                United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 18-3467
                       ___________________________

Brandon Graham, individually and also on behalf of all similarly situated persons

                       lllllllllllllllllllllPlaintiff - Appellant

                                           v.

                                CIOX Health, LLC

                      lllllllllllllllllllllDefendant - Appellee

                            ------------------------------

   Lynn Henderson; Espire Concepcion; Tyrone Green-Smith; Antonio Jones

                           lllllllllllllllllllllMovants
                       ___________________________

                               No. 18-3468
                       ___________________________

Brandon Graham, individually and also on behalf of all similarly situated persons

                              lllllllllllllllllllllPlaintiff

                                           v.

                                CIOX Health, LLC

                      lllllllllllllllllllllDefendant - Appellee

                            ------------------------------
    Lynn Henderson; Espire Concepcion; Tyrone Green-Smith; Antonio Jones

                         lllllllllllllllllllllMovants - Appellants
                                        ____________

                      Appeals from United States District Court
                    for the Eastern District of Missouri - St. Louis
                                    ____________

                            Submitted: September 23, 2019
                               Filed: March 12, 2020
                                   ____________

Before KELLY, MELLOY, and STRAS, Circuit Judges.
                           ____________

KELLY, Circuit Judge.

       The issue in this case is whether a Missouri statute permits health care providers
to charge patients who request their medical records a “search” fee when there are no
responsive medical records to be found. The district court1 decided that the answer
is yes. We agree and affirm the district court’s judgment.

                                    I. Background

     Brandon Graham’s attorney sent a written request to St. Mary’s Hospital for
Graham’s health care records from July 10, 2017, to October 31, 2017. CIOX Health,
LLC, which fulfills medical-records requests for St. Mary’s Hospital, searched for
Graham’s health care records from the dates requested, found none, and sent
Graham’s attorney a letter stating: “We regret to inform you that we were unable to


      1
        The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.

                                           -2-
process your request as the patient did not receive services on the service date(s)
requested. No dates of treatment 7/10/17 - 10/25-17 at St. Mary’s Hospital - St.
Louis.” CIOX billed Graham’s attorney a “Basic Fee” of $24.85, a “Retrieval Fee”
of $0.00, and a “Per Page Copy” fee of $0.00 for this service.

       Graham subsequently filed this proposed class action lawsuit alleging that
CIOX’s practice of charging a “Basic Fee” for unsuccessful records searches violates
Mo. Rev. Stat. § 191.227 (2017). Under that statute, health care providers “shall,
upon written request of a patient, or guardian or legally authorized representative of
a patient, furnish a copy of his or her record of that patient’s health history and
treatment rendered to the person submitting a written request.” Id. § 191.227.1.
However, they are not required to provide this service for free. As relevant here,

      Health care providers may condition the furnishing of the patient’s health
      care records . . . upon payment of a fee for:

             (1)(a) Search and retrieval, in an amount not more than twenty-
             four dollars and eighty-five cents plus copying in the amount of
             fifty-seven cents per page for the cost of supplies and labor plus,
             if the health care provider has contracted for off-site records
             storage and management, any additional labor costs of outside
             storage retrieval, not to exceed twenty-three dollars and twenty-
             six cents, as adjusted annually pursuant to subsection 5 of this
             section; or

             (b) The records shall be furnished electronically upon payment of
             the search, retrieval, and copying fees set under this section at
             the time of the request or one hundred eight dollars and eighty-
             eight cents total, whichever is less, if [certain conditions are met]
             ....

Id. § 191.227.2 (emphasis added).




                                          -3-
      CIOX filed a motion to dismiss the lawsuit. It argued that the statutory
language permitting health care providers to “condition the furnishing of the patient’s
health care records . . . upon a payment of a fee for . . . [s]earch and retrieval”
authorized it to charge a “Basic Fee” for searching for a patient’s health care
records—even when the search was unsuccessful. The district court agreed,
concluding that “[t]he plain language of the statute permits the charge of this fee.”

       Graham appeals. He argues that CIOX was not permitted to charge a basic fee
for searching for his health care records because (1) CIOX did not “furnish” any
“health care records” and (2) the statute only authorizes health care providers to
charge a fee for “search and retrieval,” not a standalone fee for a “search.”

                              II. Standard of Review

        “We review de novo the district court’s grant of a motion to dismiss.”
Halbrook v. Mallinckrodt, LLC, 888 F.3d 971, 975 (8th Cir. 2018). Where, as here,
we are called upon to interpret state law, “our role is to follow the law as decided by
that state’s highest court. Absent clear direction from that court, we must conduct our
analysis as a predictive exercise, interpreting state law in the manner we believe the
state’s highest court would rule.” Id. (cleaned up).

                                    III. Analysis

       The statute at issue permits health care providers to “condition the furnishing
of the patient’s health care records” upon the payment of certain fees. See Mo. Rev.
Stat. § 191.227.2. Graham argues that CIOX did not “furnish his health care records”
because no such records existed. Thus, he contends that the statutory prerequisite was
not satisfied, and CIOX was not authorized to charge him a fee.

      CIOX sent Graham’s attorney a letter stating that Graham “did not receive
services on the service date(s) requested. No dates of treatment 7/10/17 - 10/25-17

                                         -4-
at St. Mary’s Hospital - St. Louis.” This letter is a “record” within the ordinary
meaning of that term because it “recalls or relates past events”—namely, Graham’s
non-treatment on the dates requested. Merriam-Webster’s Collegiate Dictionary 1040
(11th ed. 2012). CIOX “furnished” this record to Graham’s authorized representative
by giving or supplying it to his attorney. See id. at 508. And the record, sent on
behalf of St. Mary’s Hospital in response to a request for Graham’s medical records,
relates information about Graham’s health care. We thus conclude that CIOX
furnished a health care record within the meaning of the statute.2

       Health care providers “may condition” the furnishing of health care records
“upon payment of a fee for . . . [s]earch and retrieval . . . .” Mo. Rev. Stat.
§ 191.227.2(1)(a). Graham’s next argument is that this only authorizes health care
providers to charge a single fee for “search and retrieval,” not separate fees for
“search or retrieval.” He contends that where, as here, a health care provider does not
“retrieve” anything, it cannot charge a fee solely for the “search.”

        As a preliminary matter, Graham’s framing of the issue as whether “and” bears
a conjunctive or disjunctive meaning in the phrase “search and retrieval” is misplaced.
We agree that “and” should be given “its ordinary plain meaning as a conjunctive.”
Stires v. Dir. of Revenue, 477 S.W.3d 611, 615 (Mo. banc 2016). But that does not,
by itself, resolve this issue. Even if “and” is given a conjunctive meaning, we must
still decide whether the statute requires CIOX to conduct both a “search and retrieval”
before it may charge a fee, as Graham argues, or whether the statute authorizes a fee
for both “search and retrieval,” as CIOX argues.




      2
       A subsequent amendment codifies this understanding. The statute now states:
“For purposes of subsections 1 and 2 of this section, ‘a copy of his or her record of
that patient’s health history and treatment rendered’ or ‘the patient’s health care
records’ includes a statement or record that no such health history or treatment record
responsive to the request exists.” Mo. Rev. Stat. § 191.227.3 (2018).

                                          -5-
       We think CIOX has the better position. The list in § 191.227.2(1) does not
describe what a health provider “must” or “shall” do to earn a fee; instead, it lists the
fees that a health care provider “may” charge for furnishing a record. Cf. Stiers, 477
S.W.3d at 615. In some cases, an actor may be required to do two things to earn a
single fee. But that is more likely to be the case where both activities are within the
actor’s control. Cf. Finnegan v. Old Republic Title Co. of St. Louis, 246 S.W.3d 928,
930 (Mo. banc. 2008) (concluding that “the failure of the notaries to record their
notarizations” precluded them from charging a fee for the “notarization of each
signature and the proper recording thereof”). Here, Graham acknowledges that
retrieval “is impossible when no records exist.” It would be unusual for the legislature
to require health care providers to conduct a search whenever a written request for
medical records is submitted, see Mo. Rev. Stat. § 191.227.1, permit them to charge
a “search” fee, id. § 191.227.2, but condition their ability to charge that fee upon the
happenstance of whether there are pre-existing records to be found.

       The plain language of the statute does not require this unusual result. The next
subsection separately lists “search, retrieval, and copying fees.” Mo. Rev. Stat.
§ 191.227.2(1)(b). This is a strong textual indication that the legislature thought of
“search” fees and “retrieval” fees as distinct and that it did not intend to limit health
care providers to charging only a single, indivisible fee for a “search and retrieval.”3

     Accordingly, we affirm the district court’s dismissal of this action. The
movants’ appeal of the denial of their motion to intervene is dismissed as moot.



      3
        The dissent would read this list of three fees as a list of two: a “search and
retrieval” fee and a “copying” fee. The dissent justifies this interpretation by noting
that subsection (1)(b) cross-references subsection (1)(a) and declaring that “the only
reasonable reading” of subsection (1)(a) is that it authorizes only a single fee for
“search and retrieval.” However, we believe it is reasonable to interpret subsection
(1)(a) as authorizing distinct fees for “search” and “retrieval.” The three-fee list in
subsection (1)(b) supports this interpretation.

                                          -6-
STRAS, Circuit Judge, dissenting.

      This case requires us to answer two questions. The first is whether a prior
version of Missouri’s medical-records statute authorizes a single fee for “[s]earch
and retrieval” or one fee for a “[s]earch” and a separate one for “retrieval.” If a
single fee covers both actions, then the second question is whether CIOX may
charge a customer when it searches but does not retrieve anything. I respectfully
dissent because, in my view, the statute sets a single fee that requires the
completion of both actions.

                                           I.

       Under Missouri law, the “primary rule of statutory interpretation is to give
effect to legislative intent as reflected in the plain language of the statute at issue.”
Parktown Imps., Inc. v. Audi of Am., Inc., 278 S.W.3d 670, 672 (Mo. banc 2009).
This includes giving words and phrases their common and ordinary meaning,
Abrams v. Ohio Pac. Express, 819 S.W.2d 338, 340 (Mo. banc 1991); interpreting
statutes, including related provisions, as a whole, Gott v. Dir. of Revenue, 5 S.W.3d
155, 159–60 (Mo. banc 1999); and applying the rules of grammar when they are
helpful, see Caplinger v. Rahman, 529 S.W.3d 326, 332 (Mo. Ct. App. 2017).

                                           A.

       Applying these principles, the statute authorizes only a single fee for
“[s]earch and retrieval,” not separate fees for each of these acts. As relevant here,
subsection 2 states:

      Health care providers may condition the furnishing of the
      patient’s health care records to the patient, the patient’s authorized
      representative or any other person or entity authorized by law to
      obtain or reproduce such records upon payment of a fee for:


                                          -7-
             (1)(a) Search and retrieval, in an amount not more than
             twenty-four dollars and eighty-five cents plus copying in the
             amount of fifty-seven cents per page for the cost of supplies and
             labor plus, if the health care provider has contracted for off-site
             records storage and management, any additional labor costs of
             outside storage retrieval, not to exceed twenty-three dollars and
             twenty-six cents, as adjusted annually pursuant to subsection 5
             of this section; . . .

             (2) Postage, to include packaging and delivery cost; and

             (3) Notary fee, not to exceed two dollars, if requested.

Mo. Rev. Stat. § 191.227.2 (Supp. 2017) (emphasis added). Focusing on the
critical language, the provider “may condition the furnishing of the patient’s health
care records . . . upon payment of a fee for: (1) . . . [s]earch and retrieval . . . ;
(2) [p]ostage . . . ; and (3) [n]otary fee . . . .”

       If this sounds like a list of three fees, it is. Lists with four nouns and two
conjunctions cannot contain four separate items.4 They necessarily include one
compound item—here, search and retrieval—made up of more than one noun. See
Rodney Huddleston & Geoffrey K. Pullum, The Cambridge Grammar of the
English Language 1279 (2002) (referring to this type of construction as
“layering”). The structure of the statute makes clear that there are three fees, each
of which is discussed in a separate paragraph of subsection 2: one for “[s]earch and
retrieval,” one for “[p]ostage,” and one for a “[n]otary.” The key takeaway is that
only one fee covers the compound item, “[s]earch and retrieval.”



      4
        If the goal was to create a list with four items, not just three, the Missouri
General Assembly could have picked one of the following structures: “search,
retrieval, postage, and notary fee” or “search and retrieval and postage and notary
fee.” See Rodney Huddleston & Geoffrey K. Pullum, The Cambridge Grammar of
the English Language 1276 (2002).

                                         -8-
                                           B.

       If the statute creates a single search-and-retrieval fee, then the focus shifts to
whether a health-care provider must complete both actions before it can charge the
fee. In the statute, the word “and” separates the two nouns, “search” and
“retrieval.” In Missouri, there is a strong presumption that “and” is conjunctive,
not disjunctive, meaning that it is read as an “and,” not as an “or.” See Stiers v.
Dir. of Revenue, 477 S.W.3d 611, 615 (Mo. banc 2016). This presumption
“strong[ly]” suggests that both acts—search and retrieval—must be completed
before CIOX can charge the fee. Id. (citation omitted).

       Indeed, the Missouri Supreme Court has considered a statute like this one
before. In Finnegan v. Old Republic Title Co. of St. Louis, the statute authorized
notaries to charge a fee of two dollars “for notarization of each signature and the
proper recording thereof in the journal of notarial acts.” 246 S.W.3d 928, 929
(Mo. banc. 2008) (quoting Mo. Rev. Stat. § 486.350 (emphasis added)). The
plaintiffs sued, arguing that the title company should not have charged them a fee
because the notaries did not record anything in their journals. Id. The court agreed
and concluded that the fee could only be collected if notaries completed both acts:
“notarization” and “proper recording.” Id. at 930. The reason, the court said, was
that the “use of the word ‘and’ indicate[d] a legislative intent that recording . . . be
an additional requirement to a $2 charge under the statute.”5 Id.




      5
        The court tries to distinguish Finnegan by suggesting that both notarization
and proper recording were “within the [notaries’] control.” Ante at 6. It is not clear
what difference this makes. After all, the notary statute was grammatically
indistinguishable from the one here, and Finnegan emphasized “the plain language”
and the significance of the word “and,” 246 S.W.3d at 930, not the feasibility of
completing the recording.

                                          -9-
       I would reach the same conclusion here. To use Finnegan’s words, retrieval
of a medical record is “an additional requirement to a [$24.85] charge under the
statute.” Id. CIOX did not retrieve any records, so it was not entitled to payment.

                                           II.

       The court disagrees and interprets the statute to allow CIOX to charge the
fee, regardless of whether it retrieves anything. It provides two reasons, but neither
is persuasive.

      The court begins with policy. It asks why the Missouri General Assembly
would prohibit health-care providers from charging a fee when they have taken the
time to search for records, but by “happenstance . . . there are [no] pre-existing
records to be found.”6 Ante at 6. It says that such a decision would be “unusual,”
but even if this were true, it would not matter because the text is unambiguous. See
Kerperien v. Lumberman’s Mut. Cas. Co., 100 S.W.3d 778, 781 (Mo. banc 2003)
(“Where the language of a statute is unambiguous, courts must give effect to the
language used by the legislature.”).

       But the court’s logic falls short on its own terms too. Viewed from the
perspective of consumers, this decision is not unusual at all. As a consumer-
protection statute, one of its purposes seems to be to protect patients from
overcharges. So if a patient requests something, but receives nothing, then it is not
odd for the patient to pay nothing. Although this scheme may be unfair to CIOX,
it is the result of how the Missouri General Assembly decided to balance the

      6
       Even if the “no records” letter is, as the court concludes, itself a record, it was
newly created in response to Graham’s inquiry and could not have been “retriev[ed]”
by CIOX. See The American Heritage Dictionary of the English Language 1500 (5th
ed. 2016) (defining “retrieve” as “[t]o gain access to (stored information)”); Webster’s
Third New International Dictionary 1940 (2002) (defining “retrieve” as “REGAIN,
REPOSSESS”).

                                          -10-
interests of patients and health-care providers in the statute. See Goerlitz v. City of
Maryville, 333 S.W.3d 450, 456 (Mo. banc 2011) (discussing the “time-honored
principle” that “policy decisions” are left to the legislature). It is not our place to
second-guess its judgment. In re Brockmire, 424 S.W.3d 445, 450 (Mo. banc
2014).

       The court ends its analysis by relying on subparagraph (1)(b)’s reference to
“search, retrieval, and copying fees,” but this phrase provides no help either.7 The
court believes it provides “a strong textual indication that . . . ‘search’ fees and
‘retrieval’ fees [are] distinct.” Ante at 6. But this reads too much into a simple
cross-reference to the fees found elsewhere “under this section”: the “[s]earch and
retrieval” fee in subparagraph (1)(a), which includes compensation for copying;
and a separate fee, contained in the next subsection, for the “reasonable cost of all
duplications of health care record material or information which cannot routinely
be copied or duplicated on a standard commercial photocopy machine.” Mo. Rev.
Stat. § 191.227.2(1)(a), .3 (Supp. 2017). It does not, in other words, change the
only reasonable reading of the statute: CIOX was only entitled to collect a fee from
Graham if it conducted a search and retrieved a medical record, the latter of which
never occurred here.
                         ______________________________




       7
        As relevant here, subparagraph 1(b) says that health-care providers must
furnish records electronically, “upon payment of the search, retrieval, and copying
fees set under this section at the time of the request . . . if such person: [listing three
conditions].” Mo. Rev. Stat. § 191.227.2(1)(b) (Supp. 2017).

                                           -11-
