State of West Virginia ex rel. West Virginia University Hospitals--East, Inc. v. The Honorable David M. Hammer, Judge of the Circuit Court of Jefferson County

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
FILED
September 2021 Term
November 19, 2021
_____________ released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
No. 21-0095 OF WEST VIRGINIA

_____________

STATE OF WEST VIRGINIA EX REL.
WEST VIRGINIA UNIVERSITY HOSPITALS – EAST, INC.,
DOING BUSINESS AS BERKELEY MEDICAL CENTER;
CITY HOSPITAL, INC.,
DOING BUSINESS AS BERKELEY MEDICAL CENTER;
AND THE CHARLES TOWN GENERAL HOSPITAL,
DOING BUSINESS AS JEFFERSON MEDICAL CENTER,
Defendants Below, Petitioners

V.

THE HONORABLE DAVID M. HAMMER,
JUDGE OF THE CIRCUIT COURT OF JEFFERSON COUNTY,
AND DEBORAH S. WELCH AND EUGENE A. ROMAN,
INDIVIDUALLY, AND ON BEHALF OF
ALL OTHERS SIMILARLY SITUATED,
Plaintiffs Below, Respondents
________________________________________________

PETITION FOR WRIT OF PROHIBITION

WRIT GRANTED
________________________________________________

Submitted: September 28, 2021
Filed: November 19, 2021

Marc E. Williams Troy N. Giatras
Robert L. Massie Matthew Stonestreet
Thomas M. Hancock The Giatras Law Firm, PLLC
Nelson Mullins Riley & Scarborough, LLP Charleston, West Virginia
Huntington, West Virginia Attorneys for the Respondents
Attorneys for the Petitioners
CHIEF JUSTICE JENKINS delivered the Opinion of the Court.

JUSTICE HUTCHISON and JUSTICE WOOTON dissent and reserve the right to
file dissenting opinions.
 SYLLABUS BY THE COURT

1. In order to bring a class action lawsuit, at least one named plaintiff

must have standing with respect to each claim asserted, and the burden of establishing

standing is on the plaintiff(s).

2. “Standing is comprised of three elements: First, the party attempting

to establish standing must have suffered an ‘injury-in-fact’—an invasion of a legally

protected interest which is (a) concrete and particularized and (b) actual or imminent and

not conjectural or hypothetical. Second, there must be a causal connection between the

injury and the conduct forming the basis of the lawsuit. Third, it must be likely that the

injury will be redressed through a favorable decision of the court.” Syllabus point 5,

Findley v. State Farm Mutual Automobile Insurance Co., 213 W. Va. 80, 576 S.E.2d 807

(2002).

3. “A patient does have a cause of action for the breach of the duty of

confidentiality against a treating physician who wrongfully divulges confidential

information.” Syllabus point 4, Morris v. Consolidation Coal Co., 191 W. Va. 426, 446

S.E.2d 648 (1994).

i
 4. “An ‘invasion of privacy’ includes (1) an unreasonable intrusion upon

the seclusion of another; (2) an appropriation of another’s name or likeness; (3)

unreasonable publicity given to another’s private life; and (4) publicity that unreasonably

places another in a false light before the public.” Syllabus point 8, Crump v. Beckley

Newspapers, Inc., 173 W. Va. 699, 320 S.E.2d 70 (1983).

5. “Before 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.” Syllabus

point 8, In re West Virginia Rezulin Litigation, 214 W. Va. 52, 585 S.E.2d 52 (2003).

6. “‘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.’ Syl. Pt. 8 (in part), State ex rel. Chemtall Inc. v.

Madden, 216 W. Va. 443, 607 S.E.2d 772 (2004) (italics added).” Syllabus point 1, State

ex rel. West Virginia University Hospitals, Inc. v. Gaujot, 242 W. Va. 54, 829 S.E.2d 54

(2019).

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 7. “‘The party who seeks to establish the propriety of a class action has

the burden of proving that the prerequisites of Rule 23 of the West Virginia Rules of Civil

Procedure have been satisfied.’ Syllabus Point 6, Jefferson County Board of Education v.

Jefferson County Education Association, 183 W. Va. 15, 393 S.E.2d 653 (1990).” Syllabus

point 4, In re West Virginia Rezulin Litigation, 214 W. Va. 52, 585 S.E.2d 52 (2003).

8. “The ‘typicality’ requirement of Rule 23(a)(3) of the West Virginia

Rules of Civil Procedure [2017] requires that the ‘claims or defenses of the representative

parties [be] typical of the claims or defenses of the class.’ A representative party’s claim

or defense is typical if it arises from the same event or practice or course of conduct that

gives rise to the claims of other class members, and if his or her claims are based on the

same legal theory. Rule 23(a)(3) only requires that the class representatives’ claims be

typical of the other class members’ claims, not that the claims be identical. When the claim

arises out of the same legal or remedial theory, the presence of factual variations is

normally not sufficient to preclude class action treatment.” Syllabus point 12, In re West

Virginia Rezulin Litigation, 214 W. Va. 52, 585 S.E.2d 52 (2003).

9. “‘When a circuit court is evaluating a motion for class certification

under Rule 23 of the West Virginia Rules of Civil Procedure [2017], the dispositive

question is not whether the plaintiff has stated a cause of action or will prevail on the merits,

iii
but rather whether the requirements of Rule 23 have been met.’ Syl. Pt. 7, In re W. Va.

Rezulin Litig., 214 W. Va. 52, 585 S.E.2d 52 (2003).” Syllabus point 4, State ex rel. West

Virginia University Hospitals, Inc. v. Gaujot, 242 W. Va. 54, 829 S.E.2d 54 (2019).

10. “Determining whether the requirements of Rule 23 of the West

Virginia Rules of Civil Procedure [2017] have been met often involves, by necessity, some

‘coincidental’ consideration of the merits. Gariety v. Grant Thornton, LLP, 368 F.3d 356,

366 (4th Cir. 2004).” Syllabus point 5, State ex rel. West Virginia University Hospitals,

Inc. v. Gaujot, 242 W. Va. 54, 829 S.E.2d 54 (2019).

11. “‘Merits questions may be considered to the extent—but only to the

extent—that they are relevant to determining whether the Rule 23 prerequisites for class

certification are satisfied.’ Amgen Inc. v. Connecticut Ret. Plans & Tr. Funds, 568 U.S.

455, 466, 133 S. Ct. 1184, 1195, 185 L. Ed. 2d 308 (2013).” Syllabus point 7, State ex rel.

West Virginia University Hospitals, Inc. v. Gaujot, 242 W. Va. 54, 829 S.E.2d 54 (2019).

12. “When consideration of questions of merit is essential to a thorough

analysis of whether the prerequisites of Rule 23 of the West Virginia Rules of Civil

Procedure [2017] for class certification are satisfied, failing to undertake such

iv
consideration is clear error and an abuse of discretion.” Syllabus point 8, State ex rel. West

Virginia University Hospitals, Inc. v. Gaujot, 242 W. Va. 54, 829 S.E.2d 54 (2019).

v
Jenkins, Chief Justice:

In this original jurisdiction proceeding, petitioners, West Virginia University

Hospitals – East, Inc., doing business as Berkeley Medical Center; City Hospital, Inc.,

doing business as Berkeley Medical Center; and the Charles Town General Hospital, doing

business as Jefferson Medical Center (collectively “Hospitals”), seek a writ of prohibition

to prohibit the Circuit Court of Jefferson County from enforcing its order granting class

certification in the underlying civil action filed by the respondents, Deborah S. Welch

(“Ms. Welch”) and Eugene A. Roman (“Mr. Roman”) (collectively “Welch and Roman”).

The underlying suit arose after an employee of Hospitals misappropriated the private

information of certain patients from Hospitals’ medical records during the course of

performing her authorized job duties. Welch and Roman successfully certified a class of

approximately 7,445 individuals, which represented every medical record accessed by the

employee during the relevant period of her employment. Hospitals argue that the class

representatives lack standing because they have suffered no injury-in-fact from the

employee’s legitimate access to their confidential records. We agree with respect to Ms.

Welch, and, based upon our finding that she has suffered no injury-in-fact, we conclude

that she lacks standing to bring the claims asserted in this matter. Hospitals additionally

argue that certain prerequisites to class certification were not met in this case. We address

this issue only as to Mr. Roman and the subclass of 109 individuals he represents and find

that the circuit court failed to provide a thorough analysis of the typicality prerequisite in

1
light of Mr. Roman’s circumstances and claims. Accordingly, after considering the briefs

and oral arguments of the parties, and the appendix record for this matter, we grant the

requested writ and prohibit the circuit court from enforcing its order of December 23, 2020,

granting class certification. We remand this case for additional proceedings consistent with

this opinion.

I.

FACTUAL AND PROCEDURAL HISTORY

These facts are gleaned primarily from the circuit court’s findings of fact

contained in its order granting class certification. Angela Roberts (“Ms. Roberts”) was

hired in February 2014 to work as a registration specialist at the Berkeley Medical Center

and the Jefferson Medical Center. Ms. Roberts’s duties as a registration specialist involved

assisting patients in scheduling their appointments with medical providers at Hospitals,

which required her to access the patients’ protected health information that was stored in

Hospitals’ electronic record system. Accordingly, Hospitals created a profile for Ms.

Roberts giving her limited, role-based access to the patient information necessary for her

job duties.

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 In March of 2016, two years after commencing her employment, Ms. Roberts

began a romantic relationship with Ajarhi “Wayne” Roberts (“Mr. Roberts”). 1 Mr. Roberts

purportedly convinced Ms. Roberts to use her position as a registration specialist for

Hospitals to steal personal information from patient files so that he could use the

information in attempting to commit bank and credit card fraud. As related by the circuit

court, to obtain this information without being detected by Hospitals, “Ms. Roberts’ modus

operandi was to wait until a patient contacted her and then she would legitimately access

the patient’s records to perform her job duties.” (Second emphasis added). While viewing

the patient record for the legitimate purposes of her job duties, as she was authorized to do,

“she simultaneously ‘cased’ those same records to ascertain whether that patient might also

be a lucrative target of her identity theft conspiracy with Mr. Roberts.” When she

determined that a particular patient was a “lucrative target,” she would write down the

patient’s private information on a slip of paper or print a copy of the patient’s driver’s

license. Ms. Roberts would then provide the private information she stole to Mr. Roberts.

In December 2016, law enforcement officers conducted a search of Mr.

Roberts’s home; during the search, slips of paper transcribed by Ms. Roberts and printed

copies of patients’ driver’s licenses were found. Ultimately, private information relating

Despite sharing a surname, Ms. Roberts and Mr. Roberts are not related and
1

were never married.

3
to 113 individuals, including Mr. Roman, was found in Mr. Roberts’s home. 2 Ms. Welch’s

information was not found in Mr. Roberts’s home.

After Hospitals became aware of the criminal investigation, they examined

every record accessed by Ms. Roberts since the beginning of her relationship with Mr.

Roberts. Hospitals determined that, as part of her job duties, Ms. Roberts legitimately

accessed the data of approximately 7,445 patients between March 2016, when her

relationship with Mr. Roberts began, and January 2017, when Hospitals became aware of

Ms. Roberts’s misconduct. 3 Hospitals then sent one of two form letters to each of the

patients 4 whose records had been accessed by Ms. Roberts. The majority of those

individuals received a letter, apparently dated February 23, 2017, advising them that,

although

the criminal investigation is still ongoing, the authorities have
confirmed that 113 of the 7,445 individuals are victims of
identity theft to date. While you are not one of those

2
Hospitals contend that it was not determined that Ms. Roberts’s actions
compromised all 113 individuals’ data; instead, stolen utility bills or data illicitly taken
from other sources by other persons, which was also found in Mr. Roberts’s apartment,
could have compromised the data of some individuals. According to Hospitals, ten of the
113 victims have suffered some type of credit card fraud. Eventually, both Ms. Roberts
and Mr. Roberts were criminally prosecuted and pled guilty to criminal charges.
3
Ms. Roberts initially was suspended by Hospitals, and, ultimately, she was
terminated as a result of her illegal conduct.

Some letters were addressed to the parent or guardian of, or to the family
4

member of, the patient.

4
 individuals whose identity was stolen, and we do not have
confirmation that your personal information was taken, we are
notifying you in an abundance of caution. This letter is to
provide you additional details regarding the incident and to
provide you with protective measures and assistance from
identity theft experts.

(Emphasis added). In addition, Hospitals advised this group that

To help relieve concerns and restore confidence following this
incident, we have secured the services of Kroll to provide
identity monitoring at no cost to you for one year. Kroll is a
global leader in risk mitigation and response, and its team has
extensive experience helping people who have sustained an
unintentional exposure of confidential data. Your identity
monitoring services include Credit Monitoring, Web Watcher,
Fraud Consultation, and Identity Theft Restoration.

Patients whose information was found in Mr. Roberts’s apartment received a similar letter,

which stated in relevant part,

While the criminal investigation is still ongoing, the authorities
have confirmed that 113 of the 7,445 individuals are victims of
identity theft to date. Unfortunately, you are one of those
individuals, it is our understanding that you have already been
made aware of this investigation by the FBI and/or local law
enforcement authorities. This letter is sent in follow up, to
provide you additional details regarding the incident and to
provide you with protective measures and assistance from
identity theft experts.

More specifically, the police found copies of drivers’ licenses
with photos, 1D cards, Insurance cards, and/or Social Security
cards in the possession of the perpetrator, including in some
instances copies of documents containing patient signatures.
We have confirmed that your name, address, date of birth,
Social Security number, drivers’ license number, ID cards and
numbers, and other data connecting family members to each
other in some instances, was likely compromised.

5
 Unfortunately, the former employee had access to this
information as part of employment as an
Authorization/Prescheduling Coordinator, so criminal conduct
could not be detected as part of UH’s routine IT/privacy
security checks. We have been able to track the former
employee’s system access and have determined further that the
employee, in some instances, viewed physician orders
containing diagnoses and other medical information.

....

To help relieve concerns and restore confidence following this
incident, we have secured the services of Kroll to provide
identity monitoring at no cost to you for one year . . . .

(Emphasis added).

Thereafter, in February 2019, Ms. Welch, individually and on behalf of all

others similarly situated, filed a complaint against Hospitals. In March 2020, an amended

complaint was filed that added Mr. Roman as a named plaintiff, also individually and on

behalf of all others similarly situated. The amended complaint alleged the following

claims: Breach of the Duty of Confidentiality; Unjust Enrichment (by receiving payment

from plaintiffs to perform services that included protecting plaintiffs’ sensitive information

and failing to protect the same); Negligence (by failing to protect the confidentiality of

personal and private information); Breach of Contract, Expressed and Implied (written

services contract promised plaintiffs that defendant would only disclose health information

when required to do so by law and promised to protect plaintiffs’ sensitive information);

Negligent Supervision (by failing to ensure staff, employees, and others having access to

6
customers’ sensitive information received adequate training, experience, and supervision

in protecting sensitive information); Negligence (breach of duty of reasonable care in

protecting the confidentiality of personal and private information); and Violations of the

West Virginia Consumer Code (by failing to provide services to protect sensitive data, yet

charging patients for such services).

Welch and Roman seek equitable relief in the form of credit protection and

monitoring services, consumer credit insurance, and requiring Hospitals to “establish a

specific device encryption security program to protect against the unauthorized disclosure”

of confidential patient information. Welch and Roman also seek compensatory damages

for credit and identity protection and monitoring for an extended period of years; punitive

damages; monetary damages for annoyance, embarrassment, and emotional distress;

monetary damages for the permanent lack of security and loss of privacy; restitution for

any identity theft, to include costs incurred by the victim to remedy the effects of the theft;

and restitution in an amount equal to the difference between the price class members paid

in reliance upon defendants’ duty/promise to secure their private information and the actual

services provided by defendants to protect that information.

7
 In August 2020, Welch and Roman filed a motion for class certification, 5

wherein they sought to certify a class consisting of “[a]ll West Virginia citizens whose

personal information was accessed in the data breach identified by [Hospitals in their]

February 23, 2017 correspondence to Deborah Welch.” Welch and Roman also sought to

certify a subclass of “the 109 West Virginia citizens whose misinformation [sic] was found

in Angela Roberts [sic] and her co-conspirator [sic] possession.” 6 Hospitals opposed class

certification and argued, in relevant part, that both named plaintiffs, Ms. Welch and Mr.

Roman, lacked standing to represent the proposed class and subclass. With respect to Ms.

Welch, Hospitals argued that, because Ms. Roberts had accessed Ms. Welch’s data in the

course of her authorized job duties, the data had not been misappropriated. Hospitals also

argued that Mr. Roman was not an appropriate class representative because Welch and

Roman had failed to establish how Mr. Roman’s information had come into Mr. Roberts’s

possession.

This was the second motion for class certification. An earlier motion filed
5

by Ms. Welch was never ruled upon. Ms. Welch filed her motion for leave to amend her
complaint before the circuit court ruled upon her motion for class certification. After the
amended complaint was filed adding Mr. Roman as a plaintiff, Welch and Roman filed a
second motion for class certification.

Although the data of 113 people was found in Mr. Roberts’s apartment,
6

only the 109 who are West Virginia citizens were included in the subclass.

8
 Following briefing and a hearing, 7 the circuit court entered an order dated

December 23, 2020, granting class certification. The Circuit Court specifically certified a

class that includes “all West Virginia citizens residents [sic] whose personal information

was accessed in the data breach identified by the Defendant [Hospitals] in [their] February

23, 2017 data breach notices.” The circuit court additionally certified “a subclass of those

109 individuals whose information was found in the possession of Ms. Roberts’[s]

accomplice.” Finally, the circuit court appointed Ms. Welch and Mr. Roman as class

representatives. The instant petition for writ of prohibition, seeking to prevent the circuit

court from enforcing its class certification order, followed.

II.

STANDARD FOR ISSUANCE OF WRIT

Hospitals argue that a writ of prohibition is appropriate because the circuit

court’s class certification order is clearly erroneous as a matter of law and petitioners will

be irreparably harmed if forced to litigate an improperly certified class action. We have

previously recognized that “[A]n order awarding class action standing is . . . reviewable,

but only by writ of prohibition.” Syl. pt. 2, in part, McFoy v. Amerigas, Inc., 170 W. Va.

526, 295 S.E.2d 16 (1982). With respect to a writ of prohibition, it is well established that

No transcript of the hearing was included in either the appendix record or
7

the supplemental appendix.

9
“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, Hospitals claim 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). We will

apply these standards to the issues raised by Hospitals.

10
 III.

DISCUSSION

Through their petition for writ of prohibition, Hospitals raise two issues.

First, Hospitals argue that the circuit court erred in certifying a class that includes named

plaintiffs and others who suffered no injury-in-fact and, therefore, do not have standing to

maintain a claim. Hospitals also argue that the circuit court erred by certifying a class

when the prerequisites of West Virginia Rule of Civil Procedure 23 were not met. We

address these issues in turn.

A. Standing

Hospitals challenge the standing of the named plaintiffs and other members

of the class certified by the circuit court. This Court previously has recognized that

Article VIII, Section 6 of the West Virginia Constitution
establishes that there must be a justiciable case or
controversy—a legal right claimed by one party and denied by
another—in order for the circuit court to have subject matter
jurisdiction. In part, this means the party asserting a legal right
must have standing to assert that right.

State ex rel. Healthport Techs., LLC v. Stucky, 239 W. Va. 239, 242, 800 S.E.2d 506, 509

(2017) (footnote omitted). “This Court has defined standing as [a] party’s right to make a

legal claim or seek judicial enforcement of a duty or right.” Tabata v. Charleston Area

Med. Ctr., Inc., 233 W. Va. 512, 516, 759 S.E.2d 459, 463 (2014) (per curiam) (quotations

and citation omitted). We have clarified that “The focus of a standing analysis is not on

11
the validity of the claim but instead is ‘on the appropriateness of a party bringing the

questioned controversy to the court.’” HealthPort, 239 W. Va. at 243, 800 S.E.2d at 510

(quoting Findley v. State Farm Mut. Auto. Ins. Co., 213 W. Va. 80, 95, 576 S.E.2d 807,

822 (2002)). “The burden for establishing standing is on the plaintiff.” Id. See also Zeyen

v. Pocatello/Chubbuck Sch. Dist. No. 25, 451 P.3d 25, 32 (Idaho 2019) (“Those seeking to

certify a class must first show that they have standing.”).

In a class action lawsuit, standing is analyzed based upon the named plaintiffs

or class representatives. 8 See Beck v. McDonald, 848 F.3d 262, 269 (4th Cir. 2017) (“In a

class action, we analyze standing based on the allegations of personal injury made by the

named plaintiffs.”); Zeyen, 451 P.3d at 33 (“For class actions, standing is met ‘if at least

one named plaintiff satisfies the requirements of standing against every named defendant.’”

(quoting Tucker v. State, 394 P.3d 54, 62 (2017))); Elliot v. Chicago Transit Auth., No. 1-

8
It has been recognized that

Courts use the phrase “class representatives”
interchangeably with the phrase “named plaintiffs” although
the two are not necessarily the same. The “named plaintiffs”
are those plaintiffs identified individually in the complaint, on
whose behalf the case is brought absent class certification; the
“class representatives” are those plaintiffs whom class counsel
proposes, and a court appoints, to represent the class.

1 William B. Rubenstein, Newberg on Class Actions § 2:1 at 58 n.8 (5th edition 2011). In
this case, because the circuit court already has certified the class, we refer to Welch and
Roman as class representatives.

12
18-1892, 2019 IL App (1st) 181892-U, ¶ 20, 2019 WL 5296835, *3 (Ill. App. Ct. 2019)

(“In assessing standing in a purported class action . . . we focus on the named plaintiff’s

allegations, not the general class she purports to represent.”); Rosen v. Cont’l Airlines, Inc.,

62 A.3d 321, 327 (N.J. Super. Ct. App. Div. 2013) (“It is well established that, in order to

bring a class action lawsuit, the named representative must individually have standing to

bring their claims.”); Heckman v. Williamson Cnty., 369 S.W.3d 137, 153 (Tex. 2012)

(“[N]amed plaintiffs who seek to represent a class must allege and show that they

personally have been injured, not that injury has been suffered by other, unidentified

members of the class to which they belong and which they purport to represent.”

(quotations and citations omitted)). Cf. 1 William B. Rubenstein, Newberg on Class

Actions § 2:1 at 58 (5th edition 2011) (discussing federal law and observing that “In class

action cases, the standing inquiry focuses on the class representatives. The class

representatives must have individual standing in order to sue.” (footnotes omitted)). But

see Lucas Subway MidMo, Inc. v. Mandatory Poster Agency, Inc., 524 S.W.3d 116, 131

(Mo. Ct. App. 2017) (“Only once a class has been certified are standing requirements

assessed with reference to the class as a whole, not simply with reference to the individual

named plaintiffs.” (quotations and citation omitted)).

Where, as here, multiple claims are asserted, plaintiffs must demonstrate that

at least one named plaintiff has standing for each claim asserted. See Wofford v. M.J.

13
Edwards & Sons Funeral Home Inc., 528 S.W.3d 524, 542 (Tenn. Ct. App. 2017) (“‘[E]ach

claim must be analyzed separately, and a claim cannot be asserted on behalf of a class

unless at least one named plaintiff has suffered the injury that gives rise to that claim.’”

(quoting Prado–Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1280 (11th Cir. 2000)));

Andrade v. NAACP of Austin, 345 S.W.3d 1, 14 (Tex. 2011) (“‘[A] plaintiff must

demonstrate standing for each claim he seeks to press and for each form of relief that is

sought.’” (quoting Davis v. Fed. Election Comm’n, 554 U.S. 724, 734, 128 S. Ct. 2759,

171 L. Ed. 2d 737 (2008))). See also TransUnion LLC v. Ramirez, ___ U.S. ___, ___, 141

S. Ct. 2190, 2208, 210 L. Ed. 2d 568 (2021) (“[S]tanding is not dispensed in gross; rather,

plaintiffs must demonstrate standing for each claim that they press and for each form of

relief that they seek (for example, injunctive relief and damages).”); 1 Rubenstein,

Newberg on Class Actions § 2:5 at 72 (“In a class action suit with multiple claims, at least

one named class representative must have standing with respect to each claim .” (footnote

omitted)). Based upon the foregoing, we now expressly hold that, in order to bring a class

action lawsuit, at least one named plaintiff must have standing with respect to each claim

asserted, and the burden of establishing standing is on the plaintiff(s).

The elements necessary to establish standing have been set out as follows:

Standing is comprised of three elements: First, the party
attempting to establish standing must have suffered an “injury-
in-fact”—an invasion of a legally protected interest which is
(a) concrete and particularized and (b) actual or imminent and

14
 not conjectural or hypothetical. Second, there must be a causal
connection between the injury and the conduct forming the
basis of the lawsuit. Third, it must be likely that the injury will
be redressed through a favorable decision of the court.

Syl. pt. 5, Findley v. State Farm Mut. Auto. Ins. Co., 213 W. Va. 80, 576 S.E.2d 807 (2002).

This syllabus point makes clear that all three elements must be present; thus, if one element

is absent, there is no standing. We first address Ms. Welch’s standing to represent the class

of “all West Virginia citizens . . . whose personal information was accessed in the data

breach identified by the Defendant [Hospitals] in [their] February 23, 2017 data breach

notices.”

Hospitals argue that Ms. Welch suffered no injury-in-fact and, therefore, fails

to meet first element of the standing inquiry. Discussing this first element, we have

explained that

In order to have standing to sue, a party must allege an injury
in fact, either economic or otherwise, which is the result of the
challenged action. To establish injury in fact, a plaintiff must
show that he or she suffered an invasion of a legally protected
interest that is concrete and particularized. For an injury to be
particularized, it must affect the plaintiff in a personal and
individual way. To be a concrete injury, it must actually exist.
The injury must also be actual or imminent, not conjectural or
hypothetical. Injury in fact is easily established when a litigant
demonstrates a direct, pocketbook injury.

HealthPort, 239 W. Va. at 243, 800 S.E.2d at 510 (footnotes, quotations, and citations

omitted). The injury upon which each of the claims asserted by Welch and Roman is

15
founded is the breach of their confidential information or an invasion of their privacy. 9

Accordingly, in order for Welch to establish an injury-in-fact with respect to these various

claims, she must have actually suffered a breach of her confidential information. As Welch

and Roman observe, this Court has previously addressed the existence of a breach of the

duty of confidentiality in the context of a medical provider and held, “A patient does have

a cause of action for the breach of the duty of confidentiality against a treating physician

who wrongfully divulges confidential information.” Syl. pt. 4, Morris v. Consolidation

Coal Co., 191 W. Va. 426, 446 S.E.2d 648 (1994) (emphasis added). Because Morris was

addressing certified questions, and the facts of the case were undeveloped, the Court could

not apply the holding to the facts of the case.

However, in Tabata v. Charleston Area Medical Center [“CAMC”], 233

W. Va. 512, 759 S.E.2d 459, the Court was presented with a factual scenario that allowed

9
Welch and Roman asserted the following claims: (1) Breach of the Duty
of Confidentiality; (2) Unjust Enrichment (by receiving payment from plaintiffs to perform
services that included protecting plaintiffs’ sensitive information and failing to protect the
same); (3) Negligence (by failing to protect the confidentiality of personal and private
information); (4) Breach of Contract, Expressed and Implied (written services contract
promised plaintiffs that defendant would only disclose health information when required
to do so by law and promised to protect plaintiffs’ sensitive information); (5) Negligent
Supervision (by failing to ensure staff, employees, and others having access to customers’
sensitive information received adequate training, experience, and supervision in protecting
sensitive information); (6) Negligence (breach of duty of reasonable care in protecting the
confidentiality of personal and private information); and (7) Violations of the West
Virginia Consumer Code (by failing to provide services to protect sensitive data, yet
charging patients for such services).

16
for the application of the Morris holding. Tabata addressed whether proposed class

members had standing following a hospital data breach that involved a CAMC database

containing the personal and medical information of certain CAMC patients being

accidentally placed on the Internet. The Court noted that the parties were not aware of any

“unauthorized and malicious users attempting to access or actually accessing their

information,” of any “affected patients having any actual or attempted identity theft,” or of

any patient suffering “any property injuries or . . . any actual economic losses.” Tabata,

233 W. Va. at 516, 759 S.E.2d at 463. Nevertheless, the act of placing confidential data

on the Internet was a wrongful divulgence as required by Syllabus point 4 of Morris. Thus,

the Tabata Court applied the Morris holding and concluded that

Applying our law on standing to the petitioner’s breach
of confidentiality claim, we find that the petitioners, as patients
of CAMC, have a legal interest in having their medical
information kept confidential. In addition, this legal interest is
concrete, particularized, and actual. When a medical
professional wrongfully violates this right, it is an invasion of
the patient’s legally protected interest. Therefore, the
petitioners and the proposed class members have standing to
bring a cause of action for breach of confidentiality against the
respondents.

Id. at 517, 759 S.E.2d at 464. The circumstances presented in Tabata are distinguishable

from the instant matter, however, because Ms. Roberts’s access of patient files was

authorized as part of her legitimate job duties.

17
 To the contrary, Welch and Roman argue that Ms. Welch suffered a concrete

and particularized claim for breach of confidentiality because her personal data was viewed

for a dual purpose. They contend that, from March 1, 2016, through January 17, 2017,

when Ms. Roberts examined the personal medical information of each of the 7,445 class

members, including Ms. Welch’s, she did so not only for Hospitals’ authorized purposes,

but also for Mr. Roberts’s illicit business. Thus, under the theory urged by Welch and

Roman, Ms. Roberts’s authorized access of confidential patient information for legitimate

hospital purposes became wrongful when she merely considered whether to divulge the

data, but engaged in no overt act to actually divulge the information. We reject this

argument. Because Ms. Roberts was authorized to access confidential patient data as part

of her work duties, her act of viewing Ms. Welch’s confidential information as part of her

legitimate job duties does not amount to the data being wrongfully divulged as required by

Morris. Cf. TransUnion, ___ U.S. at ___, 141 S. Ct. at 2210, 210 L. Ed. 2d 568 (“The

mere presence of an inaccuracy in an internal credit file, if it is not disclosed to a third

party, causes no concrete harm. In cases such as these where allegedly inaccurate or

misleading information sits in a company database, the plaintiffs’ harm is roughly the same,

legally speaking, as if someone wrote a defamatory letter and then stored it in her desk

drawer. A letter that is not sent does not harm anyone, no matter how insulting the letter

is. So too here.”).

18
 Similarly, to the extent that Welch and Roman assert an invasion of privacy

claim, such a claim requires an “unreasonable intrusion.” “An ‘invasion of privacy’

includes (1) an unreasonable intrusion upon the seclusion of another; (2) an appropriation

of another’s name or likeness; (3) unreasonable publicity given to another’s private life;

and (4) publicity that unreasonably places another in a false light before the public.” Syl.

pt. 8, Crump v. Beckley Newspapers, Inc., 173 W. Va. 699, 320 S.E.2d 70 (1983). See also

Syl. pt. 1, Roach v. Harper, 143 W. Va. 869, 105 S.E.2d 564 (1958) (“The right of privacy,

including the right of an individual to be let alone and to keep secret his private

communications, conversations and affairs, is a right the unwarranted invasion or violation

of which gives rise to a common-law right of action for damages.” (emphasis added)).

Because Ms. Roberts’s access to Ms. Welch’s file was authorized as part of her legitimate

job duties, such access was not an unreasonable intrusion, and, thus, was not invasion of

privacy. See, e.g., Albanese Confectionery Grp., Inc. v. Cwik, 165 N.E.3d 139 (Ind. Ct.

App. 2021) (finding employer did not invade the privacy of employee by remotely resetting

employee’s personal phone where reset was authorized); Squeri v. Mount Ida Coll., 954

F.3d 56, 69 (1st Cir. 2020) (finding no invasion of privacy where transfer of students’

“financial and academic information was ‘justified’ because it was authorized under

Massachusetts law”); Juge v. Springfield Wellness, L.L.C., 274 So. 3d 1, 8 (La. Ct. App.

2019) (“[A] defendant’s conduct is reasonable and non-actionable, even though it may

slightly invade a plaintiff’s privacy if the action is properly authorized . . . .”).

19
 Welch and Roman additionally argue that standing in a data breach case does

not require actual identity theft. However, we find the cases upon which they rely are

factually distinguishable from the instant matter, because Ms. Roberts’s access to Ms.

Welch’s confidential data was an authorized function of her legitimate job duties, whereas

the cases relied upon by Welch and Roman involve unauthorized access to confidential

data. See Attias v. Carefirst, Inc., 865 F.3d 620, 623 (D.C. Cir. 2017) (“[A]n unknown

intruder breached twenty-two CareFirst computers and reached a database containing its

customers’ personal information.”); Galaria v. Nationwide Mut. Ins. Co., 663 F. App’x

384, 385 (6th Cir. 2016) (hackers breached Nationwide Mutual Insurance Company’s

computer network and stole the personal information of plaintiffs and 1.1 million others);

Remijas v. Neiman Marcus Grp., LLC, 794 F.3d 688 (7th Cir. 2015) (involving an attack

by hackers who stole the credit card numbers of Neiman Marcus customers); Anderson v.

Hannaford Bros. Co., 659 F.3d 151 (1st Cir. 2011) (electronic payment processing system

of national grocery chain was breached by hackers who stole up to 4.2 million credit and

debit card numbers, expiration dates, and security codes); Sackin v. TransPerfect Glob.,

Inc., 278 F. Supp. 3d 739, 746 (S.D.N.Y. 2017) (employee’s response to phishing email

resulted in cyber-criminals obtaining plaintiffs’ personally identifiable information (“PII”),

and “[c]omplaint allege[d] that Defendant divulged information” and that the PII “was

provided directly to cybercriminals” (emphasis added)).

20
 Based upon the foregoing analysis, we find that Ms. Welch has not suffered

an injury-in-fact arising from a breach of her confidential information or invasion of her

privacy and, therefore, she lacks standing to assert those claims against Hospitals. Because

Ms. Welch lacks standing, the circuit court erred as a matter of law in certifying the class

of plaintiffs she represents. See, e.g., Rosen, 62 A.3d at 327 (“It is well established that, in

order to bring a class action lawsuit, the named representative must individually have

standing to bring their claims.”); Wofford, 528 S.W.3d at 542 (“[A] claim cannot be

asserted on behalf of a class unless at least one named plaintiff has suffered the injury that

gives rise to that claim.” (quotations and citation omitted)). Accordingly, we grant the

requested writ and prohibit the circuit court from enforcing that portion of its order of

December 23, 2020, granting class certification to “all West Virginia citizens residents [sic]

whose personal information was accessed in the data breach identified by the Defendant

[Hospitals] in [their] February 23, 2017 data breach notices.”

To the extent that it is undisputed that confidential information pertaining to

Mr. Roman was found in Mr. Roberts’s apartment, we are unable to conclude that he has

suffered no injury-in-fact. Therefore, we find no error of law that would entitle Hospitals

to a writ of prohibition as to Mr. Roman’s standing. See Syl. pt. 4, State ex rel. Hoover v.

Berger, 199 W. Va. 12, 483 S.E.2d 12 (acknowledging that the existence of clear error as

a matter of law should be given substantial weight in determining whether to issue a writ

21
of prohibition). We next consider whether the circuit court properly certified the subclass

Mr. Roman represents in accordance with the prerequisites to class certification set out in

Rule 23 of the West Virginia Rules of Civil Procedure.

B. Class Certification Prerequisites

Because we already have concluded that Ms. Welch lacked standing, we

address class certification only as to Mr. Roman and the subclass he represents, which was

defined by the circuit court as “those 109 individuals whose information was found in the

possession of Ms. Roberts’[s] accomplice.” Class certification is governed by Rule 23 of

the West Virginia Rules of Civil Procedure. 10 It is well established that,

10
The portions of Rule 23 that are relevant to the instant matter provide:

(a) Prerequisites to a Class Action. — One or more
members of a class may sue or be sued as representative parties
on behalf of all only if (1) the class is so numerous that joinder
of all members is impracticable, (2) there are questions of law
or fact common to the class, (3) the claims or defenses of the
representative parties are typical of the claims or defenses of
the class, and (4) the representative parties will fairly and
adequately protect the interests of the class.

(b) Class Actions Maintainable. — An action may be
maintained as a class action if the prerequisites of subdivision
(a) are satisfied, and in addition:

....

(3) The court finds that the questions of law or fact
common to the members of the class predominate over any

22
 Before 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, 585 S.E.2d 52 (2003). We have

further recognized that “‘Whether the requisites for a class action exist rests within the

sound discretion of the trial court.’ Syllabus Point 5, Mitchem v. Melton, 167 W. Va. 21,

277 S.E.2d 895 (1981).” Syl. pt. 5, State ex rel. Surnaik Holdings of W. Va., LLC v. Bedell,

244 W. Va. 248, 852 S.E.2d 748 (2020) (additional quotations and citation omitted).

However,

“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.” Syl. Pt. 8 (in part), State ex rel. Chemtall Inc.

questions affecting only individual members, and that a class
action is superior to other available methods for the fair and
efficient adjudication of the controversy. The matters pertinent
to the findings include: (A) the interest of members of the class
in individually controlling the prosecution or defense of
separate actions; (B) the extent and nature of any litigation
concerning the controversy already commenced by or against
members of the class; (C) the desirability or undesirability of
concentrating the litigation of the claims in the particular
forum; (D) the difficulties likely to be encountered in the
management of a class action.

W. Va. R. Civ. P. 23(a) & (b).

23
 v. Madden, 216 W. Va. 443, 607 S.E.2d 772 (2004) (italics
added).

Syl. pt. 1, State ex rel. W. Va. Univ. Hosps., Inc. v. Gaujot, 242 W. Va. 54, 829 S.E.2d 54

(2019). And, while “‘doubtful case[s] should be resolved in favor of allowing class

certification[,]’ . . . [t]hat does not mean . . . that certification determinations are

perfunctory.” Gaujot, 242 W. Va. at 62, 829 S.E.2d at 62 (quoting Rezulin Litig., 214

W. Va. at 65, 585 S.E.2d at 65). Indeed, we have cautioned that

“[F]ailure to conduct a thorough analysis . . . amounts to clear
error.” Chemtall, 216 W. Va. at 454, 607 S.E.2d at 783. It is
also an abuse of discretion. Brown v. Nucor Corp., 785 F.3d
895, 902 (4th Cir. 2015) (“A district court abuses its discretion
when it materially misapplies the requirements of Rule 23.”).
The circuit court must approach certification decisions in a
conscientious, careful, and methodical fashion.

Gaujot, 242 W. Va. at 62, 829 S.E.2d at 62.

Additionally, Mr. Roman had the burden of establishing that class

certification was justified.

“The party who seeks to establish the propriety of a
class action has the burden of proving that the prerequisites of
Rule 23 of the West Virginia Rules of Civil Procedure have
been satisfied.” Syllabus Point 6, Jefferson County Board of
Education v. Jefferson County Education Association, 183
W. Va. 15, 393 S.E.2d 653 (1990).

Syl. pt. 4, Rezulin Litig., 214 W. Va. 52, 585 S.E.2d 52. See also Surnaik Holdings, 244

W. Va. at 256, 852 S.E.2d at 756 (“The party who proposes certification bears the burden

24
of proving that certification is warranted.”). Finally, when, as in this case, there is a

subclass, the subclass must independently meet the Rule 23 criteria.

“[W]hen subclasses are requested by the moving party or
ordered by the court, it is generally settled that each subclass
must independently satisfy class action criteria[.]” Alba Conte,
Esq. and Herbert B. Newberg, Esq., Newberg on Class Actions,
§ 3:9, pp. 267-268 (4th ed. 2002) (footnote omitted). See also,
Johnson v. American Credit Co. of Georgia, 581 F.2d 526, 532
(5th Cir. 1978) (declaring that “[a] subclass . . . must
independently meet all of Rule 23’s requirements for
maintenance of a class action” citing 7A C. Wright & A.
Miller, Federal Practice and Procedure: Civil § 1790, at 191-
92 (1972)); Bates v. United Parcel Service, 204 F.R.D. 440,
443 (N.D. Cal. 2001) [(]stating that “[i]f the court divides the
class into subclasses under Rule 23(c)(4)(B), then ‘each
subclass must independently meet the requirements for the
maintenance of a class action’” (citation omitted)[)]; Betts v.
Reliable Collection Agency, Ltd., 659 F.2d 1000, 1005 (9th Cir.
1981) (recognizing that “each subclass must independently
meet the requirements of Rule 23 for the maintenance of a class
action”).

State of W. Va. ex rel. Chemtall Inc. v. Madden, 216 W. Va. 443, 456, 607 S.E.2d 772, 785

(2004).

Hospitals have not challenged numerosity, so that factor will not be

addressed. Their challenge to commonality does not address Mr. Roman particularly.

Instead, it is framed in the context of the entire class of 7,445 patients whose records were

viewed by Ms. Roberts during the relevant timeframe. Thus, the issue of commonality, as

framed in Hospitals’ brief, has been effectively resolved by our determination above that

25
the class represented by Ms. Welch was improperly certified due to her lack of standing.

The remaining two factors challenged by Hospitals are typicality and predominance. We

find that the propriety of issuing a writ of prohibition is resolved by the typicality factor.

Therefore, we address only that issue.

With respect to typicality, this Court has held:

The “typicality” requirement of Rule 23(a)(3) of the
West Virginia Rules of Civil Procedure [2017] requires that the
“claims or defenses of the representative parties [be] typical of
the claims or defenses of the class.” A representative party’s
claim or defense is typical if it arises from the same event or
practice or course of conduct that gives rise to the claims of
other class members, and if his or her claims are based on the
same legal theory. Rule 23(a)(3) only requires that the class
representatives’ claims be typical of the other class members’
claims, not that the claims be identical. When the claim arises
out of the same legal or remedial theory, the presence of factual
variations is normally not sufficient to preclude class action
treatment.

Syl. pt. 12, Rezulin Litig., 214 W. Va. 52, 585 S.E.2d 52. In finding that typicality was met

in this case, the circuit court concluded:

86. In this case, all of the class members’ claims
arise from the same or similar alleged breach of privacy from
the same employee of Defendant.

87. Each named Plaintiff shares identical legal
theories with the proposed class, which exceeds the typicality
requirement.

88. The harm suffered by the named Plaintiffs may
“differ in degree from that suffered by other members of the

26
class so long as the harm suffered is of the same type.” In re
West Virginia Rezulin Litigation, 214 W. Va. at 68, 585 S.E.2d
at 68 (quoting Boggs v. Divested Atomic Corp., 141 F.R.D. 58,
65 (S.D. Ohio 1991). (Emphasis in original).

89. The class representatives in this case share
identical claims with the other class members.

90. Ms. Welch and Mr. Roman are victims of the
Defendants[,] and they were subjected to the same and
repeated medical information breaching conduct, by the very
same third-party employee as the rest of the putative class
members.

91. Ms. Welch and Mr. Roman seek the very same
claims and bring forth the same legal theories as the rest of the
class[,] so it is easily confirmed that these claims are
sufficiently typical to satisfy the typicality component.

92. It is also clear that the Defendants present
defenses that support typicality. If the Defendant is correct that
none of the putative class members hold WVCCPA [Consumer
Credit and Protection Act] claims based on misrepresentations,
then that defense would be true for the entire proposed class.

93. The fact that the defenses are typical further
supports that the typicality threshold is met.

94. Here, Ms. Welch and Mr. Roman bring identical
claims[,] and the Defendants bring typical defenses to these
claims. Thus, it is clear the typicality requirement is satisfied.

95. Thus, in this case, the Court FINDS and
CONCLUDES that the claims of the named Plaintiffs are of
the same type, if not identical, as the claims of the putative
class members.

96. Based on the foregoing, the Court further
CONCLUDES that the claims of the named Plaintiffs are
typical of the putative class and Rule 23(a)(3) is satisfied.

27
 Here, the claims asserted by Mr. Roman, 11 which he also brings on behalf of

the subclass, purportedly arise from the same incident, that being Ms. Roberts’s alleged

theft of the plaintiff’s confidential information and providing the same to Mr. Roberts.

However, Hospitals argued to the circuit court, as well as to this Court, that Mr. Roman

failed to carry his burden to establish that his claims are typical of these claims. In this

regard, Hospitals have argued that no evidence has been produced indicating how Mr.

Roman’s information came into the possession of Mr. Roberts. Hospitals argue that such

evidence is necessary because Mr. Roman does not recall receiving a letter from Hospitals

alerting him that there had been a breach when this letter was a key allegation in the

amended complaint. In fact, Mr. Roman stated in his deposition that he learned of the data

breach from law enforcement officers when he reported irregularities in one of his credit

accounts that he noticed while making an online payment. He also testified that he never

called Hospitals to schedule an appointment. Rather, he arrived at the hospital and

provided his information in person to an individual who he did not believe to be Ms.

Roberts. 12 The lack of evidence establishing that Ms. Roberts actually accessed Mr.

Roman’s information calls into question whether his claims are, in fact, typical of the class

11
The claims asserted by Mr. Roman are breach of the duty of
confidentiality; unjust enrichment; negligence; breach of contract, expressed and implied;
negligent supervision; and violations of the West Virginia Consumer Code.
12
At one point in his deposition, Mr. Roman stated, “The one time that I did
see her [Ms. Roberts] in the courtroom she definitely was not the person that --- that I had
given the information to previously.”

28
he has been appointed by the circuit court to represent. Yet the circuit court failed to

address this issue in finding typicality. It has been observed that,

Since courts cannot assess whether an individual is sufficiently
similar to the class as a whole without knowing something
about both the individual and the class, courts must consider
the attributes of the proposed representatives, the class as a
whole, and the similarity between the proposed representatives
and the class. This investigation properly focuses on the
similarity of the legal theory and legal claims; the similarity of
the individual circumstances on which those theories and
claims are based; and the extent to which the proposed
representative may face significant unique or atypical defenses
to his/her claims.

Louis J. Palmer, Jr., and Robin Jean Davis, Litigation Handbook on West Virginia Rules of

Civil Procedure, § 23(a), at 632 (5th ed. 2017) (footnote omitted). Due to the absence of

any consideration by the circuit court of Mr. Roman’s individual circumstances as they

relate to the claims he asserts, we find the circuit court’s order fails to provide the “thorough

analysis” required by Chemtall and Gaujot. In reaching this conclusion, we are mindful

that

“When a circuit court is evaluating a motion for class
certification under Rule 23 of the West Virginia Rules of Civil
Procedure [2017], the dispositive question is not whether the
plaintiff has stated a cause of action or will prevail on the
merits, but rather whether the requirements of Rule 23 have
been met.” Syl. Pt. 7, In re W. Va. Rezulin Litig., 214 W. Va.
52, 585 S.E.2d 52 (2003).

Syl. pt. 4, Gaujot, 242 W. Va. 54, 829 S.E.2d 54. However, we have recognized that,

“Determining whether the requirements of Rule 23 of the West Virginia Rules of Civil

29
Procedure [2017] have been met often involves, by necessity, some ‘coincidental’

consideration of the merits. Gariety v. Grant Thornton, LLP, 368 F.3d 356, 366 (4th Cir.

2004).” Syl. pt. 5, Gaujot, 242 W. Va. 54, 829 S.E.2d 54. Accordingly, to the extent that

questions related to Ms. Roberts’s access to Mr. Roman’s information goes to the merits

of his claims,

“Merits questions may be considered to the extent—but
only to the extent—that they are relevant to determining
whether the Rule 23 prerequisites for class certification are
satisfied.” Amgen Inc. v. Connecticut Ret. Plans & Tr. Funds,
568 U.S. 455, 466, 133 S. Ct. 1184, 1195, 185 L. Ed. 2d 308
(2013).

Syl. pt. 7, Gaujot, 242 W. Va. 54, 829 S.E.2d 54. Moreover, “When consideration of

questions of merit is essential to a thorough analysis of whether the prerequisites of Rule

23 of the West Virginia Rules of Civil Procedure [2017] for class certification are satisfied,

failing to undertake such consideration is clear error and an abuse of discretion.” Syl. pt.

8, id.

Typicality is one of the factors that must be found in order to certify a class.

See Syl. pt. 8, in part, Rezulin Litig., 214 W. Va. 52, 585 S.E.2d 52 (“Before 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 . . . .”). Because the circuit court failed to thoroughly analyze typicality with

30
respect to Mr. Roman’s individual circumstances as they relate to the claims he asserts and

the class he represents, we grant the requested writ and prohibit the circuit court from

enforcing that portion of its order of December 23, 2020, granting class certification to “a

subclass of those 109 individuals whose information was found in the possession of Ms.

Roberts’[s] accomplice.” 13

13
Although we find it unnecessary to address Hospitals’ challenge to the
circuit court’s analysis of the predominance factor of Rule 23(b)(3), we note that, after the
briefing for class certification had been completed below, this Court announced a new
holding addressing predominance in Syllabus point 7 of State ex rel. Surnaik Holdings of
West Virginia, LLC v. Bedell, 244 W. Va. 248, 852 S.E.2d 748 (2020):

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
record of the case by including it in the circuit court’s order
regarding class certification.

Should the circuit court be asked to reconsider class certification on remand, it should
carefully apply this standard in assessing the predominance requisite to class certification.

31
 IV.

CONCLUSION

For the reasons stated in the body of this opinion, we grant the requested writ

and prohibit the circuit court from enforcing its order of December 23, 2020, granting class

certification. We remand this case for additional proceedings consistent with this opinion.

Writ Granted.

32