Cert. Denied in WellPoint Health Insurance Reimbursement MDL

On Wednesday, the plaintiffs accusing WellPoint Inc. and its subsidiary health insurance providers of improperly reimbursing insurance holders and health care providers for out-of-network services lost their bid to certify six Classes in the multidistrict litigation.

California federal judge Philip S. Gutierrez determined that the plaintiffs had failed to demonstrate the commonality of the claims within the Classes. The judge said in his opinion, “Plaintiffs’ motion for class certification represents an effort to weld together the claims of millions of subscribers and providers, which arise out of tens of thousands of WellPoint insurance contracts.”

Judge Gutierrez explained, “The commonality test requires plaintiffs to show that ‘there are questions of law or fact common to the Class.’ To meet this burden, Plaintiffs must show that the proposed Class Members’ claims ‘depend upon a common contention’ that is ‘capable of classwide resolution—which means that the determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.’ The commonality standard does not mean that every question of law or fact must be common to the proposed Class. It may be satisfied by ‘a single significant question of law or fact.’ However, the proposed class proceeding must be able to ‘generate common answers apt to drive the resolution of the litigation.’”

Judge Gutierrez pointed out in his opinion that the plaintiffs’ proposed Classes all received different types of insurance policies form WellPoint and the plaintiffs had not pointed out a common representation from WellPoint regarding their claims against the company. “Due to the broad scope of Plaintiffs’ proposed Classes and the contractual nature of almost all of plaintiffs’ claims,” Judge Gutierrez concluded “the commonality element of Rule 23(a)(2) is a major hurdle for class certification.” Judge Gutierrez is, however, allowing the plaintiffs to amend their class action lawsuit.

Last week, the plaintiffs presented arguments to certify their proposed Classes at a hearing. The plaintiffs argued to certify three nationwide Classes of health care providers, a nationwide class of insurance subscribers whose claims were allegedly adjudicated in violation of the Employee Retirement Income Security Act (ERISA), a non-ERISA class of California insurance subscribers and a non-ERISA class alleging breach of implied covenant of good faith and fair dealing.

The original WellPoint class action lawsuits were consolidated into the multidistrict litigation in 2009 in California. The class action lawsuits alleged that WellPoint and its subsidiaries paid insurance holders less than reasonable rates for claims than promised by WellPoint. The plaintiffs alleged that WellPoint knowingly created and used data to support payments that was incorrect for out-of-network services and used the data to artificially reduce reimbursements to both health care service providers and insurance holders.

The plaintiffs are represented by Khorrami Boucher Sumner Sanguinetti LLP; Scott + Scott Attorneys At Law LLP; Seeger Weiss LLP; Whatley Kallas LLP; Pomerantz Grossman Hufford Dahlstrom & Gross; Lexington Law Group; Haviland Hughes; and Bonnett Fairbourn Friedman & Balint PC.

The WellPoint Health Insurance Reimbursement Class Action Lawsuit is In re: WellPoint Inc. Out-of-Network “UCR” Rates Litigation, Case No. 2:09-ml-02074, in the U.S. District Court for the Central District of California.