United States District Court, D. Massachusetts
MEMORANDUM & ORDER
Nathaniel M. Gorton Nathaniel M. Gorton United States
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.
named plaintiff, Steven Sandoe (“Sandoe” or
“plaintiff”), received two prerecorded calls from
Boston Scientific, one in June, 2018 and one in July, 2018.
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).
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.
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.
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.
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.
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
The Named 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 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
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.
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 NotCall 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
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 ...