1 2 3 Duane A. Admire, State Bar No. 173699 ADMIRE & ASSOCIATES 12880 Carmel Country Road, Suite D110 San Diego, CA 92130 Telephone: (619) 316-6658 Facsimile: (858) 350-1046 4 8 James R. Patterson, State Bar No. 211102 Allison H. Goddard, State Bar No. 211098 Jacquelyn E. Quinn, State Bar No. 314616 PATTERSON LAW GROUP APC 1350 Columbia Street, Suite 603 San Diego, CA 92101 Telephone: (619) 756-6990 Facsimile: (619) 756-6991 9 Attorneys for Plaintiff CARLA JONES 5 6 7 10 11 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SAN DIEGO – CENTRAL DIVISION 13 14 15 CARLA JONES, on behalf of themselves and all others similarly situated, Plaintiffs, 16 17 SHARP HEALTHCARE, a California Corporation, SHARP GROSSMONT HOSPITAL, and DOES 1- 100, inclusive, 19 Defendants. 20 21 22 [E-FILE] CLASS ACTION vs. 18 Case No. 37-2017-00001377-CU-NP-CTL REPLY IN SUPPORT OF PLAINTIFF’S MOTION FOR CLASS CERTIFICATION Date: March 9, 2018 Time: 8:30 am Dept: 74 Judge: Hon. Ronald L. Styn Action Filed: January 12, 2017 Trial Date: None Set 23 24 25 26 27 28 30 31 REPLY IN SUPPORT OF PLAINTIFF’S MOTION FOR CLASS CERTIFICATION Case No.: 37-2017-00001377-CU-NP-CTL 1 TABLE OF CONTENTS 2 I. INTRODUCTION ...........................................................................................................................1 3 II. SHARP’S OPPOSITION IS RIDDLED WITH INCORRECT AND UNSUPPORTED FACTUAL ASSERTIONS ..............................................................................................................1 III. PLAINTIFF HAS MET THE REQUIREMENTS FOR CLASS CERTIFICATION .....................2 4 5 A. The Class is Ascertainable ...................................................................................................2 6 1. Plaintiff’s Causes of Action Do Not Require Proof of Recording...........................3 2. Sharp Only Offers Speculation That Some of the Class Members Were Not Recorded ..................................................................................................................4 3. To the Extent Necessary, the Videos Can Be Examined Efficiently For Identification and Categorization of Class Members...............................................4 7 8 9 10 B. The Class Has a Well-Defined Community of Interest .......................................................6 11 1. Individual Issues Do Not Predominate ....................................................................6 12 C. Class Treatment Is Superior ...............................................................................................13 13 IV. CONCLUSION ..............................................................................................................................15 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 i REPLY IN SUPPORT OF PLAINTIFF’S MOTION FOR CLASS CERTIFICATION Case No.: 37-2017-00001377-CU-NP-CTL 1 TABLE OF AUTHORITIES 2 Cases 3 Aguirre v. Amscan Holdings, Inc. (2015) 234 Cal.App.4th 1290 ................................................................................................................3 4 5 Atl. Nat. ins. Co v. Armstrong (1966) 65 Cal.2d 100 .............................................................................................................................9 6 Bartold v. Glendale Fed. Bank (2000) 81 Cal.App.4th 816 ....................................................................................................................3 7 8 9 Bell v. Farmers Ins. Exchange (2004) 115 Cal.App.4th 715 ................................................................................................................10 Bennett v. Regents of Univ. of Cal. (2005) 133 Cal.App.4th 347 ................................................................................................................11 10 11 Beynon v. Garden Grove Med. Grp. (1980) 100 Cal.App.3d 698 ...................................................................................................................9 12 Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal. 4th 1004 .......................................................................................................................10 13 14 Brown v. Regents of Univ. of Cal. (1984) 151 Cal.App.3d 982 .................................................................................................................11 15 Bufil v. Dollar Financial Group, Inc. (2008) 162 Cal.App.4th 1193 ................................................................................................................3 16 17 Capelouto v. Kaiser Foundation Hospital (1972) 7 Cal. 3d 889 ............................................................................................................................12 18 City of San Jose v. Superior Court (1974) 12 Cal.3d 447 .............................................................................................................................7 19 20 D.C. v County of San Diego (S.D. Cal. Nov. 7, 2017) No. 15cv1868, 2017 U.S.Dist.LEXIS 185548 ............................................12 21 Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695 .............................................................................................................................3 22 23 Hale v. Sharp Healthcare (2014) 232 Cal.App.4th 50 ....................................................................................................................6 24 Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272 ....................................................................................................................3, 4, 7 25 26 La Sala v. American Sav. & Loan Assn. (1971) 5 Cal.3d 864 ...............................................................................................................................8 27 Newell v. State Farm Gen. Ins. Co. (2004) 118 Cal.App.4th 1094 ..............................................................................................................13 28 30 31 ii REPLY IN SUPPORT OF PLAINTIFF’S MOTION FOR CLASS CERTIFICATION Case No.: 37-2017-00001377-CU-NP-CTL 1 Nicodemus v. Saint Francis Memorial Hosp. (2016) 3 Cal.App.5th 1200 ........................................................................................................3, 13, 14 2 3 Rose v. Medtronics, Inc. (1980) 107 Cal.App.3d 150 .................................................................................................................11 4 Sargon Enters., Inc. v. Univ. of S. Cal. (2012) 55 Cal.4th 747 ..........................................................................................................................12 5 6 7 8 9 Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319 ........................................................................................................10, 11, 12, 13 Trujillo v. City of Ontario (C.D.Cal. Apr. 14, 2005) No. EDCV 04-1015, 2005 U.S.Dist.Lexis, 2005 U.S.LEXIS 50353..................................................................................................................................................6, 8 Wilson v. San Francisco Fed. Sav. & Loan Assn. (1976) 62 Cal.App.3d 1 .........................................................................................................................8 10 Statutes 11 Code of Civil Procedure § 382...................................................................................................................15 12 Other Authorities 13 CACI 1820 .................................................................................................................................................10 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 iii REPLY IN SUPPORT OF PLAINTIFF’S MOTION FOR CLASS CERTIFICATION Case No.: 37-2017-00001377-CU-NP-CTL 1 I. Sharp’s opposition to Plaintiff’s motion is based on incorrect interpretations of the law, and 2 3 INTRODUCTION speculation as to the facts. Neither is sufficient to defeat certification. 4 The proposed class is easily ascertainable from Sharp’s records. It is well-defined using objective 5 critera. It is not overbroad, and if necessary, the recordings at issue could be efficiently reviewed to 6 identify class members. 7 Sharp’s liability will turn entirely on Sharp’s wrongful conduct. Sharp invaded class members’ 8 privacy by installing and operating hidden cameras, recording some of the most private moments in class 9 members’ lives, without their consent. The facts driving a liability determination are founded in Sharp’s 10 conduct, and they are common to all class members. 11 Any individual issues concerning damages cannot defeat certification, because they do not 12 present insurmountable or unmanageable issues. Sharp relies on inapt cases that question the viability of 13 certification of claims for emotional distress damages, but Sharp does not explain how or why those 14 cases would govern here. Each class member suffered the same injury, even if in potentially different 15 degrees. The potential that class members’ damages differ in degree, however, should not defeat 16 certification. This Court has the expertise to manage those issues efficiently and in the interest of justice. 17 The alternative – that Sharp will suffer no consequences for its conduct, and class members will remain 18 uninformed of their rights – cannot be squared with California’s strong public policy favoring class 19 actions. 20 Plaintiff respectfully requests that the Motion be granted. 21 22 SHARP’S OPPOSITION IS RIDDLED WITH INCORRECT AND UNSUPPORTED FACTUAL ASSERTIONS 23 Sharp claims that it began an investigation into Propofol in 2012, and that the investigation 24 continued for months before Sharp could definitively determine how the Propofol was going missing. 25 The evidence Sharp supports for this is the Declaration of Howard Labore at paragraphs 2 and 3. But 26 Mr. Labore has no personal knowledge of either of these facts. These paragraphs of Mr. Labore’s 27 declaration are alleged based on “information and belief.” They are also contradicted by evidence 28 submitted by Plaintiff in support of her motion. Sharp’s decision to install hidden cameras in its operating II. 30 31 1 REPLY IN SUPPORT OF PLAINTIFF’S MOTION FOR CLASS CERTIFICATION Case No.: 37-2017-00001377-CU-NP-CTL 1 rooms had nothing to do with Propofol. Sharp’s employees testified in deposition that Propofol was not 2 discussed or a concern until Sharp’s “investigation” of missing drugs had almost concluded. (Goddard 3 Decl. Ex. 8, at 45:16-21; Ex. 9, at 59:19-60:15.) In the first four months after Sharp installed the hidden 4 cameras, only four single-dose vials of Propofol went missing. (Id. Ex. 12, at 1.) 5 Sharp also claims that the cameras were installed in computer monitors on top of the drug carts in 6 operating rooms, and claims that because the drug carts were mobile, the angle of the camera could be 7 repositioned and changed whenever the drug cart was moved. (Hamel Decl. ¶¶ 2-6.) But Sharp’s 8 employees testified at deposition that the monitors with cameras were connected to the anesthesia cart, 9 not a mobile drug cart. (Chow Decl. Ex. A, at 83:15-84:2.) Sharp’s suggestion that the angle of the 10 cameras would change with the position of the drug carts is simply wrong. 11 Sharp claims that it deleted all videos taken prior to February 2013, because “storing them all on 12 Sharp’s system would likely cause Sharp’s system to crash or at least increase the chances of a crash.” 13 (Opp’n, at 3.) The evidence Sharp cites to support this claim is an excerpt from Mr. Labore’s deposition 14 and a paragraph from his declaration. Mr. Labore did not have a role in the investigation, however, until 15 February 2013, so it is not clear he has personal knowledge that any recordings were deleted. (Chow 16 Decl. Ex. A, at 111:2-14.) The Sharp employee who was responsible for handling IT issues related to the 17 secret recordings testified at deposition that he cannot remember deleting any recordings. (Goddard Decl. 18 Ex. 26, at 66:12-19, 94:23-96:5.) As to Sharp’s claim that it deleted recordings because of concerns they 19 would crash Sharp’s system, Sharp stored the recordings that it does not claim were deleted on a portable 20 hard drive, and offers no explanation why the purportedly deleted recordings were not stored in a similar 21 manner. (E.g., Goddard Decl. Ex. 6, at 112:17-113:6.) 22 III. PLAINTIFF HAS MET THE REQUIREMENTS FOR CLASS CERTIFICATION 23 A. 24 Sharp argues the class is not ascertainable because it is overbroad. This argument should be 25 The Class is Ascertainable rejected because it is based on a misunderstanding of the ascertainability standard, and pure speculation. 26 A class is ascertainable “if it identifies a group of unnamed plaintiffs by describing a set of 27 common characteristics sufficient to allow a member of that group to identify himself or herself as 28 having a right to recover based on the description.” (Aguirre v. Amscan Holdings, Inc. (2015) 234 30 31 2 REPLY IN SUPPORT OF PLAINTIFF’S MOTION FOR CLASS CERTIFICATION Case No.: 37-2017-00001377-CU-NP-CTL 1 Cal.App.4th 1290, 1299-1300 [quoting Bartold v. Glendale Fed. Bank (2000) 81 Cal.App.4th 816, 828].) 2 A named plaintiff does not have to “identify, much less locate, individual class members to establish the 3 existence of an ascertainable class. … Nor must the representative plaintiff establish a means for 4 providing personal notice of the action to individual class members.” (Id. at 1301.) Even if “class 5 members are unidentifiable” at the class certification stage, this would “not preclude a complete 6 determination of the issues affecting the class.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 706.) 7 A defendant cannot defeat certification by vague and speculative claims of overbreadth. (See 8 Nicodemus v. Saint Francis Memorial Hosp. (2016) 3 Cal.App.5th 1200, 1216 [defendant’s speculation 9 that some potential class members may not have a claim was an inappropriate focus of ascertainability 10 inquiry]; see also Bufil v. Dollar Financial Group, Inc. (2008) 162 Cal.App.4th 1193, 1207 [defendant's 11 speculation that an employee who missed a meal break nonetheless might have received a rest break goes 12 to the merits of ultimate recovery and was an inappropriate focus for the ascertainability inquiry].) To the 13 extent the class includes any persons who are not entitled to recover from Sharp, they can be easily 14 identified at the appropriate time in the litigation. 15 Plaintiff’s Causes of Action Do Not Require Proof of Recording 1. 16 Sharp incorrectly assumes that an invasion of privacy claim based on a hidden camera can only 17 be valid if a plaintiff was actually recorded by the camera. In making this assumption, Sharp ignores the 18 Supreme Court’s opinion in Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272, even though Plaintiff 19 cited it in her motion. 20 In Hernandez, the plaintiffs sued their employer after learning that a hidden camera had been 21 placed in their office in an effort to identify an employee who had been accessing pornography on work 22 computers. (Id. at p. 277.) The Supreme Court held that the fact that the plaintiffs had not been recorded 23 by the cameras did not defeat their claims for invasion of privacy: 27 As emphasized by defendants, the evidence shows that Hitchcock never viewed or recorded plaintiffs inside their office by means of the equipment he installed both there and in the storage room. He also did not intend or attempt to do so, and took steps to avoid capturing them on camera and videotape. While such factors bear on the offensiveness of the challenged conduct, … we reject the defense suggestion that they preclude us from finding the requisite intrusion in the first place. 28 (Id. at 292.) The Supreme Court found instead that determining whether plaintiffs stated a claim required 24 25 26 30 31 3 REPLY IN SUPPORT OF PLAINTIFF’S MOTION FOR CLASS CERTIFICATION Case No.: 37-2017-00001377-CU-NP-CTL 1 consideration of “all the relevant circumstances,” including the defendant’s motive for recording and the 2 defendant’s attempts to minimize an invasion of privacy. (Id. at 300-01.) Whether a class member can 3 recover if Sharp did not obtain a recording of her, despite the placement and operation of the hidden 4 cameras, is a question for the jury. The jury’s determination may narrow the scope of class members who 5 may recover, but it would not preclude certification. 6 7 8 9 10 2. Sharp Only Offers Speculation That Some of the Class Members Were Not Recorded Sharp’s claim that some of the class members were not recorded is based solely on the speculative testimony of a current employee, Howard Labore. At the direction of Sharp’s attorney, Mr. Labore viewed all of the recordings Sharp currently has in its possession to document “HIPAA issues,” such as whether he could see a patient’s face or body parts. Mr. Labore reported these findings to 11 Sharp in a report, but Sharp has withheld the report from discovery. (Goddard Decl. Ex. 6, at 112:1712 114:24.) Sharp cannot use its refusal to disclose this report as a sword and a shield. Mr. Labore’s 13 deposition testimony that there were “numerous” occasions when a doctor covered the camera, or that a 14 single refresh (essentially, a replacement) of a computer in one of the rooms, does not provide any 15 concrete evidence that a significant number of class members were not recorded. And, as discussed 16 above, an absence of recording does not automatically preclude a claim for invasion of privacy. 17 3. 18 To the Extent Necessary, the Videos Can Be Examined Efficiently For Identification and Categorization of Class Members 19 Sharp argues that there is “no administratively feasible method of determining which of the Class 20 members were actually recorded.” Sharp claims this is because it deleted recordings made prior to 21 February 1, 2013, and reviewing the recordings made after February 1, 2013, would be too burdensome. 22 Neither claim precludes certification. 23 Sharp should not be able to avoid liability for the secret recordings it made prior to 24 February 2013, merely because it made a self-serving decision to delete them. The preponderance of the 25 evidence standard applies here. A jury should determine whether it is more likely than not, given Sharp’s 26 procedures, that class members were recorded by Sharp prior to February 1, 2013. A jury should also 27 hear Sharp’s explanation for deleting the recordings, and determine whether its explanation that “our 28 system would have crashed if we had not deleted them” is true. A jury is likely to find this explanation 30 31 4 REPLY IN SUPPORT OF PLAINTIFF’S MOTION FOR CLASS CERTIFICATION Case No.: 37-2017-00001377-CU-NP-CTL 1 highly suspect, particularly since Sharp actually maintains the recordings still in its possession on a 2 portable hard drive, and not on its “system.” (Goddard Decl. Ex. 6, at 112:17-113:6.) 3 It would also not be unduly burdensome to review the recordings, if and when necessary to do so. 4 Sharp provides an estimate of 241 hours to review the recordings that it currently has in its possession, 5 plus an additional 361 hours to have class members testify that they are in the recording. This estimate is 6 not only inflated; it is also based on the incorrect assumption that individual class members will have to 7 testify in the liability phase of trial.1 8 It took Mr. Labore approximately three weeks, working 40 hours per week, to review all of the 9 recordings. (Goddard Decl. Ex. 6, at 115:2-25.) Sharp tries to characterize Mr. Labore’s review as 10 cursory and limited to identifying “where they contained patients.” But Mr. Labore testified that he spent 11 time looking for possible HIPAA issues in the recordings and kept a log of what he viewed. (Id. at 113:4- 12 114:21.) The issues he was looking for included: “Can you see a patient’s face. Can you see any body 13 parts of the patient. If so, what were those body parts. How long they were exposed. That type of stuff I 14 was looking for.” (Id. at 114:1-6.) There is no reason to believe it would take any more time for a similar 15 review of the recordings. 16 Class members do not need to identify their specific recording unless and until Sharp is found 17 liable in phase one of a bifurcated trial. The evidence of Sharp’s liability will not rely on the unique 18 recording of any individual class member. Plaintiff’s recording can be used as representative of the class. 19 Evidence of the other elements of an invasion of privacy claim will be common to all class members, 20 because these elements are based on objective standards and focused on Sharp’s behavior. For example, 21 Plaintiff could use expert testimony or survey evidence to show that a surgical patient would have a 22 reasonable expectation of privacy in the operating room. And the highly offensive nature element will be 23 focused on Sharp’s conduct, which was common to all class members. The extent of a particular class 24 member’s exposure on a recording does not present a liability issue; at most, it goes to the extent of a 25 class member’s damages. (Trujillo v. City of Ontario (C.D.Cal. Apr. 14, 2005) No. EDCV 04-1015, 2005 26 27 28 30 31 1 Even if this estimate were true, 600 hours is not an unreasonable or burdensome amount of time considering the rights at issue here. It is approximately 15 weeks of work time on a regular 40 hour per week schedule, and the recordings could easily be turned over to Plaintiff or a Special Master to accomplish this review so that no burden falls on Sharp. 5 REPLY IN SUPPORT OF PLAINTIFF’S MOTION FOR CLASS CERTIFICATION Case No.: 37-2017-00001377-CU-NP-CTL 1 U.S.Dist.Lexis, 2005 U.S.LEXIS 50353, at *8.) 2 After liability is determined, it may be necessary to associate recordings with specific class 3 members. That will not be as burdensome as Sharp claims. The time spent by Sharp to locate Plaintiff’s 4 recording is not relevant, because Sharp was looking for one video. The process for 1,806 class members 5 would be much more efficient. Exhibits 24 and 25 provide a list of all surgical procedures that took place 6 in the three operating rooms, sorted by operating room, over the class period. Sharp also has surgical 7 records that show this same information, plus the time the procedure began and ended. (Goddard Reply 8 Decl. Ex. 29, at 31:3-8.) With a list of surgical procedures by date and time, it would be simple to match 9 the recordings with a patient’s medical record number by viewing the recordings in chronological order, 10 especially since the recordings include date and time stamps. (E.g., Ex. 23.) It is highly unlikely that class 11 members would have to provide a picture, and individual testimony in court would not be required. 12 Hale v. Sharp Healthcare (2014) 232 Cal.App.4th 50, is nothing like this case. Sharp incorrectly 13 states that in Hale, the court refused to certify a class because it was not “reasonably ascertainable.” 14 (Opp’n, at 10.) Actually, the appellate court in Hale affirmed decertification of a class based on 15 ascertainability. (Hale, 232 Cal.App.4th at 53.) The trial court ordered decertification because class 16 members could not be feasibly identified after three years of attempting to figure out which of 120,000 17 potential class members were unfairly charged for emergency services. (Id.) This case does not even 18 come close to the serious issues of ascertainability in Hale. 19 The proposed class meets the acertainability requirement. 20 B. 21 Sharp argues that there is not a well-defined community of interest among the proposed class 22 because common questions of law and fact do not predominate, and class treatment would not be 23 beneficial. Neither argument has merit. 24 The Class Has a Well-Defined Community of Interest 1. Individual Issues Do Not Predominate 25 Sharp’s liability presents a question that is common to all class members. The common evidence 26 of Sharp’s liability includes: 1) Sharp’s placement of hidden cameras in the operating rooms; 2) the 27 motion-triggered recording of surgical procedures using those cameras for nearly a year; and 3) Sharp’s 28 motives for installing the hidden cameras. Sharp’s liability to the class can be determined without 30 31 6 REPLY IN SUPPORT OF PLAINTIFF’S MOTION FOR CLASS CERTIFICATION Case No.: 37-2017-00001377-CU-NP-CTL 1 requiring the individual testimony of class members. The individual issues that Sharp raised in its 2 Opposition do not predominate over these common questions. 3 The Severity of Invasion Relates Only to Damages, Not to Liability 4 Sharp claims that the “severity of the invasion” of privacy creates an individual issue because 5 “each recording is inherently different.” This claim misconstrues the standard for demonstrating invasion 6 of privacy, and is not supported by proof of any material variations in the recordings. 7 Sharp’s conduct of installing cameras in the operating rooms, and then operating them by motion- 8 sensitive triggers, is all that needs to be proved for invasion of privacy and breach of fiduciary duty. 9 What the recordings captured presents, at most, issues for the damages phase. As the Supreme Court has 10 11 12 13 recognized: Courts have acknowledged the intrusive effect for tort purposes of hidden cameras and video recorders in settings that otherwise seem private. It has been said that the “unblinking lens” can be more penetrating than the naked eye with respect to “duration, proximity, focus, and vantage point.” Such monitoring and recording denies the actor a key feature of privacy – the right to control the dissemination of his image and actions. 14 15 (Hernandez, 47 Cal.4th at 291.) Sharp does not get to avoid liability because, by luck of the camera 16 angle, less sensitive information was captured in some recordings. 17 Here, unlike in the case for nuisance presented in San Jose and relied upon by Sharp, Sharp’s 18 liability is not predicated on any variables like how much of the patient’s body was recorded, or how 19 long the patient was seen on the video. (See City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 462 20 [finding class certification inappropriate where “. . . liability is here predicated on variables like the 21 degree of noise, vapor, and vibration, the problem is compounded by the factors of distance and direction 22 affecting these variables.” (emphasis added)].) Sharp’s liability is predicated on the common question of 23 whether an objectively reasonable person would find it “highly offensive” or “an egregious breach of 24 social norms” to have hidden cameras placed in an operating room while they underwent surgical 25 procedures without their consent. The answer to that question can be determined on a class-wide basis. 26 The Trujillo case is on all fours with this one, and Sharp cannot credibly distinguish it. The 27 district court’s opinion contains a full analysis of the common legal and factual issues involved in 28 proving a claim for invasion of privacy with respect to installation of hidden cameras in an area where 30 31 7 REPLY IN SUPPORT OF PLAINTIFF’S MOTION FOR CLASS CERTIFICATION Case No.: 37-2017-00001377-CU-NP-CTL 1 there is a reasonable expectation of privacy. (Trujillo, 2005 U.S.Dist.Lexis, at *10-11.) The Trujillo court 2 did not discuss “whether, depending on what each individual plaintiff was recorded doing, the recording 3 would be ‘highly offensive’ or violative of ‘social norms’ to a reasonable person” (Opp’n, at p. 14) as 4 Sharp incorrectly argues it should have, because the Trujillo court correctly recognized that: 5 6 7 8 9 10 11 12 13 14 15 “[d]efendants’ characterization of proposed class members claims as ‘disparate and unique’ because ‘not all of the employees are present on the videotape in the same amount of time, or in the same stage of dress’ merits little consideration. The extent to which any particular proposed class member is on the videotape and his degree of undress bear on damages [not commonality].” (Id. at *8.) Like Trujillo, the individualized questions Sharp has raised regarding the extent of exposure of class members “relate to damages” and “do not prevent class certification.” (Id. at *10-11.) Moreover, Sharp presents no evidence to support its claim that “each recording is inherently different.” Mr. Labore’s declaration does not support this claim. Even considering Mr. Labore’s testimony, the recordings could easily be grouped into categories for efficiency if necessary. For example, recordings that showed any area of a patient’s skin that would normally be covered by clothing, such as an abdomen, could be analyzed differently from recordings that only showed the patient entering or exiting the operating room. The severity of the invasion is a question for damages, not liability. 16 The Enforceability of the Admission Agreement Is a Common Question 17 18 19 20 21 22 23 24 25 26 27 Sharp claims that class members consented to be secretly recorded during their surgical procedures through a boilerplate provision in its Admission Agreement, which is an adhesion contract. Parties’ rights under contracts of adhesion are well-suited for determination in a class setting. Contrary to Sharp’s arguments, the issue of consent in the Admission Agreement presents a common issue, and will not require an individual analysis of each class member’s understanding or sophistication. The Supreme Court of California has held “[c]ontroversies involving widely used contracts of adhesion present ideal cases for class adjudication; the contracts are uniform, the same principles of interpretation apply to each contract, and all members of the class will share a common interest in the interpretation of an agreement to which each is a party.” (La Sala v. American Sav. & Loan Assn. (1971) 5 Cal.3d 864, 877; see also Wilson v. San Francisco Fed. Sav. & Loan Assn. (1976) 62 Cal.App.3d 1, 7.) Plaintiff will not need to elicit individual testimony from each class member. (Id.) 28 30 31 8 REPLY IN SUPPORT OF PLAINTIFF’S MOTION FOR CLASS CERTIFICATION Case No.: 37-2017-00001377-CU-NP-CTL 1 The cases cited by Sharp further demonstrate there is no need for individual testimony from each 2 patient regarding their own subjective expectations. In Atl. Nat. ins. Co v. Armstrong (1966) 65 Cal.2d 3 100, a single plaintiff action involving an insurance policy, the court did not engage in an examination of 4 the insured’s subjective knowledge or experiences beyond determining that by signing the insurance 5 policy associated with the rental car, it could not be doubted that his intent was to relieve himself of 6 liability that might arise out of his operation of the automobile, and an interpretation to the contrary 7 would not meet his reasonable expectation. (Id. at 112.) In Beynon v. Garden Grove Med. Grp. (1980) 8 100 Cal.App.3d 698, another single plaintiff action involving interpretation of an insurance policy, the 9 court similarly looked to the objective reasonable expectations of one enrolling in the insurance plan to 10 find that a provision that limits the obligations of the health plan and health care provider would defeat 11 the insured’s reasonable expectations. (Id. at 706.) 12 The evidence is overwhelming that no person would reasonably expect that the boilerplate 13 provision in the Admission Agreement would constitute consent to be recorded during surgery. Sophia 14 Henderson, the employee whom Sharp trained specifically on how to answer and address patients’ 15 questions regarding the Admission Agreement, had no expectation that this provision encompassed such 16 a broad consent. (Goddard Decl. Ex. 7, 12:1-12; 13:1-8; 13:15-14:3; 16:11-17:21; 20:11-17.) 17 Ms. Henderson testified that had she been asked whether the Admission Agreement authorized Sharp to 18 secretly record her while she was in the operating room undergoing a procedure with her doctor she 19 would have responded, no. (Id.) 20 Other provisions of the Admission Agreement demonstrate that a reasonable person would not 21 read the General Consent provision to allow hidden cameras in an operating room. Paragraph 5 refers to 22 a list of Patient Rights that are entirely inconsistent with the notion that Sharp could secretly videotape 23 patients. (Id. Ex. 3.) “Sharp HealthCare Patients’ Rights” policy states that patients have the right to: Full 24 consideration of privacy concerning the medical care program. Case discussion, consultation, 25 examination and treatment are confidential and should be conducted discreetly. You have the right to be 26 advised as to the reason for the presence of any individual. (Id. Ex. 4, at 2.) Similarly, the Admission 27 Agreement includes specific requests for consent that are inconsistent with the notion that the General 28 Consent provision encompasses the broad scope advanced by Sharp. Paragraph 15 gives patients the 30 31 9 REPLY IN SUPPORT OF PLAINTIFF’S MOTION FOR CLASS CERTIFICATION Case No.: 37-2017-00001377-CU-NP-CTL 1 option to opt out of being listed in the hospital directory. (Id. Ex. 3.) Paragraph 17 gives patients the 2 option to deny consent to photograph their newborns. (Id.) Given these provisions, a reasonable person 3 reviewing the Agreement would expect that they would be specifically asked for consent before Sharp 4 videotaped their surgical procedure. 5 Whether an objectively reasonable person would expect Sharp’s Admission Agreement to provide 6 it with patient consent to allow hidden cameras in the operating room during medical procedures is a 7 common question amenable to class-wide determination. 8 Any Individual Issues Relating to Damages Do Not Defeat Certification 9 Individual issues relating to the amount of damages to be awarded to class members do not defeat 10 certification. It is a long-established principle that differences among class members in the amounts of 11 damages or restitution resulting from defendant’s unlawful conduct do not bar class certification. 12 (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal. 4th 1004, 1022, 1053; Bell v. Farmers Ins. 13 Exchange (2004) 115 Cal.App.4th 715, 742; Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 14 Cal.4th 319, 332.) This case is no different. 15 CACI 1820 sets forth the standard for the jury’s determination of damages resulting from an 16 invasion of privacy. A jury’s award of damages for invasion of privacy must be “a reasonable amount 17 based on the evidence and [] common sense.” Although each class member may be affected in different 18 ways by Sharp’s unlawful conduct, because the award must be “reasonable” and tethered to the evidence, 19 the variations in damages will not be as individualized as Sharp speculates. Much of the evidence 20 supporting an award of damages will be focused on Sharp’s conduct, and thus common to all class 21 members. 22 With respect to individual evidence, Class members can easily be grouped according to the type 23 of damages claimed through the use of a questionnaire. For example, class members can be asked to 24 provide documentation of any economic damages, such as payment to therapists or doctors related to the 25 invasion of privacy. The Court could establish subclasses based on the categories of damages claimed, 26 the surgical procedure recorded, or the extent of exposure in the recording. The trial could be bifurcated, 27 and Sharp’s liability tried in the first phase. Following a finding of liability, the parties could conduct 28 bellwether trials on the issue of damages, and stipulate to a baseline amount of damages. Pursuing any of 30 31 10 REPLY IN SUPPORT OF PLAINTIFF’S MOTION FOR CLASS CERTIFICATION Case No.: 37-2017-00001377-CU-NP-CTL 1 these options is consistent with the California Supreme Court’s instruction to trial courts to use 2 “innovative procedural tools” to effectively manage class actions and support the public policy 3 encouraging use of the class action device. (Sav-On Drug Stores, Inc., 34 Cal.4th at 339-40.) 4 Sharp does not address Plaintiff’s multiple proposals for streamlining determination of damages. 5 Sharp instead cites to inapt case law. A review of these cases demonstrates that this case presents 6 straightforward issues, even with respect to damages, that can be easily managed. 7 In Bennett v. Regents of Univ. of Cal. (2005) 133 Cal.App.4th 347, plaintiffs alleged claims 8 against UCLA based on how their relatives’ remains were handled after they donated their bodies for 9 medical research. (Id. at 351.) The appellate court affirmed denial of class certification because, after 10 nine years of litigation, “plaintiffs failed to present any admissible evidence of their common ‘core fact’” 11 of improper disposal of their relative or loved ones’ remains. (Id.) The court also held that the plaintiffs 12 had not demonstrated that they could meet the elevated standard of proof for emotional distress in a 13 lawsuit alleging improper treatment of human remains, which “can be difficult to prove.” (Id. at 358.) 14 In Brown v. Regents of Univ. of Cal. (1984) 151 Cal.App.3d 982, the proposed class claims were 15 based on allegations of intentional factual concealment and misrepresentation regarding the level of 16 coronary care at a University of California hospital. (Id. at 985.) The court found that class treatment 17 would not be appropriated because of a “veritable quagmire of tough factual questions which can only be 18 resolved by individual proof.” (Id. at 989.) These issues included, for each class member, their particular 19 medical condition, the method of treatment, and proximate cause. (Id.) “All of the foregoing questions 20 involve questions of what is medically appropriate for a particular patient under his particular 21 circumstances.” (Id.) There is no similar individualized inquiry as to liability here. 22 In Rose v. Medtronics, Inc. (1980) 107 Cal.App.3d 150, the plaintiff filed a class action complaint 23 seeking damages for personal injuries caused by the defective manufacture of a cardiac pacemaker. (Id. 24 at 153.) The court held that a class action could not be certified based on these claims because 25 “defendant’s liability could vary from claim to claim, claimants’ damages could vary from nonexistent to 26 damages for wrongful death, and the activities and skills of intermediaries … could have different 27 degrees of relevancy for each claim.” (Id. at 156-57.) This is a far cry from this case, where there are no 28 individual issues as to liability, and the extent of damages could be determined efficiently through 30 31 11 REPLY IN SUPPORT OF PLAINTIFF’S MOTION FOR CLASS CERTIFICATION Case No.: 37-2017-00001377-CU-NP-CTL 1 subclasses . 2 D.C. v County of San Diego (S.D. Cal. Nov. 7, 2017) No. 15cv1868, 2017 U.S.Dist.LEXIS 3 185548, is a federal case that follows a different standard. In the Ninth Circuit, individualized damages 4 assessments do not defeat certification as long as the damages can be “calculated using a mechanical or a 5 formulaic process.” (Id. at *46.) In California courts, in contrast, the Supreme Court has repeatedly 6 confirmed that individual damages calculations do not defeat certification, and that trial courts should be 7 procedurally innovative in handling the resolution of damages. (E.g., Sav-On Drug Stores, Inc., 34 8 Cal.4th at 339-40.) 9 None of these cases is relevant to the Court’s assessment of certification here. Unlike each of 10 these cases, the overwhelming evidence to prove the class’ claims will focus on Sharp’s conduct, and 11 individual issues of damages that can be managed efficiently do not defeat certification. 12 Sharp’s reliance on the testimony of Dr. James O’Brien is similarly misplaced. Plaintiff has 13 moved to strike Dr. O’Brien’s declaration, with good cause. It does not meet the requirements set forth 14 by the California Supreme Court in Sargon Enters., Inc. v. Univ. of S. Cal. (2012) 55 Cal.4th 747. 15 Dr. O’Brien has no expertise that is relevant to this case. He has never treated or evaluated patients for 16 invasion of privacy claims, or evaluated issues pertaining to invasion of privacy in a civil context. 17 (Goddard Reply Decl. Ex. 28, at 54:8-10.) His opinions are based only speculation and conjecture, since 18 he has never viewed or been made properly aware of the subject matter of the recordings at issue. (Id. at 19 17:5-10.) His opinion also lacks foundation, since it is based on inaccurate information regarding the 20 facts of this case. (Id. at 8:17-18.) 21 Dr. O’Brien’s testimony is not relevant to the issues in the case, and will only serve to confuse the 22 trier of fact. His opinion assumes that the class members here will be required to prove their damages 23 through expert testimony. But expert testimony is not required to prove damages arising from a personal 24 injury. (Capelouto v. Kaiser Foundation Hospital (1972) 7 Cal. 3d 889, 895.) A plaintiff’s testimony is 25 sufficient to support a jury award. (Id.) 26 Dr. O’Brien’s testimony should also be disregarded because he is nothing more than a bullhorn 27 for attorney argument, simply amplifying counsel’s positions without providing relevant expertise. (Id. at 28 20:20-24.) During his deposition, Dr. O’Brien repeatedly refused to answer relevant questions at the 30 31 12 REPLY IN SUPPORT OF PLAINTIFF’S MOTION FOR CLASS CERTIFICATION Case No.: 37-2017-00001377-CU-NP-CTL 1 direction of Sharp’s counsel, including the incredible objection that verbal communications between 2 Dr. O’Brien and Sharp’s counsel are privileged attorney-client communications! (Id. at 7:12-9:11; 11:19- 3 12:2; 23:7-15; 57:9-58:11.) 4 C. 5 A court should not decline to certify a class “simply because it is afraid that insurmountable 6 problems may appear at the remedy stage.” (Nicodemus, 3 Cal.App.5th at 1214.) When considering 7 whether a class action is superior, “[t]he relevant comparison lies between the costs and benefits of 8 adjudicating plaintiffs’ claims in a class action and the costs and benefits of proceeding by numerous 9 separate actions – not between the complexity of a class suit that must accommodate some individualized 10 inquiries and the absence of any remedial proceeding whatsoever.” (Id. at 1219.) The California Supreme 11 Court has instructed trial courts to use “innovative procedural tools” to effectively manage class actions 12 and support California public policy, which “encourages the use of the class action device.” (Sav-On 13 Drug Stores, 34 Cal.4th at 339-40.) Trial courts are not required to determine at the certification stage 14 precisely which tools they will use. (Id. at 340, fn. 12.) Class Treatment Is Superior 15 Plaintiff has sufficiently demonstrated that common questions predominate, and this action is 16 well-suited for certification. Plaintiff has also offered numerous “innovative procedural tools” to manage 17 any individual damages issues that may arise, including bifurcation or bellwether trials, which Sharp 18 simply ignores. Any individual issues can be easily managed here, particularly when comparing them to 19 the extreme burden of litigating 1,806 cases on an individual basis. 20 The cases relied on by Sharp are inapposite. In Newell, the court found that a class action would 21 not be superior for claims against a homeowners insurance company following the Northridge 22 earthquake, because the individual plaintiffs had a strong interest in controlling their own cases, and 23 several had pursued their own claims. (Newell v. State Farm Gen. Ins. Co. (2004) 118 Cal.App.4th 1094, 24 1104.) The opposite is true here. Sharp has never given notice to the class members of the secret 25 recordings, so many class members have no idea that a recording exists, or existed, of one of the most 26 private moments of their life. The only way to ensure that these patients are alerted to Sharp’s unlawful 27 conduct and their right to redress is through a class action, which will require notice to each class 28 member. Also in Newell, the court found that a class action was not superior because there the class 30 31 13 REPLY IN SUPPORT OF PLAINTIFF’S MOTION FOR CLASS CERTIFICATION Case No.: 37-2017-00001377-CU-NP-CTL 1 members faced different types of wrongdoing, including “improper depreciation deductions, incorrect 2 assessments of the earthquake damage to their home and lack of explanation regarding the denial or 3 reduction of their claim.” (Id.) In this case, the harm to the class members was caused by a single course 4 of wrongful conduct: Sharp’s installation and operation of hidden cameras in its operating rooms. The 5 claims of class members here are substantially more cohesive, and class treatment is far superior to 6 individual claims. 7 Sharp claims that the class is not manageable because it will result in “mini-trials” on damages, 8 but the alternative the Court must consider is 1,806 full trials on liability and damages. (Nicodemus, 3 9 Cal.App.5th at 1219 [“[t]he relevant comparison lies between the costs and benefits of adjudicating 10 plaintiffs’ claims in a class action and the costs and benefits of proceeding by numerous separate actions 11 – not between the complexity of a class suit that must accommodate some individualized inquiries and 12 the absence of any remedial proceeding whatsoever.”].) When compared to that alternative, even though 13 procedural innovation might be required in the damages phase, a class action is far superior here. 14 /// 15 /// 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 14 REPLY IN SUPPORT OF PLAINTIFF’S MOTION FOR CLASS CERTIFICATION Case No.: 37-2017-00001377-CU-NP-CTL 1 IV. CONCLUSION 2 Plaintiff’s claims for invasion of privacy and breach of fiduciary duty meet all the requirements 3 for class treatment under CCP § 382. Denying certification in this case would deny justice to a cohesive 4 group of female patients whose right to privacy was invaded and abused by Sharp’s wrongful conduct. 5 Plaintiff respectfully requests that her Motion be granted. 6 7 8 Dated: March 2, 2018 ADMIRE & ASSOCIATES PATTERSON LAW GROUP 9 10 By: 11 12 13 14 15 James R. Patterson, State Bar No. 211102 Allison H. Goddard, State Bar No. 211098 Jacquelyn E. Quinn, State Bar No. 314616 1350 Columbia Street, Suite 603 San Diego, CA 92101 Telephone: (619) 756-6990 Facsimile: (619) 756-6991 16 Attorneys for Plaintiff CARLA JONES 17 18 19 20 21 22 23 24 25 26 27 28 30 31 15 REPLY IN SUPPORT OF PLAINTIFF’S MOTION FOR CLASS CERTIFICATION Case No.: 37-2017-00001377-CU-NP-CTL