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VOL. 124 | NO. 187 | Wednesday, September 23, 2009

Judge Denies Class Action Status For Nurse Wage Suit

By Tom Wilemon

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A judge has denied class action status for a lawsuit alleging that area hospitals conspired to suppress nurse wages, according to a document filed in Memphis federal court on behalf of the nurses.

No formal order has been publicly issued yet. However, Daniel A. Small, the lawyer for the nurses, is seeking to add a substitute plaintiff to the case because the court on Sept. 4 held that the two nurses suing “were not adequate representatives of the class,” according to a motion he filed Friday.

The denial of class action will be a victory for Methodist Healthcare and Baptist Memorial Health Care as well as other area hospitals – once a final order is rendered. The defendants could have lost millions if the suit was successful.

Suzanne C. Clarke, a former employee of Methodist, and Conise P. Dillard, a former employee of Baptist, alleged the two hospital systems, along with other health care organizations in Memphis not specifically named in the suit, regularly exchanged information about nurse wages, agreed not to compete against each other for the employees and then jointly recruited nurses.

Lawyers for the hospital systems countered in court filings that the alleged wage-fixing conspiracy was actually a union ploy to organize nurses. Apparently, that argument had some sway.

“From the outset of this litigation, defendants made clear their intent to challenge the adequacy of proposed class representative Ms. Clarke on the grounds of her prior relationship with the Service Employees International Union, a third party payer supporting the participation of one of plaintiff’s counsel in this litigation,” Small wrote in his motion. “Moreover, during the course of discovery it became obvious that defendants also intended to challenge Ms. Dillard’s adequacy as class representative based on her personal bankruptcy filing.”

Lawyers for the nurses then sought to add Anna Bachelder, a registered nurse from Methodist, as a plaintiff, but Magistrate Judge Diane Vescovo denied the request as “untimely” in February 2008.

This latest filing, a motion to intervene, is a second attempt to add Bachelder as a plaintiff.

“Ms. Bachelder has sought intervention only 10 days after the court’s denial of plaintiff’s motion for class certification,” Small wrote. “Given that Bachelder has moved to intervene prior to the entry of final judgment, her motion should be considered timely.”

Small, who is based in Washington, D.C., has fielded similar suits against hospitals in Chicago, Detroit, Albany, N.Y., and San Antonio.

Lawyers for Methodist and Baptist declined to comment until a final order is made public.

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