United States District Court, D. Connecticut
MEMORANDUM OF DECISION
MICHAEL P. SHEA, U.S.D.J.
On
March 27, 2019, I denied the Secretary's motion to
dismiss for lack of standing, motion to decertify the class,
and motion for summary judgment. (ECF No. 378.) Now pending
before me are three matters related to that ruling: (1) the
Secretary's “limited motion for clarification and
reconsideration, ” (ECF No. 379); (2) the parties'
supplemental briefing on the need to further subdivide the
class, (ECF Nos. 384 and 385); and (3) four motions to seal
documents filed in opposition to the motion for summary
judgment (ECF No. 330, 337, 340, and 371). I assume
familiarity with my prior ruling and address each matter in
turn.
I.
MOTION FOR RECONSIDERATION AND CLARIFICATION
In
ruling on the Secretary's motions for summary judgment
and class decertification, I explained that, given the age of
the case and its tortuous procedural history, I would
“not consider further argument at this point on the
merits of class certification in general or on the issues
addressed in the summary judgment ruling, and the parties are
not authorized to file further briefs on these issues.”
(ECF No. 378 at 43 n.14) I warned that “[t]he time for
motion practice is over, ” and scheduled a status
conference to choose a trial date. (Id. at 50.)
Seven days later, the Secretary filed a motion for
reconsideration and clarification. (ECF No. 379.) For the
reasons explained below, the motion is DENIED.
A.
Motion for Reconsideration
The
Secretary first moves for reconsideration of my ruling on
class decertification. The motion does not meet the strict
standard for granting a motion for reconsideration, which
requires that the movant “point to controlling
decisions or data that the court overlooked-matters, in other
words, that might reasonably be expected to alter the
conclusion reached by the court.” Shrader v. CSX
Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). The
Secretary asserts that I “overlooked the fact there is
no evidence that every Medicare beneficiary who spent at
least three days as an inpatient, during the relevant time
period required or even was recommended for
post-hospitalization SNF care.” Thus, he argues, the
present class includes individuals who lack a cognizable
injury for purposes of standing.[1] As I have explained,
however, “the lack of expedited administrative review
can force individuals who need SNF care but cannot afford it
to forego critical care.” (ECF No. 378 at 37 n. 11
(quoting Alexander v. Price, 275 F.Supp.3d 313, 323
(D. Conn. 2017).) The Second Circuit has recognized that a
class may include members whose injury is “simply. . .
the fear or anxiety of future harm.” Denney v.
Deutsche Bank AG, 443 F.3d 253, 264 (2d Cir. 2006); see
also Id. at 265 (“[T]hose members who
completed a tax transaction but have not yet been audited
still run the risk of being assessed a penalty under an
exception to the statute of limitations.”). Further,
“[t]he person who has been accorded a procedural right
to protect his concrete interests can assert that right
without meeting all the normal standards for redressability
and immediacy.” Lujan v. Defs. of Wildlife,
504 U.S. 555, 573 n.7 (1992). The motion offers a different
gloss on the same arguments that the Secretary already
presented, and it cites only cases and data that I considered
in my original ruling. The motion for reconsideration is
therefore DENIED.
1 do
not intend to imply that the class definition is now set in
stone. “[B]ecause the results of class proceedings are
binding on absent class members, see Fed.R.Civ.P. 23(c)(3),
the district court has the affirmative duty of monitoring its
class decisions in light of the evidentiary development of
the case.” Mazzei v. Money Store, 829 F.3d
260, 266 (2d Cir. 2016). The duty to “monitor, ”
however, does not include an obligation to modify the class
definition in real time in response to the parties'
arguments. The Secretary has not presented evidence
suggesting modifying the class definition now would
meaningfully alter the scope of the trial.[2] I will review the
class definition in light of the evidence presented at trial
and with the input of both parties.
B.
Motion for Clarification
The
Secretary next requests clarification of a portion of my
ruling on summary judgment. Specifically, I held that the
evidence in the record was “sufficient to allow a
reasonable factfinder to conclude that the Two Midnight Rule,
as implemented, meaningfully channels the discretion of
doctors and hospitals in deciding whether to admit a
beneficiary as an inpatient.” (ECF No. 378 at 14-15
(quotation marks omitted).) Thus, there is a material dispute
of fact about whether the Plaintiffs have a protected
property interest in being admitted as inpatients rather than
treated as outpatients on observation status. The Secretary
requests elaboration of (1) the criteria established by the
Two Midnight Rule that give rise to a protected property
interest; (2) the evidence in the record showing that CMS has
established such criteria; and (3) the legal framework the
Court applied to determine that those criteria establish a
protected property interest. “Clarification of a prior
order is within the issuing judge's discretion and
appropriate to add certainty to an implicated party's
efforts to comply with the order and provide fair warning as
to what future conduct may be found contemptuous.”
Genworth Fin. Wealth Mgmt., Inc. v. McMullan, No.
3:09-CV-1521 (JCH), 2012 WL 13024369, at *5 (D. Conn.
May 10, 2012) (quotation marks omitted). Here, the Secretary
does not seek clarification to comply with an order, but
requests that the Court provide further explanation of an
earlier ruling “so that [he] can make sure he prepares
and presents the most appropriate evidence at trial, tailors
his presentation to the Court's rulings, and presents
evidence in the most efficient and helpful manner for the
Court.” (ECF No. 379-1 at 7.)
The
Court's role on summary judgment is to determine whether
the movant has shown “that there is no genuine dispute
as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a); see
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986) (“[A] at the summary judgment stage the
judge's function is not himself to weigh the evidence and
determine the truth of the matter but to determine whether
there is a genuine issue for trial.”). Its role is not
to provide the parties with a roadmap for the trial. I
explained why I found that there existed a triable issue of
fact about whether the Two Midnight Rule, as implemented,
creates a protected property interest. (See ECF No. 378 at
15-20.) I also identified evidence that I found demonstrated
the existence of genuine disputes of material fact.
(Id. at 20-25.) I have twice denied summary judgment
in this case and written lengthy opinions each time, which
goes beyond the requirements of Rule 56. See Fed.R.Civ.P. 56
advisory committee's note to the 2010 amendment
(“It is particularly important to state the reasons for
granting summary judgment . . . The statement denying summary
judgment need not address every available reason.”). I
decline to expound upon my reasoning further. The motion for
clarification is DENIED.
II.
SUPPLEMENTAL BRIEFING ON CLASS CERTIFICATION
In
ruling on the Secretary's motion to decertify the class,
I adopted the following modified class definition:
All Medicare beneficiaries who, on or after January 1, 2009:
(1) have received or will have received “observation
services” as an outpatient during a hospitalization;
(2) have received or will have received an initial
determination or Medicare Outpatient Observation Notice
(MOON) indicating that the observation services are not
covered under Medicare Part A; and (3) either (a) were not
enrolled in Part B coverage at the time of their
hospitalization; or (b) stayed at the hospital for three or
more consecutive days but were designated as inpatients for
fewer than three days. Medicare beneficiaries who meet the
requirements of the foregoing sentence but who pursued an
administrative appeal and received a final decision of the
Secretary before September 4, 2011, are excluded from this
definition.
(ECF No. 378 at 41.) I noted, however, that it might be
necessary to subdivide the class. The current class includes
two arguably-distinct groups:
(1) Medicare beneficiaries hospitalized before October 2013
who assert a property interest based on the use of commercial
screening tools; and (2) Medicare beneficiaries hospitalized
after October 2013 who assert a property interest under the
Two Midnight Rule.
(Id.) I therefore directed the parties to file
supplemental briefs addressing whether I should (1) create
formal subclasses pursuant to Fed.R.Civ.P. 23(c)(5) and
appoint separate counsel for each; (2) subdivide the class
only for purposes of case management under Fed.R.Civ.P.
23(d); or (3) allow the case to proceed to trial with a
single class under the newly certified class definition.
Having reviewed the parties' supplemental briefs, I now
find that there is no “fundamental conflict”
between ...