76 ($0.76 per page, for an estimated 301 pages); a “Basic Fee” of $22.88; a “Handling Fee” of $1.00; a shipping fee of $9.80; and sales tax of $15.03. Silver’s third request was made of Johns Hopkins on October 19, 2015, seeking his personal medical records dating back to July 1, 2014.

The written request, once more made through Silver’s attorney, asked that electronic records be delivered on a CD. Johns Hopkins delivered one page of paper records for $24.12. This cost included a per-page copying fee of $0.76; a “Basic Fee” of $22.88; and a shipping-and-handling fee of $0.48. -3- The complaint In September 2016, Silver filed a two-count complaint in the Circuit Court for Baltimore City, proposing to bring a class-action lawsuit against all three hospitals. In one count, Silver alleged that the hospitals’ “exorbitant” medical-records charges violated Md. Code, § 4-304(c) of the Health–General Article (“Health–Gen.”), which limits the fees that healthcare providers may charge for the provision of medical records.

(A right of action for the violation of Health–Gen. § 4-304(c) is provided under Health– Gen. § 4-309(f), which makes healthcare providers and others who knowingly violate the statute liable for actual damages.) Under the current version of the statute, when a “person in interest” or other authorized person requests medical records, providers are limited to charging “a reasonable cost-based fee for providing the information requested.” Health– Gen. § 4-304(c)(2). Subject to some conditions, the statute places a $0.76 per-page cap on fees for “copying and mailing” records. Health–Gen. § 4-304(c)(3)(i). In addition to the per-page fees, the statute permits healthcare providers to charge up to $22.88 for “record retrieval and preparation,” plus the actual costs incurred for “postage and handling.” Health–Gen. § 4-304(c)(3)(ii).

For electronic copies of records stored in an electronic format, the per-page fee is limited to seventy-five percent of the per-page fee noted above, up to $80. Health–Gen. § 4-304(c)(3)(iii). Except for the preparation-and-retrieval fees, the fee limits may be adjusted for inflation. Health–Gen. § 4-304(c)(4).

The statute is explicit that the fees are also subject to the “fee limitations that apply to persons in interest under -4- 45 C.F.R. 164.524[2] and any guidance on those limitations issued by the U.S. Department of Health and Human Services.” Health–Gen. § 4-304(c)(3)(ii), (iii). Significantly for this case, Health–Gen. § 4-304(c) was amended on October 1, 2016. See 2016 Md. Laws ch. 724. Before the amendment, the statute limited providers to charging “the reasonable cost” of providing requested records, rather than “a reasonable cost-based fee.” Id.

It also capped per-page copying charges at $0.50 and the retrieval-and- preparation fee at $15. Id. Both fee caps were subject to annual adjustments for inflation, id., and both parties agree that the inflation-adjusted amounts during the relevant time period would have been $0.76 and $22.88, respectively. Finally, before the 2016 amendment, the statute did not impose a separate limitation on the fees that could be charged for records stored and delivered electronically.

Id. 2 45 C.F.R. 164.254 pertains to an individual’s right to access her medical records as provided in the Health Insurance Portability and Accountability Act (“HIPAA”), Pub. L. No. 104-191, 110 Stat. 1936 (1996). In relevant part, the regulation states: (4) Fees. If the individual requests a copy of the protected health information or agrees to a summary or explanation of such information, the covered entity may impose a reasonable, cost-based fee, provided that the fee includes only the cost of: (i) Labor for copying the protected health information requested by the individual, whether in paper or electronic form; (ii) Supplies for creating the paper copy or electronic media if the individual requests that the electronic copy be provided on portable media; (iii) Postage, when the individual has requested the copy, or the summary or explanation, be mailed; and (iv) Preparing an explanation or summary of the protected health information, if agreed to by the individual as required by paragraph (c)(2)(iii) of this section. -5- In the other count of his complaint, Silver alleged that the hospitals’ unreasonable charges, along with their failure to inform requesters that they could access electronic records in electronic format for a lower fee, violated the Maryland Consumer Protection Act, codified at Md. Code, tit. 13 of the Commercial Law Article (“Com.

Law”). Among other things, the Maryland Consumer Protection Act prohibits “unfair, abusive, or deceptive trade practice[s]” in the sale of consumer services. Com. Law § 13-303(1).

These prohibited practices include the “[f]ailure to state a material fact if the failure deceives or tends to deceive.” Com. Law § 13-303(3). The complaint sought both damages and injunctive relief. The motion for class certification After an unsuccessful motion by the hospitals to dismiss Silver’s complaint and a short- lived removal of the case to federal court, Silver filed a motion for class certification in the circuit court.

The motion proposed one class for damages and another for injunctive relief. The damages class was to include all patients of the hospitals “who paid, directly or through any agent . . . , to any of [the hospitals or a third-party contractor hired to process records requests] for access to or copies of their medical records from September 9, 2013 through the date of trial in this case.” The injunctive-relief class was to include all patients of the hospitals whose requests for access to their records were processed by any of the hospitals or by third-party contractors hired by the hospitals to process records requests. -6- Silver argued that both proposed classes met the requirements for certification listed in Md. Rule 2-231,3 which permits class certification 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 of the representative parties are typical of the claims of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. Md. Rule 2-231(b). Even if all of these threshold requirements are met, Md. Rule 2-231(c) lays down one more hurdle. “Unless justice requires otherwise,” at least one of the following conditions must also be met before a class may be certified: (1) the prosecution of separate actions by individual members of the class would create a risk of (A) inconsistent or varying adjudications with respect to individual members of the class that would establish incompatible standards of conduct for the party opposing the class, or (B) adjudications with respect to individual members of the class that would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or (3) 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. 3 At the time the circuit court was considering Silver’s class-certification motion, the prerequisites for certification were listed under Md. Rule 2-231(a).

The rule was amended on June 1, 2019, and the prerequisites for class certification were shifted to paragraph (b). All other paragraphs were similarly reorganized. All references to Md. Rule 2-231 are to the current version of the rule. -7- Md. Rule 2-231(c). We discuss these requirements in greater depth later in our analysis.

According to Silver’s motion, his proposed classes were sufficiently numerous, “easily number[ing] in the thousands.” There were questions of law and fact common to the class members, including, he said, whether the hospitals’ medical-records charges and related practices violated the aforementioned statutes; whether Silver and the rest of the class members sustained damages; whether it would be inequitable for the hospitals to retain money collected in excess of the “reasonable costs actually incurred to produce the patient records”; whether the class would be entitled to prejudgment interest; and whether that interest should be compounded. Silver said his claims satisfied the typicality requirement because they were “identical” to those of other class members; all were similarly “victimized” by the hospitals’ medical-records charges. And, finally, Silver argued he would adequately represent the interests of the classes; he was committed and not conflicted by any interests adverse to those of other class members. Silver also maintained that his proposed classes overcame the additional hurdle of Md. Rule 2-231(c).

His proposed injunctive-relief class satisfied the standard under Md. Rule 2-231(c)(2), he said, because the hospitals “are still overcharging members of the class, in violation of Maryland law.” The damages class satisfied the predominance and superiority standards under Md. Rule 2-231(c)(3) because “the common issues about damages predominated over any individual claims” and because “the type and size of relief [sought] make individualized claims impracticable or impossible for individual class members.” -8- The hospitals took issue with Silver’s position as to almost every class-certification requirement under Md. Rule 2-231, but they placed special emphasis on Silver’s inability to satisfy the commonality requirement under Md. Rule 2-231(b)(2) and, for the damages class, the predominance and superiority requirements under Md. Rule 2-231(c)(3). With respect to commonality, the hospitals argued that there was no common “[c]lasswide” evidence to establish liability or damages for unreasonable fees in violation of Health–Gen. § 4-304(c). For one, there were “material differences” among the hospitals and in the rates charged by each hospital to the potential class members. In a chart provided to the circuit court, the hospitals demonstrated that sixteen different fee schedules applied just to patient (not attorney) requests over the course of the proposed class period:4 4 We have very slightly modified the chart for the sake of clarity and reformatted it. -9- Johns Hopkins GBMC Union Memorial Before Sept. 76¢ per page 76¢ per page 0¢ for first 10 pages; 76¢ thereafter 2014 Sept. 2014 – Jan. Sept. – December 2014: Records delivered in paper 0¢ for first 10 pages 2016 39¢ per page format: 76¢ per page Records delivered in paper format: 2015: 76¢ per page thereafter 39¢ per page up to 200 pages Electronic records delivered Electronic records delivered electronically: 12¢ per page thereafter electronically: 49¢ per page thereafter Maximum $400 charge 49¢ per page Jan. 2016 – Mar. 39¢ per page up to 200 pages 49¢ per page 0¢ for first 10 pages 2016 12¢ per page thereafter 49¢ per page thereafter Maximum $400 charge Mar. 2016 – July 36¢ per page up to 200 pages 36¢ per page up to 200 pages Free 2016 12¢ per page thereafter 12¢ per page thereafter Maximum $400 charge Maximum $400 charge Aug. 2016 – Apr.

Electronic records delivered electronically: Electronic records delivered Free 2017 $6.50 flat fee + tax electronically: Electronic records delivered in paper: $6.50 flat fee + tax Lower of the state patient rate or 90¢ + 5¢ per page for supplies + tax Electronic records delivered in paper: Lower of the state Paper records delivered in paper: patient rate or 90¢ + 5¢ per 7¢ per page for labor + 5¢ per page for page for supplies + tax supplies + postage and tax Paper records delivered electronically: 7¢ per page for labor + postage (if mailed) and tax Hybrid of paper and electronic records delivered electronically: $6.50 flat fee + 7¢ per page for the paper portion + tax + postage if mailed on CD/flashdrive Hybrid of paper and electronic records delivered in paper: 7¢ per page for paper portion + lower of the state patient rate or 90¢ for electronic portion + 5¢ per page for supplies + postage and tax Mar. 2017 – Sept. Free Electronic records delivered Free 2018 electronically: $6.50 flat fee + tax Electronic records delivered in paper: Lower of the state patient rate or 90¢ + 5¢ per page for supplies + tax - 10 - The hospitals also pointed to material differences in the factors that would need to be considered in assessing the reasonableness of the above rates. They asserted that a fact- finder would have to consider each hospital’s direct costs (like labor and supplies) and indirect costs (like space and other overhead); how and where each hospital stored its records; the volume of requests processed by each hospital; the unique contractual relationships between the hospitals and a common third-party vendor hired to process records requests; the third-party vendor’s own costs; and changes in applicable federal regulations and state law over the course of the class period. Because so many factors would affect the reasonableness of each charged assessed, the hospitals said, “each request during the three year plus period at issue really [would have] to be addressed separately.” Aside from their effect on the reasonableness of the fees charged, the hospitals argued, changes in the applicable laws would also determine whether certain class members had a viable legal claim at all. At some points during the class period, federal regulations promulgated under HIPAA imposed stricter limits than Maryland law on the fees that could be charged for records requests made by patients.

And when federal regulations set more stringent standards, the hospitals argued, Maryland law was preempted and any private right of action for violations of Health–Gen. § 4-304(c) was unavailable. Even if it could be said that the claims of the class members shared common factual or legal issues, the hospitals argued, those common issues would be dwarfed by the fact- intensive “hospital-by-hospital and request-by-request” inquiries necessary to determine the hospitals’ liability and damages with respect to each class member. For these reasons, - 11 - asserted the hospitals, the circuit court could not find that issues common to members of the class would “predominate” over questions affecting only individual members, as Md. Rule 2-231(c)(3) requires. Nor could the circuit court find that a class action would be “superior” to other methods for resolving the controversy—mainly because an alternative avenue for relief existed.

According to the hospitals, all patients “who believe[d] they were overcharged for medical records in violation of HIPAA can register a complaint with the Office of Civil Rights of the Department of Health & Human Services and seek an adjustment to the amount they were charged without incurring the cost of counsel or litigation.” (The hospitals did not suggest an alternate avenue for relief for would-be class members who were charged a fee that violated Maryland law but not federal law.) In addition to the arguments they raised against certifying the proposed damages class, the hospitals gave the circuit court two reasons why Silver’s proposed injunctive-relief class did not satisfy the requirements of Md. Rule 2-231(c)(2). First, the hospitals said, “the primary relief sought by [Silver was] money damages, and his claim for an injunction [was] truly secondary.” Quoting a decision from the Court of Appeals, the hospitals told the circuit court that “certification under subsection ([c])(2) is appropriate only where injunctive relief is the sole or primary relief sought” and that the rule “does not extend to cases in which the relief prayed relates exclusively or predominately to money damages.” Philip Morris Inc. v. Angeletti, 358 Md. 689 , 782–83 (2000). Second, the hospitals argued, an injunctive-relief class could not be certified because standing and “cohesiveness” problems made injunctive relief not “appropriate” for the - 12 - proposed class. Standing was one problem, they said, because Silver “solely alleges past conduct,” and absent evidence that Silver or other class members intended to request medical records in the future, any threat of future injury was “merely hypothetical.” Additionally, the hospitals asserted that cohesiveness among class members was lacking because two of the three hospitals no longer charged patients for the reproduction of medical records; the requested relief would not apply to the class “as a whole.” The circuit court’s denial of the class-certification motion The circuit court ultimately denied Silver’s class-certification motion.

According to the court’s order, the numerosity prerequisite was “easily met.” Silver’s claims were typical of those of other class members, despite “some variations in the factual scenarios,” and the court believed that Silver and his counsel would “adequately represent and protect the interests of the classes.” The circuit court assumed, for the purposes of analysis, that there were factual or legal issues common to all class members sufficient to satisfy the threshold certification requirements of Md. Rule 2-231(b), but that the court “reserve[d] its analysis of the common issues in that it is subsumed under or superseded by the more stringent Rule 2-231([c])(3) analysis.” Turning to the subsection (c)(3) analysis, the court concluded that Silver’s proposed damages class failed to satisfy the “more stringent” predominance and superiority requirements of that part of Rule 2-231. The court explained: As [the hospitals] have stated, for each medical record request, the trier of fact would need to consider and address: who made the request (patient or attorney); when was the request made to determine the nature of regulations and laws that were in place at that time; which Hospital was the request - 13 - directed to in order to evaluate it in context of the applicable rate structures at that time; in what format were the requested records maintained . . . and in what format were the records requested to be delivered before it can begin to assess liability and damages. These individual inquiries would overwhelm any common questions argued by [Silver]. (Cleaned up.) The tendency of the individual issues to overwhelm the common issues also meant that a class action “would not be an efficient or economical method of adjudication,” the court decided.

The circuit court also declined to certify the proposed injunctive-relief class. In explaining why, the court noted that “the primary purpose of a [Md. Rule 2-231(c)(2)] class action is nonmonetary relief.” The court also noted the theoretical possibility of a “hybrid class action,” in which a class could be certified under more than one section of Md. Rule 2-231(c). But because a damages class could not be certified under Md. Rule 2-231(c)(3), the court said, “a hybrid class action shall not be considered.” And without appearing to consider the possibility of a non-hybrid class—that is, a class seeking purely injunctive relief, certified under Md. Rule 2-231(c)(2) alone—the court decided Silver’s proposed injunctive-relief class could not be certified. Because the circuit court did not certify either of the classes, Silver’s individual claims were insufficient to meet the $5,000 minimum amount in controversy required to proceed in the circuit court.

See Md. Code Courts & Jud. Proc. §§ 4-401 and 4-402. Accordingly, the court granted the hospitals’ unopposed motion to dismiss the case for lack of subject- matter jurisdiction. Silver filed a timely appeal. - 14 - Analysis Silver’s sole contention on appeal is that the circuit court erred in denying his motion to certify his proposed classes.

He argues, as he did before the circuit court, that the damages class satisfied the requirements of Md. Rule 2-231(c)(3) and that the injunctive- relief class satisfied the conditions of Md. Rule 2-231(c)(2). Silver maintains that the circuit court abused its discretion in concluding otherwise. Before we begin our analysis, we note an important limitation on its scope. In class- certification appeals, we typically address the propriety of certification with respect to each claim brought in the putative class action.

See, e.g., Cutler v. Wal-Mart Stores, Inc., 175 Md. App. 177 , 191–200 (2007) (evaluating, on a claim-by-claim basis, the propriety of circuit court’s denial of class certification). But in addressing Silver’s appellate arguments, we will focus on whether Silver’s proposed classes should have been certified with respect to his claim alleging the hospitals charged unreasonable fees in violation of Health–Gen. § 4-304(c).5 This is because Silver’s second claim—namely, that the hospitals violated the Maryland Consumer Protection Act by charging fees that exceeded the limits imposed by Health–Gen. § 4-304(c)—is based on factual and legal contentions that are essentially 5 In his brief, Silver states in passing that he “alleges that [the hospitals] failed to disclose to patients the material cost differential they would charge for producing electronic as opposed to paper records, in violation of the Maryland Consumer Protection Act.” However, he does not otherwise address the issue and we will not address the contention. See Md. Rule 8-504(a)(6) (requiring that briefs contain “[a]rgument in support of the party’s position on each issue”). A single sentence is insufficient to satisfy the rule’s requirement. - 15 - identical to those presented by the standalone claim for violations of the medical-records law itself.

Therefore, no separate certification analysis is required. Cf. Tyson Foods, Inc. v. Bouaphakeo, ___ U.S. ___, 136 S. Ct. 1036, 1045 (2016) (noting that the Court would not conduct a separate certification analysis for claims under the federal Fair Labor Standards Act and an Iowa labor statute because “to prove a violation of the Iowa statute, the employees had to do no more than demonstrate a violation of the FLSA”). A. Class certification In Cutler v. Wal-Mart Stores, Inc., 175 Md. App. 177 (2007), this Court explained that Maryland litigants have no constitutional or statutory “right” to pursue their claims by class action.

Id. at 188 . “Rather, a class action is a procedural device, created by the judiciary’s adoption of a court rule to facilitate management of multiple similar claims.” Id. Under that rule, the circuit court may permit claims to proceed by way of class action if certain conditions are met. See Md. Rule 2-231(b), (c). The court gives this permission through an order certifying the proposed class.

See Md. Rule 2-231(d). As we noted above, there are four threshold requirements for class certification. These are listed under Md. Rule 2-231(b): numerosity (“the class is so numerous that joinder of all members is impracticable”), commonality (“there are questions of law or fact common to the class”), typicality (“the claims of the representative parties are typical of the claims of the class”), and adequacy of representation (“the representative parties will fairly and adequately protect the interests of the class”). While these prerequisites are “necessary,” - 16 - they are “not alone sufficient.” Creveling v. Government Employees Insurance Co., 376 Md. 72, 88 (2003).

Before it may certify a class, the circuit court must also find, “[u]nless justice requires otherwise,” that the class fits within one of three categories defined under Md. Rule 2- 231(c): (1) the prosecution of separate actions by individual members of the class would create a risk of (A) inconsistent or varying adjudications with respect to individual members of the class that would establish incompatible standards of conduct for the party opposing the class, or (B) adjudications with respect to individual members of the class that would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or (3) 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. Only the latter two categories are at issue in this case. The party who seeks class certification bears the burden of proving that he has overcome the hurdles of Md. Rule 2-231(b) and (c). Creveling, 376 Md. at 88–89.

Accepting as true the allegations made by the named plaintiff regarding the elements of class certification, and refraining from evaluating the underlying merits of the case, the circuit court must decide whether that burden has been carried. Cutler, 175 Md. App. at 190 . “Nevertheless, the court can go beyond the pleadings to the extent necessary to - 17 - understand the claims, defenses, relevant facts, and applicable substantive law in order to make a meaningful determination of the certification issues.” Philip Morris Inc. v. Angeletti, 358 Md. 689, 727 (2000) (cleaned up). B. The standard of review On appeal, Maryland appellate courts exercise de novo review to determine whether the circuit court applied the correct legal standard in granting or denying class certification. Creveling v. Government Employees Insurance Co., 376 Md. 72, 90 (2003) (citing Philip Morris Inc. v. Angeletti, 358 Md. 689, 726 (2000)).

But they review the ultimate decision to grant or deny a class-certification motion only for an abuse of discretion. Id. This is a highly deferential standard. We must affirm the circuit court’s decision unless we can conclude “no reasonable person would take the view adopted by the trial court, or [that] the court act[ed] without reference to any guiding rules or principles.” Cutler v. Wal-Mart Stores, Inc., 175 Md. App. 177, 189 (2007) (cleaned up).

The circuit court’s decision must be “violative of fact and logic” to warrant reversal. Id. (cleaned up). This deferential posture “appropriately recognizes the factual nature of a class certification inquiry and a trial court’s power to manage its docket.” Id.

(quoting Creveling, 376 Md. at 91 ). Generally, “questions within the discretion of the trial court are much better decided by the trial judges than by appellate courts, and the decisions of such judges should only be disturbed where it is apparent that some serious error or abuse of discretion or autocratic action has occurred.” Id. at 189–90 (cleaned up). - 18 - C. The damages class: certification under Md. Rule 2-231(c)(3) Silver’s first argument on appeal is that the circuit court abused its discretion in declining to certify his proposed damages class under Md. Rule 2-231(c)(3). He maintains that the circuit court got it wrong as to the predominance of common issues and the superiority of the class-action format. Alternatively, he argues that even if the circuit court’s predominance and superiority conclusions were correct with respect to his proposed class, the court should have certified subclasses that conformed to the requirements of Md. Rule 2-231.

These arguments are not persuasive. We address each in turn. 1. Predominance Certification under Md. Rule 2-231(c)(3) requires the circuit court to determine that “the questions of law or fact common to the members of the class predominate over any questions affecting only individual members.” This predominance requirement ensures that the interests of the class are “sufficiently cohesive to warrant adjudication by representation.” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623 (1997). It also helps courts to “identify cases in which aggregate treatment would be efficient.” 2 William B. Rubenstein, Newberg on Class Actions § 4:49 (5th ed. 2012 & Supp. 2020) [hereinafter - 19 - Newberg].6 The requirement does not demand that all or even most questions of fact or law involved in the claim be common to all would-be class members.

Id. § 4:51. Instead, it asks the certifying court to weigh the relative importance of issues common to all class members compared to those issues particular to only some. See id. § 4:49 (explaining that the predominance concept “asks whether the common, aggregation-enabling issues in the case are more prevalent or important than the non-common, aggregation-defeating, individual issues” (emphasis added)). The predominance requirement for certification of classes under Md. Rule 2-231(c)(3) is closely related to the commonality prerequisite for the certification of all classes under Md. Rule 2-231(b).

This is because before a court can engage in the balancing of issues involved in a case to decide which predominate, it must first classify those issues as common or individual. See Newberg § 4:50 (explaining the predominance requirement as a “[t]wo-step analysis”); cf. Angeletti, 358 Md. at 737 (“[T]he less demanding prerequisite of commonality in Rule 2-231([b]) is necessar[ily] subsumed in the more exacting 6 Although Newberg focuses on Rule 23 of the Federal Rules of Civil Procedure, the text of Md. Rule 2-231(c) tracks the relevant part of the federal rule. And the Court of Appeals has made it clear that because there is a “dearth of authority” analyzing the specific requirements of Maryland’s class-action-certification rule, we may look to sources interpreting federal Rule 23 when we construe and apply Md. Rule 2-231. See Philip Morris Inc. v. Angeletti, 358 Md. 689, 724 (2000); see also Norman v. Borison, 418 Md. 630 , 662 n.23 (2011) (“Md. Rule 2-231 is derived from Federal Rule of Civil Procedure 23.

As such, our interpretation of the former may be guided, at least in part, by the history and development of the latter.”); Ford Motor Co. v. Ferrell, 188 Md. App. 704, 719 (2009) (“Maryland Rule 2-231 and Federal Rule of Civil Procedure . . . 23 are similar. Maryland state courts sometimes look to the federal class action rule and federal cases interpreting that rule for guidance.”). - 20 - requirement of predominance of common issues over individual questions, found in Rule 2-231([c])(3).”). At the classification step, courts must do more than look at the class members’ shared factual and legal questions in the abstract. What matters is how these questions would be answered—how the parties would go about making their case—at trial.

Cf. Ruzhinskaya v. Healthport Technologies, 311 F.R.D. 87, 105 (S.D.N.Y. 2015) (“[An] inquiry into how liability would be litigated is critical because, to assess whether a class is properly certified, the Court is required to consider, concretely, the evidentiary means by which liability would be established and refuted, at trial.”) Factual and legal questions are considered “individual” when “members of a proposed class will need to present evidence that varies from member to member.” Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045 (2016) (quoting Newberg § 4:50). Questions are “common” when they are “susceptible to generalized, class-wide proof”—when class members may use the same evidence to answer them. Id.

(quoting Newberg § 4:50; see also Ruzhinskaya, 311 F.R.D. at 106 (explaining that the focus of a predominance analysis is “whether and to what extent the merits determination can be made on the basis of common proof”). Stated differently, “[w]hat matters to class certification . . . is not the raising of common ‘questions’—even in droves—but rather, the capacity of a class-wide proceeding to generate common answers apt to drive the resolution of the litigation.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97 , 132 (2009) (emphasis in original)). So, under Md. Rule 2- - 21 - 231(b), a question is “common” not because it is asked by each member of the proposed class but because to answer the question with respect to one class member is to answer the question with respect to all class members. Cf.

Philip Morris v. Angeletti, 358 Md. 689, 736 (2000) (“[A]n issue of law or fact is ‘common’ only to the extent its resolution will advance the litigation of the entire case.”); id. at 734 (explaining that “common issues” are those that “are litigated only once on behalf of all class members” (cleaned up)). At the balancing step of the predominance analysis, common issues need not be “dispositive of the action or determinative of the liability issues.” Angeletti, 358 Md. at 743 . Courts need only decide that common issues “constitute a significant part of the individual cases.” Id. (emphasis added) (quoting Jenkins v. Raymark Industries, 782 F.2d 468, 472 (5th Cir. 1986)).

This is “more of a qualitative than quantitative analysis,” Newberg § 4.50, conducted without resort to a “magic formula,” Ford v. Chartone, Inc., 908 A.2d 72, 88 (D.C. 2006) (quoting Bynum v. District of Columbia, 214 F.R.D. 27, 39 (D.D.C. 2003)). A single overriding common issue may be enough to tip the scale in favor of certification. Newberg at § 4.51. And the need to make individualized damages determinations for each would-be class member usually is not enough to defeat common- issue predominance.

Butler v. Sears, Roebuck and Co., 727 F.3d 796, 801 (7th Cir. 2013); Newberg at § 4.54 (“[Federal] courts in every circuit have uniformly held that the . . . predominance requirement is satisfied despite the need to make individualized damage determinations and a recent dissenting decision of four Supreme Court Justices - 22 - characterized the point as ‘well nigh universal.’” (quoting Comcast Corp. v. Behrend, 569 U.S. 27, 42 (2013) (Ginsburg and Breyer, JJ., dissenting))). Silver’s argument on appeal is concerned with the classification step in the two-step predominance analysis. On the surface, his contention is that the circuit court’s ultimate conclusion as to predominance—that “individual inquiries would overwhelm any common questions” involved in the resolution of the class claims—was erroneous. But the reason why he says the court got the predominance balancing question wrong is because the court misidentified the relevant inquiry.

The circuit court, Silver argues, should have concluded that “the reasonable cost of copying [was] determinable on a class-wide basis,” that is, that this was a common question, not an inquiry particular to individual members of the class. As support for his position, he points to a report written by a plaintiff’s expert as proof that each hospital’s liability under Health–Gen. § 4-304(c) “can be shown with evidence that is common to the class.” He also points us to medical-records cases from other jurisdictions in which class certification was found appropriate. None of Silver’s arguments convince us that it was unreasonable for the circuit court to conclude that the proposed damages class did not satisfy the predominance requirement of Md. Rule 2-231(c)(3). The question of the hospitals’ liability for alleged violations of Health–Gen. § 4-304(c) was not “common” within the meaning of the rule and, as a result, the circuit court could conclude that “individual inquiries” into liability and damages would “overwhelm” any common questions presented by the class members’ claims. - 23 - Silver is correct that the claims of all members of the proposed damages class presented the same general legal question: “To get copies of my medical records, was I charged a fee that exceeded the reasonable costs permitted under Health–Gen. § 4-304(c)?” But presenting shared questions in the abstract is not enough.

That all members of the class allege the same type of conduct by each hospital violated the same statute makes Silver’s claim “typical” of the claims of other class members. See Angeletti, 358 Md. at 738 (explaining that a claim is typical “if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if [it is] based on the same legal theory”). But as we explained above, for a question to be “common” within the meaning of Md. Rule 2-231(c)(3), its answer must be “susceptible to generalized, class- wide proof.” Bouaphakeo, 136 S. Ct. at 1045 (quoting Newberg at § 4:50). The answer with respect to one class member must hold with respect to all others, obviating the need for “senseless[ly] . . . repeat[ing] the presentation of the same evidence against the same defendants in successive individual trials.” Angeletti, 358 Md. at 735 (quoting ACandS, Inc. v. Godwin, 340 Md. 334, 395 (1995).

That one or some of these class members were charged an unreasonable fee to receive copies of their medical records does not mean that all class members were charged an unreasonable fee. Accordingly, the general question shared among the plaintiffs—Did the fees charged for my medical records violate Health– Gen. § 4-304(c)?—is not one of the “questions . . . common to the members of the class” that must “predominate over any questions affecting only individual members” before a class may be certified under Md. Rule 2-231(c)(3). - 24 - Even when this overarching question of the hospitals’ compliance with the statute is broken down into subparts, few, if any, “common” legal or factual issues emerge. To determine whether the hospitals charged class members fees in excess of those permitted by Health–Gen. § 4-304(c), a trier of fact would have to answer the following: What was the rate being charged by the particular hospital at the time the plaintiff requested her records? Was that rate reasonable?

To answer the second question, a trier of fact would have to answer many others: Was the records request made by the patient directly or through her attorney? What were the controlling state and federal statutes and regulations at the time of the request? What were the hospital’s direct (labor and supply) costs at the time that the patient was charged? What were its indirect (space and overhead) costs?

What was the volume of records requests made of the hospital at the time—so that those direct and indirect costs could be apportioned among requestors? How did the hospital store its records? In what format—print or electronic—were the requested records delivered? To what extent was the hospital relying on a third-party vendor to process its records requests?

What did that vendor charge the hospital? And what were that vendor’s own costs? If the class members’ claims were tried individually, these questions would have to be answered in every case before a trier of fact could assess the reasonableness of the fees charged by the hospitals. But even if the same questions would be asked by all class members, the questions are not “common” within the meaning of Md. Rule 2-231 because they are not “susceptible to generalized, class-wide proof.” Bouaphakeo, 136 S. Ct. at 1045 (quoting 2 Newberg § 4:50).

The medical-records fees paid by the members of the putative - 25 - class were calculated under fee schedules that differed among the hospitals and that changed throughout the class period. The reasonableness of these fees would have to be determined by comparing these fees to each hospital’s unique direct and indirect costs. These costs were not constant over the relevant time period, and the applicable regulations varied too. As a result of these differences, class members who paid to receive copies of their medical records from Johns Hopkins in September 2014 would have to present evidence that would differ almost completely from the evidence presented by a class member who alleged he was charged an unreasonable fee for records by GBMC in March 2017.

Determining the reasonableness of one fee in particular—or simply establishing one of the facts necessary to make the reasonableness determination—would not “advance the litigation of the entire case.” Angeletti, 358 Md. at 736 (emphasis added). To support his contention to the contrary—that the reasonableness of the hospitals’ fees “can be proven using evidence that is common to the class”—Silver points us to a report in which one of his experts compiled and analyzed the cost data for each of the three appellee hospitals over the class period. In this report, Silver’s expert writes (emphasis added): It is