Goodman v. Illinois Dept. Fin. and Profess. Reg.

• Decision Date: 29 November 2005
• Docket Number: No. 05-1188.,05-1188.
• Citation: 430 F.3d 432
• Parties: Jason GOODMAN, D.C., Plaintiff-Appellant, v. ILLINOIS DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION, David E. Bluthardt, in his official capacity as the Acting Director of the Department's Division of Professional Regulation, and Allan G. Bennett, M.D., Tariq H. Butt, M.D., Georgia D. Lubben, M.D., Sandra F. Olson, M.D., Edward P. Rose, M.D., Douglas P. Webster, D.O., and Linda L. Zange, D.C., in their official capacity as the duly appointed members of the Medical Disciplinary Board of the Division of Professional Regulation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

430 F.3d 432

Jason GOODMAN, D.C., Plaintiff-Appellant, v. ILLINOIS DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION, David E. Bluthardt, in his official capacity as the Acting Director of the Department's Division of Professional Regulation, and Allan G. Bennett, M.D., Tariq H. Butt, M.D., Georgia D. Lubben, M.D., Sandra F. Olson, M.D., Edward P. Rose, M.D., Douglas P. Webster, D.O., and Linda L. Zange, D.C., in their official capacity as the duly appointed members of the Medical Disciplinary Board of the Division of Professional Regulation, Defendants-Appellees.

No. 05-1188.

United States Court of Appeals, Seventh Circuit.

Argued October 26, 2005.

Decided November 29, 2005.

Carl R. Draper (argued), Feldman, Wasser, Draper & Benson, Springfield, IL, James F. McCarthy, Katz, Teller, Brant & Hild, Cincinnati, OH, for Plaintiff-Appellant.

Deborah L. Ahlstrand, Mary E. Welsh (argued), Office of the Attorney General, Civil Appeals Div., Chicago, IL, for Defendants-Appellees.

Before FLAUM, Chief Judge, and EVANS, and WILLIAMS, Circuit Judges.

FLAUM, Chief Judge.

Jason Goodman is a chiropractor who currently practices in St. Louis, Missouri. He is licensed in Illinois, and states that he plans to open a clinic in Springfield. He wishes to telemarket his services to people in the Springfield area who have recently been in car accidents, but is prevented from doing so by the Illinois Medical Practice Act ("the Act"). The Act prohibits medical professionals from soliciting professional patronage under penalty of professional discipline. Goodman has filed a First Amendment challenge to the law and has requested a preliminary injunction against the Illinois Department of Financial and Professional Regulation ("the Department") that would prohibit any professional discipline against him for telemarketing.

The district court held an evidentiary hearing on the preliminary injunction issue. At that hearing, the court ruled that affidavits from another chiropractor and four of Goodman's patients in Missouri should be excluded as hearsay. Although the Department presented no evidence at the hearing, it argued that Goodman was unlikely to prevail on the merits because, among other reasons, the statute had already survived a constitutional challenge in the Illinois Supreme Court. At the close of evidence, the district court denied the injunction request, ruling that Goodman did not meet his burden of showing that he was likely to prevail on the merits of his constitutional claim. Goodman has filed an interlocutory appeal, claiming that the district court erred by not granting the injunction and by excluding the affidavits from the evidentiary hearing. For the following reasons, we affirm the district court's denial of the preliminary injunction.

I. Background

Dr. Goodman is a chiropractor who is licensed in Illinois and currently practices in St. Louis, Missouri. He wishes to open an office in Springfield, Illinois. As a method of building his practice, he would like to hire telemarketers to call recent car accident victims and offer free consultations at his clinic. He intends to focus his calls on those personal injury patients who have suffered minor injuries or have sustained soft tissue injuries in a low-impact rear-end collision. The telemarketers would find potential customers' names from public, legal sources, such as newspapers and court records. Goodman contends that he would not call any phone number that is listed on the National Do Not Call Registry. Goodman has been telemarketing sixty to seventy prospective patients per week for approximately one year in St. Louis.

Under Illinois law, Goodman could be professionally disciplined if he makes such telephone solicitations to prospective patients in Springfield. Under the Act, the Department could "revoke, suspend, place on probationary status, or take any other disciplinary action as the Department may deem proper" against any professional who solicits patronage through any agent. 225 ILL. COMP. STAT. §§ 60/26, 60/22(a)(24). Goodman claims that this regulation violates his First Amendment rights by wrongfully suppressing protected commercial speech.

Goodman filed a complaint in district court, seeking declaratory and injunctive relief. He also filed a motion for preliminary injunction, requesting that the Department be enjoined from enforcing the Act pending resolution of his suit.

In support of his preliminary injunction, Goodman testified to explain his proposed telemarketing plan. He testified that he intended to hire salaried employees to call individuals who were involved in car accidents. The telemarketers would identify who they were and why they were calling. They would offer the potential customer a free screening with Dr. Goodman. Goodman acknowledged that the telemarketers' goal would be to schedule the appointment, but insisted that the telemarketers would follow a script which is truthful, non-deceptive, and conforms to Federal Trade Commission requirements. He further claimed that all customers would be told that there was no obligation to schedule an appointment. If a customer was not interested in an appointment, the telemarketers would be instructed to immediately end the call and not to call that number again. If a customer agreed to an appointment, Dr. Goodman would make a follow-up call within an hour of the appointment being set. He claimed that if the potential customer seemed to be confused or as if "their head [was] not right," he would cancel the appointment. If, after his initial consultation, he believed the patient could benefit from chiropractic treatment, he would arrange for another appointment with the patient. The next appointment would require payment.

Goodman claimed that he would take special care to ensure that his telemarketers did not deviate from their prepared script and did not impart false or misleading information. He would personally train and monitor employees and would have the telemarketers tape their calls. Goodman also claimed that he would establish strict rules, such as requiring telemarketers to identify themselves and the clinic within the first minute of the call. Telemarketers would also be instructed not to discuss specific health problems with potential patients, except to suggest an appointment.

Goodman further testified that patients can benefit from immediate treatment of accident injuries. Immediate treatment, he claimed, can reduce "over-healing" and can release endorphins, which act as natural painkillers and alleviate suffering. Further, tissue that is not treated immediately can repair improperly with less motion and strength, which will lead over time to degeneration of joints and discs. Prompt treatment prevents such consequences.

Goodman also offered his own affidavit, a written statement by another chiropractor, and four identical written statements from satisfied customers in Missouri. Goodman did not offer any proposed scripts for his telemarketers, nor tapes of sample calls from Missouri.

The Department objected to the affidavits from the patients and the other chiropractor, claiming that they were hearsay. The Department also claimed that the patient statements were cumulative of Goodman's testimony that he received no complaints about his calls in Missouri. The trial court agreed that the affidavits were hearsay, and excluded them.

The Department presented no evidence of its own, but argued in closing that Illinois's ban on professional solicitation materially and directly furthered significant government interests in protecting the public against overreaching and protecting the medical profession's integrity and professionalism. The Department also drew the court's attention to Desnick v. Dep't of Prof'l Reg., 171 Ill.2d 510, 216 Ill.Dec. 789, 665 N.E.2d 1346 (1996). In that case, the Illinois Supreme Court upheld the Act's telephone solicitation ban against a First Amendment attack. The Department also argued that the statute was not a complete restriction on the relevant speech, because direct mailings, television, and newspaper advertising were allowed. Finally, the Department argued that policing chiropractor telemarketing throughout the state of Illinois would be impractical, as there are over fifty chiropractors in Springfield alone, and many telemarketers make over twenty calls per day.

The district court denied Goodman's motion for preliminary injunction. Although the court ruled that he had standing to pursue the lawsuit because of his planned office in Springfield, the court did not believe that Goodman had carried his burden of establishing that his proposed speech was protected. Moreover, the judge was not convinced that susceptible individuals would not be harmed by the calls. The court noted that it did not have the script that Goodman wished to use, nor details of the "training" that the telemarketers would receive. The court was also concerned that Goodman had presented no evidence regarding how he planned to determine which accident victims should not be called because they were particularly vulnerable, such as those who were on medication. Given that Goodman had not shown that his proposed speech was not misleading or unlawful, the court ruled that he had not shown a likelihood of success on the merits. The court added that although the preliminary injunction was not being granted, discovery would proceed and that Goodman still could eventually win injunctive relief.

Goodman now appeals both the denial of preliminary injunction and the exclusion of the affidavits from the evidentiary hearing.

II. Discussion

As the Supreme Court has observed, "[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (quoting 11A CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & MARY...