Illinois Central District Court Judge Sue Myerscough
SPRINGFIELD - A federal judge in Springfield has turned back another attempt by Hospital Sisters Health System to dismiss a class action complaint alleging violation of a state genetic information privacy law through pre-employment screenings for people seeking to work at hospitals and clinics in central and southern Illinois.
U.S. District Judge Sue Myerscough filed an opinion Nov. 7 preserving litigation from prospective employee Mary Million, whose December 2024 lawsuit accused HSHS of violating the Illinois Genetic Information Privacy Act in the way it sought information on family medical history. She seeks at least $5 million in damages and class certification.
Million is represented by attorneys William J. Edelman, Gary M. Klinger and Michael A. Acciavatti, of the firm of Milberg Coleman Bryson Phillips Grossman, of Chicago and New York; and Zachary Arbitman and George Donnelly, of the firm of Feldman Shepherd Wohlgelernter Tanner Weinstock & Dodig, of Philadelphia.
HSHS moved to dismiss the complaint in February for failure to state a claim, but Myerscough denied that request in May. In March, federal Magistrate Judge Eric Long endorse the parties’ joint proposed discovery schedule, and at the end of April he entered several orders: agreed confidentiality, qualified protective and electronically stored and hard copy records. HSHS’ original lawyers withdrew in August.
In seeking to end the complaint this time, HSHS argued Million couldn’t show, by a preponderance of evidence, that the federal court has jurisdiction under the federal Class Action Fairness Act. The organization claimed Million’s assertion of at least 100 possible class members “is not actually supported by any documents,” Myerscough wrote, while also being unable to show at least one such class member lives outside Illinois.
HSHS is wrong, Myerscough said, pointing to its own website claiming to employ “more than 11,000 colleagues,” while industry research shows turnover rates during Million’s proposed class period “ranged from 18 to 26% nationwide.” Other evidence includes an HSHS Medical Group YouTube video stating the practice of asking patients for family histories; the company’s pre-employment policies; its Code of Conduct “indicating that they collect information about family history, as well as a commonly-used ‘Adult History & Physical Examination Form’ that included a section on family history;” and a document specifically about relatives of applicants with problematic immune systems.
Further, Million asserted HSHS knows it employs Missouri residents. Evidence includes LinkedIn profiles, Indeed.com job postings and an HSHS human resources document detailing a health plan network service area if they live in 31 Illinois counties or five in Missouri.
Myerscough denied HSHS’ motion to sanction Million, first because it improperly filed that motion in the same filing as its motion to dismiss, rather than on its own, and second, because the request was on the same grounds as the jurisdictional challenge, whereas Myerscough had already determined Million “demonstrated that her factual contentions regarding CAFA subject-matter jurisdiction have evidentiary support. Moreover, much of the information (Million) presented in support of jurisdiction was available upon inquiry by her counsel prior to filing the complaint via publicly-available information on the internet and was not merely uncovered during discovery in this case.”
She similarly said an HSHS request to stay discovery is moot because it was premised on the likelihood of prevailing on the motions for dismissal and sanctions, but then granted Million’s motion to compel discovery requests, finding them proper under the schedules and orders Judge Long approved and issued earlier in the year.
“Defendants’ objection — which is based upon the fact that the class has not yet been certified — is not well-taken,” Myerscough wrote, noting one deadline set on Nov. 30 and others extending into March, with the certification deadline by May 15. She said Million’s requests were not overly broad under that timeline and rejected concerns about third-party privacy rights given the “entry of agreed-upon confidentiality and qualified protective orders. If defendants believe those agreed orders entered by the magistrate judge are now insufficient, defendants may formally raise this issue with the magistrate after conferring with plaintiff’s counsel in an attempt to agree upon a proposed revised order.”
Myerscough also granted Million’s motion to compel HSHS to produce details about search terms for electronically stored information, again noting Judge Long’s earlier orders pursuant to joint agreements. She called HSHS’ arguments against this request “baseless” and chastised HSHS for failing to participate in an early August conference before trying to stay discovery altogether.
“With respect to defendants’ argument that the ESI Order did not require the search of ESI to be conducted in any particular manner and only required defendants to disclose search terms if any were actually used, the ESI Order plainly directed that the parties meet and confer if the party requesting production has a ‘good faith (belief that) additional search terms are likely to yield additional unique, relevant information.’ Defendants may not simply assert that they did not use any search terms when identifying and producing responsive documents and then opt out of all future discussions of relevant search terms proposed in good faith.”
Myerscough gave Million seven days to set forth reasonable expenses and legal fees then referred the complaint back to Judge Long for further case management.
HSHS is represented by attorneys Joseph Mulherin, Christopher A. Braham, Jean Edmonds and Alivia Combe-DuQuet, of the firm of McDermott Will & Schulte, of Chicago.
