333 F.R.D. 4 (D.Mass. 2019), C. A. 18-11826-NMG, Sandoe v. Boston Scientific Corp.

Docket Nº:Civil Action 18-11826-NMG
Citation:333 F.R.D. 4, 104 Fed.R.Serv.3d 1737
Opinion Judge:GORTON, United States District Judge.
Party Name:SANDOE, Plaintiff, v. BOSTON SCIENTIFIC CORPORATION, Defendant.
Attorney:Avi R. Kaufman, Kaufman P.A., Miami, FL, Jason R. Campbell, Charlestown, MA, for Plaintiff. Erin L. Hoffman, Nathan A. Brennaman, Faegre Baker Daniels LLP, Minneapolis, MN, W. Daniel Deane, Nixon Peabody LLP, Manchester, NH, Troy K. Lieberman, Nixon Peabody LLP, Boston, MA, for Defendant.
Case Date:October 23, 2019
Court:United States District Courts, 1st Circuit, District of Massachusetts

Page 4

333 F.R.D. 4 (D.Mass. 2019)

104 Fed.R.Serv.3d 1737

SANDOE, Plaintiff,

v.

BOSTON SCIENTIFIC CORPORATION, Defendant.

Civil Action No. 18-11826-NMG

United States District Court, D. Massachusetts

October 23, 2019

Page 5

Avi R. Kaufman, Kaufman P.A., Miami, FL, Jason R. Campbell, Charlestown, MA, for Plaintiff.

Erin L. Hoffman, Nathan A. Brennaman, Faegre Baker Daniels LLP, Minneapolis, MN, W. Daniel Deane, Nixon Peabody LLP, Manchester, NH, Troy K. Lieberman, Nixon Peabody LLP, Boston, MA, for Defendant.

MEMORANDUM & ORDER

GORTON, United States District Judge.

This case involves an alleged violation of the Telephone Consumer Protection Act ("the TCPA"), 28 U.S.C. § 227, by Boston Scientific Corporation ("Boston Scientific" or "defendant") regarding prerecorded voice calls made to more than 200,000 phone numbers between 2014 and 2018.

The named plaintiff, Steven Sandoe ("Sandoe" or "plaintiff"), received two prerecorded calls from Boston Scientific, one in June, 2018 and one in July, 2018.

Pending before the Court is the motion of plaintiff to certify two classes of similarly situated individuals (Docket Entry No. 39) and the motion of plaintiff to strike the expert testimony upon which Boston Scientific relies in opposing class certification (Docket Entry No. 85).

I. Background

Boston Scientific is a medical device manufacturer and a healthcare company that partners with health care clinics to host educational seminars for clinic patients. Relevant to this case, Boston Scientific partnered with a number of pain management clinics from 2014 through 2018 to host several "Focus on Diagnosis" seminars (collectively, "the Seminars") to educate clinic patients about treatment options for chronic pain management.

Boston Scientific provided varying levels of support for each Seminar depending on the needs of the hosting clinic. For instance, some clinics chose to host a Seminar with minimal or no assistance from Boston Scientific whereas others wanted assistance with, among other things, inviting patients, renting space and advertising. A representative from Boston Scientific was typically present at each Seminar, but a physician from the host clinic would present at the Seminar. Presenting physicians would sometimes discuss the products of Boston Scientific and other medical device manufacturers. Boston Scientific did not sell its products at the Seminars.

A. The Calls

Boston Scientific began offering to make invitation calls for the Seminars on behalf of partner clinics in late 2014. It partnered with two vendors to transmit prerecorded voice messages inviting clinic patients to the Seminars. Boston Scientific was involved in providing guidance as to which patients the clinics should invite but the ultimate list of invitees was the decision of the clinic physicians.

Page 6

The prerecorded invitations were recorded by the physician scheduled to speak at the Seminar, a clinic staff member or a Boston Scientific representative. Boston Scientific provided a standard script which did not include reference to itself. When a Boston Scientific representative recorded the call, however, he or she was typically identified as affiliated with that company.

Boston Scientific made between one and three calls to each invitee. If an individual answered the first call and responded affirmatively or negatively, he or she did not receive any additional calls.

B. The Named Plaintiff

Plaintiff Steven Sandoe received two prerecorded messages at his cell phone number intended for S.B., a patient of Spine Works Institute ("Spine Works"). Spine Works partnered with Boston Scientific to host a Seminar in July, 2018, and intended to invite S.B. The telephone number S.B. had provided to Spine Works, however, had been reassigned to Mr. Sandoe.

Mr. Sandoe testified that he answered both calls and called Spine Works to request that it stop calling him. Plaintiff’s phone records do not, however, show any outbound calls to Spine Works.

At the time Mr. Sandoe received the two prerecorded calls, his number was listed on the National Do-Not-Call Registry. Plaintiff testified that he did not register the number and only learned that it was on the National Do-Not-Call Registry from his attorneys in connection with this case.

C. The Classes

Plaintiff Mr. Sandoe seeks certification of the following two classes:

Prerecorded No Consent Class: All persons in the United States who from four years prior to the filing of this action through the present (1) Defendant (or an agent acting on behalf of Defendant) called, (2) using a prerecorded voice message, (3) where such person was not listed in Defendant’s records as the intended recipient of the call.

Do Not Call Registry Class: All persons in the United States who from four years prior to the filing of this action through the present (1) Defendant (or an agent acting on behalf of Defendant) called more than one time, (2) within any 12-month period, (3) where the person’s telephone number had been listed on the National Do Not Call Registry for at least thirty days, (4) to invite them to a Boston Scientific educational event, (5) where such person was not listed in the Defendant’s records as the intended recipient of the call.

D. Plaintiff’s Class Identification Methodology

Plaintiff proffers expert Anya Verkhovskaya ("Ms. Verkhovskaya" or "plaintiff’s expert") to testify regarding the following process she used to identify proposed class members: 1. She provided a list of Boston Scientific’s intended call recipients to TransUnion, a consumer credit reporting agency, to apply its proprietary algorithm to link names and addresses to each phone number during the specified timeframe ("the reverse-append process").

2. She compared the identified names and addresses with Boston Scientific’s list of intended call recipients to identify "wrong numbers". Ms. Verkhovskaya applied a six-month "fuzzy" grace period which presumes the individual called was the user of a number at the time of Boston Scientific’s call if he or she was associated with that number within six months of the call.

3. She analyzed whether the numbers were associated with cell phones or landlines.

4. She processed the "wrong number" results through LexisNexis’ business-identification query to determine whether any of the identified numbers were registered to businesses.

5. She compared the "wrong numbers" with the National Do-Not-Call Registry.

Page 7

After twice supplementing her report (the first report contained an error in the data and the second report contained a glitch in the code) Ms. Verkhovskaya identified as wrong numbers approximately 15% of a sample set of 9,000 telephone numbers.

Boston Scientific submitted a rebuttal report of its expert, Mr. Jan Kostyun ("Mr. Kostyun" or "defendant’s expert"), who opines that Ms. Verkhovskaya’s methodology and analysis is unreliable, unsupportable, flawed and inconsistent. Specifically, Mr. Kostyun criticizes the reverse-append process as 1) failing properly to identify even the named plaintiff as a class member without individualized inquiry and 2) using the "fuzzy" period for no justifiable reason. Mr. Kostyun ultimately concludes that Ms. Verkhovskaya’s methodology cannot reliably identify members of the proposed classes.

E. Procedural History

Mr. Sandoe commenced this action in August, 2018 by filing a complaint on behalf of himself and putative class members. In June, 2019, he moved for class certification and submitted the supporting expert report of Ms. Verkhovskaya, which she supplemented shortly thereafter (Docket Entry No. 39). Defendant opposed class certification and proffered the rebuttal expert report of Mr. Kostyun (Docket Entry No. 70). Plaintiff filed a reply brief and an additional expert report (Docket Entry No. 84) and separately moved to strike defendant’s proposed expert report (Docket Entry No. 85). Defendant, in turn, moved to strike portions of plaintiff’s reply or, in the alternative, for leave to file a surreply, on the grounds that plaintiff had improperly introduced new arguments and expert analysis (Docket Entry No. 96). The Court denied defendant’s motion to strike but granted leave to defendant to file a surreply brief and expert report (Docket Entry No. 115).

In July, 2019, defendant moved for summary judgment (Docket Entry No. 58). Plaintiff, in response, moved for the Court to deny or defer ruling on the motion for summary judgment until after resolving class certification or, in the alternative, after permitting additional discovery (Docket Entry No. 78).

On October 17, 2019, this Court convened a hearing on plaintiff’s motion for class certification.

II. Plaintiff Motion...

To continue reading

FREE SIGN UP