Rosa M. Williams-Hopkins v. Medwell, LLC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0273-21

ROSA M. WILLIAMS-HOPKINS

AND RANDY HOPKINS,

on behalf of themselves and those

similarly situated,

Plaintiffs-Appellants,

v.

MEDWELL, LLC,

Defendant-Respondent.

____________________________

Argued November 8, 2023 – Decided April 5, 2024

Before Judges Haas, Gooden Brown and Natali.

On appeal from the Superior Court of New Jersey, Law

Division, Passaic County, Docket No. DC-007833-19,

and Law Division, Bergen County, Docket No. L-7294-

19.

Philip D. Stern argued the cause for appellants (Kim

Law Firm LLC, attorneys; Philip D. Stern and

Yongmoon Kim, on the briefs).

Vafa Sarmasti argued the cause for respondent

(Sarmasti PLLC, attorneys; Vafa Sarmasti, on the

brief).

PER CURIAM

This appeal arises from a dispute between appellants1 Rosa M. Williams-

Hopkins and Randy Hopkins and respondent MedWell, LLC (MedWell),

regarding fees for healthcare services MedWell provided to appellants in July

and August 2018. MedWell filed a collection action against appellants in the

Passaic County Special Civil Part (the Passaic County action) to recoup

outstanding fees, and in doing so, attached documents which contained

appellants' personal medical information.

Rather than filing a counterclaim in the Passaic County action, appellants

responded by filing a seven-count putative class action complaint in the Bergen

County Law Division (the Bergen County action) on behalf of themselves and

other MedWell patients allegedly aggrieved by its billing, collection, and

disclosure practices. Specifically, appellants alleged MedWell's billing and

collection practices violated the Consumer Fraud Act (CFA), N.J.S.A. 58-1 to -

20, for which they sought a declaratory judgment, injunctive relief, and

1

We refer to the plaintiffs as appellants because they were also defendants in

an action which was consolidated into the instant matter, as we further detail

infra.

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2

compensatory damages (counts one and two); unjustly enriched MedWell (count

three); and violated the Racketeer Influenced Corrupt Organizations Act

(RICO), N.J.S.A. 2C:41-1(e)(2) (count four). Additionally, appellants claimed

MedWell's practice of improperly disclosing personal medical information in its

collection lawsuits was negligent (count five), breached its contracts with the

putative class members (count six), and invaded their privacy (count seven).

Appellants alerted the court of the pending Passaic County action and moved to

consolidate the two cases, which the court granted.

Appellants challenge four orders: (1) a February 28, 2020 order granting

MedWell's summary judgment motion and awarding it $5,250 in the Passaic

County action; (2) an August 31, 2020 order granting MedWell's motion to

dismiss counts one through four of the Bergen County action; (3) a July 1, 2021

order denying class certification in the Bergen County action; and (4) an August

12, 2021 order granting MedWell's summary judgment motion and dismissing

counts five through seven of the Bergen County action. We affirm in part,

reverse in part, and remand for further proceedings consistent with this opinion.

Specifically, we reverse the February 28, 2020 order in the Passaic County

action as we are satisfied material factual issues with respect to the

reasonableness of the amount claimed precluded summary judgment. Next, we

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3

reverse the August 31, 2020 order to the extent it dismissed counts one and two

of the Bergen County action because we conclude these claims were not barred

by collateral estoppel, the entire controversy doctrine, or the learned

professional exception to the CFA.

We affirm the July 1, 2021 order as we discern no abuse of discretion in

the court's determination that appellants had not established numerosity or

typicality of the class because unlike appellants' claims, those of the putative

class members would be barred by res judicata and the entire controversy

doctrine. Finally, we affirm the August 12, 2021 order as to counts five and six

of the Bergen County action because appellants failed to demonstrate a material

factual issue as to damages, but we reverse as to count seven because (1)

appellants had a reasonable expectation of privacy in the information disclosed ,

(2) the information disclosed was not subject to the litigation privilege , and (3)

appellants were not required to establish monetary damages to prevail .

I.

A. The Agreements Between the Parties

We begin by reviewing the pertinent facts in the record. MedWell

provides medical, physical therapy, and chiropractic services. In July and

August 2018, appellants were married and covered under the same insurance

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4

policy. Both appellants sought treatment from MedWell during those months,

although the nature of that treatment is unclear from the record. In connection

with MedWell's services, appellants separately signed identical agreements

entitled "Confidentiality and Payment for Services" (the C&P agreements). Due

to the poor quality of the copy of the C&P agreements in the record, the date

each was signed is illegible. In relevant part, the C&P agreements provide:

I am primarily responsible for, and agree to make

payment of my [1] co-pay, [2] co-insurance, [3]

applicable deductible amounts, and [4] all other

amounts to which my insurance company has not paid

any sums or as to any services by MedWell with respect

to which my insurance company has denied coverage.

[Emphasis added.]

The C&P agreements also required appellants to remit any checks they received

from their insurance provider within five days and held them responsible for "all

attorneys' fees and costs incurred by . . . MedWell for collection of such

amount(s) from [appellants]."

With respect to disclosure of medical information, the C&P agreements

state:

Confidentiality: MedWell, its employees, and staff are

permitted to release my personal, health, or treatment

information or files to my insurance company prior to,

and only for the purposes of processing and receipt of

payment due from my insurance company for services

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5

provided by MedWell. I strictly prohibit any

subsequent release or disclosure of such information to

my insurance company without my express written

authorization . . . .

Use of Patient's Likeness: I hereby authorize MedWell,

their respective successors and assigns and anyone

authorized by MedWell to copyright and/or use my

name, statements, picture, video, or other likeness, in

whole or in part, relating to the services and care I

receive and to modify, edit and combine the same in

any and all present and future media for purposes of

advertising, publicity, and trade, including the right to

attribute to me any statement deemed to be an

endorsement and in connection with this use.

[Emphasis added.]

Appellants also separately signed identical intake agreements on July 7,

2018, which provide, in part:

I understand that my insurance policy with my

insurance company is an arrangement between me and

my insurance company. I acknowledge that I am the

primary person responsible for payment of services

provided by MedWell. I agree to pay the co-pay, co-

insurance and applicable deductible amounts to

MedWell immediately as and when each is billed or

demanded by MedWell. . . . I agree to forward

MedWell all checks and explanation of benefits that I

receive from any of my insurance companies related to

services I receive at MedWell within five (5) days of

receiving them, and further agree that if I fail to forward

any such payment, I will be responsible for payment of

the amount I receive from my insurance companies for

such services, plus interest of 12% per year calculated

on a daily basis at a rate of .0329%, payable beginning

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five (5) days from the date that I receive such payment

from my insurance companies, plus all attorneys' fees

and costs incurred by MedWell for collection of such

amount(s) from me. . . . I further understand that certain

services and care may not be covered by my insurance

policy and therefore agree to pay for those services

within 30 days of being billed by MedWell. I further

agree to pay for the services I receive at MedWell

within 30 days of being billed for such services in the

event my insurance company denies coverage for any

reason.

[Emphasis added.]

The intake agreements add "I understand and agree that I [am] responsible to

pay for all services not covered by my insurance or healthcare plan and for all

balances that is/are unpaid by insurance carrier or healthcare plan for services

and equipment provided by MedWell." (Emphasis added).

As to disclosure of medical information, the intake agreements state:

MedWell, its employees, and staff are permitted to

release my personal, protected health information and

treatment related information or files to my insurance

company or third-party payor prior to, during, or

subsequent to MedWell's services and treatments for

purposes of obtaining authorizations, processing of

claims and appeals, and receipt of payment due from

my insurance company or third-party payor for services

provided by MedWell. . . .

I hereby authorize MedWell, their respective

successors and assigns and anyone authorized by

MedWell to copyright and/or use my name,

information, including but not limited to healthcare

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information, statements, picture, video, or other

likeness, in whole or in part, relating to the services and

care I receive and to modify, edit, and combine same in

any and all present and future media for purposes of

advertising, publicity and trade including the right to

attribute to me any statement related to MedWell's

services and in connection with this use.

[Emphasis added.]

MedWell billed appellants and their health insurance a total of $8,900 for

services provided in July and August 2018. In response, appellants' insurer sent

checks totaling $4,744 directly to appellants, of which they paid MedWell

$3,650.

B. The Passaic County Action and MedWell's Disclosure of Appellants' Personal

Medical Information

In July 2019, MedWell filed the Passaic County action, alleging appellants

owed it $5,250 for outstanding medical fees and $1,750 for attorneys' fees. It

appended to its complaint appellant Williams-Hopkins' signed intake agreement,

which included, in addition to appellants' shared insurance policy number,

unredacted personal medical information provided by appellant Williams-

Hopkins such as her current medications, surgical history, family medical

conditions, and allergies. In their answer, appellants advised they intended to

file a class action complaint against MedWell and to seek consolidation.

Appellants also moved pursuant to Rule 1:38-7(g) to have the intake agreement

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removed and replaced with a redacted version, which the court granted in

October 2019. The unredacted intake agreement containing appellants' personal

medical information remained publicly available for approximately four months.

MedWell also filed unredacted copies of documents containing appellants'

personal medical information on three additional occasions: (1) two separate

filings in support of its motion for a protective order in October 2019, (2) as part

of its opposition to appellants' motion in limine in January 2020, and (3) in

support of its motion to dismiss in June 2020. Appellants again moved to have

each of these documents removed and replaced with a redacted version. The

court granted appellants' request as to the October 2019 filing in December

2019, and as to the June 2020 filing in February 2021, but did not rule on the

request with respect to the January 2020 filing. Cumulatively, these filings

containing appellants' personal medical information were available in the public

court record for at least ten months. It is unclear from the record whether the

January 2020 filing has ever been replaced with a redacted version.

C. The Bergen County Action

In October 2019, appellants filed the Bergen County action and moved to

consolidate the Passaic County action with it. In the complaint, appellants

defined two classes: an "overcharge" class, consisting of New Jersey individuals

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9

from whom MedWell "sought to collect amounts for amounts not actually owed

or for which Med[W]ell included interest at more than twice the lawful interest

rate," and a "disclosure" class, consisting of New Jersey individuals whose

"private medical information" was disclosed "to the public" by MedWell.

Within the overcharge class, appellants further identified a subclass of those

"who incurred expenses as a result of Med[W]ell's collection efforts, paid any

money or from whom [MedWell] collected any money on the account."

Counts one through four related to the overcharge class. In count one,

appellants alleged MedWell's billing and collection practices were

"unconscionable commercial practices" in violation of the CFA. They sought a

declaratory judgment that the underlying collection accounts and interest

charges were unlawful, and an injunction barring MedWell from "any attempt

to collect upon, enforce or assign the accounts, or to seek collection remedies

on or assign any outstanding judgments entered in collection actions on the

accounts." In count two, appellants asserted MedWell's "unconscionable

commercial practices" had caused the overcharge class "ascertainable loss" for

which they were entitled to damages under the CFA. Count three claimed

MedWell was unjustly enriched by receipt of funds from the overcharge subclass

based on "illegally obtained accounts and judgments" and sought restitution of

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those funds, while count four alleged MedWell's interest charges were usurious

and its attempts to collect an "unlawful debt" violated RICO.

Counts five through seven pertained to the disclosure class. In count five,

appellants maintained MedWell owed the class "a duty to maintain the

confidentiality of their medical records," which it breached by negligently

disclosing personal medical information in collection actions. Count six

asserted MedWell's disclosure of personal medical information breached the

"HIPPA2 [sic] Privacy Policy" maintained on its website at

http://www.fixlowback.com, upon which the class "materially relied." Finally,

in count seven, appellants alleged MedWell invaded the class's privacy by

publicly disclosing their private medical information in its collection actions.

For each of these claims, appellants stated the disclosure class had "suffered a

compensable loss" and sought damages.

D. Summary Judgment in the Passaic County Action and Consolidation

While the consolidation motion was pending, MedWell moved for

summary judgment in the Passaic County action and, in support, provided the

certification of its account manager, appellants' responses to interrogatories, the

2

We presume this is intended to refer to the federal Health Insurance Portability

and Accountability Act (HIPAA), 42 U.S.C. §§ 1320d to 1320d-9.

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11

intake and C&P agreements, and the Explanations of Benefits (EOBs) it received

from appellants' insurer. Appellants cross-moved for partial summary

judgment, seeking to limit the amount owed to $1,094 and deny MedWell's

request for attorneys' fees. Appellants' supporting documents included their

certifications, two handwritten notes reflecting cash and money order payments

they allegedly made to MedWell, the complaint and motion to consolidate filed

in the Bergen County action, and MedWell's responses to interrogatories.

On February 28, 2020, the Bergen County Law Division granted

appellants' consolidation motion and ordered the Passaic County action

transferred and consolidated into the Bergen County action. That same morning,

the parties appeared for oral argument on their summary judgment motions in

the Passaic County action. In response to appellants' contention that the motions

could no longer be heard by the Passaic court, the judge contacted the Bergen

County assignment judge for clarification, who advised the Passaic court "ha[d]

the obligation to deal with any motions that [we]re outstanding [t]here before

[the matter] gets transferred." Accordingly, the matter proceeded to oral

argument.

MedWell argued appellants' interrogatory responses confirmed they had

paid only $3,650 of the $4,744 received from their insurer, despite their

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obligation under the agreements to pay for the entire amount billed regardless

of any insurance coverage. It noted there was "no dispute that the services were

provided . . . [regarding] the amount of charges that MedWell has billed . . . [or]

as to the quality of services."

Appellants contended the language of the C&P agreement must be read to

mean that they are responsible for "all other amounts to which [their] insurance

company has not paid any sums" only when the insurer has "denied coverage"

entirely. As it was undisputed the insurance company had not denied coverage,

they argued they were not responsible for any amount beyond the $4,744

approved by their insurance, of which only $1,094 remained outstanding.

Next, appellants asserted MedWell bore the burden of proving the

amounts billed were reasonable because the agreements contained nothing about

pricing. They also raised several arguments they do not reprise before us,

including that the improper disclosure of their medical information negated their

obligation to pay, they were not jointly liable for the debt, and there existed a

factual dispute as to the amount they paid MedWell, demonstrated by their

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certifications and handwritten notes which stated they had paid an additional

$1,094 not reflected in MedWell's records. 3

As to attorney's fees, MedWell asserted it was entitled to fees based on

the language in the agreements. Appellants responded the agreements provided

only for attorneys' fees actually incurred, and since MedWell's interrogatory

responses revealed its counsel was paid one-third of the amount collected on

contingency but MedWell had not yet obtained any funds, no fees had been

incurred.

In an oral ruling and accompanying February 28, 2020 order, the court

granted MedWell summary judgment and denied appellants' cross-motion.

First, it found the record established appellants had paid MedWell only $3,650,

discrediting appellants' claims in their certifications that they had made

additional payments as contrary to their interrogatory responses under the sham

affidavit doctrine. The court next rejected appellants' interpretation of the C&P

agreements, concluding the phrase "all other sums to which [appellants']

insurance company has not paid any sums" meant "an outstanding balance on

3

We consider each of these arguments abandoned. See Green Knight Capital,

LLC v. Calderon, 469 N.J. Super. 390, 396 (App. Div. 2021) (holding "[a]n issue

not briefed on appeal is deemed waived" (quoting Woodlands Cmty. Ass'n. v.

Mitchell, 450 N.J. Super. 310, 319 (App. Div. 2017))).

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the services after insurance payment . . . as opposed to denying coverage, which

is listed as completely separate from this circumstance." Finally, it found

appellants had not presented "substantial evidence with respect to any of [their]

remaining defenses which would warrant denial of summary judgment," noting

"[i]f the facts are of an insubstantial nature, a mere scintilla, 'fanciful, frivolous,

gauzy or merely suspicious,' summary judgment may be entered" under Sokolay

v. Edlin, 65 N.J. Super. 112, 130 (App. Div. 1961). The court therefore entered

judgment in favor of MedWell for $5,250.

As to MedWell's request for attorney's fees, the court found "under the

agreement [MedWell] is only entitled to amounts incurred in pursuing amounts

paid by insurance and not received by [MedWell]," while the balance sought

here "represent[ed] mostly amounts relating to balances not covered by

insurance at all." Further, it concluded "contingency fees are not fees 'incurred'

in . . . pursuit of a debt collection" absent an explicit contractual provision for

contingency fees. The court therefore denied MedWell's claim for attorneys'

fees without prejudice. 4

4

Neither party challenges the denial of attorneys' fees, but we detail the court's

ruling to provide background for appellants' later arguments.

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E. Dismissal of Counts One through Four of the Bergen County Action

Subsequently, MedWell moved to dismiss counts one through four of the

Bergen County action under Rule 4:6-2(e). At oral argument, it contended the

Passaic summary judgment order precluded re-litigation of the amount

appellants owed under principles of collateral estoppel and further, MedWell

was exempt from the CFA as a learned professional because it is "governed by

the Board of Medical Examiners' practices." Appellants responded the

exception did not extend to "billing issues," and its claims were not precluded

because part of the allegedly improper billing by MedWell involved attorneys'

fees, which had been denied without prejudice in the Passaic County action.

In an August 31, 2020 written order and accompanying statement of

reasons, the court granted MedWell's motion and dismissed counts one through

four of the Bergen County action.5 It found each of the claims were "barred by

collateral estoppel because [appellants] ha[d] already litigated these issues in

[the] Passaic Special Civil Part, resulting in a decision for [MedWell]." Relying

upon First Union National Bank v. Penn Salem Marina, Inc., 190 N.J. 342, 352

5

Although the heading of point II of appellants' merits brief states they request

we reverse the dismissal of counts one through four of the Bergen County action,

they specifically note within the body of point II that they do not seek review of

the order as to counts three and four. Accordingly, we limit our analysis to

counts one and two.

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(2007), the court explained collateral estoppel bars re-litigation of an issue

when:

(1) the issue to be precluded is identical to the issue

decided in the prior proceeding; (2) the issue was

actually litigated in the prior proceeding; (3) the court

in the prior proceeding issued a final judgment on the

merits; (4) the determination of the issue was essential

to the prior judgment; and (5) the party against whom

the doctrine is asserted was a party to or in privity with

a party to the earlier proceeding.

[Ibid.]

Here, the court determined "the first element is met because there is a 'high

degree of similarity' between [appellants'] affirmative allegations in this case

and the defenses and arguments raised by the [appellants] in the Passaic case."

Specifically, it noted the "factual and legal arguments underlying [appellants']

CFA causes of action were outlined by [their] opposition to [MedWell's]

summary judgment motion and in support of their cross motion."

The court also found the second and third elements of collateral estoppel

satisfied "because, as outlined by the transcript of oral arguments in the Passaic

[c]ase and the [c]ourt's [o]rders and [j]udgment, the issues were actually

litigated and the [c]ourt issued a final judgment on the merits in [MedWell's]

favor." It concluded the Special Civil Part had jurisdiction to enter the summary

judgment order in the Passaic County action because appellants had consented

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to jurisdiction by cross-moving for summary judgment and the Bergen County

assignment judge had advised the Passaic County judge to resolve the

outstanding motions prior to transfer. It also noted any jurisdictional challenge

"should have been brought to the Appellate Division" rather than raised in the

Bergen County action. Finally, the court concluded the last two elements of

collateral estoppel were satisfied as the amount owed "was the central issue in

the Passaic case as it is in this case" and all three parties were involved in both

cases.

The court also found appellants' claims barred by the entire controversy

doctrine. Relying upon Rule 4:30A, it noted "[n]on-joinder of claims required

to be joined by the entire controversy doctrine shall result in the preclusion of

the omitted claims to the extent required by the entire controversy doctrine" and

reiterated the claims "bear a 'high degree of similarity' to those brought in the

Passaic [c]ase."

Finally, the court concluded MedWell could not be held liable on counts

one and two because of the learned professional exception to the CFA, which it

explained, relying upon Lee v. First Union National Bank, 199 N.J. 251, 263

(2009), is a "judicially crafted rule, whereby 'certain transactions fall outside the

CFA's purview because they involve services provided by learned professionals

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in their professional capacity.'" It noted learned professionals include

"hospitals, attorneys, and nursing homes" and reasoned MedWell qualified for

the exception "because it is overseen by the New Jersey Board of Medical

Examiners, its operations are subject to specific regulatory framework, and . . .

the [appellants'] claims arise out of [MedWell's] actions and operations relating

to [its] professional capacities." As noted, we do not detail the dismissal of

counts three and four. Appellants sought leave to appeal the dismissal order,

which we denied.

F. MedWell's Motion for Summary Judgment in the Bergen County Action

MedWell then moved for summary judgment with respect to the remaining

counts of the complaint, which it supported with excerpts from the depositions

of both appellants. In the deposition of appellant Williams-Hopkins, MedWell's

attorney inquired if she had suffered any damages as a result of the alleged

improper disclosure. She responded she would have to pay filing fees "in the

future" and "had to pay her attorney because of legal fees" but did not know how

much or whether she paid on an hourly or contingency basis. She confirmed she

had not "lost her job," been sued by anyone, "had to pay or will have to pay

anyone else any money," or "lost any assets" as a result of the improper

disclosure. She characterized the loss she had suffered as related to "privacy"

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but admitted she did not know if anyone had seen her medical information.

Appellant Williams-Hopkins conceded she had never been to the website

containing the "HIPPA [sic] Privacy Policy" referenced in the complaint,

fixlowback.com, nor had she ever heard of it. She stated she did not know if

appellant Hopkins had been to that website but he had never talked to her about

it.

MedWell's attorney asked similar questions at appellant Hopkins's

deposition. When asked what dollar amount of damages he incurred, appellant

Hopkins responded "no dollar—I'd have to talk to my attorney on that one." He

further noted he had to pay attorneys' fees, but denied suffering "any other

damages," losing his job, being sued, being "treat[ed] differently," or otherwise

being personally harmed in any way by virtue of the Passaic County action. He

stated he was not sure if anyone had tried to use his personal medical information

and admitted the information disclosed in the Passaic County action pertained

solely to appellant Williams-Hopkins, with the exception of the insurance policy

number they shared. Appellant Hopkins also confirmed he had not "reviewed

MedWell's website prior to going to MedWell" nor had he ever been to

fixlowback.com.

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G. Denial of Class Certification in the Bergen County Action

Appellants moved to certify the classes identified in the complaint,

providing in support the certifications of both appellants and their counsel.

Appellants' counsel provided information pertaining to his qualification to be

class counsel and explained he discovered "at least forty-two putative class

members" who had their "private medical and health information" disclosed in

collection actions brought by MedWell in New Jersey. Both appellants certified

to their ability and willingness to act as class representatives as well as being

"upset" upon discovering their "medical information was filed for anyone to

view."

The court denied class certification pursuant to Rule 4:32-1 in a written

order dated July 1, 2021. It explained appellants were required to "adequately

define a class of plaintiffs" under Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88,

106 (2007), and demonstrate "(1) numerosity, (2) commonality, (3) typicality,

and (4) adequacy of representation" under In re Cadillac V8-6-4 Class Action,

93 N.J. 412, 424-25 (1983), and Rule 4:32-1(a). Additionally, the court noted

appellants had to "satisfy one of the three criteria set forth in [Rule] 4:32-1(b),"

specifically: (1) a risk of inconsistent judgments from separate prosecutions,

(2) the opposing party's action or refusal to act "on grounds generally applicable

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to the class as a whole," or (3) "common questions of law and fact" which

"predominate over individualized questions."

The court found appellants failed to adequately define a class because "the

other [forty-two] individuals that [appellants'] motion identifies as proposed

class members have already been litigants in prior cases, and their cases have

been disposed of—some years earlier—by way of judgment, default judgment,

or settlement" and "[n]one of these proposed individuals raised any of these

alleged issues prior to the disposition of those cases." Relying upon Watkins v.

Resorts International Hotel & Casino, 124 N.J. 398, 412 (1991), it noted the

doctrine of res judicata applies where "(1) the judgment in the prior action [was]

valid, final, and on the merits; (2) the parties in the later action [are] identical to

or in privity with those in the prior action; and (3) the claim in the later action

[grew] out of the same transaction or occurrence as the claim in the earlier one."

The court determined res judicata and the entire controversy doctrine barred the

putative class members' claims because the prior collection actions in which

MedWell allegedly improperly disclosed their medical information "have

undeniably concluded," both MedWell and the proposed class members were

parties to those actions, and "any claims against MedWell for such disclosure

undoubtedly arose out of the same transaction or occurrence."

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The court found appellants failed to establish numerosity, commonality,

or typicality. It reasoned that, unlike appellants, there were no identified

putative class members with "open and ongoing litigation" involving an

improper disclosure, and further, appellants had provided no details as to the

other proposed class members beyond "mere docket numbers." 6 Because the

putative class members' claims were barred by res judicata and the entire

controversy doctrine, the court concluded "there can be no questions of law or

fact common to all of the class members." Additionally, it noted appellants had

not "suffered any damages as a result of alleged disclosure of their health

information by MedWell's attorney," while the complaint alleged the putative

class members had "suffered compensable losses." Finally, because the only

claim seeking declaratory or injunctive relief, count one, had been dismissed,

the court found class certification pursuant to Rule 4:32-1(b)(2) was

inappropriate.

H. Summary Judgment in the Bergen County Action

Subsequently, the court heard oral argument on MedWell's summary

judgment motion. MedWell argued appellants had not established the elements

6

The record before us does not include the document in which these docket

numbers were identified.

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of their remaining claims as they proved no actual damages, but even if they

had, each of the claims were barred by the litigation privilege. With respect to

the breach of contract claim, MedWell contended both appellants' depositions

revealed they had never seen the website containing the "HIPPA [sic] Privacy

Policy" allegedly breached and noted HIPAA provided no private right of action.

As to the invasion of privacy claim, it asserted appellants had no reasonable

expectation of privacy as the C&P and intake agreements "allowed MedWell to

use their information." Finally, MedWell noted appellants could not "proceed

in contract and tort at the same time based on the same underlying facts."

Appellants responded the parties' agreements could not "override"

HIPAA, which was incorporated in MedWell's website and the agreements.

Further, they argued MedWell had breached the standard of care established by

HIPAA "which does not allow for the public disclosure of . . . protected health

information."

The court granted MedWell's summary judgment motion and dismissed

the remaining counts of the Bergen County action in an August 12, 2021 written

order. First, it found counts five and seven were barred by the litigation

privilege. Relying upon Hawkins v. Harris, 141 N.J. 207, 216 (1995), the court

explained the privilege "applies to both invasion of privacy and negligence

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24

claims" and protects "any communication (1) made in judicial or quasi-judicial

proceedings; (2) by litigants or other participants authorized by law; (3) to

achieve the objects of the litigation; and (4) that have some connection or logical

relation to the action." It concluded the disclosure of medical information in the

Passaic County action was covered by the privilege because it was "(1) made in

a judicial context[,] (2) by a party to the action, as it was contained in a court

filing by MedWell, (3) made to achieve the objects of the litigation, and (4) has

a clear logical connection to the action." The court also found appellants had

not shown "any actual damages as a result of the alleged disclosure of their

health information," mandating dismissal of each of the three claims.

As to negligence, the court noted "a tort remedy does not arise from a

contractual relationship unless the breaching party owes an independent duty

imposed by law" under Saltiel v. GSI Consultants, Inc., 170 N.J. 297, 316

(2002). Additionally, it found the parties' agreements "authorized disclosure of

the [appellants'] health information for the purposes of payment collection ."

With respect to count six, breach of contract, the court concluded

appellants "could never have assented" to the "HIPPA [sic] Privacy Policy"

referenced in the complaint as they denied having seen it prior to litigation .

Even assuming the policy represented a contract between the parties, the court

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reasoned it was superseded by the C&P and intake agreements, which authorized

the use of appellants' health information.

Finally, as to invasion of privacy, the court found appellants "had no

reasonable expectation of privacy" with respect to the disclosed information. It

noted their "failure to pay MedWell for services rendered essentially nullifies

any reasonable expectation of privacy because certain information is essential

and must be included when filing a lawsuit to collect the amounts owed ."

Further, the court reasoned "the terms of the agreement between MedWell and

the [appellants] authorized MedWell to use the [appellants'] health information."

The court also stated "[w]hile the invasion of privacy in and of itself can be a

'loss' to be compensated, those damages would merely be nominal." This appeal

followed.

II.

We next detail the various standards governing our review. "We review

decisions granting summary judgment de novo," C.V. v. Waterford Twp. Bd. of

Educ., 255 N.J. 289, 305 (2023), applying the same standard as the trial court,

Townsend v. Pierre, 221 N.J. 36, 59 (2015). Like the motion judge, we "consider

whether the competent evidential materials presented, when viewed in the light

most favorable to the non-moving party, are sufficient to permit a rational

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26

factfinder to resolve the alleged disputed issue in favor of the non-moving

party." C.V., 255 N.J. at 305 (quoting Samolyk v. Berthe, 251 N.J. 73, 78

(2022)). "Summary judgment is appropriate if 'there is no genuine issue as to

any material fact' and the moving party is entitled to judgment 'as a matter of

law.'" Ibid. (quoting R. 4:46-2(c)).

Similarly, we review an order granting a motion to dismiss under Rule

4:6-2(e) "de novo, applying the same standard under [that Rule] that governed

the motion court." Wreden v. Twp. of Lafayette, 436 N.J. Super. 117, 124 (App.

Div. 2014). That standard is whether the pleadings even "suggest[]" a basis for

the requested relief. Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J.

739, 746 (1989). A reviewing court assesses only the "legal sufficiency" of the

claim based on "the facts alleged on the face of the complaint." Green v. Morgan

Props., 215 N.J. 431, 451 (2013) (quoting Printing Mart-Morristown, 116 N.J.

at 746). The court must "search[] the complaint in depth and with liberality to

ascertain whether the fundament of a cause of action may be gleaned even from

an obscure statement of claim, opportunity being given to amend if necessary."

Printing-Mart Morristown, 116 N.J. at 746 (quoting Di Cristofaro v. Laurel

Grove Memorial Park, 43 N.J. Super. 244, 252 (App. Div. 1957)).

Consequently, "[a]t this preliminary stage of the litigation the [c]ourt is not

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concerned with the ability of plaintiffs to prove the allegation contained in the

complaint," ibid., rather the facts as pled are considered "true" and accorded "all

legitimate inferences," Banco Popular N. Am. v. Gandi, 184 N.J. 161, 166

(2005).

Questions of law reviewed de novo include the application of

preclusionary doctrines such as res judicata, Walker v. Choudhary, 425 N.J.

Super. 135, 151 (App. Div. 2012), and collateral estoppel, Selective Ins. Co. v.

McAllister, 327 N.J. Super. 168, 173 (App. Div. 2000). Under that standard,

"[a] trial court's interpretation of the law and the legal consequences that flow

from established facts are not entitled to any special deference." Rowe v. Bell

& Gossett Co., 239 N.J. 531, 552 (2019) (quoting Manalapan Realty, L.P. v.

Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

The application of the entire controversy doctrine "requires a mixed

standard of review." Francavilla v. Absolute Resols. VI, LLC, ___ N.J. Super.

___, ___ (App. Div. 2024) (slip op. at 6). Specifically, "the law guiding the trial

court's determination" is reviewed de novo, while "the decision to apply the

doctrine, as an equitable principle," is subject to review for an abuse of

discretion. Id. at ___ (slip op. at 6-7).

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We also review an order denying class certification for abuse of

discretion. Dugan v. TGI Fridays, Inc., 231 N.J. 24, 50 (2017). Specifically,

we "must ascertain whether the trial court has followed [the standards set forth

in Rule 4:32-1] and properly exercised its discretion in granting or denying class

certification." Lee v. Carter-Reed Co., LLC, 203 N.J. 496, 506 (2010). A trial

court abuses its discretion "when a decision is 'made without a rational

explanation, inexplicably departed from established policies, or rested on an

impermissible basis.'" Est. of Kotsovska by Kotsovska v. Liebman, 221 N.J.

568, 588 (2015) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571

(2002)). "When examining a trial court's exercise of discretionary authority, we

reverse only when the exercise of discretion was 'manifestly unjust' under the

circumstances." Newark Morning Ledger Co. v. N.J. Sports & Exposition Auth.,

423 N.J. Super. 140, 174 (App. Div. 2011) (quoting Union Cnty. Improvement

Auth. v. Artaki, LLC, 392 N.J. Super. 141, 149 (App. Div. 2007)).

III.

A. The Parties' Arguments as to Summary Judgment in the Passaic County

Action

We first address the summary judgment order in the Passaic County

action. Before us, appellants reprise their argument that the court improperly

construed the agreements to mean they owe an "outstanding balance on the

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services after insurance payment." They contend this interpretation would

render the other delineated obligations in the clause, such as the co-pay, co-

insurance, and deductible, superfluous. Further, in an argument not raised

below, appellants assert MedWell failed to present evidence as to whether the

C&P or intake agreements controlled, or to reconcile the differences between

the agreements. They maintain, viewing the evidence in the light most favorable

to them, the court should have relied upon the intake agreements, which, unlike

the C&P agreements, do not include the phrase "all other amounts to which my

insurance company has not paid any sums" in outlining appellants' obligations.

Appellants contend, under our de novo review, we should consider arguments

concerning "trial court errors as a matter of law" even if not raised below.

Additionally, even assuming they are responsible under the agreements

for more than the amount approved by their insurance, appellants argue

MedWell may bill only a reasonable amount. They note the agreements listed

no price for MedWell's services, and regulations, including N.J.A.C. 13:35-6.11,

13:39A-3.6, and 13:44E-2.11, permit doctors, physical therapists, and

chiropractors to charge only non-excessive fees. They assert MedWell

presented no evidence of the bill's reasonableness and the court should have

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determined a reasonable amount was the $4,744 approved by their insurer, as

shown in the EOBs.

In requesting we affirm, MedWell contends the appeal was untimely as

the order was entered February 28, 2020 while appellants' notice of appeal was

not filed until September 27, 2021, so it is barred by Rule 2:4-1(a). Additionally,

it argues appellants' positions as to reasonableness and the alleged conflict

between the agreements were not raised below and should not be considered.

As to the merits of the claims, MedWell asserts "[a]ppellants are judicially

estopped from changing course to make arguments [that the agreements conflict]

that contradict their earlier arguments to the lower court." It notes appellants

acknowledged to the court the language in the C&P agreements controlled and

simply disputed its interpretation. Further, MedWell asserts appellants'

characterization of the agreements omitted certain language which causes both

to arrive at the same result. With respect to reasonableness, it argues appellants'

position is "frivolous" and not supported by the EOBs, which show a "balance

due from the subscriber" or "patient liability." MedWell contends the EOBs are

insufficient to prove the reasonable value of its services was simply the amount

insurance approved.

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B. Reasonableness was Raised Below and the Appeal was Timely

As a preliminary matter, we note the transcript of the summary judgment

hearing in the Passaic County action demonstrates appellants did raise the issue

of reasonableness before the court, contrary to MedWell's contention. We also

reject MedWell's argument that the appeal was untimely because we are satisfied

the February 28, 2020 order was not a final judgment. At the time that order

was entered, the Passaic County action had already been consolidated with the

Bergen County action, and appellants' claims against MedWell had not yet been

resolved. Accordingly, appellants were not entitled to appeal as of right until

the August 12, 2021 order resolved all outstanding claims as to all parties. See

Silviera-Francisco v. Bd. of Educ. of Elizabeth, 224 N.J. 126, 136 (2016)

(holding "an order is considered final if it disposes of all issues as to all parties")

and Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 165 n. 2

(App. Div. 1998) (noting appeal from order resolving issues as to only one case

underlying a consolidated matter was interlocutory). As appellants' notice of

appeal was filed within forty-five days of that order, the appeal was timely. See

Silviera-Francisco, 224 N.J. at 141 ("[a]n interlocutory order is preserved for

appeal with the final judgment . . . if it is identified as a subject of the appeal").

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C. Appellants Established a Material Factual Issue Regarding Reasonableness

"Generally, plaintiffs have the burden of proving damages." Caldwell v.

Haynes, 136 N.J. 422, 436 (1994). "Most often, courts award compensatory

damages in a breach of contract action," which are intended to "put the innocent

party into the position [it] would have achieved had the contract been

completed." Totaro, Duffy, Cannova & Co., LLC v. Lane, Middleton & Co.,

LLC, 191 N.J. 1, 12-13 (2007). As our Supreme Court explained in Pacifico v.

Pacifico, 190 N.J. 258, 266 (2007), "[w]hen the parties to a bargain sufficiently

defined to be a contract have not agreed with respect to a term which is essential

to a determination of their rights and duties, a term which is reasonable in the

circumstances is supplied by the court." Ibid. (alteration in original) (quoting

Restatement (Second) of Contracts § 204 (Am. L. Inst. 1981)).

In Hackensack Hospital v. Tiajoloff, 85 N.J. Super. 417 (App. Div. 1964),

we considered a case with facts somewhat similar to those here. In that case,

the plaintiff hospital sought to collect outstanding fees owed for treatment of

defendant's child. Id. at 418-19. In support, plaintiff presented only its book

account and the testimony of its comptroller. Id. at 419. On appeal, we vacated

the judgment in favor of plaintiff and ordered a new trial, reasoning while "a

hospital may prove the services which it rendered to a patient by its books of

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account, . . . when the reasonable value of those services is placed in issue, as it

was here, the books of account alone usually cannot supply that proof." Id. at

419-20. Specifically, from the book account alone, we noted "the trial judge

was afforded no means of determining the value of the services" provided by

plaintiff. Id. at 420-21.

We are convinced, based on our de novo review, the record demonstrates

a material factual issue as to whether the amount billed by MedWell was

reasonable. It is undisputed the agreements do not set forth a definite price for

any service and nothing in the record suggests MedWell provided any sort of

price list or estimate to appellants. Nevertheless, the agreements evidence "a

bargain sufficiently defined to be a contract" which lacks "a term which is

essential to a determination of [the parties'] rights and duties"—namely, the

price for services—such that the court should supply a reasonable term.

Pacifico, 190 N.J. at 266 (quoting Restatement (Second) of Contracts § 204).

MedWell presented no evidence to support the reasonableness of its bill

aside from its book account and the certification of its account manager, like the

hospital in Hackensack Hospital, 85 N.J. Super. at 419-20. As in that case, the

proofs here "afforded [the court] no means of determining the value of the

services" provided by MedWell. Id. at 420-21. Indeed, it is unclear how many

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and which services were covered by the $8,900 charged, or whether they were

provided by a physician, chiropractor, or physical therapist.

On the other hand, the EOBs relied upon by appellants raised a question

as to reasonableness in the absence of any further evidence or finding by the

court to the contrary. We recognize the EOBs show a remaining amount owed

by appellants, but we note appellants' argument is that the amount approved by

the insurer was approximately half of what MedWell charged, suggesting that

amount was unreasonable. While we do not conclude the discrepancy between

the amounts billed and those approved by the insurer is determinative proof of

unreasonableness, as there may be many reasons why an insurance policy would

cover only part of charges that were nonetheless reasonable, the EOBs, without

more to contradict them, at the very least demonstrated a material factual

question, precluding summary judgment.

D. There is No Inconsistency Between the Agreements as to Appellants'

Financial Obligations to MedWell

In light of our determination, and the fact that appellants did not raise the

issue of a potential conflict between the agreements before the court, we need

not address that argument. Nevertheless, we are satisfied there is no factual

question as to the consistency of the C&P and intake agreements with respect to

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the nature of appellants' financial obligations to MedWell set forth therein. As

noted, the C&P agreements provide:

I am primarily responsible for, and agree to make

payment of my [1] co-pay, [2] co-insurance, [3]

applicable deductible amounts, and [4] all other

amounts to which my insurance company has not paid

any sums or as to any services by MedWell with respect

to which my insurance company has denied coverage.

While the intake agreements differ, stating "I agree to pay the co-pay, co-

insurance and applicable deductible amounts to MedWell immediately as and

when each is billed or demanded by MedWell," they also provide:

I further understand that certain services and care may

not be covered by my insurance policy and therefore

agree to pay for those services within 30 days of being

billed by MedWell. I further agree to pay for the

services I receive at MedWell within 30 days of being

billed for such services in the event my insurance

company denies coverage for any reason.

Taken as a whole, each set of agreements clearly indicates appellants were

responsible for payment of not only their co-pay, co-insurance, and deductible,

but any amounts not covered by insurance, subject to a determination those

amounts were reasonable, as detailed above. We find no inconsistency that

would have required MedWell to reconcile the two agreements.

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IV.

A. The Parties' Arguments as to Dismissal in the Bergen County Action

We next turn to the order dismissing counts one through four of the Bergen

County action. As noted, we limit our review to the CFA claims, counts one

and two. Appellants argue the court erred in dismissing their claims because (1)

preclusionary doctrines did not apply because the summary judgment order in

the Passaic County action was not final, but interlocutory, and (2) the learned

professional exception to the CFA did not apply to billing and collection

practices because those functions are outside the protected realm of "services

provided by learned professionals in their professional capacity." Appellants

stress the Supreme Court "expressed its 'serious doubts that the billing and

collection function at issue in [Manahawkin Convalescent v. O'Neill, 217 N.J.

99 (2014), regarding collection of nursing home fees] would qualify for the

learned professional exception to the CFA.'" Id. at 124.

In response, MedWell first contends appellants do not make "any

arguments relating to declaratory or injunctive relief" and thus, in reliance on

that fact, it "does not address the [c]ourt's dismissal of [c]ount [one]." MedWell

argues the court properly applied collateral estoppel as each of the elements

were satisfied and "all of the [appellants]' factual and legal arguments

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underlying their CFA claims in the [Bergen County action] were argued in their

opposition to MedWell's summary judgment motion—and in support of their

cross-motion for summary judgment—in the Passaic case." It also asserts the

learned professional exception was properly applied here, as "courts have

repeatedly held that billing and collection practices or rates are considered part

of the services rendered and, as such, fall within the exception." In support,

MedWell cites Manahawkin Convalescent v. O'Neill, 426 N.J. Super. 143, 155-

56 (App. Div. 2012); Atlantic Ambulance Corp. v. Cullum, 451 N.J. Super. 247,

254 (App. Div. 2017); DiCarlo v. St. Mary's Hospital, 530 F.3d 255, 260 (3d

Cir. 2008); and an unpublished case from the District of New Jersey. Further,

it contends regulation under the CFA "could conflict" with the regulation of

healthcare professionals' fees and billing practices by the New Jersey Board of

Medical Examiners.

B. Appellants' Claims Were Not Barred by Any Preclusionary Doctrine

Res judicata is a "doctrine barring relitigation of claims or issues that have

already been adjudicated." Walker, 425 N.J. Super. at 150 (quoting Velasquez

v. Franz, 123 N.J. 498, 505 (1991)). Specifically, it requires "substantially

similar or identical causes of action and issues, parties, and relief sought" as

well as a "final judgment by a court or tribunal of competent jurisdiction." Id.

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at 151 (quoting Charlie Brown of Chatham, Inc. v. Bd. of Adjustment for

Chatham, 202 N.J. Super. 312, 327 (App. Div. 1985)). If applicable, res judicata

precludes relitigation of "matters that were litigated" in the prior action as well

as "all issues that could have been presented." Bondi v. Citigroup, Inc., 423 N.J.

Super. 377, 428 (App. Div. 2011).

Within the broader umbrella of res judicata, collateral estoppel is a distinct

branch, Allesandra v. Gross, 187 N.J. Super. 96, 103 (App. Div. 1982), which

provides "[w]hen an issue of fact or law is actually litigated and determined by

a valid and final judgment, and the determination is essential to the judgment,

the determination is conclusive in a subsequent action between the parties,

whether on the same or a different claim," Winters v. N. Hudson Reg'l. Fire &

Rescue, 212 N.J. 67, 85 (2012) (alteration in original) (quoting Restatement

(Second) of Judgments § 27 (Am. L. Inst. 1982)). The doctrine facilitates

society's interest in "finality and repose; prevention of needless litigation;

avoidance of duplication; reduction of unnecessary burdens of time and

expenses; elimination of conflicts, confusion and uncertainty; and basic

fairness." Ibid. (quoting Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 522

(2006)).

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To determine whether collateral estoppel should preclude relitigation of

an issue, our Supreme Court has set forth a five-factor test:

[T]he party asserting the [doctrine] must show that: (1)

the issue to be precluded is identical to the issue

decided in the prior proceeding; (2) the issue was

actually litigated in the prior proceeding; (3) the court

in the prior proceeding issued a final judgment on the

merits; (4) the determination of the issue was essential

to the prior judgment; and (5) the party against whom

the doctrine is asserted was a party to or in privity with

a party to the earlier proceeding.

[Ibid. (quoting Olivieri, 186 N.J. at 521)].

Each element must be satisfied for collateral estoppel to apply. Perez v. Rent-

A-Center, Inc., 186 N.J. 188, 199 (2006). Even if all five factors are met,

however, the court must not apply the doctrine if it would be unfair to do so.

Ibid.; see also Allen v. V & A Bros., Inc., 208 N.J. 114, 138 (2011).

The entire controversy doctrine is another similar, but distinct, part of the

broader res judicata umbrella which "generally requires parties to an action to

raise all transactionally related claims in that same action." Largoza v. FKM

Real Est. Holdings, Inc., 474 N.J. Super. 61, 79 (App. Div. 2022) (quoting

Carrington Mortg. Servs., LLC v. Moore, 464 N.J. Super. 59, 67 (App. Div.

2020)). It "encompasses not only matters actually litigated but also other aspects

of a controversy that might have been litigated and thereby decided in an earlier

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action." Francavilla, ___ N.J. Super. at ___ (slip op. at 8) (quoting Higgins v.

Thurber, 413 N.J. Super. 1, 12 (App. Div. 2010)). The doctrine is codified at

Rule 4:30A, which provides in relevant part: "non-joinder of claims required to

be joined by the entire controversy doctrine shall result in the preclusion of the

omitted claims to the extent required by the entire controversy doctrine, except

as otherwise provided" in foreclosure and summary actions. Although not

defined in the Rule, our Supreme Court has explained the claims "required to be

joined" are those which "'arise from related facts or the same transaction or

series of transactions' but need not share common legal theories." Bank Leumi

USA v. Kloss, 243 N.J. 218, 226 (2020) (quoting Dimitrakopoulos v. Borrus,

Goldin, Foley, Vignuolo, Hyman & Stahl, P.C., 237 N.J. 91, 119 (2019)).

The entire controversy doctrine serves "three fundamental purposes: '(1)

the need for complete and final disposition through the avoidance of piecemeal

decisions; (2) fairness to parties to the action and those with a material interest

in the action; and (3) efficiency and the avoidance of waste and the reduction of

delay.'" Id. at 227 (quoting DiTrolio v. Antiles, 142 N.J. 253, 267 (1995)).

"[B]ecause the entire controversy doctrine is an equitable principle, its

applicability is left to judicial discretion based on the particular circumstances

inherent in a given case." Francavilla, ___ N.J. Super. at ___ (slip op. at 8)

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(alteration in original) (quoting Mystic Isle Dev. Corp. v. Perskie & Nehmad,

142 N.J. 310, 323 (1995)). It should not be applied "if such a remedy would be

unfair in the totality of the circumstances and would not promote the doctrine's

objectives of conclusive determinations, party fairness, and judicial economy

and efficiency." Bank Leumi, 243 N.J. at 227-28 (quoting Dimitrakopoulos, 220

N.J. at 119).

We first note, contrary to MedWell's contention, appellants clearly

indicated they challenged the court's order as to both CFA counts, and the court's

dismissal was not predicated upon the relief sought. As detailed above in section

III, the summary judgment order in the Passaic County action was not a final

judgment because, as the cases were consolidated, it did not resolve all issues as

to all parties. See Silviera-Francisco, 224 N.J. at 136 and Prudential, 307 N.J.

Super. at 165 n. 2. Nothing in the consolidation order shows the court stayed

consolidation or otherwise conditioned it upon resolution of the Passaic County

action. Indeed, it would make little sense to consolidate the two cases after one

was fully resolved. See R. 4:38-1(a) (providing court may order consolidation

of "actions involving a common question of law or fact arising out of the same

transaction or series of transactions [which] are pending in the Superior Court"

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(emphasis added)). Accordingly, the elements of collateral estoppel have not

been satisfied and the doctrine does not apply under these circumstances.

Addressing the entire controversy doctrine, it is undisputed the Passaic

County action and the Bergen County action arise from the same set of facts—

namely, MedWell's treatment of appellants, appellants' alleged failure to pay the

amount billed for that treatment, and MedWell's attempts to collect the

outstanding balance. We are convinced, however, that application of the entire

controversy doctrine here was inappropriate. While appellants initiated the

Bergen County action separately from the collection action, the two matters had

been consolidated by the time MedWell moved to dismiss. Thus, "all

transactionally related claims" were being litigated in a single action. Largoza,

474 N.J. Super. at 79.

Additionally, application of the entire controversy doctrine in these

circumstances would not serve its "fundamental purposes" as set forth in Bank

Leumi, 243 N.J. at 227. By moving for consolidation prior to resolution of any

substantive issues in either case, appellants sought to avoid "piecemeal

decisions" or inconclusive determinations. Ibid. Appellants informed MedWell

as early as their answer in the Passaic County action that they would be filing a

class action complaint and seeking to consolidate the cases. Any unfairness to

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MedWell was arguably caused by its choice to move for summary judgment in

the Passaic County action prior to resolution of the then-pending consolidation

motion. While we acknowledge the consolidation resulted in some delay, we

are not convinced that delay was unreasonable, nor that appellants' actions led

to any waste or judicial inefficiency. In the totality of the circumstances, we are

satisfied it would be unfair to preclude appellants from litigating their claims

when their actions did not run afoul of the entire controversy doctrine's aims.

C. The Record was Insufficient to Apply the Learned Professional Exception to

the CFA at the Motion to Dismiss Stage

Next, we discuss the CFA and its learned professional exception. We note

"[g]enerally, Rule 4:6-2(e) dismissals should not be granted based on an

affirmative defense because such defenses typically 'must be pleaded.'" Mac

Prop. Grp. LLC v. Selective Fire & Cas. Ins. Co., 473 N.J. Super. 1, 38 (App.

Div. 2022) (quoting Prickett v. Allard, 126 N.J. Super. 438, 440 (App. Div.

1974)). Where an affirmative defense's applicability "appears on the face of the

complaint," however, "dismissal under Rule 4:6-2(e) may be proper." Ibid.

(quoting Prickett, 126 N.J. at 440).

"The CFA was enacted to 'provide[ ] relief to consumers from "fraudulent

practices in the market place."'" Dugan, 231 N.J. at 50 (alteration in original)

(quoting Lee, 203 N.J. at 521). The act is "applied broadly in order to

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accomplish its remedial purpose, namely, to root out consumer fraud."

Manahawkin, 217 N.J. at 121 (quoting Gonzalez v. Wilshire Credit Corp., 207

N.J. 557, 576 (2011)).

"N.J.S.A. 56:8-2 prohibits, as an unlawful practice, the 'act, use or

employment by any person of any unconscionable commercial practice,

deception, fraud, false pretense, false promise, [or] misrepresentation . . . in

connection with the sale or advertisement of any merchandise [7] or real estate,

or with the subsequent performance of such person as aforesaid.'" Lee, 199 N.J.

at 257 (first two alterations in original) (quoting N.J.S.A. 56:8-2). To prevail

on a CFA claim, the plaintiff must establish (1) "unlawful conduct by

defendant"; (2) "an ascertainable loss by plaintiff"; and (3) "a causal relationship

between the unlawful conduct and the ascertainable loss." Dugan, 231 N.J. at

52 (quoting D'Agostino v. Maldonado, 216 N.J. 168, 184 (2013)).

The learned professional exception is a judicially-created rule whereby

"certain transactions fall outside the CFA's purview because they involve

services provided by learned professionals in their professional capacity." Lee,

199 N.J. at 263. Our Supreme Court formally recognized the exception in

Macedo v. Dello Russo, 178 N.J. 340 (2004), in which it explained:

[7]

The CFA's definition of "merchandise" includes services. N.J.S.A. 56:8-1(c).

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Certainly no one would argue that a member of any of

the learned professions is subject to the provisions of

the [CFA] despite the fact that he [or she] renders

"services" to the public. And although the literal

language may be construed to include professional

services, it would be ludicrous to construe the

legislation with that broad a sweep in view of the fact

that the nature of the services does not fall into the

category of consumerism.

[Id. at 344 (quoting Neveroski v. Blair, 141 N.J. Super.

365, 379 (App. Div. 1976))].

The Court further noted advertising by professionals was not permitted at

the time the CFA was enacted, so the CFA could not have been understood to

encompass it. Id. at 343. It also reasoned the Legislature had never amended

the CFA to include professionals, despite earlier case law suggesting such an

exception existed. Id. at 346. Accordingly, the Court concluded "learned

professionals [are] beyond the reach of the [CFA] so long as they are operating

in their professional capacities." Id. at 345-46.

The types of professionals protected by the exception include doctors, id.

at 346, and attorneys, Vort v. Hollander, 257 N.J. Super. 56, 62 (App. Div.

1992). In Shaw v. Shand, 460 N.J. Super. 592 (App. Div. 2019), we concluded

"'semi-professionals' who are regulated by a separate regulatory scheme," such

as home inspectors, were not covered by the exception. Id. at 599. We explained

the exception "must be narrowly construed to exempt CFA liability only as to

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those professionals who have historically been recognized as 'learned' based on

the requirement of extensive learning or erudition." Ibid. To the extent prior

decisions relied upon regulation of semi-professionals to hold otherwise, as in

Plemmons v. Blue Chip Insurance Services, Inc., 387 N.J. Super. 551, 564 (App.

Div. 2006) and Atlantic Ambulance, 451 N.J. Super. at 257-58, we found such

rationale "inconsistent with the Supreme Court's decision in Lemelledo v.

Beneficial Management Corp. of America, 150 N.J. 255 (1997)." Shaw, 460

N.J. Super. at 599, 616. Rather, we held "the existence of a separate regulatory

scheme will 'overcome the presumption that the CFA applies to a covered

activity' only when 'a direct and unavoidable conflict exists between application

of the CFA and application of the other regulatory scheme or schemes.'" Id. at

616 (quoting Lemelledo, 150 N.J. at 270). In other words, semi-professionals

are not encompassed in the learned professional exemption simply because they

are subject to regulation.

Various functions have been found to be within a learned professional's

professional capacity and thus exempt from CFA liability, including

advertisements, billing, and fees. See Macedo, 178 N.J. at 346 (representations

in advertising within doctor's professional capacity) and Vort, 257 N.J. Super.

at 62-63 (fee arrangements and billing within attorney's professional capacity).

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Conversely, professionals may be held liable under the CFA for services

provided outside their professional capacity. See, e.g., Macedo, 178 N.J. at 346

(doctor "engag[ing] in the merchandising of a golf course, a vacation time-share

or a medical office building" subject to CFA) and Finderne Mgmt. Co. v. Barrett,

402 N.J. Super. 546, 568 (App. Div. 2008) (accountant working as financial

planner subject to CFA).

Here, based on the liberal standard under which we review a motion to

dismiss, we are convinced the record was insufficient to permit the court to

conclude the learned professional exception applied at this early stage without

further information. As previously noted, MedWell employs not only doctors,

but also chiropractors and physical therapists, and nothing in the record reveals

which of these services were encompassed in appellants' bill, or to what extent

the doctor, chiropractor, or physical therapist was involved in billing. We are

not persuaded by the authority cited by MedWell, as none of these cases

considered a situation where the nature of the services or professional at issue

was unclear, as here.

Without a better understanding as to which services appellants received

or from which type of provider, we cannot determine, based on the record before

the court on MedWell's Rule 4:6-2 motion, whether the billing for those services

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was within the professional capacity of a learned professional and thus exempt

from CFA liability. Nothing in our decision should be construed as reflecting

our opinion on the outcome of the proceedings on remand, particularly upon

further proofs regarding the services provided and the involvement of any

learned professional in billing for those services.

V.

A. Appellants' Arguments as to Class Certification in the Bergen County Action

We next examine the court's order denying class certification. Appellants

argue the court erred in denying certification because it "failed to explain any

reason the closure of MedWell's collection case[s] [against the putative class

members] matters with regard to the [d]isclosure [c]laims." They contend the

elements of their claims did not require the collection actions to be pending, and

the disclosure of the putative class members' private medical information "is not

conduct arising out of the same transaction as the claim for unpaid services,"

and therefore did not need to be brought as counterclaims. Relying upon

LoBiondo v. Schwartz, 199 N.J. 62, 105 (2009), appellants analogize their

claims to those for "malicious use of process and malicious abuse of process ,"

torts for which no cause of action arises until the initial underlying case is

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concluded. Additionally, they note the court made no findings with respect to

their satisfaction of Rule 4:32-1(b)(3). We are not convinced.

B. Appellants Failed to Establish Numerosity and Typicality of the Class

"A 'class action is "an exception to the usual rule that litigation is

conducted by and on behalf of the individual named parties only."'" Dugan, 231

N.J. at 46 (quoting Iliadis, 191 N.J. at 103). A class action "furthers numerous

practical purposes, including judicial economy, cost-effectiveness, convenience,

consistent treatment of class members, protection of defendants from

inconsistent obligations, and allocation of litigation costs among numerous

similarly-situated litigants." Ibid. (quoting Iliadis, 191 N.J. at 104). To achieve

these objectives, "our courts have 'consistently held that the class action rule

should be liberally construed.'" Ibid. (quoting Lee, 203 N.J. at 518).

The standard for whether a class should be certified is set forth in Rule

4:32-1. Four initial requirements, "frequently termed 'numerosity,

commonality, typicality, and adequacy of representation,'" are set forth in

subsection (a) of that Rule. Dugan, 231 N.J. at 47 (quoting Lee, 203 N.J. at

519). Rule 4:32-1(a) provides:

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

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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.

The court then must consider the additional requirements set forth in

subsection (b) of the Rule. Appellants here sought certification pursuant to

subsections (b)(2), which requires a showing "the party opposing the class has

acted or refused to act on grounds generally applicable to the class, thereby

making appropriate final injunctive relief or corresponding declaratory relief

with respect to the class as a whole," and (b)(3), which requires the court find

"[1] the questions of law or fact common to the members of the class

predominate over any questions affecting only individual members, and [2] that

a class action is superior to other available methods for the fair and efficient

adjudication of the controversy." R. 4:32-1(b). In the event the court denies

class certification, the named plaintiffs may continue to pursue their individual

claims. See Myska v. N.J. Mfrs. Ins. Co., 440 N.J. Super. 458, 465 (App. Div.

2015) (noting named plaintiffs' individual breach of contract claims proceeded

despite affirming denial of class certification).

We are satisfied the court did not abuse its discretion in concluding

appellants had not satisfied the numerosity or typicality requirements to certify

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the putative class. Contrary to appellants' contention, the court clearly indicated

the undisputed closure of the putative class members' underlying collection

actions was relevant to class certification because it indicated those actions

could preclude the class members from litigating the issues raised in appellants'

claims under the entire controversy doctrine or res judicata. Based on the record

before the court, the class members did not raise these issues in the underlying

collection cases, even though they could have, and thus they would be precluded

from doing so in this class action. In contrast, appellants consolidated the

Passaic County action into the Bergen County action and thereby avoided

improper fragmentation of the litigation.

As it is undisputed all of the underlying collection actions against the class

members were closed and thus would almost certainly preclude their

participation in the Bergen County action, appellants have failed to meet the

numerosity requirement to certify the class. Additionally, appellants'

circumstances as the representative parties are not "typical of the claims or

defenses of the class," due to the differing procedural posture of their individual

claims against MedWell. R. 4:32-1(a). Because we are satisfied the court did

not abuse its discretion in determining appellants failed to satisfy subsection (a)

of the Rule, we need not reach subsection (b).

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C. Appellants' Disclosure Claims Did Not Require Resolution of the Underlying

Collection Actions

We are not persuaded by appellants' attempts to analogize their claims to

the torts of malicious use and abuse of process. We note such claims are "treated

with great caution." LoBiondo, 199 N.J. at 89. Nothing about any of the claims

asserted here require the resolution of the underlying case, unlike malicious use

and abuse of process, see id. at 90 (malicious use of process claim requires the

underlying action be "terminated favorably to the plaintiff"). Indeed, appellants

brought their claims prior to the termination of the Passaic County action; the

putative class members could have but failed to do the same.

VI.

A. The Parties' Arguments as to Summary Judgment in the Bergen County

Action

Finally, we address the order granting MedWell summary judgment and

dismissing counts five through seven of the Bergen County action. Appellants

contend the court erred in dismissing each count because the disclosures were

not relevant to any object of the litigation, rendering the litigation privilege

inapplicable. Additionally, they maintain they had a reasonable expectation of

privacy in the information disclosed because HIPAA and state regulations

impose a duty to protect such information, they never waived the physician-

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patient privilege, and failure to pay a bill does not constitute a waiver of their

privacy rights.

In response, MedWell reprises its arguments that (1) appellants failed to

establish damages, (2) the litigation privilege applies because the insurance

information disclosed was relevant and necessary to establish the amount it was

owed, and (3) appellants had no reasonable expectation of privacy in the

disclosed information because the agreements permitted MedWell to use their

information. Further, it notes appellants did not challenge the court's

determination with respect to damages, and HIPAA and the physician-patient

privilege have no applicability to appellants' claims.

B. Appellants Failed to Demonstrate a Material Factual Issue as to Damages for

Their Negligence and Breach of Contract Claims

Addressing counts five and six, the negligence and breach of contract

claims, we conclude the court did not err in dismissing either. "The fundamental

elements of a negligence claim are [1] a duty of care owed by the defendant to

the plaintiff, [2] a breach of that duty by the defendant, [3] injury to the plaintiff

proximately caused by the breach, and [4] damages." Coleman v. Martinez, 247

N.J. 319, 337 (2021) (quoting Robinson v. Vivirito, 217 N.J. 199, 208 (2014)).

Plaintiff has the obligation to prove each element. Ibid.

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To establish a breach of contract claim, the plaintiff must prove (1) "the

parties entered into a contract containing certain terms," (2) "plaintiff did what

the contract required [them] to do," (3) "defendant did not do what the contract

required [them] to do," and (4) "defendant's breach . . . caused a loss to the

plaintiff." Woytas v. Greenwood Tree Experts, Inc., 237 N.J. 501, 512 (2019)

(quoting Globe Motor Co. v. Igdalev, 225 N.J. 469, 482 (2016)). The defendant

is "liable for all of the natural and probable consequences of the breach." Totaro,

Duffy, Cannova & Co, 191 N.J. at 13 (quoting Pickett v. Lloyd's, 131 N.J. 457,

474 (1993)). Again, the plaintiff has the burden to prove each element. Globe

Motor, 225 N.J. at 482.

Specifically, with respect to damages in both types of claims, the plaintiff

must "prove damages with such certainty as the nature of the case may permit,

laying a foundation which will enable the trier of the facts to make a fair and

reasonable estimate." Totaro, Duffy, Cannova & Co, 191 N.J. at 14 (quoting

Lane v. Oil Delivery, Inc., 216 N.J. Super. 413, 420 (App. Div. 1987)).

Generally, attorneys' fees may not be recovered as damages "when the fees were

incurred in an action to establish th[e] defendant's liability." In re Est. of Lash,

169 N.J. 20, 30 (2001). "No matter how egregious th[e] wrongful act, in the

direct action between a plaintiff and a defendant, each party bears his or her own

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fees under the American Rule." DiMisa v. Acquaviva, 198 N.J. 547, 554 (2009).

Similarly, court costs are not typically considered damages. Magnet Res., Inc.

v. Summit MRI, Inc., 318 N.J. Super. 275, 292-93 (App. Div. 1998); see also

Restatement (Second) of Torts, § 914 (Am. L. Inst. 1979) ("[t]he damages in a

tort action do not ordinarily include compensation for attorney fees or other

expenses of the litigation").

"[N]ominal damages . . . do not attempt to compensate the plaintiff for an

actual loss" but are rather "a trivial amount" to "'serve[] the purpose of

vindicating the character' of 'a plaintiff who has not proved a compensable loss.'"

Graphnet, Inc. v. Retarus, Inc., 250 N.J. 24, 38 (2022) (ellipses and second

alteration in original) (first quoting Nappe v. Anschelewitz, Barr, Ansell &

Bonello, 97 N.J. 37, 48 (1984) and then quoting Nuwave Inv. Corp. v. Hyman

Beck & Co., Inc., 221 N.J. 495, 499 (2015)). Where "proof of actual damage is

an essential part of the plaintiff's case," as in negligence and breach of contract

claims, nominal damages cannot be recovered "where no actual loss has

occurred." Rosenau v. New Brunswick, 51 N.J. 130, 138 (1968).

Here, the summary judgment record reflects no material factual question

with respect to damages for counts five and six. Neither appellant presented any

evidence, in their deposition or otherwise, of any damages that would satisfy

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their burden. As noted, the attorneys' fees and filing fees appellants identified

do not constitute recoverable damages. We are satisfied the competent

evidential materials presented, even in the light most favorable to appellants, are

insufficient to permit a rational factfinder to conclude appellants established

damages, a necessary element of their claims for negligence and breach of

contract.

C. Appellants Established a Material Factual Issue as to Invasion of Privacy

We next examine count seven, invasion of privacy. "Invasion of privacy

'is not one tort, but a complex of four,'" including (1) "intrusion on plaintiff's

physical solitude or seclusion," (2) "public disclosure of private facts," (3)

"placing plaintiff in a false light in the public eye," and (4) "appropriation, for

the defendant's benefit, of the plaintiff's name or likeness." Smith v. Datla, 451

N.J. Super. 82, 95 (App. Div. 2017) (first quoting William L. Prosser, The Law

of Torts § 112 (3d ed. 1964) and then quoting Rumbauskas v. Cantor, 138 N.J.

173, 180 (1994)).

Here, appellants allege public disclosure of private facts, which requires

them to prove "[1] the matters revealed were actually private, [2] dissemination

of such facts would be offensive to a reasonable person, and [3] there is no

legitimate interest of the public in being apprised of the facts publicized." Id. at

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96 (quoting Romaine v. Kallinger, 109 N.J. 282, 297 (1988)). Additionally, the

information must be revealed "to the public at large, or to so many persons that

the matter must be regarded as substantially certain to become one of public

knowledge," as "it is not an invasion of the right of privacy . . . to communicate

a fact concerning the plaintiff's private life to a single person or even to a small

group of persons." Castro v. NYT Television, 384 N.J. Super. 601, 611 (App.

Div. 2006) (quoting Restatement (Second) of Torts, § 652D cmt. a).

1. Appellants' Reasonable Expectation of Privacy in Their Personal Medical

Information was Not Eroded by The Agreements or Alleged Failure to Pay

Published facts that are "actually private" are those which are not "in the

public domain" nor "a matter of legitimate public concern." Romaine, 109 N.J.

at 299-301. In other words, the plaintiff "must establish that [they] possessed a

reasonable expectation of privacy" in the information disclosed. G.D. v. Kenny,

205 N.J. 275, 309 (2011). "Patients have a privacy right in their medical records

and medical information." Smith, 451 N.J. Super. at 99 (citing United States v.

Westinghouse Elec. Corp., 638 F.2d 570, 577 (3d Cir. 1980)). Additionally,

Rule 1:38-7(a) characterizes insurance policy numbers as "confidential personal

identifier[s]" which are prohibited from inclusion in court documents unless

otherwise required by "statute, rule, or court order," indicating a reasonable

expectation of privacy in that information as well.

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We are not convinced that appellants' right to privacy in their personal

medical information was vitiated by either the agreements or their alleged failure

to pay MedWell. The C&P agreements authorized MedWell to disclose

appellants' "personal, health, or treatment information or files to [their]

insurance company." Here, MedWell disclosed the information not to

appellants' insurer, but to anyone who viewed the publicly available court

records. The C&P agreements further permitted MedWell to use appellants'

"statements . . . relating to the services and care [they] receive" only "for

purposes of advertising, publicity, and trade." The disclosures here were

indisputably not for any of those authorized purposes.

The intake agreements fare no better. Those authorized release of

appellants' "personal, protected health information and treatment related

information or files to [their] insurance company or third-party payor." Again,

the disclosures here were not made to appellants' insurer or a third-party payor.

The intake agreements also allowed MedWell to use appellants' "information,

including but not limited to healthcare information, . . . relating to the services

and care [they] receive" but again, only "for purposes of advertising, publicity

and trade." The disclosures made in the Passaic County action were not

authorized by the plain language of either set of agreements.

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Additionally, we are not persuaded appellants' failure to pay necessitated

the repeated inclusion of this personal medical information in the Passaic

County action, contrary to the court's conclusion. MedWell makes no attempt

to explain how appellant Williams-Hopkins' medications, surgical history,

family medical conditions, and allergies were necessary or even relevant to

MedWell's claim that she breached the agreements by allegedly failing to pay

the amount charged. While appellants' joint insurance policy number was

potentially relevant to show, for example, that they were insured under the same

policy, we are satisfied appellants established a material factual question as to

whether inclusion of the complete policy number was necessary. Indeed,

MedWell could have redacted all but the last four digits of the number, or simply

indicated the name of appellants' insurer. Further, most of what MedWell sought

to collect from appellants were fees for which it claimed appellants were

personally liable, beyond what their insurance approved.

2. A Material Factual Question Exists as to Whether MedWell's Disclosures

Were Protected by the Litigation Privilege

We must also discuss the litigation privilege, which the court relied upon

to grant MedWell summary judgment. The litigation privilege protects "any

communication (1) made in judicial or quasi-judicial proceedings; (2) by

litigants or other participants authorized by law; (3) to achieve the objects of the

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litigation; and (4) that have some connection or logical relation to the action."

Buchanan v. Leonard, 428 N.J. Super. 277, 286 (App. Div. 2012) (quoting

Loigman v. Twp. Comm. of Middletown, 185 N.J. 566, 585 (2006)). As our

Supreme Court explained, "lawyers and litigants must 'be permitted to speak and

write freely without the restraint of fear of an ensuing defamation action.'"

Loigman, 185 N.J. at 580 (quoting Fenning v. S.G. Holding Corp., 47 N.J. Super.

110, 117 (App. Div. 1957)). The privilege applies not only to defamation

claims, however, but to "a host of other tort-related claims." Id. at 583.

We are convinced the summary judgment record before the court

demonstrates a material factual question as to whether the litigation privilege

protects the disclosures here. Although it is undisputed the disclosures were

made in a judicial proceeding, the Passaic County action, by a litigant, MedWell,

it is less clear whether the information was disclosed "to achieve the objects of

the litigation." Buchanan, 428 N.J. Super. at 286 (quoting Loigman, 185 N.J. at

585). As noted, the personal medical information disclosed lacks any

"connection or logical relation to the action," except the insurance policy

number, the inclusion of which was arguably unnecessary to show the amounts

owed to MedWell or that appellants improperly retained checks issued by their

insurer. Ibid. (quoting Loigman, 185 N.J. at 585).

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3. Appellants Were Not Required to Prove Monetary Damages for Their

Invasion of Privacy Claim

Unlike negligence and breach of contract, "[d]amages may be recovered

for invasion of privacy, even if the injury suffered is mental anguish alone."

Faber v. Condecor, Inc., 195 N.J. Super. 81, 90 (App. Div. 1984). In Faber, the

plaintiffs testified defendant's unauthorized use of a photograph of them made

them feel "distressed," "embarrassed," and "very upset." Id. at 85. We

concluded their "testimony concerning their displeasure with the picture's

appearance in defendant's frames and the mental distress they suffered" was

sufficient to award damages. Id. at 90.

Unlike their claims for negligence and breach of contract, damages are not

an element of appellants' public disclosure of private facts claim and thus it

required no showing of actual damages. See Smith, 451 N.J. Super. at 96 and

Rosenau, 51 N.J. at 138. Instead, nominal damages may be awarded. Rosenau,

51 N.J. at 138. Additionally, appellants' certification that the disclosure of their

personal medical information resulted in their feeling "upset" is similar to the

testimony of the plaintiffs in Faber, 195 N.J. Super. at 85, which was sufficient

for an award of damages in that case.

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VII.

To summarize, we reverse the grant of summary judgment to MedWell in

the Passaic County action. We reverse the dismissal of the CFA claims, counts

one and two of the Bergen County action. We affirm the denial of class

certification. We affirm the grant of summary judgment to MedWell as to the

negligence and breach of contract claims, counts five and six of the Bergen

County action. We reverse the grant of summary judgment to MedWell as to

the invasion of privacy claim, count seven of the Bergen County action.

Accordingly, on remand the court should consider (1) MedWell's breach of

contract claim, (2) appellants' individual CFA claims for damages and

declaratory and injunctive relief, and (3) appellants' individual invasion of

privacy claims.

Affirmed in part, reversed in part, and remanded.

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