Whitley v. Baptist Health et al

Filing 145

ORDER: Joint report 144 noted. Proposed notices due as soon as practicable and no later than 1/10/2020. If the Agreed Protected Order 55 needs modification to be HIPPA compliant, please proposed a revised Order by 1/10/2020, too. Signed by Chief Judge D. P. Marshall Jr. on 12/19/2019. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
BRIAN WHITLEY, Individually and
on Behalf of All Others Similarly Situated
v.

PLAINTIFF

No. 4:16-cv-624-DPM

BAPTIST HEALTH; BAPTIST HEALTH
HOSPITALS; DIAMOND RISK
INSURANCE LLC; CONTINENTAL
CASUALTY COMPANY; ADMIRAL
INSURANCE COMPANY; ADMIRAL
INDEMNITY COMPANY; IRONSHORE
INDEMNITY, INC.; and IRONSHORE
SPECIALTY INSURANCE CO.

DEFENDANTS

ORDER
1. Joint report, NQ 144, noted.
2. The issue hanging fire was numerosity.

Even with all of

Baptist's proposed trims, the class of almost three thousand folks exists.
The group easily satisfies the criterion. Postawko v. Missouri Department

of Corrections, 910 F.3d 1030, 1037-38 (8th Cir. 2018). The Court is
unable to address the proposed trims at this point.

Baptist must

identify all patients who could be covered by the class definition,
including part (iv), without nibbling, unless Whitley agrees to the
nibbles. The damages issues-part (v)-must abide further discovery.
Baptist's continuing objections are preserved.

3. The proposed notices must be sufficiently hedged: "You may
be a member of the class certified by the Court"; "You may have a
claim"; "The Court has made no decision on the merits"; and other
similar tentative expressions. Conform the schedule for opting out to
the Second Amended Final Scheduling Order, which the Court will
soon enter. Proposed notices due as soon as practicable and no later
than 10 January 2020.
4. Meanwhile, Baptist must share the latest audit particulars with
Whitley. And counsel must meet in person thereafter to discuss them.
Whitley should also proceed with refined class-related discovery. The
sub-class argument is re-argument of a point already rejected. The
identified common issue transcends the particulars. And the time to
revisit those particulars is in a motion to decertify, or for trial of subclasses, after class discovery is completed. The most prudent course
may be to try liability only first; that is the core common issue. NQ 138

at 20-21. The Court looks forward to receiving the parties' views in due
course.
5. If the Agreed Protected Order, NQ 55, needs modification to be
HIPPA compliant, please propose a revised Order by 10 January 2020,
too.

-2-

So Ordered.
D .P. Marshall (r.
United States District Judge

-3-