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In a case of first impression in New Jersey, a trial judge has certified a class action suit on behalf of hospital patients who claim a production company invaded their privacy by filming a reality television show in the emergency room. The certified class consists of more than 5,000 patients treated in the emergency room at Jersey Shore Medical Center in Neptune during the summer of 2001 filming of “Trauma: Life in the ER” by New York Times Television, a New York Times Co. subsidiary. The Monmouth County suit, Castro v. NYT Television, MON-L-2743, also names as defendants the hospital and Discovery Communications Inc., owner of the network that televised the program. In granting statewide class action status on June 3, Superior Court Judge Louis Locascio found that the case met the class action criteria of numerosity, typicality, commonality and adequacy of representation. “Defendants’ contention that problems of individual proofs should preclude a finding of commonality, so as to deny certification of a class action, is without merit,” he wrote. The suit charges that Jersey Shore emergency room patients who signed the television crew’s consent forms were misled about the purpose of filming or were unable to make sound decisions because of their medical condition or medication. The hospital gave the television crew the same garb and identification badges worn by hospital staff, and one named plaintiff, Julio Trinidad Costa, who spoke limited English, later said he thought the cameramen were hospital employees. The other named plaintiff, Michael Castro, who was hospitalized for a stab wound inflicted by his girlfriend, claimed that the producer violated an oral agreement not to disclose on television that his injury stemmed from domestic violence, according to Locascio’s ruling. Plaintiffs lawyer Gerald Clark says the crew was allowed to peruse patients’ medical files and that New York Times Television sold footage of one patient to another reality program for $5,000. The Times’ lawyer, Charles Sims of Proskauer Rose in New York, says he is likely to appeal the ruling. “There’s no way to try this as a class action, because the issue on every claim will necessarily depend on the validity of the consent,” Sims says. “There’s no way to do that on a classwide basis.” But plaintiffs lawyer Clark says the variances in proofs will not be a problem. “It’s just a more structured, efficient way to handle the claim on the part of the people affected,” Clark says. Sims says the ruling didn’t clearly state the composition of the class, which the complaint identified as people filmed for the television program, but was described in subsequent pleadings as people filmed or observed by the producers. The original complaint, filed in the summer of 2003, was “just under the wire” to meet the two-year statute of limitations but the plaintiffs’ expansion of the class is time-barred, Sims says. The suit alleges a common-law invasion of privacy claim. The Appellate Division dismissed separate claims under the Consumer Fraud Act and the Patient’s Bill of Rights Act last July. Locascio did offer some good news for the Times, limiting the certified class to New Jersey and rejecting the plaintiffs’ request for national scope. The program was filmed at 35 hospitals in 23 states over five years, encompassing perhaps “hundreds of thousands” of class members, the judge said. He found that to be unmanageable, since it would involve analysis of invasion of privacy laws in each of those states. Sims says the rejection of national class action certification is “the first ruling in our favor which we’ve gotten from Judge Locascio,” though it didn’t address his assertion that the issue of consent varied too much among plaintiffs to make even a statewide class action feasible. Undaunted, Clark and co-counsel John Keefe Jr., both of Lynch, Keefe & Bartels in Shrewsbury, say they will explore bringing class action suits in the other states.

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