ARTICLES
DECEMBER 2001 ARTICLES
Contents © 2001
by Jim Holman.
All rights reserved.
Stay Away From That Dangerous Man
Judge's Ruling Denies Women Protection
By Maggie Garcia
The court drama surrounding "dumpster diver" Timothy Wilson and Family Planning Associates continues. In the latest round of proceedings in October, the court denied a request to turn the case against Family Planning Associates into a class action suit that could benefit thousands of women.
For a period of two years, from May 1997 to May 1999, pro-lifer Timothy Wilson had recovered women's medical records from dumpsters behind Family Planning Associates abortion clinic in Newport Beach. Because Exclusive Pharmacy shares the same dumpsters with the Newport Beach clinic, Wilson was able to obtain medical records Exclusive Pharmacy had discarded. Court records show that Exclusive Pharmacy "fills prescriptions for all Family Planning Associates (Family Planning Associates) Medi-Cal patients." Exclusive Pharmacy leases its space from Edward Allred, owner of Family Planning Associates, whom Exclusive Pharmacy lists as an additional insured landlord on its liability policy. The owner of Exclusive Pharmacy, James Fujino, also works as the pharmacy supervisor for Family Planning Associates ' hospital, San Vicente Hospital."
Wilson then notified, via letter, 10,000 women that Family Planning Associates -- as well as Exclusive Pharmacy -- had disposed of their medical records in an unsecured trash can. After receiving a large number of phone calls, Family Planning Associates sued Wilson in 1999, requesting that the court force him to turn over his database, containing the names of the women, to them. The court ruled in favor of Family Planning Associates and required the Wilsons to turn over the database.
During this time, Los Angeles attorney Jack Schuler had filed a lawsuit against the Family Planning Associates, Acosta v. Family Planning Associates, on behalf of 241 women whose records had been thrown in the dumpster by Family Planning Associates personnel. Because 10,000 plaintiffs had potentially been damaged by the Family Planning Associates, Schuler decided that the best way to handle all of the potential claims was to have the action certified as a class action lawsuit. Schuler argued that a class action lawsuit was "superior to other available methods of fair and efficient adjudication of the controversy." In a telephone interview, Schuler said that he wanted the court to certify the class action in order "to protect women." At the October 12 hearing on the class certification, Schuler pointed out to Judge Wendell Mortimer, Jr. that the class action was necessary because some women may mistakenly believe that their interests were being protected by the 241 lawsuits he had filed against Family Planning Associates.
The judge issued a tentative ruling on the day of the hearing. Judge Mortimer wrote that he was denying the motion for class certification because "most of the 10,000 patients have already rejected the intention to sue and in a respect for their privacy, should not have to be notified and reminded of the circumstances again." In their opposition papers, Family Planning Associates attorneys said that the real reason for the need for a class action lawsuit was to "further a political agenda -- putting out of business clinics that perform abortions." At the hearing, Family Planning Associates attorney David Wheeler argued that the class action was unnecessary and had no precedent in California law. He cited the fact that some of the women in the pending lawsuit against the Family Planning Associates, Acosta vs. Family Planning Associates, had not responded to discovery requests. Wheeler also pointed out that each plaintiff's damages were unique, thus posing uniformity problems in any class action statutes.
In his tentative ruling, the judge noted that the women who did want to sue the Family Planning Associates have done so already in the Acosta action. "There are adequate individual remedies and a class action is not superior to other available methods of adjudicating the controversy," said Judge Mortimer.
Schuler said that, because of the judge's denial of the class action motion, thousands of women have no one to look after their interests. "It is very unfortunate that the court will allow Family Planning Associates and Exclusive Pharmacy to have carelessly discarded and disclosed confidential records of patients without having to compensate them [for their damages]," said Schuler.
Schuler noted that the one positive result of the judge's order was to speed the Acosta case along. "We were pleased that the court has ordered an immediate case management conference at which a trial date will be scheduled," said Schuler. Schuler said that the defense lawyers have been stalling the case and that he is looking forward to the judge ordering the setting of the trial date.
Tim Wilson's wife Colette, who represented her husband in the action by Family Planning Associates, expressed disappointment. She said that the judge refused to accept plaintiffs' argument that a class action was necessary because "the class of 10,000 plaintiffs essentially opted out when they didn't respond to Tim's letter." Colette Wilson pointed out that Family Planning Associates actively discouraged women from contacting her husband, Tim Wilson. "Once they got a hold of the database they knew the names of all of the women and they started calling the women and telling them not to contact Wilson because he was a very dangerous person."
According to Tim Wilson, Schuler had asked Judge Mortimer to notify the 10,000 women listed in the medical records in the event that he denied the class action suit. He should tell them, said Schuler, that their rights were no longer protected and that they were basically on their own.