PHILADELPHIA – The U.S. District Court for the Eastern District of Pennsylvania recently denied a motion for summary judgment by a company facing allegations it sent unsolicited faxes to a Central Valley physician.
In a May 13 memorandum opinion and order, U.S. District Judge Edward Smith denied the motion by MCMC, which offers independent medical examinations (IME) for injured claimants in legal proceedings, in the complaint filed by Dr. Robert Mauthe alleging MCMC violated the Telephone Consumer Protection Act when it sent him a fax advertising a continuing medical education course.
Mauthe and MCMC had an agreement dating to 2011 under which MCMC referred patients to Mauthe’s practice for evaluations, court filings said. Mauthe sent MCMC several faxes establishing the agreement and requesting he be sent referrals via fax, the decision said.
Mauthe filed a class action complaint against MCMC on May 7, 2018, claiming MCMC sent him the fax advertising a continuing medical education course in Rosemont, Illinois, hosted by the nonprofit International Academy of Independent Medical Evaluators.
On May 16, 2018, the court denied the motion for class certification without prejudice, noting that Mauthe had not yet served MCMC with the complaint "and the parties had not yet engaged in any class action discovery," court filings said.
MCMC later moved for summary judgment on the grounds its fax wasn’t unsolicited since its subject matter related directly to the agreement which required Mauthe to maintain relevant medical certifications, including the completion of 25 credit hours of continuing medical education (“CME”) every two years. court filings said.
Mauthe argued the fax constituted an advertisement to which he did not explicitly consent. court filings said. While Mauthe had agreed to maintain certification, he didn’t say he would rely on MCMC or its partners for that obligation.
“Generally, an agreement of this sort constitutes an established business relationship that exempts fax senders or broadcasters from TCPA liability, but the parties agree that the (established business relationship) exemption is unavailable here because the fax did not include the necessary opt-out notice,” Smith said in the opinion.
Smith said the narrow dispute isn’t suitable for summary judgment. In the opinion, he said he “cannot conclude, based on the current record, that the connection between the agreement’s certification requirements and the seminar being advertised is sufficiently close to establish express consent existed as a matter of law.”
MCMC had also said Mauthe lacked standing to bring the complaint, and that applying the TCPA to its fax would violate the company’s First Amendment rights. Smith rejected both arguments, saying Mauthe’s “alleged injury – lost use of a fax machine, paper and toner and intrusion into his day – would have occurred even if the fax included a compliant opt-out notice,” and that Congress enacted the opt-out provision because it let companies mitigate the risk of unwanted intrusion at no cost.
Smith said although Mauthe’s deposition didn’t say the fax violated his privacy, that doesn’t mean he didn’t “suffer the injury Congress meant to address by requiring opt-out notices on unsolicited faxes sent in the context of” a business relationship, noting Mauthe’s “other testimony establishes that he did, in fact, suffer what constitutes a legal invasion of privacy as Congress understood it, even if he himself, as a non-lawyer, would not use that terminology.”
After denying the motion for summary judgment, Smith issued an order calling for a May 17 telephone conference to discuss amended scheduling deadlines.