Physician's Healthsource, Inc. v. Vertex Pharm. Inc.
| Decision Date | 28 March 2017 |
| Docket Number | Civil Action No. 15–11517–JCB |
| Citation | 247 F.Supp.3d 138 |
| Parties | PHYSICIAN'S HEALTHSOURCE, INC., Plaintiff, v. VERTEX PHARMACEUTICALS INCORPORATED, et al., Defendant. |
| Court | U.S. District Court — District of Massachusetts |
Alan L. Cantor, Swartz & Swartz, Boston, MA, Brian J. Wanca, Ross M. Good, Ryan M. Kelly, Wallace C. Solberg, Anderson & Wanca, Rolling Meadows, IL, Glenn L. Hara, Rolling Meadows, IL, Matthew E Stubbs, Montgomery, Rennie & Jonson, Cincinnati, OH, Alec S. Pine, Governo Law Firm LLC, Boston, MA, for Plaintiff.
Kevin M. McGinty, Amanda B. Carozza, Claire S. Schneider, Jane T. Haviland, Peter D. McCarthy, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, PC, Boston, MA, for Defendant.
ORDER ON CROSS–MOTIONS FOR SUMMARY JUDGMENT [Docket Nos. 72, 75, 79, 109, 111]
In this putative class action, plaintiff Physician's Healthsource, Inc. ("PHI") alleges violations of the Telephone Consumer Act of 1991, as amended by the Junk Fax Prevention Act of 2005, 47 U.S.C. § 8227 (the "TCPA"). Specifically, PHI alleges that three faxes it received from the defendants constitute "unsolicited advertisements" in violation of the TCPA and seeks to represent a nationwide class of all persons who allegedly received similar faxes. All parties have filed motions for summary judgment. Docket Nos. 72, 75, 79.1 For the following reasons, this Court denies the motions.
On April 6, 2015, PHI filed this action on behalf of itself and others similarly situated. Docket No. 1. PHI also filed a motion for class certification, which the Court denied without prejudice on December 7, 2015. Docket Nos. 2, 58.
On July 29, 2016, PHI and defendants Vertex Pharmaceuticals Incorporated ("Vertex") and Tactical Advantage Group, LLC ("TAG") filed cross-motions for summary judgment. Docket Nos. 72, 75, 79. The parties filed oppositions to each other's motions for summary judgment on August 26, 2016. Docket Nos. 91, 93, 96, 97. The parties filed replies on September 9, 2016. Docket Nos. 103, 105, 106, 107. The Court heard oral argument on March 7, 2017.
In order to determine precisely which materials are properly before the Court for purposes of deciding the cross-motions for summary judgment, the Court must first decide Vertex's motions to strike certain portions of the summary judgment record. First, Vertex moves to strike the affidavit of Alicia Scutari Salerno (the "Salerno Affidavit"), which was submitted by TAG in support of its motion for summary judgment. Docket No. 109. Vertex argues that the Salerno Affidavit must be stricken from the record because it contradicts the testimony of Stephen Taglienti, TAG's Rule 30(b)(6) designee. Id.
"When an interested witness has given clear answers to unambiguous questions, he cannot create a conflict and resist summary judgment with an affidavit that is clearly contradictory, but does not give a satisfactory explanation of why the testimony is changed." Colantuoni v. Alfred C alcagni & Sons, Inc. , 44 F.3d 1, 4–5 (1st Cir. 1994) (citations omitted). "The purpose of this sham affidavit rule is to protect the procedural integrity of summary judgment." Mahan v. Boston Water & Sewer Comm'n , 179 F.R.D. 49, 53 (D. Mass. 1998). "If a party simply could offer a contradictory, post-deposition affidavit to defeat summary judgment without providing a ‘satisfactory explanation’ for the contradiction, the purpose of summary judgment would be defeated." Id. (citing Perma Research & Dev. Co. v. Singer Co. , 410 F.2d 572, 578 (2nd Cir. 1969) ).
However, "[a] subsequent affidavit that merely explains, or amplifies upon, opaque testimony given in a previous deposition is entitled to consideration in opposition to a motion for summary judgment." Gillen v. Fallon Ambulance Serv., Inc. , 283 F.3d 11, 26 (1st Cir. 2002). The Court has reviewed the subject documents and finds that the Salerno Affidavit expands upon, and does not contradict, the Rule 30(b)(6) deposition testimony of Taglienti. Accordingly, the Court denies Vertex's motion to strike the Salerno Affidavit.
Vertex also moves to strike certain documents on the grounds that PHI's production of those documents was untimely. Docket No. 111. PHI produced such documents well after the discovery deadline and, in some cases, after the deadline for filing dispositive motions. There are three categories of documents at issue: (1) PHI's June 2011 fax journals; (2) Cincinnati Bell phone bills; and (3) documents concerning PHI's fax machine. With respect to the June 2011 fax journals, PHI has explained that it had mistakenly produced June 2010 journals and it was not until a deposition on June 14, 2016 that it realized its mistake. See Docket No. 90 at 6. Vertex has not provided any evidence that PHI's late production of June 2011 fax journals was anything other than a mistake.
With respect to the phone bills, PHI maintains that such documents were not responsive to any of Vertex's discovery requests and that Vertex did not request such documents until June 2016. See Docket No. 90 at 2–5. However, PHI's reading of Vertex's discovery requests is much too narrow. Vertex's Request No. 7 sought "[a]ll documents concerning any fax receiver that PHI alleges received Exhibit A, including but not limited to ... monthly invoices." Docket No. 83 at 7–8. The phone bills are plainly responsive and PHI should have searched for and produced such documents in a timely manner. Similarly, PHI states that it did not come across the additional documents regarding its fax machine until it searched for the phone bills. Docket No. 90 at 8. Again, PHI should have searched for, and produced such documents,when it received Vertex's discovery requests. While the Court does not condone PHI's behavior, these documents have now been provided and Vertex has not shown sufficient prejudice to preclude consideration of the documents. Accordingly, the Court declines to strike these documents from the summary judgment record.2
Vertex is a publicly traded specialty pharmaceutical company that develops, manufactures, and markets small-molecule drugs for treatment of diseases.4 TAG is a "medical communications, meeting management and logistics company."5 PHI is a healthcare provider specializing in chiropractic and pain management services located in Cincinnati.6
Among the products developed, manufactured, and marketed by Vertex in 2011 was the pharmaceutical Incivek.7 Telaprevir is the generic name of Incivek.8 Vertex obtained approval to sell Incivek in the United States on May 23, 2011.9
Incivek was a protease
inhibitor developed by Vertex and approved by the FDA for the treatment of patients with hepatitis C ("HCV").10 HCV is a serious and potentially fatal viral infection that damages a patient's liver over time, potentially resulting in the need for a liver transplant.11 Protease
inhibitors are drugs that inhibit viral replication by interfering with the chemical process that viruses use to replicate themselves and produce infectious viral particles.12
Before the introduction of protease
inhibitors, HCV was treated using a two-drug therapy of pegylated interferon and ribavirin.13 The protease inhibitors changed the treatment model by introducing a third drug to the treatment regimen that significantly increased the cure rate for patients receiving the therapy.14 However, the three-drug therapy incorporating Incivek was complex to administer and presented a number of potential side effects and risks.15 In light of the complexity of the Incivek three drug treatment regimen, and the associated risks, Vertex wanted to make practitioners aware of the indications, contraindications, dosing and side effects associated with Incivek, in order to enable them to treat and educate their patients.16 Therefore, Vertex decided to create a satellite broadcast program.17
To that effect, Vertex entered into a Master Professional Services Agreement, Service #7 ("MSA") with TAG.18 The MSA provided that "[t]he educational goal of this promotional launch initiative is to educate an estimated 3,000 targeted community GE's, NP's, PA's, and other important health care providers that deal in the management of HCV within the first weeks of launch."19 Pursuant to the MSA, TAG was "to provide a high definition (HD) broadcast service from a studio based in Secacus, N.J. to 50 restaurant sites in major markets across the United States," which would allow "engaging of high-value, hard-to-reach audiences through live, custom-made television programming," the objective of which would be to "effectively communicate to a national Gastroenterology audience about telaprevir [Incivek] labeling immediately upon approval."20 TAG also contracted to offer a "live, online HD quality broadcast accessible to any device with an internet connection," which TAG stated "offers a cost effective way to expand your reach to physicians that are unable to be present at a live location."21 The total "Services Fee" was $171,600 and estimated pass-through costs of $639,000.22
PHI alleges that on or about June 6, 2011 and June 7, 2011, defendants transmitted to PHI by telephone facsimile machine three invitations to the satellite broadcast.23 The faxes were sent by TAG.24
The faxes indicate that they were sent to the fax number 513–922–2009.25 The first fax's header contains a June 6, 2011 16:51:19 date and time stamp.26 The second fax's header contains a June 6, 2011 16:54:05 date and time stamp.27 The third fax's header contains a June 7, 2011 11:23:55 date and time stamp.28 The first page of all faxes states:
The second page explains that ...
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