eCases

 (2003).
5.     “A class action may only be certified if the trial court is satisfied, after
a thorough analysis, that the prerequisites of Rule 23(a) of the West Virginia Rules of Civil
Procedure have been satisfied. Further, the class certification order should be detailed and
specific in showing the rule basis for the certification and the relevant facts supporting the
legal conclusions.” Syllabus point 8, State ex rel. Chemtall Inc. v. Madden,

216 W. Va. 443

607 S.E.2d 772

 (2004).
6.     “The ‘commonality’ requirement of Rule 23(a)(2) of the West
Virginia Rules of Civil Procedure [2017] requires that the party seeking class certification
show that ‘there are questions of law or fact common to the class.’ A common nucleus of
operative fact or law is usually enough to satisfy the commonality requirement. The
threshold of ‘commonality’ is not high, and requires only that the resolution of common
questions affect all or a substantial number of the class members.” Syllabus point 11, In
re West Virginia Rezulin Litigation,

214 W. Va. 52

 (2003).
ii
7.     “For purposes of Rule 23(a)(2) of the West Virginia Rules of Civil
Procedure [2017], ‘a “question” “common to the class” must be a dispute, either of fact or
of law, the resolution of which will advance the determination of the class members’
claims.’ Wal-Mart Stores, Inc. v. Dukes,

, 369,

, 2562,

 (2011) (Ginsburg concurring in part and dissenting in part) (emphasis
added).” Syllabus point 2, State ex rel. West Virginia University Hospitals, Inc. v. Gaujot,

242 W. Va. 54

829 S.E.2d 54

 (2019).
8.     “For commonality to exist under Rule 23(a)(2) of the West Virginia
Rules of Civil Procedure [2017], class members’ ‘claims must depend upon a common
contention[,]’ and that contention ‘must be of such a nature that it is capable of classwide
resolution[.]’ Wal-Mart Stores, Inc. v. Dukes,

, 350,

, 2551,

 (2011). In other words, the issue of law (or fact) in question must be
one whose ‘determination . . . will resolve an issue that is central to the validity of each
one of the claims in one stroke.’

Id.

 (emphasis added).” Syllabus point 3, State ex rel.
West Virginia University Hospitals, Inc. v. Gaujot,

242 W. Va. 54

829 S.E.2d 54

 (2019).
9.     “Before certifying a class pursuant to Rule 23 of the West Virginia
Rules of Civil Procedure, it is imperative that the class be identified with sufficient
specificity so that it is administratively feasible for the court to ascertain whether a
iii
particular individual is a member.” Syllabus point 3, State ex rel. Metropolitan Life
Insurance Co. v. Starcher,

196 W. Va. 519

 (1996).
10.    “To demonstrate the existence of a class pursuant to Rule 23 of the
West Virginia Rules of Civil Procedure, it is not required that each class member be
identified, but only that the class can be objectively defined. It is not a proper objection to
certification that the class as defined may include some members who do not have claims
because certification is conditional and may be altered, expanded, subdivided, or vacated
as the case progresses toward resolution on the merits.” Syllabus point 2, State ex rel.
Metropolitan Life Insurance Co. v. Starcher,

196 W. Va. 519

 (1996).
11.    “When this Court remands a case to the circuit court, the remand can
be either general or limited in scope. Limited remands explicitly outline the issues to be
addressed by the circuit court and create a narrow framework within which the circuit court
must operate. General remands, in contrast, give circuit courts authority to address all
matters as long as remaining consistent with the remand.” Syllabus point 2, State ex rel.
Frazier & Oxley, L.C. v. Cummings,

214 W. Va. 802

591 S.E.2d 728

 (2003).
12.    “Upon remand of a case for further proceedings after a decision by
this Court, the circuit court must proceed in accordance with the mandate and the law of
the case as established on appeal. The trial court must implement both the letter and the
iv
spirit of the mandate, taking into account the appellate court’s opinion and the
circumstances it embraces.” Syllabus point 3, State ex rel. Frazier & Oxley, L.C. v.
Cummings,

214 W. Va. 802

591 S.E.2d 728

 (2003).
v
Moats, Justice:
For the third time, the petitioners, West Virginia University Hospitals, Inc.,
and West Virginia United Health System, Inc., d/b/a WVU Healthcare (collectively “WVU
Hospitals”), seek to invoke the original jurisdiction of this Court to obtain an extraordinary
writ of prohibition in relation to class action litigation filed by respondents, Christopher
Thomack and Joseph Michael Jenkins (collectively “Class Representatives”), that has been
pending since 2013. This time, WVU Hospitals argue that they are entitled to prohibitory
relief because the circuit court failed to follow the express mandate of this Court as set
forth in State ex rel. West Virginia University Hospitals, Inc. v. Gaujot,

242 W. Va. 54

829 S.E.2d 54

(2019). Specifically, WVU Hospitals claim that the circuit court violated this
Court’s mandate by failing to conduct a sufficiently thorough analysis of the commonality,
ascertainability, and predominance factors required for class certification under Rule 23 of
the West Virginia Rules of Civil Procedure. Additionally, WVU Hospitals contend that
the circuit court failed to give careful consideration to ethical issues pertaining to the
inclusion of lawyers within the class definition, also in violation of this Court’s mandate.
After considering the briefs and oral arguments of the parties, the briefs of amici curiae, 1
1
We recognize and appreciate the participation in this case of the Defense
Trial Counsel of West Virginia, who filed an amicus curiae brief in support of the
petitioners, West Virginia University Hospitals, and The West Virginia Association for
Justice, who filed an amicus curiae brief in support of the respondent, Judge Phillip D.
Gaujot. We have considered the arguments presented by these amici curiae in deciding
this case.
1
the appendix record for this matter, and relevant legal precedent, we find no inadequacy in
the circuit court’s findings of commonality and ascertainability. We further conclude that
the circuit court was under no obligation to revisit its predominance analysis or the class
definition under this Court’s prior mandate. Accordingly, we deny the requested writ of
prohibition.
I.
FACTUAL AND PROCEDURAL HISTORY
This case has followed a tortured path. Class Representatives Mr. Thomack
and Mr. Jenkins were each injured in unrelated accidents in 2012 and received treatment
at Ruby Memorial Hospital (“Ruby”) in Morgantown, West Virginia. Ruby is under the
umbrella of Petitioners, WVU Hospitals. Then, in anticipation of litigation to recover
damages for their accident-related injuries, Messrs. Thomack and Jenkins each sought,
through their separate counsel, a copy of medical records documenting their respective
stays at Ruby. Mr. Thomack alleges that he was required to pay $514.40 for a computer
disc containing copies of his already-existing computerized medical records. Mr. Jenkins
similarly avers that he was required to pay $656.80 for a computer disc containing copies
of his already-existing computerized medical records. It is further alleged that WVU
Hospitals arrived at these amounts by charging forty cents per page for copies of already
2
existing medical records, regardless of whether they were produced in paper or electronic
form, along with a ten-dollar search fee.
Based on the theory that the fees charged by WVU Hospitals violated West
Virginia Code § 16-29-2(a) (eff. 1999), Mr. Thomack first asserted his claims against
WVU Hospitals over nine years ago, in January 2013. Mr. Jenkins followed shortly
thereafter, filing his claims in June 2013. The cases were consolidated, and Messrs.
Thomack and Jenkins filed their “Consolidated Amended Complaint” asserting a putative
class action on January 9, 2014. After the circuit court entered an order granting class
certification, WVU Hospitals filed their first petition seeking a writ of prohibition in this
Court on June 25, 2014. The petition was refused in an unpublished order. State ex rel.
WVU Hospitals v. Gaujot, No. 14-0611 (W. Va. filed August 26, 2014) (“Gaujot I”). More
than two-and-a-half years after the writ of prohibition was refused in Gaujot I, this Court
handed down its decision in State ex rel. Healthport Technologies, LLC v. Stucky,

239 W. Va. 239

800 S.E.2d 506

 (2017), which found that a patient lacked standing to pursue
a claim against a medical provider for allegedly excessive charges when those charges were
paid solely by the patient’s lawyer. Relying on Healthport, WVU Hospitals filed a motion
in the circuit court to decertify the class. The motion was denied, and on July 5, 2018, the
circuit court entered an order amending the class definition as follows to comport with the
Healthport decision:
Any person, who, from January 18, 2008[,] until June 5, 2014,
3
(1) requested in writing copies of patient medical records from
Defendant, West Virginia University Hospitals, Inc., including
the individual patient and any person who was an authorized
agent or authorized representative of the patient through legal
representation;
and
(2) paid the fees charged by the Defendant to obtain such
requested medical records.
WVU Hospitals then filed their second petition for writ of prohibition on October 1, 2018,
and asked this Court “to prohibit [the circuit court judge] from conducting any further
proceedings until he has vacated his order denying their motion to decertify the class.”
State ex rel. W. Va. Univ. Hosps., Inc. v. Gaujot,

242 W. Va. 54

, 57,

829 S.E.2d 54

, 57
(2019) (“Gaujot II”). WVU Hospitals argued in Gaujot II that the class was improperly
certified because the features of commonality and ascertainability required by Rule 23 of
the West Virginia Rules of Civil Procedure were absent, and the class included people who
lacked standing. Addressing only commonality, the Gaujot II Court granted the writ of
prohibition as moulded, and vacated the circuit court’s order denying WVU Hospitals’
motion to decertify the class. 2
2
The Court commented, “[b]ecause we grant the writ as moulded and vacate
the circuit court’s order, we need not consider the Hospitals’ other grounds for seeking a
writ of prohibition.” State ex rel. W. Va. Univ. Hosps., Inc. v. Gaujot,

242 W. Va. 54

, 64,

829 S.E.2d 54

, 64 (2019).
4
Following this Court’s remand, additional discovery was conducted. WVU
Hospitals then filed a renewed motion to decertify the class, which the circuit court denied.
However, in response to comments made in Gaujot II regarding the inclusion of certain
lawyers in the certified class, the court redefined the class as follows:
Any person, who, from January 18, 2008[,] until June 5, 2014,
(1)    requested in writing copies of patient medical records
from Defendant, West Virginia University Hospitals,
Inc., including the patient or any person who was an
authorized agent or authorized representative of the
patient; and
(2)    paid the fees charged by the Defendant to obtain such
requested medical records; and
(3)    provided however, that attorneys who paid for a client’s
medical records in connection with investigation of
claims and/or litigation on behalf of that client, but were
never repaid for those costs, are specifically excluded
from class membership.
Thereafter, WVU Hospitals filed a motion under Rule 60(b) of the West Virginia Rules of
Civil Procedure asking the circuit court to reconsider its ruling. The circuit court also
denied the Rule 60(b) motion, and WVU Hospitals filed their third petition for writ of
prohibition, alleging that the circuit court failed to follow the express mandate of this Court
set forth in Gaujot II. We issued a rule to show cause, and for the reasons explained below,
we deny the requested writ.
5
II.
STANDARD FOR ISSUANCE OF WRIT
It has long been established that “[a] writ of prohibition will not issue to
prevent a simple abuse of discretion by a trial court. It will only issue where the trial court
has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W. Va. Code,
53-1-1.” Syl. pt. 2, State ex rel. Peacher v. Sencindiver,

160 W. Va. 314

233 S.E.2d 425

(1977).   Here, WVU Hospitals effectively claim that the circuit court exceeded its
legitimate powers.
In determining whether to entertain and issue the writ of
prohibition for cases not involving an absence of jurisdiction
but only where it is claimed that the lower tribunal exceeded
its legitimate powers, this Court will examine five factors: (1)
whether the party seeking the writ has no other adequate
means, such as direct appeal, to obtain the desired relief; (2)
whether the petitioner will be damaged or prejudiced in a way
that is not correctable on appeal; (3) whether the lower
tribunal’s order is clearly erroneous as a matter of law; (4)
whether the lower tribunal’s order is an oft repeated error or
manifests persistent disregard for either procedural or
substantive law; and (5) whether the lower tribunal’s order
raises new and important problems or issues of law of first
impression. These factors are general guidelines that serve as a
useful starting point for determining whether a discretionary
writ of prohibition should issue. Although all five factors need
not be satisfied, it is clear that the third factor, the existence of
clear error as a matter of law, should be given substantial
weight.
Syl. pt. 4, State ex rel. Hoover v. Berger,

199 W. Va. 12

483 S.E.2d 12

 (1996).
6
In this original jurisdiction proceeding, WVU Hospitals argue that the circuit
court failed to comply with the express mandate issued by this Court in Gaujot II. A
petition for writ of prohibition is an appropriate means of bringing this issue to the Court.
“When a circuit court fails or refuses to obey or give effect to the mandate of this Court,
misconstrues it, or acts beyond its province in carrying it out, the writ of prohibition is an
appropriate means of enforcing compliance with the mandate.” Syl. pt. 5, State ex rel.
Frazier & Oxley, L.C. v. Cummings,

214 W. Va. 802

591 S.E.2d 728

 (2003). Our review
of whether the circuit court complied with a mandate of this Court is de novo. “A circuit
court’s interpretation of a mandate of this Court and whether the circuit court complied
with such mandate are questions of law that are reviewed de novo.” Syl. pt. 4,

id.

However, we remain mindful that “[t]his Court is restrictive in the use of
prohibition as a remedy.” State ex rel. W. Va. Fire & Cas. Co. v. Karl,

199 W. Va. 678

,
683,

487 S.E.2d 336

, 341 (1997).
We limit our exercise of original jurisdiction because
“‘“‘[m]andamus, prohibition and injunction against judges are
drastic and extraordinary remedies . . . . As extraordinary
remedies, they are reserved for really extraordinary causes.’”’”
State ex rel. United States Fidelity & Guar. Co. v. Canady,

194 W. Va. 431

, 436,

460 S.E.2d 677

, 682 (1995), quoting State ex
rel. Doe v. Troisi, 194 W. Va. [28,] 31, 459 S.E.2d [139,] 142
[(1995)], quoting Ex parte Collett,

337 U.S. 55

, 72,

69 S. Ct. 944

, 953,

93 L. Ed. 1207

, 1217 (1949), quoting Ex parte
Fahey,

332 U.S. 258

, 259-60,

67 S. Ct. 1558

, 1559,

91 L. Ed. 2041

, 2043 (1947).
7
State ex rel. Suriano v. Gaughan,

198 W. Va. 339

, 345,

480 S.E.2d 548

, 554 (1996).
Guided by these various standards, we will address the issues raised by WVU Hospitals.
III.
DISCUSSION
In this original jurisdiction proceeding, WVU Hospitals contend that a writ
of prohibition is warranted because the trial court defied this Court’s mandate issued in
Gaujot II by failing to conduct a sufficiently thorough analysis of the requirements for class
certification and failing to comply with the law of the case. It is well settled that
[b]efore certifying a class under Rule 23 of the West
Virginia Rules of Civil Procedure [2017], a circuit court must
determine that the party seeking class certification has satisfied
all four prerequisites contained in Rule 23(a)–numerosity,
commonality, typicality, and adequacy of representation–and
has satisfied one of the three subdivisions of Rule 23(b). As
long as these prerequisites to class certification are met, a case
should be allowed to proceed on behalf of the class proposed
by the party.
Syl. pt. 8, In re W. Va. Rezulin Litig.,

214 W. Va. 52

 (2003). Likewise, this
Court has made clear that
[a] class action may only be certified if the trial court is
satisfied, after a thorough analysis, that the prerequisites of
Rule 23(a) of the West Virginia Rules of Civil Procedure have
been satisfied. Further, the class certification order should be
detailed and specific in showing the rule basis for the
certification and the relevant facts supporting the legal
conclusions.
8
Syl. pt. 8, State of W. Va. ex rel. Chemtall Inc. v. Madden,

216 W. Va. 443

607 S.E.2d 772

(2004). In support of their petition seeking a writ of prohibition, WVU Hospitals raise four
specific areas in which they contend the circuit court did not follow the mandate from
Gaujot II. First, they claim that the circuit court inadequately analyzed the commonality
requirement for class certification. Next, WVU Hospitals argue that the circuit court failed
to conduct a thorough analysis of the ascertainability requirement for class certification.
Additionally, they assert that the circuit court failed to comply with the requirements set
out in State ex rel. Surnaik Holdings of WV, LLC v. Bedell,

244 W. Va. 248

852 S.E.2d 748

 (2020), in analyzing the predominance factor for class certification. Finally, WVU
Hospitals maintain that the circuit court failed to give careful consideration to the inclusion
of attorneys as class members as required by the mandate in Gaujot II. We address each
of these issues in turn.
A. Commonality
In Gaujot II, this Court observed that, before the circuit court, WVU
Hospitals had
repeatedly challenged Mr. Thomack and Mr. Jenkins’s claim
that commonality could be found in the Hospitals’ uniform
charging practices and in the Hospitals’ alleged violation of

W. Va. Code § 16-29-2

(a) [1999]. Yet the circuit court
persisted in finding commonality without ever truly addressing
the Hospitals’ arguments or indicating with clarity the rationale
for such findings.
9
242 W. Va. at 64, 829 S.E.2d at 64. Accordingly, in granting the requested writ of
prohibition as moulded, the Court vacated the circuit court’s order denying WVU
Hospitals’ motion to decertify the class and urged the circuit court to, upon remand,
“determine whether the requirements of Rule 23, particularly as they relate to
commonality, have been met[.]” 242 W. Va. at 64, 829 S.E.2d at 64 (emphasis added).
Following this Court’s remand, the circuit court revisited commonality in its
October 30, 2020 “Order Denying Defendants’ Renewed Motion to Decertify Class” as
follows:
13.     Based upon the evidence presented from the
deposition testimony of WVUHS’s Rule 30(b)(7) witness,
Christine Matheny, and [their] Director of Health Information
Management for West Virginia University Hospitals, Melissa
Martin (who signed the affidavit relied upon by the WVSCA),
it appears that evidence exists to establish that the average cost
of the reasonable expenses incurred in producing medical
records for the period of June 6, 2014 through July 31, 2014 is
transferrable to the class time period.
14.    The average cost for each medical record request
fulfilled for the time period of June 6, 2014 through July 31,
2014 was $2.08.
15.    Based upon that average cost of $2.08 per
request fulfilled, and further considering WVUHS’ admission
that [they] never attempted to charge only the fees necessary to
reimburse [them] for [their] reasonable costs incurred as
allowed under the statute, it appears that liability may exist in
this matter on a class-wide basis.
10
16.    Based upon that average cost of $2.08 per
request fulfilled, it appears that each and every requestor
suffered damages based on the $10.00 search fee alone,
without even considering the additional damages related to the
$0.40 per page/image fee that was charged for every class
member’s request.
17.    Based upon the evidence presented in response
to Defendants’ motion, it appears that “probable and
inferential” evidence and “direct and positive proof” exist to
allow Plaintiffs to potentially meet their burden of proof on
both liability and damages on a class-wide basis, as explained
in the affidavit of Plaintiffs’ expert, Kathryn Crouse.
18.     The Court FINDS that many common issues
exist in this case. The statute at issue,

W. Va. Code § 16-29-2

,
applies to govern the charges Defendants could charge to every
class member. WVUHS[’s] admi[ssion] that it did not attempt
to compute its actual costs incurred for any member of the class
is the same. The inability to go back in time to re-create the
actual amount of WVUHS’ actual costs incurred is the same
for every member of the class. The necessity of using probable
and inferential data to determine the Class Members’ damages
as a result of WVUHS’ conduct is the same for every class
member. Finally, the proposed methodology for computing
damages for every class member is the same.
19.    For the reasons set forth above, the Court FINDS
that Plaintiffs have met their burden to show that “there are
questions of law or fact common to the class.” Syl. Pt. 11 (in
part), Rezulin,

214 W. Va. 52

.
20.    Further, the Court FINDS that the common
questions in this case establish that a jury could establish both
liability and damages on a class-wide basis.
11
WVU Hospitals rely on the Gaujot II Court’s comment that “it is not enough
for Mr. Thomack and Mr. Jenkins to allege that they and others like them are victims of
the same statutory violation,” and argue that the circuit court erred by basing its finding of
commonality for purposes of class certification solely on the violation of the statute
addressing the fee that may be charged for providing copies of patient medical records.
Gaujot II, 242 W. Va. at 62, 829 S.E.2d at 62. WVU Hospitals argue further that the circuit
court erred by using an “average cost” for records based on data gathered by the Hospitals
to track costs under the 2014 version of the statute when that version does not apply to the
class action plaintiffs.
Class Representatives respond that factual evidence added to the record after
this Court’s decision in Gaujot II provided a sufficient basis to support commonality, and
the circuit court thoroughly analyzed this evidence when it concluded there are common
questions of both liability and damages in this case that can be determined on a class-wide
basis. We agree.
We have held that
[t]he “commonality” requirement of Rule 23(a)(2) of
the West Virginia Rules of Civil Procedure [2017] requires that
the party seeking class certification show that “there are
questions of law or fact common to the class.” A common
nucleus of operative fact or law is usually enough to satisfy the
commonality requirement. The threshold of “commonality” is
12
not high, and requires only that the resolution of common
questions affect all or a substantial number of the class
members.
Syl. pt. 11, In re W. Va. Rezulin Litig.,

214 W. Va. 52

. Accord Gaujot II,

242 W. Va. 54

, 62,

829 S.E.2d 54

, 62 (quoting In re W. Va. Rezulin Litig.). In Gaujot II,
we clarified that,
[f]or purposes of Rule 23(a)(2) of the West Virginia
Rules of Civil Procedure [2017], “a ‘question’ ‘common to the
class’ must be a dispute, either of fact or of law, the resolution
of which will advance the determination of the class members’
claims.” Wal-Mart Stores, Inc. v. Dukes,

, 369,

, 2562,

 (2011) (Ginsburg
concurring in part and dissenting in part) (emphasis added).
Syl. pt. 2, Gaujot II,

242 W. Va. 54

829 S.E.2d 54

. Furthermore,
[f]or commonality to exist under Rule 23(a)(2) of the
West Virginia Rules of Civil Procedure [2017], class members’
“claims must depend upon a common contention[,]” and that
contention “must be of such a nature that it is capable of
classwide resolution[.]” Wal-Mart Stores, Inc. v. Dukes,

, 350,

, 2551,

(2011). In other words, the issue of law (or fact) in question
must be one whose “determination . . . will resolve an issue
that is central to the validity of each one of the claims in one
stroke.”

Id.

 (emphasis added).
Syl. pt. 3, Gaujot II,

242 W. Va. 54

829 S.E.2d 54

. With respect to the instant litigation,
the Court commented that
it is not enough for Mr. Thomack and Mr. Jenkins to allege that
they and others like them are victims of the same statutory
violation. For commonality to exist, class members’ “claims
must depend upon a common contention[,]” and that
contention “must be of such a nature that it is capable of
13
classwide resolution[.]” State ex rel. Erie Ins. Prop. & Cas.
Co. v. Nibert, No. 16-0884,

2017 WL 564160

, at *6 (W. Va.
Feb. 13, 2017) (memorandum decision) (quoting Wal-Mart,

564 U.S. at 350

131 S. Ct. at 2551

).
Gaujot II, 242 W. Va. at 62, 829 S.E.2d at 62.
We disagree with WVU Hospitals’ characterization of the circuit court’s
findings on commonality as based solely on the alleged violation of West Virginia Code
§ 16-29-2(a). First, we remind WVU Hospitals that, in addressing the commonality issue,
the Gaujot II Court expressly pointed out that the circuit court had found commonality
“without ever truly addressing” the Hospitals’ challenge to Class Representatives’ claim
that “commonality could be found in the Hospitals’ uniform charging practices and in the
Hospitals’ alleged violation of

W. Va. Code § 16-29-2

(a) [1999].” 242 W. Va. at 64, 829
S.E.2d at 64. Thus, it appears that the circuit court addressed exactly the issue that
previously had been lacking in its commonality analysis.
The Gaujot II Court did comment that for purposes of commonality, “it is
not enough for Mr. Thomack and Mr. Jenkins to allege that they and others like them are
victims of the same statutory violation.” 242 W. Va. at 62, 829 S.E.2d at 62. However,
WVU Hospitals misunderstand this comment and guidance provided by Wal-Mart Stores.
Wal-Mart Stores involved allegations of sex discrimination by a class of 1.5 million current
or former female Wal-Mart employees. The United States Supreme Court observed that
14
“[q]uite obviously, the mere claim by employees of the same company that they have
suffered a Title VII injury, or even a disparate-impact Title VII injury, gives no cause to
believe that all their claims can productively be litigated at once.”

564 U.S. at 350

131 S. Ct. at 2551

180 L. Ed. 2d 374

. This is because,
in resolving an individual’s Title VII claim, the crux of the
inquiry is “the reason for a particular employment decision,”
Cooper v. Federal Reserve Bank of Richmond,

467 U.S. 867

,
876[,

104 S. Ct. 2794

81 L. Ed. 2d 718

] (1984). Here
respondents wish to sue about literally millions of employment
decisions at once. Without some glue holding the alleged
reasons for all those decisions together, it will be impossible
to say that examination of all the class members’ claims for
relief will produce a common answer to the crucial question
why was I disfavored.
Id. at 352,

131 S. Ct. at 2552

. The Court explained that
“Conceptually, there is a wide gap between (a) an individual’s
claim that he has been denied a promotion [or higher pay] on
discriminatory grounds, and his otherwise unsupported
allegation that the company has a policy of discrimination, and
(b) the existence of a class of persons who have suffered the
same injury as that individual, such that the individual’s claim
and the class claims will share common questions of law or fact
and that the individual’s claim will be typical of the class
claims.”

Id. at 352-53

131 S. Ct. at 2553

 (quoting General Telephone Co. of
Southwest v. Falcon,

457 U.S. 147

, 157,

102 S. Ct. 2364

, 2370,

72 L. Ed. 2d 740

 (1982)).
The Falcon Court suggested two ways to bridge the gap. One had no
application in Wal-Mart Stores; the other required “‘[s]ignificant proof that an employer
15
operated under a general policy of discrimination.’” Id. at 353,

131 S. Ct. at 2553

 (quoting Falcon,

457 U.S. at

159 n.15,

102 S. Ct. at

2371 n.15,

72 L. Ed. 2d 740

 ). Wal-Mart had no such policy. The Wal-Mart Court found that “[t]he second manner
of bridging the gap . . . is entirely absent here. Wal-Mart’s announced policy forbids sex
discrimination, . . . and as the District Court recognized the company imposes penalties for
denials of equal employment opportunity[.]”

Id.

It was this lack of a general policy that
prevented commonality from being established based upon the mere claim of a Title VII
injury.
Unlike the facts of Wal-Mart, here it is undisputed that WVU Hospitals had
an established policy of charging a per page rate of forty cents along with a ten-dollar
search fee for copies of medical records. Class Representatives have alleged that WVU
Hospitals systematically violated West Virginia Code § 16-29-2(a) (eff. 1999) by charging
more than required to reimburse it for the reasonable expenses incurred in providing
requested copies of patient records. Pursuant to West Virginia Code § 16-29-2(a),
(a) The provider shall be reimbursed by the person
requesting in writing a copy of the records at the time of
delivery for all reasonable expenses incurred in complying
with this article: Provided, That the cost may not exceed
seventy-five cents per page for the copying of any record or
records which have already been reduced to written form and
a search fee may not exceed ten dollars.
16
(Emphasis added). As the circuit court found, the question of whether WVU Hospitals
violated West Virginia Code § 16-29-2(a) by charging this set fee and by failing to charge
only the fees necessary to reimburse them for their reasonable costs incurred is a question
of liability capable of classwide resolution. The resolution of this question also will
advance the determination of the class members’ claims. Thus, the requirements of
Syllabus points 2 and 3 of Gaujot II are met.
The circuit court additionally found questions of damages could be decided
on a class-wide basis. After West Virginia Code § 16-29-2(a) was amended in 2014 3 to
require a person requesting records to pay a reasonable cost-based fee, WVU Hospitals
changed how they calculated their fee for patient records, and this change appears to have
drastically reduced the amount charged for those records. Class Representatives claim,
3
Under the 2014 amended version of West Virginia Code § 16-29-2(a),
[a] person requesting records from a provider shall
place the request in writing and pay a reasonable, cost-based
fee, at the time of delivery. Notwithstanding any other section
of the code or rule, the fee shall be based on the provider’s cost
of: (1) Labor for copying the requested records if in paper, or
for placing the records in electronic media; (2) supplies for
creating the paper copy or electronic media; and (3) postage if
the person requested that the records be mailed.

W. Va. Code § 16-29-2

(a) (eff. 2014). This statute has been amended two more times, in
2017 and again in 2021; however, the 2017 and 2021 versions are not pertinent to this
proceeding.
17
though, that there is no tangible difference between a reimbursement of reasonable
expenses, under the 1999 version of West Virginia Code § 16-29-2(a), and the reasonable
cost-based fee allowed by the 2014 version. Moreover, the deposition testimony of WVU
Hospitals’ employee Melissa Martin, Assistant Vice President of Privacy and Health
Information Management, established that, for the period between 2008 and 2014, which
is the timeframe relevant to this class action, WVU Hospitals did not compute the actual
cost of producing a patient record for purposes of reimbursement. Due to this lack of data
to establish the actual cost of producing requested medical records during the timeframe
covered in this action, the circuit court found that the common question of whether WVU
Hospitals’ failure to compute such costs violates West Virginia Code § 16-29-2(a) is the
same for all class members, as is the resulting need to compute the actual cost using
probable and inferential data extrapolated from a time study generated by WVU Hospitals.
The time study was performed to create a formula for estimating the amount of time
required to produce a patient record for purposes of billing under the 2014 amended version
of West Virginia Code § 16-29-2(a). However, WVU Hospitals’ own employee, Christine
Metheny, explained in her deposition that WVU Hospitals’ method of gathering patient
records had not changed since July 2008; therefore, the time study calculated based upon
data gathered for the time period of November 2013 through June 2014 would be
applicable back to July 2008, since the same process for gathering data was being used.
Based upon data from the time study, Class Representatives’ expert witness was able to
18
calculate an average invoice amount of $2.08 per record request. Because WVU Hospitals’
method of gathering patient records had not changed since July 1, 2008, this average is
applicable to the time period between July 1, 2008, and June 5, 2014. Thus, WVU
Hospitals’ failure to calculate their cost to produce patient records during the timeframe
relevant to this class action necessitates the use of the probable and inferential data
described above to determine the class members’ damages, and this probable and
inferential data is common to all or a substantial number of the class members.
Although the Gaujot II Court clarified the requirements for commonality
under Rule 23(a)(2) of the West Virginia Rules of Civil Procedure, the Court reiterated that
“‘[t]he threshold of “commonality” is not high, and requires only that the resolution of
common questions affect all or a substantial number of the class members.’” Gaujot II,
242 W. Va. at 62, 829 S.E.2d at 62 (quoting Syl. pt. 11, in part, In re W. Va. Rezulin Litig.,

214 W. Va. 52

). The circuit court’s findings sufficiently establish
commonality.
B. Ascertainability
In Gaujot II, WVU Hospitals argued that the certified class lacked the feature
of ascertainability, but, having found grounds to grant the requested writ of prohibition on
19
the issue of commonality, the Gaujot II Court found no need to address ascertainability. 4
Following our remand of the case, the circuit court re-defined the class as
[a]ny person, who, from January 18, 2008[,] until June 5, 2014,
(1) requested in writing copies of patient medical records from
Defendant, West Virginia University Hospitals, Inc., including
the patient or any person who was an authorized agent or
authorized representative of the patient; and
(2) paid the fees charged by the Defendant to obtain such requested
medical records; and
(3) provided however, that attorneys who paid for a client’s
medical records in connection with investigation of claims
and/or litigation on behalf of that client, but were never repaid
4
The Court may also have declined to address ascertainability because the
circuit court’s order of February 23, 2018, which was the subject of the petition for writ of
prohibition, did not contain findings of fact and conclusions of law pertaining to
ascertainability. Notably, it was WVU Hospitals’ responsibility to request an order that
contained adequate findings and conclusions:
A party seeking to petition this Court for an
extraordinary writ based upon a non-appealable interlocutory
decision of a trial court, [sic] must request the trial court set out
in an order findings of fact and conclusions of law that support
and form the basis of its decision. In making the request to the
trial court, counsel must inform the trial court specifically that
the request is being made because counsel intends to seek an
extraordinary writ to challenge the court’s ruling. When such
a request is made, trial courts are obligated to enter an order
containing findings of fact and conclusions of law. Absent a
request by the complaining party, a trial court is under no duty
to set out findings of fact and conclusions of law in non-
appealable interlocutory orders.
Syl. pt. 6, State ex rel. Allstate Ins. Co. v. Gaughan,

203 W. Va. 358

508 S.E.2d 75

 (1998).
20
for those costs, are specifically excluded from class
membership.
On the issue of ascertainability, the circuit court made the following findings in its order
denying WVU Hospitals’ Rule 60(b) motion:
8.      The class definition in this matter provides
sufficient parameters for ascertaining class members regarding
both liability and damages and this Court finds that the
Defendants’ assertion that an individual assessment of each
class member’s damages will be necessary has not been
demonstrated under the facts presented to this Court; the
liability is absolutely common to the entire Class as the Statute
applied to all persons requesting medical records during the
relevant Class time period and the damages suffered by the
Class, while not the same for each Class member, are common
and ascertainable as the facts at this stage of the proceeding
demonstrate that the WVUH Defendants cannot determine the
actual cost of each individual medical record request as the
Statute required since WVUH did not keep, or attempt to
determine, such costs; however the Defendants’ expert
analysis set forth in the “time study” concluded that such
individual charges would be the same as those charged under
the subsequent version of the statute, thus providing a means
of proving such individual cost; of course such is subject to
further development of this case as it matures to trial; finally
the claims process, as further supported by spreadsheets
produced in this matter identifying patients of the Defendants
that identify requests for medical records production during the
class time period also are cogent evidence for this Court to find
that ascertainability has been demonstrated as all of the Class
requesters should be identifiable by these records produced by
the Defendants.
9.     The claims process can be an appropriate
mechanism to ascertain class members for purposes of
settlement or trial of class action lawsuits.
21
10.   Plaintiffs have submitted a proposed class notice
and claims process in this matter, which would serve to
ascertain the class members of this matter prior to settlement
or trial.
11.     Rule 23’s requirement of ascertainability has
been met in this matter for purposes of class certification, and
no reconsideration of class certification on the element of
ascertainability is warranted.
(Footnote omitted).
WVU Hospitals argue that the circuit court erred by failing to conduct a
thorough analysis of ascertainability and contend that ascertaining the class in this matter
would require individualized fact finding to determine whether each class member suffered
a violation of the statute, who requested the patient records (the patient or an authorized
representative), and who paid for the records that were produced. 5 Class Representatives
respond that the circuit court conducted a thorough analysis and correctly found the class
to be ascertainable, particularly where WVU Hospitals have produced spreadsheets
showing each medical records request, the requestor, and the amount charged. They argue
further that claim forms can be completed by potential class members to verify class
membership by providing information as to who requested and initially paid for the records
5
Identifying who paid for the medical records is significant to the issue of
standing. In State ex rel. Healthport Technologies, LLC v. Stucky,

239 W. Va. 239

800 S.E.2d 506

 (2017), this Court found that a patient lacked standing to allege excessive fees
for copies of his medical records where the fee charged for the records was paid solely by
his lawyers.
22
and, where paid for by someone other than the patient, whether the cost has been
reimbursed by the patient.
As we found above in our discussion of commonality, the question of liability
in this case is common to all class members. Thus, at the outset we reject WVU Hospitals’
contention that individualized fact finding is required to determine whether each class
member suffered a violation of the statute for purposes of ascertainability.
As to WVU Hospitals’ remaining grounds for arguing the class is not
ascertainable, this Court has previously held that “[b]efore certifying a class pursuant to
Rule 23 of the West Virginia Rules of Civil Procedure, it is imperative that the class be
identified with sufficient specificity so that it is administratively feasible for the court to
ascertain whether a particular individual is a member.” Syl. pt. 3, State ex rel. Metro. Life
Ins. Co. v. Starcher,

196 W. Va. 519

 (1996). The Metropolitan Life Court
additionally held that
[t]o demonstrate the existence of a class pursuant to
Rule 23 of the West Virginia Rules of Civil Procedure, it is not
required that each class member be identified, but only that the
class can be objectively defined. It is not a proper objection to
certification that the class as defined may include some
members who do not have claims because certification is
conditional and may be altered, expanded, subdivided, or
vacated as the case progresses toward resolution on the merits.
23
Syl. pt. 2,

id.

 In Metropolitan Life, the petitioner sought a writ of prohibition complaining
that the class definition contained a subjective element that required “determination of the
mental state of either the insurance agent and/or the insured.” Id. at 524,

474 S.E.2d at 191

. See also 1 William B. Rubenstein, Newberg on Class Actions § 3:3 (5th ed. 2011)
(“A class definition that depends on subjective criteria, such as class members’ state of
mind, will fail for lack of definiteness.”). The Court found “no abuse of discretion
regarding the circuit court’s decision to certify the class,” but granted a writ of prohibition,
as moulded, solely to allow “the class and the mechanics for identifying its members [to]
be defined in a more specific fashion.” Metro. Life, 196 W. Va. at 526-27,

474 S.E.2d at 193-94

.
Here, unlike Metropolitan Life, the class definition relies on objective, rather
than subjective, criteria, i.e., those who submitted a written request for patient medical
records to WVU Hospitals and paid the fees charged by WVU Hospitals to obtain those
records. Moreover, WVU Hospitals have produced a spreadsheet that identifies all patients
for whom records were requested during the relevant timeframe. As Class Representatives
point out, it is thus administratively feasible for the court to ascertain whether a particular
individual is a member of the class by having prospective class members identify who
requested the records and who paid for them. See 1 Rubenstein, Newberg on Class Actions
§ 3:3 (“In some cases, courts address administrative feasibility from the prospective [sic]
24
of potential class members, asking whether a prospective plaintiff could easily identify
himself or herself as having a right to recovery based on the description in the class
definition.”).
WVU Hospitals rely on EQT Production Co. v. Adair,

764 F.3d 347

 (4th Cir.
2014), to support their argument that ascertainability is not present here, but EQT is easily
distinguishable. That case pertained to the payment of royalties for the production of
coalbed methane gas (“CBM”) when the ownership of the CBM estate is disputed. The
EQT court observed that “the proposed classes raise serious ascertainability issues because
they are defined to include both former and current gas estate owners.”

Id. at 359

. The
court explained that
some class members will be easy to identify because the classes
are all defined in reference to the ownership schedules that
EQT and CNX submitted to the Board. When ownership has
not changed hands, identifying class membership may be as
simple as cross-referencing the ownership schedules the
defendants themselves prepared . . . .
Complications arise, however, because ownership of
the gas estate has not been static since EQT and CNX first
prepared the ownership schedules. Some of the schedules were
prepared some twenty years ago, and they have not been
updated to account for changes in ownership. The schedules
therefore cannot aid a court in ascertaining those class
members who obtained their interest in the gas estate after the
schedules were first prepared.
The district court largely glossed over this problem,
merely noting that any ownership changes could be determined
25
by reference to local land records . . . . But resolving ownership
based on land records can be a complicated and individualized
process. Cf. Johnson v. Kan. City S.,

224 F.R.D. 382

, 389 (S.D.
Miss. 2004) (denying certification on ascertainability grounds
when determining class membership “would require
individualized review of thousands of title documents
containing differing and diverse conveyance language that
would have to be analyzed according to the specific language
used and applicable case law to ascertain the intention of the
parties to the conveyances and the legal effect of the
instruments”), aff’d sub nom. Johnson v. Kan. City S. Ry. Co.,

208 Fed. Appx. 292

, 297 (5th Cir. 2006). As the record in this
case highlights, numerous heirship, intestacy, and title-defect
issues plague many of the potential class members’ claims to
the gas estate. In our view, these complications pose a
significant administrative barrier to ascertaining the ownership
classes.
EQT, 764 F.3d at 359 (footnote omitted). The instant matter simply does not involve the
type of complex individualized title issues that posed a significant administrative barrier to
ascertainability in EQT. Based upon the foregoing discussion, we find no grounds for
granting a writ of prohibition as to ascertainability.
C. Predominance
On remand, the circuit court entered two orders related to WVU Hospitals’
challenges to the class certification. On October 30, 2020, the circuit court entered an order
denying WVU Hospitals’ renewed motion to decertify class. 6 Thereafter, on July 28, 2021,
WVU Hospitals’ renewed motion to decertify the class, which was filed on
6
September 17, 2019, prior to this Court’s decision in State ex rel. Surnaik Holdings of WV,
26
the circuit court entered an order denying WVU Hospitals’ Rule 60(b) motion asking the
circuit court to reconsider its order denying WVU Hospitals’ renewed motion to decertify
class. Neither of these orders address predominance. In fact, it appears that the only order
that includes a predominance analysis is the circuit court’s order of April 16, 2014, which
granted Class Representatives’ motion to certify the class. In that order, the circuit court
applied the standard for predominance from In re West Virginia Rezulin Litigation,

214 W. Va. 52

, 71-72,

, 71-72 (2003), modified by State ex rel. Surnaik Holdings
of WV, LLC v. Bedell,

244 W. Va. 248

852 S.E.2d 748

 (2020), which was in effect at that
time. With respect to predominance, the In re Rezulin Court explained that
The predominance criterion in Rule 23(b)(3) is a
corollary to the “commonality” requirement found in Rule
23(a)(2). While the “commonality” requirement simply
requires a showing of common questions, the “predominance”
requirement requires a showing that the common questions of
law or fact outweigh individual questions.
“A conclusion on the issue of predominance requires an
evaluation of the legal issues and the proof needed to establish
them. As a matter of efficient judicial administration, the goal
is to save time and money for the parties and the public and to
promote consistent decisions for people with similar claims.”
In the Matter of Cadillac V8-6-4 Class Action,

93 N.J. 412

,
430,

461 A.2d 736

, 745 (1983).                The predominance
requirement is not a rigid test, but rather contemplates a review
of many factors, the central question being whether
“adjudication of the common issues in the particular suit has
important and desirable advantages of judicial economy
LLC v. Bedell,

244 W. Va. 248

852 S.E.2d 748

 (2020), did not challenge the circuit court’s
prior analysis of predominance.
27
compared to all other issues, or when viewed by themselves.”
2 Newberg on Class Actions, 4th Ed., § 4:25 at 174.
214 W. Va. at 71-72,

585 S.E.2d at 71-72

. The circuit court’s order of April 16, 2014, was
the subject of WVU Hospitals’ first petition for writ of prohibition that was refused by this
Court in an unpublished order. Gaujot I, No. 14-0611 (W. Va. filed August 26, 2014).
Now, WVU Hospitals argue that the circuit court violated this Court’s
mandate in Gaujot II by failing to apply the standard for predominance announced by this
Court in State ex rel. Surnaik Holdings of WV, LLC v. Bedell,

244 W. Va. 248

852 S.E.2d 748

, 7 which was decided in November 2020, more than six years after the circuit court
7
Under the Surnaik standard,
When a class action certification is being sought
pursuant to West Virginia Rule of Civil Procedure 23(b)(3), a
class action may be certified only if the circuit court is satisfied,
after a thorough analysis, that the predominance and
superiority prerequisites of Rule 23(b)(3) have been satisfied.
The thorough analysis of the predominance requirement of
West Virginia Rule of Civil Procedure 23(b)(3) includes (1)
identifying the parties’ claims and defenses and their
respective elements; (2) determining whether these issues are
common questions or individual questions by analyzing how
each party will prove them at trial; and (3) determining whether
the common questions predominate. In addition, circuit courts
should assess predominance with its overarching purpose in
mind—namely, ensuring that a class action would achieve
economies of time, effort, and expense, and promote
uniformity of decision as to persons similarly situated, without
sacrificing procedural fairness or bringing about other
undesirable results. This analysis must be placed in the written
28
analyzed predominance, and more than a year after the Gaujot II decision was handed
down. WVU Hospitals misconstrue the mandate in Gaujot II as requiring the circuit court
to address predominance.
When a case is remanded by this Court, following either an appeal or an
original jurisdiction proceeding, 8 the mandate rule is implicated:
We have explained that under the mandate rule
[a] circuit court has no power, in a cause decided
by the Appellate Court, to re-hear it as to any
matter so decided, and, though it must interpret
the decree or mandate of the Appellate Court, in
entering orders and decrees to carry it into effect,
any decree it may enter that is inconsistent with
the mandate is erroneous and will be reversed.
Syl. Pt. 1, Johnson v. Gould,

62 W. Va. 599

59 S.E. 611

(1907). See also United States v. Vigneau,

337 F.3d 62

, 67 (1st
Cir. 2003) (“One aspect of the law of the case doctrine is the
‘mandate’ rule, which requires a district court to follow the
decisions of a higher court.”).
record of the case by including it in the circuit court’s order
regarding class certification.
Syl. pt. 7, Surnaik,

244 W. Va. 248

852 S.E.2d 748

.
8
See State ex rel. Frazier & Oxley, L.C. v. Cummings,

214 W. Va. 802

, 808
n.7,

591 S.E.2d 728

, 734 n.7 (2003) (stating that “for purposes of the mandate rule, we
consider the distinctions between appeals and original jurisdiction proceedings to be
inconsequential.”).
29
State ex rel. Frazier & Oxley, L.C. v. Cummings,

214 W. Va. 802

, 808,

,
734 (footnote omitted). However,
The mandate rule is not limited to matters we decide either
explicitly or implicitly on appeal. Rather, when this Court’s
decision of a matter results in the case being remanded to the
circuit court for additional proceedings, our mandate controls
the framework that the circuit court must use in effecting the
remand.

Id. at 809

591 S.E.2d at 735

. Accordingly,
[w]hen this Court remands a case to the circuit court,
the remand can be either general or limited in scope. Limited
remands explicitly outline the issues to be addressed by the
circuit court and create a narrow framework within which the
circuit court must operate. General remands, in contrast, give
circuit courts authority to address all matters as long as
remaining consistent with the remand.
Syl. pt. 2,

id.,

214 W. Va. 802

. In considering whether a remand is general
or limited,
a court must look to the entire mandate, examining every part
of the opinion to determine if a remand is general or limited, as
“[t]he relevant language could appear anywhere in an opinion
or order, including a designated paragraph or section, or certain
key identifiable language.” [U.S. v. Campbell,

168 F.3d 263

,
266-67 (6th Cir. 1999).] We stress though “that individual
paragraphs and sentences must not be read out of context.”

Id. at 267

. Moreover, in the absence of explicit instructions, a
remand order is presumptively general.

Id. at 268

.
Id. at 809,

591 S.E.2d at 735

 (footnote omitted). Under this standard, then,
[u]pon remand of a case for further proceedings after a
decision by this Court, the circuit court must proceed in
accordance with the mandate and the law of the case as
30
established on appeal. The trial court must implement both the
letter and the spirit of the mandate, taking into account the
appellate court’s opinion and the circumstances it embraces.
Syl pt. 3,

id.,

214 W. Va. 802

.
After careful examination of the Gaujot II opinion, we perceive the remand
was limited as to the requirements for certification under Rule 23 of the West Virginia
Rules of Civil Procedure. The Court vacated the circuit court’s order denying WVU
Hospitals’ motion to decertify the class, but addressed only commonality under Rule 23.
The Gaujot II Court posed questions related to commonality and commented:
These are questions that must be decided in the first
instance by the circuit court. On the record before us, it does
not appear that the circuit court has addressed the question of
commonality with sufficient factual findings and conclusions
to allow us to conclude that its certification decision and
subsequent refusal to decertify the class were the product of “a
thorough analysis[.]” Syl. Pt. 8 (in part), Chemtall,

216 W. Va. 443

607 S.E.2d 772

.
Gaujot II, 242 W. Va. at 64, 829 S.E.2d at 64. The Court also found that the circuit court
“exceeded its legitimate powers by certifying the class while failing to conduct a
sufficiently thorough analysis of the case to determine whether the commonality required
for class certification under Rule 23 of the West Virginia Rules of Civil Procedure is
present, ” and “urge[d] the circuit court to determine whether the requirements of Rule 23,
particularly as they relate to commonality, have been met and, if so, to craft a class
31
definition consistent with such findings.” Id. Finally, the Court directed that the case be
“remanded for further actions consistent with this opinion.” Id.
Contrary to the position taken by WVU Hospitals, this remand merely gives
the circuit court the “authority to address . . . matters [relating to the Rule 23 requirements]
as long as remaining consistent with the remand.” Syl. pt. 2, in part, Frazier & Oxley,

214 W. Va. 802

. Taken in context, there is nothing in Gaujot II that expressly
directed the circuit court to address any of the Rule 23 factors other than commonality.
While the limited remand in Gaujot II was broad enough to permit the circuit court to
revisit predominance, it did not direct the circuit court to engage in such an analysis.
Given the circumstances of this case, where the circuit court conducted its
predominance evaluation eight years ago under the standard then in effect, and
predominance was neither raised nor discussed in Gaujot II, we find no violation of this
Court’s mandate in Gaujot II by virtue of the circuit court’s decision to not revisit its
predominance analysis, and we find no grounds upon which to conclude that the circuit
court committed a substantial, clear-cut, legal error that would warrant the issuance of a
writ of prohibition in this regard. See Syl. pt. 1, in part, Hinkle v. Black,

164 W. Va. 112

262 S.E.2d 744

 (1979) (“[T]his Court will use prohibition . . . to correct only substantial,
clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or
32
common law mandate which may be resolved independently of any disputed facts and only
in cases where there is a high probability that the trial will be completely reversed if the
error is not corrected in advance.”), superseded by statute on other grounds as stated in
State ex rel. Thornhill Grp., Inc. v. King,

233 W. Va. 564

759 S.E.2d 795

 (2014).
D. Ethical Concerns
WVU Hospitals’ final ground for relief concerns the inclusion of attorneys
in the circuit court’s definition of class members. In footnote 16 of Gaujot II, this Court
commented:
We would note some concerns about the circuit court’s
July 5, 2018 order defining a class of plaintiffs that includes
attorneys who requested their clients’ medical records and
“paid the fees[.]” The order would appear to mean that an
attorney who requests and pays for a client’s medical records
(at least until such time, if any, that the client reimburses the
attorney) would personally be a member of the class and,
therefore, a litigant in the action. If so, are the attorney’s
efforts for the attorney or the client? Such a scenario raises
questions regarding ethical standards governing the attorney’s
role in the litigation. See W. Va. R. Prof. Conduct 1.8(i)
[2015] (“A lawyer shall not acquire a proprietary interest in the
cause of action or subject matter of litigation the lawyer is
conducting for a client[.]”). We believe that the question of
whether attorneys who pay for their clients’ records should be
included in any class should be given careful consideration if,
after further proceedings below, the circuit court determines
that Mr. Thomack and Mr. Jenkins’s consolidated claims
satisfy the commonality and other requirements of Rule 23.
33
242 W. Va. at 64, 829 S.E.2d at 64. During a status hearing following our remand of the
case, the circuit court acknowledged this Court’s concern and asked the parties to provide
the court with more information pertaining to the inclusion of lawyers in the class. Any
additional information provided by the parties does not appear to be included in the
appendix record. Thereafter, during the hearing on WVU Hospitals’ renewed motion to
decertify the class, the circuit court admitted that it made a mistake in the manner in which
it had defined the class with respect to the inclusion of certain lawyers. Ultimately, the
circuit court re-defined the class as follows:
Any person, who, from January 18, 2008[,] until June 5, 2014,
(1)    requested in writing copies of patient medical records
from Defendant, West Virginia University Hospitals,
Inc., including the patient or any person who was an
authorized agent or authorized representative of the
patient; and
(2)    paid the fees charged by the Defendant to obtain such
requested medical records; and
(3)    provided however, that attorneys who paid for a client’s
medical records in connection with investigation of
claims and/or litigation on behalf of that client, but were
never repaid for those costs, are specifically excluded
from class membership.
WVU Hospitals argue that the circuit court violated this Court’s mandate in
Gaujot II by failing to give careful consideration to ethical issues implicated by including
lawyers within the class definition. However, WVU Hospitals’ argument appears to extend
34
beyond ethical concerns, and they now seek to preclude all lawyers from inclusion in the
class. 9 Class Representatives contend that the circuit court did not fail to carefully consider
ethical issues associated with the inclusion of lawyers as class members, but, rather,
responded to the cautionary comments by amending the class definition to exclude lawyers
who paid for a client’s medical records in connection with investigation of claims and/or
litigation on behalf of that client, but were never repaid for those costs.
First, we do not find footnote 16 of Gaujot II to be part of this Court’s
mandate. Instead, the concern expressed therein is dicta. See Frank A. v. Ames, ___ W. Va.
___, ___ n.17,

866 S.E.2d 210

, 226 n.17 (2021) (“It is well settled in our jurisprudence that
‘language in a footnote generally should be considered obiter dicta which, by definition, is
language “unnecessary to the decision in the case and therefore not precedential.”’ State
ex rel. Medical Assurance v. Recht,

213 W. Va. 457

, 471,

583 S.E.2d 80

, 94 (2003) (citation
omitted).”); W. Va. State Police, Dep’t of Mil. Affs. & Pub. Safety v. J.H. by & through
L.D.,

244 W. Va. 720

, 734,

856 S.E.2d 679

, 693 (2021) (same). Indeed, the comments
made in footnote 16 merely express a concern; they do not decide any issue raised in the
9
WVU Hospitals now complain that the class as currently defined would
include lawyers who paid for medical records of a person who was not a client of that
lawyer. Absent an attorney/client relationship, it does not appear that Rule 1.8 of the West
Virginia Rules of Professional Conduct would be implicated.
35
case. This Court observed in Frazier & Oxley that the law of the case doctrine does not
extend to dicta.
“[D]icta . . . neither creates precedent, In re Kanawha Valley
Bank,

144 W. Va. 346

, 382-83,

109 S.E.2d 649

, 669 (1959),
nor establishes law of the case. Laitram Corp. [v. NEC Corp.,

115 F.3d 947

, 951 (Fed. Cir. 1997)] (“Although the district
court cites much authority for the proposition that issues
decided implicitly by courts of appeals may not be reexamined
by the district court, the rule is actually applicable only to those
issues decided by necessary implication.”); Simmons v.
Culpepper,

937 S.W.2d 938

, 942 (Tenn. Ct. App. 1996) (“The
law of the case doctrine does not extend to mere dictum.”).
214 W. Va. at 808-09 n.8,

591 S.E.2d at

734-35 n.8. Thus, even if the circuit court failed
to consider this Court’s cautionary comments in footnote 16 of Gaujot II, that failure did
not violate this Court’s mandate.
Furthermore, this Court’s comments in footnote 16 specifically interpreted
the class definition as meaning “that an attorney who requests and pays for a client’s
medical records (at least until such time, if any, that the client reimburses the attorney)
would personally be a member of the class and, therefore, a litigant in the action.” Gaujot
II, 242 W. Va. at 64, 829 S.E.2d at 64. The Gaujot II Court then encouraged the circuit
court to give careful consideration to “the question of whether attorneys who pay for their
clients’ records should be included in any class.” Id. This is exactly the question that the
circuit court addressed when it determined to exclude from the class “attorneys who paid
36
for a client’s medical records in connection with investigation of claims and/or litigation
on behalf of that client, but were never repaid for those costs.”
To the extent that WVU Hospitals now wish to further tweak the class
definition, that should be accomplished in the circuit court, not by repeated petitions
seeking writs of prohibition from this Court encouraging us to micromanage the litigation
below. As we have recognized, “certification is conditional and may be altered, expanded,
subdivided, or vacated as the case progresses toward resolution on the merits.” Syl. pt. 2,
in part, Metro. Life,

196 W. Va. 519