Life Image Inc. v. Shockman

Filing 54

Chief Judge Patti B. Saris: MEMORANDUM and ORDER entered. For the foregoing reasons, the Court DENIES Life Images motion for a preliminary injunction (Docket No. 6 ). The parties shall file a proposed scheduling order by October 3, 2017. (Geraldino-Karasek, Clarilde)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

_______________________________
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Plaintiff,
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v.
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CARRIE L. SHOCKMAN,
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Defendant.
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_______________________________)
LIFE IMAGE, INC.,

Civil Action
No. 17-11566-PBS

MEMORANDUM AND ORDER
September 27, 2017

Saris, C.J.
INTRODUCTION
Plaintiff Life Image, Inc. (“Life Image”) seeks to enjoin
its former employee, defendant Carrie Shockman, from working for
Nuance Communications, Inc. (“Nuance”), its competitor. Life
Image argues that Ms. Shockman is in violation of the noncompete, non-solicitation, and confidentiality provisions of her
employment contract. After a hearing, Judge Talwani, as
emergency judge, denied Life Image’s motion for a temporary
restraining order on August 24, 2017. After further briefing and
an evidentiary hearing at which Ms. Shockman testified credibly,
the Court DENIES Life Image’s motion (Docket No. 6).

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FACTS
The Court finds the following facts are likely true based
on the admissible evidence in the record, including the verified
complaint.
Ms. Shockman worked for Life Image for seven years, most
recently as Regional Vice President of Sales, until she resigned
and joined Nuance in July 2017. Life Image is a medical imaging
technology company that sells software solutions for hospital
systems to allow them to transfer medical images with ease.
Nuance competes with Life Image. While she worked at Life Image,
Ms. Shockman wrote entries in Life Image’s customer relations
database describing Nuance as Life Image’s primary competitor
for new business with potential clients. Nuance and Life Image
compete directly to sell medical image sharing software to
hospital systems and other medical practices. Life Image’s image
sharing product is called “Image Exchange.” Nuance’s image
sharing product is called “PowerShare.”
As a condition of her employment with Life Image, Ms.
Shockman signed a Confidentiality, Developments, and NonCompetition agreement (the “Agreement”). Specifically, Ms.
Shockman is subject to a clause titled, “Non-Competition,” which
states:
While I am employed by or acting as a
consultant to the Company, and for a period
of twelve (12) months following the date of
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termination of my employment or consulting
relationship with the Company (which period
will automatically be extended by a period
of time equal to any period in which I am in
breach of any obligation under Section 3;
including any such extension, the
“Restricted Period”), I will not engage,
directly or indirectly, as a[n]...employee,
consultant, or representative, or in any
other capacity, in any business presently
engaged in by the Company or in which the
Company may engage at any time during the
period of my employment or consulting
relationship with the Company.
Docket No. 1-1 at 34 (Agreement ¶ 3(a) (first)). Ms. Shockman
covenanted to not solicit her coworkers or customers during the
aforementioned “Restricted Period.” Id. (Agreement ¶ 3(a)
(second)–(b)). Finally, Ms. Shockman promised to not disclose
and promptly return all Confidential Information in her
possession as a result of her employment with Life Image. Id. at
32–33 (Agreement ¶ 1).
Nuance recently acquired another company, Primordial
Designs, and is now selling two Primordial products, “Workflow
Orchestration” and “Lung Cancer Screening,” as part of its
“PowerScribe 360” product line. Nuance hired Ms. Shockman to
sell these two products, which are now sold under the
PowerScribe brand. Docket No. 43 at 32–33 (Prelim. Inj. Hrg.
Transcript).
Nuance marketing materials encourage potential customers to
bundle PowerShare, the image sharing software which competes

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directly with Life Image software, with PowerScribe Reporting, a
dictation tool. Ms. Shockman is not selling PowerScribe
Reporting. There is no record evidence that Nuance is marketing
“PowerScribe 360 Workflow Orchestration” as a bundle with
PowerShare. However, there is a brochure for “PowerScribe 360
Lung Cancer Screening” which discusses “leveraging” the tool
with PowerScribe 360 Reporting and “Nuance’s PowerShare
Network.” See Docket No. 37, Ex. 8. Ms. Shockman testified that
if a potential customer for “Workflow Orchestration” or “Lung
Cancer Screening” asked her about PowerShare she would recuse
herself and refer the customer to a different Nuance
salesperson. Docket No. 43 at 44–45. Ms. Shockman further
testified that no one has “raised” PowerShare in conversations
with her so far in the six weeks of her employment, although she
has spent little of that time engaged in sales. Id. at 45.
Ms. Shockman has not solicited former coworkers from Life
Image to join her at Nuance, nor has she solicited any of her
former customers at Life Image. Furthermore, Ms. Shockman did
not retain any of Life Image’s data or other proprietary
information when she resigned. Id. at 55–56.
DISCUSSION
In order to determine whether a preliminary injunction
should issue, the Court must weigh (1) the likelihood of success
on the merits; (2) the potential for irreparable harm to the
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plaintiff if the injunction is denied; (3) the balance of the
hardship to defendant if enjoined as contrasted with the
hardship to plaintiff if no injunction issues; and (4) the
effect of the court’s ruling on the public interest. See Wine &
Spirits Retailers, Inc. v. Rhode Island, 418 F.3d 36, 46 (1st
Cir. 2005). “The sine qua non of this four-part inquiry is
likelihood of success on the merits: if the moving party cannot
demonstrate that he is likely to succeed in his quest, the
remaining factors become matters of idle curiosity.” New Comm
Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st
Cir. 2002).
Life Image has not met its burden of showing likelihood of
success on the merits. At the hearing on the motion, Life Image
focused on an argument that Ms. Shockman was violating the
Agreement because her sales of “Workflow Orchestration” and
“Lung Cancer Screening” would indirectly lead to sales of
PowerShare, the product which directly competes with Life
Image’s Image Exchange. The argument is premised on Nuance’s own
marketing materials which suggest certain of the products should
be “bundled” together.
It is true that the Non-Competition provision of the
Agreement purports to prohibit Ms. Shockman from engaging in an
activity that “indirectly” competes with Life Image’s business.
Life Image has not shown a likelihood that by selling “Workflow
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Orchestration” and “Lung Cancer Screening” for Nuance, Ms.
Shockman is indirectly competing with Life Image’s business by
actually promoting sales of Nuance’s competing image sharing
software, PowerShare. Importantly, the marketing materials Life
Image submitted to the Court do not cross-market “Workflow
Orchestration” with the PowerShare image sharing software. There
is, however, a marketing brochure that discusses “leveraging”
the “Lung Cancer Screening” tool with PowerScribe 360 Reporting
and PowerShare. This brochure provides some evidence for the
potential of indirect engagement in competition. However, in
light of Ms. Shockman’s testimony that she would recuse herself
if a customer asked about PowerShare, and the fact that Ms.
Shockman’s compensation is not tied to PowerShare sales, Life
Image has not met its burden of showing a likelihood of success
that Ms. Shockman is violating the non-compete clause, and the
Court found her fully credible in her statement that she
intended to honor the Agreement.
Although the point was not heavily pressed at the hearing,
Life Image also argues that “Workflow Orchestration” and “Lung
Cancer Screening” directly compete with Life Image products. The
Court has not had the benefit of seeing any product sold by Life
Image or Nuance in action. However, based on the affidavits and
exhibits in the record, as well as Ms. Shockman’s testimony, I
conclude that Life Image has not shown a likelihood of success
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on the merits of its direct competition claim. To meet its
customers’ needs, upon request, Life Image says it customizes
its Image Exchange software to achieve the same functionality as
“Workflow Orchestration.” Docket No. 37, Michela Decl. ¶¶ 5–8.
Nuance disputes that Life Image’s customizations overlap with
“Workflow Orchestration” functionalities. Nuance’s “Workflow
Orchestration” contains “workflow/work list” functions that make
a radiologist more efficient in the assignment of tasks for
timely processing images in its system. See Shockman Supp.
Decl., Docket No. 50 ¶¶ 9–13; Docket No. 43 at 49–52. Ms.
Shockman testified that Life Image’s workflow functionality is
directed to increasing efficiency in “tasks around image
sharing.” Docket No. 43 at 52. Conversely, Ms. Shockman
testified that Nuance’s “Workflow Orchestration” is not designed
to enhance efficiency in image sharing. Id. at 51. It is unclear
to me on this record to what extent, if any, Life Image’s
“workflow” functionality overlaps with Nuance’s “Workflow
Orchestration.”
There is no direct evidence that Ms. Shockman is soliciting
or otherwise contacting former customers or coworkers from her
time at Life Image. There is also no evidence that Ms. Shockman
kept or shared any proprietary information to which she was
privy during her Life Image tenure.

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As Life Image has failed to show a likelihood of success on
the merits, the Court need not analyze the remaining three
prongs of the preliminary injunction standard.
ORDER
For the foregoing reasons, the Court DENIES Life Image’s
motion for a preliminary injunction (Docket No. 6). The parties
shall file a proposed scheduling order by October 3, 2017.

/s/ PATTI B. SARIS
Patti B. Saris
Chief United States District Judge

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