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Sandoe v. Boston Scientific Corp.

United States District Court, D. Massachusetts

January 8, 2020

Steven Sandoe, Plaintiff,
v.
Boston Scientific Corporation, Defendant.

          MEMORANDUM & ORDER

          Nathaniel M. 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. Steven Sandoe (“Sandoe” or “plaintiff”), received two prerecorded calls from Boston Scientific, one each in June and July, 2018.

         Pending before the Court is the motion of defendant for summary judgment on plaintiff's individual claims and the motion of plaintiff for the Court to either deny or defer its ruling on defendant's motion for summary judgment pending further discovery.

         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.

         A. The Seminars

         Boston Scientific provided varying levels of support for each Seminar depending on the needs and requests of the hosting clinic. Indeed, some clinics chose to host Seminars with minimal or no assistance from Boston Scientific. When Boston Scientific did assist clinics with hosting a Seminar, its level of support varied with respect to the following items: 1) financial contributions to Seminar costs; 2) invitations to patients of hosting clinics; 3) rental of space for the Seminar; 4) creation of presentation slide decks for physician presenters; and 5) advertisements for the Seminar.

         A representative from Boston Scientific was typically present at each Seminar but a physician from the host clinic would present his or her own educational content. Boston Scientific encouraged presenting physicians to discuss treatment options for chronic pain, including products sold by Boston Scientific and various other medical device manufacturers. Boston Scientific did not, however, sell its products at the Seminars.

         B. The Invitation Calls

         Boston Scientific offered to make invitation calls for the Seminars on behalf of partner clinics from late 2014 through late 2018. 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, for example, it encouraged clinics to invite only their active patients. The ultimate list of invitees was, however, created by the clinic physicians. Boston Scientific did not verify that the prerecorded messages were, in fact, transmitted to the patients the partner clinic intended to reach.

         The prerecorded messages were recorded by either a clinic physician, a clinic worker or a Boston Scientific representative. The callback number was typically the number of the partner clinic rather than Boston Scientific.

         C. The Calls to the Plaintiff

         Mr. Sandoe received two prerecorded messages, one each in June and July, 2018, at his cell phone number. The calls were 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 contact and invite Spine Works patient S.B. who had provided her number to that clinic at the time she filled out initial intake forms. She indicated her consent to be contacted by Spine Works at her number.

         The telephone number S.B. provided to Spine Works was, at the time of Boston Scientific's calls, assigned to R.B., presumably a spouse or family member of S.B. because they shared an address and the same last name. In May, 2017, that number was reassigned to Mr. Sandoe's cell phone.

         Plaintiff received the following prerecorded message from Boston Scientific's vendor on June 28, 2018:

         Hello, this is a call on behalf of Dr. Joshua Hay with Spine Works Institute, your pain management doctor. We wanted to let you know that we are hosting an educational seminar, “Treatment Options for Chronic Pain” on July 10, to discuss non-medication options to manage your chronic pain. This free seminar will take place on Tuesday, July 10th, from 5:30 PM to 7:30 PM at the Holiday Inn Express and Suites DF West in Hurst, located at 820 Thousand Oaks Drive. Again, that's the Holiday Inn Express and Suites, DFW West located at 820 Thousand Oaks Drive. Food will be served and family and friends are also welcome to attend. If you would like to attend the educational seminar, please press one. If you are not interested in attending, please press two. If you would like to be notified of future events, please press three. You can also find more information and register online at cypevents.com. Again, that's cypevents.com.

         Plaintiff received a second prerecorded message from Boston Scientific's vendor on July 6, 2018, which reiterated the information in the first message and added:

Seating is limited so please call 877-472-4650 to RSVP for this event. You can also find more information online and register online at cypevents.com. Again, that's 877-472-4650 or cypevents.com. Thank you.

         At his deposition, Mr. Sandoe testified that after the first call and before the second call, he called Spine Works, spoke with someone at the clinic and requested that the clinic stop calling him. Plaintiff's phone ...


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