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In re Community Health Systems, Inc.

United States District Court, N.D. Alabama, Southern Division

February 15, 2017

IN RE COMMUNITY HEALTH SYSTEMS, INC., CUSTOMER SECURITY DATA BREACH LITIGATION (MDL 2595)

          MEMORANDUM OPINION

          KARON OWEN BOWDRE, CHIEF UNITED STATES DISTRICT JUDGE

         This case is before the court on “Plaintiffs' Renewed[1] Motion for Certification for Interlocutory Appeal.” (Doc. 154). The Plaintiffs present three proposed questions for interlocutory appeal. Defendant PSC has filed an opposition to this motion (doc. 160), as has Defendant CHSI (doc. 161). The Plaintiffs filed an omnibus reply. (Doc. 165).

         For the reasons set out in this Memorandum Opinion, the court FINDS that the motion is due to be DENIED as to all three questions. Although the court believes that important legal questions as to the Plaintiffs' standing may be appropriate for interlocutory appeal, the questions as phrased are not they.

         PROPOSED QUESTIONS FOR CERTIFICATION

         Plaintiffs request that this court certify the following three questions to the Eleventh Circuit Court of Appeals:

(1) Whether plaintiffs who have alleged that their confidential patient data was stolen by data thieves, but not yet misused, have Article III standing to sue for the mishandling of the data by a third party, when plaintiffs also allege that other individuals' confidential patient data obtained by data thieves through the same security breach has already been misused and that plaintiffs paid a third party for data security that was not provided (i.e., standing based on overpayment).
(2) Whether plaintiffs who have alleged that their confidential patient data was stolen by data thieves, but not yet misused, have Article III standing to sue for the mishandling of the data by a third party, when plaintiffs also allege that other individuals' confidential patient data obtained by the data thieves through the same security breach has already been misused and they are themselves at a substantially[2] increased risk of harm (i.e. standing based on increased risk of harm).
(3) Whether plaintiffs who have alleged that their confidential patient data was stolen by data thieves, but not yet misused, have Article III standing to sue for the mishandling of the data by a third party where plaintiffs also allege that other individuals' confidential patient data obtained by the data thieves through the same security breach has already been misused, that the third party recommended that plaintiffs take measures to mitigate the risk of identity theft or other misuse of the stolen data, and that plaintiffs incurred time and monetary expense to undertake such mitigation measures (i.e. standing based on mitigation).

         STANDARD OF REVIEW

         Section 1292(b) of title 28 of the United States Code explains when a district judge may certify for interlocutory appeal an order that is not otherwise appealable:

When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground of difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order.

28 U.S.C. § 1292(b). The “screening procedure” of requiring consent from the trial judge “serves the dual purpose of ensuring that such review will be confined to appropriate cases and avoiding time-consuming jurisdictional determinations in the court of appeals.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 474-75 (1978). Only “exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment.” Id. at 475.

         The Eleventh Circuit explained that “§ 1292(b) sets a high threshold for certification to prevent piecemeal appeals.” OFS Fitel, LLC v. Epstein, Becker and Green, P.C.,549 F.3d 1344, 1359 (11th Cir. 2008). “Because permitting piecemeal appeals is bad policy, permitting liberal use of § 1292(b) is bad policy.” McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1259 (11th Cir. 2004) . “Unless a litigant can show that an interlocutory order of the district court might have a serious, perhaps irreparable, consequence, and that the order can be effectually challenged only by immediate appeal, the general congressional policy against piecemeal review will preclude interlocutory appeal.” Carson v. American Brands, Inc.,450 U.S. 79, 84 (1981) (interior quotations removed). The movant seeking interlocutory appeal bears ...


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