Depending on whether you’re a glass-half-full or glass-half-empty kind of person, plaintiff and defendant both won or both lost when a judge in the Northern District of Illinois recently denied in one fell swoop both the defendant’s motion for summary judgment and the plaintiff’s motion for class certification. Murtoff v. My Eye Doctor, LLC, 21-2607, 2024 WL 4278033 (N.D. Ill. Sept. 24, 2024).
In a case involving health examination reminder calls to someone who was not a current patient, the plaintiff alleged that she received unwanted telemarketing telephone calls from MyEyeDr. leaving pre-recorded voice messages to remind her that she was due for her annual eye exam, in violation of the TCPA. MyEyeDr. filed a motion for summary judgment, arguing that these calls were not telemarketing but rather fell under the Health Care Rule exception to the TCPA, which protects prerecorded healthcare calls (1) that concern a health-related product or service; (2) made by or on behalf of a health care provider to a patient with whom there is an established health care treatment relationship; and (3) that concern the individual health care needs of the patient recipient.
While the Court acknowledged that the calls by MyEyeDr. were health-related, it held that the absence of a provider-patient relationship between the caller and called party removed it from the protections of the Health Care Rule. Plaintiff’s relationship with MyEyeDr. began when plaintiff received a prescription for eyeglasses from her optometrist (who had no relationship to MyEyeDr.) and began contacting various offices for quotes. Plaintiff provided her prescription; vision insurance plan information; and personal details, including her phone number, to MyEyeDr., but never purchased eyeglasses from MyEyeDr., nor received any treatment or services from MyEyeDr. The Court thus found that no patient relationship existed.
As for MyEyeDr.’s argument that its information profile of plaintiff indicated that a year had elapsed since her last eye exam and thus the calls were tailored to her individual treatment needs, the Court found that the calls were not sufficiently tailored to plaintiff’s needs. The one year exam reminder was based off the last exam date indicated on the eye glasses prescription that plaintiff provided to MyEyeDr. However, because plaintiff never received an exam from MyEyeDr., defendant had no knowledge of plaintiff’s “complete picture of eye health,” including whether plaintiff received any subsequent exams. Without the complete picture, the Court held, the calls could not be individually tailored enough to satisfy the requirements of the Health Care Rule. Therefore, the Court denied MyEyeDr.’s motion for summary judgment.
The Court’s ruling regarding the Health Care Rule follows FCC guidance and prior court decisions holding that to qualify for the exemption, the calls must be made in the context of an established provider-patient treatment relationship. We have discussed the exemption frequently in these pages, including here and here.
Perhaps the more interesting part of the Court’s decision was the ruling denying class certification. The Court recognized that whether the defendant had an established treatment relationship with each member of the putative class could determine whether the claims succeeded or failed as to the calls to that class member. That recognition drove the Court’s determination that plaintiff could not satisfy the predominance or typicality requirements of Rule 23. Plaintiff sought to certify a class of consumers who received unwanted telephone calls from MyEyeDr. despite their patient profiles reflecting no records of appointments, orders, or transactions with MyEyeDr., in addition to a subclass of consumers for whom the associated prescriptions in MyEyeDr.’s records were from an outside doctor, i.e. one not affiliated with MyEyeDr. The Court found that identifying class members would thus require an individualized, manual review of records to determine who had an established treatment relationship with MyEyeDr. If a potential class member had a health care treatment relationship with MyEyeDr., any calls to that individual would likely be protected by the Health Care Rule, which would be dispositive. The need to determine liability on a case-by-case basis meant individualized issues predominated over any common ones.
The Court went a step further and also rejected the plaintiff’s typicality arguments. Members of the proposed class, and even proposed sub-class, had more interactions with MyEyeDr. than the plaintiff had. This suggested that calls to other potential members might be protected by the Health Care Rule, which would change the focus from whether MyEyeDr. was provided written consent to whether it was given consent at all. Plaintiff’s claims were thus factually distinguishable from the larger group, which prevented her from satisfying the typicality requirement.
