Sandoe v. Boston Scientific Corporation
Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER: For the forgoing reasons, the motions of plaintiff are,a. with respect to class certification (Docket Entry No. 39 ), DENIED; andb. with respect to striking defendants expert testimony (Docket Entry No. 85 ), DENIED.So ordered. (Vieira, Leonardo)
Case 1:18-cv-11826-NMG Document 120 Filed 10/23/19 Page 1 of 18
United States District Court
District of Massachusetts
Boston Scientific Corporation
Civil Action No.
MEMORANDUM & ORDER
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.
The named plaintiff, Steven Sandoe (“Sandoe” or
“plaintiff”), received two prerecorded calls from Boston
Scientific, one in June, 2018 and one in July, 2018.
Pending 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).
- 1 -
Case 1:18-cv-11826-NMG Document 120 Filed 10/23/19 Page 2 of 18
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
Boston Scientific provided varying levels of support for
each Seminar depending on the needs of the hosting clinic.
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.
would sometimes discuss the products of Boston Scientific and
other medical device manufacturers.
sell its products at the Seminars.
- 2 -
Boston Scientific did not
Case 1:18-cv-11826-NMG Document 120 Filed 10/23/19 Page 3 of 18
A. The Calls
Boston 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.
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.
The 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.
a Boston Scientific representative recorded the call, however,
he or she was typically identified as affiliated with that
Boston Scientific made between one and three calls to each
If an individual answered the first call and responded
affirmatively or negatively, he or she did not receive any
B. The Named Plaintiff
Plaintiff Steven Sandoe received two prerecorded messages
at his cell phone number intended for S.B., a patient of Spine
- 3 -
Case 1:18-cv-11826-NMG Document 120 Filed 10/23/19 Page 4 of 18
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.
Mr. Sandoe testified that he answered both calls and called
Spine Works to request that it stop calling him.
phone records do not, however, show any outbound calls to Spine
At the 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.
C. The Classes
Plaintiff Mr. Sandoe seeks certification of the following
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.
Call Registry Class: All persons in the United
who from four years prior to the filing of this
through the present (1) Defendant (or an agent
on behalf of Defendant) called more than one
- 4 -
Case 1:18-cv-11826-NMG Document 120 Filed 10/23/19 Page 5 of 18
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 Methodology
Plaintiff 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 call if he or she was associated with
that number within six months of the call.
3. She analyzed whether the numbers were associated with
cell phones or landlines.
4. She processed the “wrong number” results through
LexisNexis’ business-identification query to determine
whether any of the identified numbers were registered to
5. She compared the “wrong numbers” with the National DoNot-Call Registry.
After twice supplementing her report (the first report
contained an error in the data and the second report contained a
- 5 -
Case 1:18-cv-11826-NMG Document 120 Filed 10/23/19 Page 6 of 18
glitch in the code) Ms. Verkhovskaya identified as wrong numbers
approximately 15% of a sample set of 9,000 telephone numbers.
Boston Scientific submitted a rebuttal report of its
expert, Mr. Jan Kostyun (“Mr. Kostyun” or “defendant’s expert”),
who opines that Ms. Verkhovskaya’s methodology and analysis is
unreliable, unsupportable, flawed and inconsistent.
Specifically, Mr. Kostyun criticizes the reverse-append process
as 1) failing properly to identify even the named plaintiff as a
class member without individualized inquiry and 2) using the
“fuzzy” period for no justifiable reason.
ultimately concludes that Ms. Verkhovskaya’s methodology cannot
reliably identify members of the proposed classes.
E. Procedural History
Mr. Sandoe commenced this action in August, 2018 by filing
a complaint on behalf of himself and putative class members.
June, 2019, he moved for class certification and submitted the
supporting expert report of Ms. Verkhovskaya, which she
supplemented shortly thereafter (Docket Entry No. 39).
Defendant opposed class certification and proffered the rebuttal
expert report of Mr. Kostyun (Docket Entry No. 70).
filed a reply brief and an additional expert report (Docket
Entry No. 84) and separately moved to strike defendant’s
- 6 -
Case 1:18-cv-11826-NMG Document 120 Filed 10/23/19 Page 7 of 18
proposed expert report (Docket Entry No. 85).
turn, moved to strike portions of plaintiff’s reply or, in the
alternative, for leave to file a surreply, on the grounds that
plaintiff had improperly introduced new arguments and expert
analysis (Docket Entry No. 96).
The Court denied defendant’s
motion to strike but granted leave to defendant to file a
surreply brief and expert report (Docket Entry No. 115).
In July, 2019, defendant moved for summary judgment (Docket
Entry No. 58).
Plaintiff, in response, moved for the Court to
deny or defer ruling on the motion for summary judgment until
after resolving class certification or, in the alternative,
after permitting additional discovery (Docket Entry No. 78).
On October 17, 2019, this Court convened a hearing on
plaintiff’s motion for class certification.
Plaintiff Motion for Class Certification
The TCPA prohibits the transmission of any call using a
prerecorded voice to a cellular or residential telephone number
without “prior express consent” of the called party. 47 U.S.C.
§ 227(b)(1)(A), (B).
The Federal Communications Commission
(“FCC”), under the authority delegated to it by Congress, has
clarified that for prerecorded telemarketing calls to a cell
- 7 -
Case 1:18-cv-11826-NMG Document 120 Filed 10/23/19 Page 8 of 18
phone or landline, “prior express written consent” is required.
47 C.F.R. § 64.1200(a)(2).
For health care messages to cell
phones “prior express consent” is required but for health care
messages to residential landlines, no consent is required. 14
C.F.R. § 64.1200(a)(2) and (a)(3)(v).
calls to business landlines do not violate the TCPA. 47 U.S.C.
The TCPA also prohibits making telephone solicitations to
an individual “who has registered his or her telephone number on
the national do-not-call registry.” 47 C.F.R. § 64.1200(c).
Under Federal Rule of Civil Procedure 23, a court may
certify a class only if it finds that the proposed class
satisfies all the requirements of Rule 23(a) and that class-wide
adjudication is appropriate for one of the reasons set forth in
Rule 23(b). See Smilo v. Sw. Bell Mobile Sys., Inc., 323 F.3d
32, 38 (1st Cir. 2003).
Rule 23(a) requires that a class meet the following four
the class is so numerous that joinder of all
members is impracticable;
there are questions of law or fact common to the
- 8 -
Case 1:18-cv-11826-NMG Document 120 Filed 10/23/19 Page 9 of 18
the claims or defenses of the representative
parties are typical of the claims or defenses of
the class; and
the representative parties will fairly and
adequately protect the interests of the class.
Fed. R. Civ. P. 23(a)(1)–(4).
A district court must conduct a “rigorous analysis” under
Rule 23 before certifying the class. Smilo, 323 F.3d at 38.
Court may look behind the pleadings, predict how specific issues
will become relevant to facts in dispute and conduct a merits
inquiry only to the extent that the merits overlap with the Rule
23 criteria. In re New Motor Vehicles Canadian Exp. Antitrust
Litig., 522 F.3d 6, 20 (1st Cir. 2008).
Plaintiff seeks to certify both classes under Rule 23(b)(3)
which requires that common questions of law or fact
“predominate” over those affecting individual class members and
that a class action be the “superior” method for fair and
Even if both proposed classes were to satisfy the
requirements of Rule 23(a), plaintiff has failed to demonstrate
that the members of the proposed classes are ascertainable and
that common issues predominate under Rule 23(b)(3).
- 9 -
Case 1:18-cv-11826-NMG Document 120 Filed 10/23/19 Page 10 of 18
Implicit in Rule 23 is consideration of whether the
identification of potential class members is “administratively
feasible.” Shanley v. Cadle, 277 F.R.D. 63, 67 (D. Mass. 2011).
All class members need not be identified at the outset but the
class must be determinable by “stable and objective factors.”
A class cannot be certified under Rule 23 when class
members are “impossible to identify prior to individualized
fact-finding and litigation.” Crosby v. Social Sec. Admin., 795
F. 2d. 576, 580 (1st Cir. 1986).
At the time of certification,
the district court must offer a “reasonable and workable” plan
for how the plaintiff will prove class membership in a manner
that is protective of the defendant’s rights and does not cause
individual inquiries to “overwhelm” common issues. In re Asacol
Antitrust Litigation, 907 F.3d 42, 58 (1st Cir. 2018).
The parties’ experts dispute whether it is possible to
identify the individuals who actually received telephone calls
from Boston Scientific on a class-wide basis.
expert emphasizes that there is no centralized database linking
individual subscribers to phone numbers and that the private
databases used by plaintiff’s expert are inaccurate and
As evidence of such unreliability, defendant’s
- 10 -
Case 1:18-cv-11826-NMG Document 120 Filed 10/23/19 Page 11 of 18
expert submits that the reverse-append process does not even
identify plaintiff as a class member.
Indeed, the databases
utilized by plaintiff’s expert do not associate plaintiff with
the telephone number called by Boston Scientific until after
Boston Scientific’s calls.
Plaintiff is identified as the
individual actually called by Boston Scientific only by
application of the six-month fuzzy period and by virtue of
individual testimony or analysis of plaintiff’s phone records.
Notably, this is not the first time plaintiff’s expert, Ms.
Verkhovskaya, has faced criticism that her reverse-append
process failed to identify the named plaintiff in a putative
class action under the TCPA. See Wilson v. Badcock Home
Furniture, 329 F.R.D. 454, 457 (M.D. Fla. 2018) (explaining that
Ms. Verkhovskaya’s analysis did not identify the named plaintiff
as a class member without individualized inquiry).
Defendant also points to several other inconsistencies in
Ms. Verkhovskaya’s three reports (original, supplemental and
For example, defendant contends that 1) 60% of the
names identified by Ms. Verkhovskaya as wrong numbers in her
supplemental report were not identified as wrong numbers in her
original report and 2) up to 59% of the numbers identified as
wrong numbers in Ms. Verkhovskaya’s rebuttal report are “exact
- 11 -
Case 1:18-cv-11826-NMG Document 120 Filed 10/23/19 Page 12 of 18
matches” to last names on Boston Scientific’s list of intended
Also problematic is Ms. Verkhovskaya’s inconsistent use of
the so called “fuzzy” period.
In her rebuttal report, Ms.
Verkhovskaya claims that she consistently applied the fuzzy
period as a class-wide methodology and as a means of identifying
plaintiff as an offended party.
Ms. Verkhovskaya testified,
however, that the fuzzy period is not applied if any other name
associated with a telephone number during the relevant time
period belongs to the intended recipient of the call.
emphasized by defendant’s expert, according to the databases
utilized by Ms. Verkhovskaya, plaintiff’s number was associated
with S.B., the intended call recipient, within six months of
Boston Scientific’s calls.
More troublesome still, Ms.
Verkhovskaya provides no support for her use of the “fuzzy”
period which defendant’s expert challenges as unsupportable.
Plaintiff assures the Court that any discrepancies between
identified wrong numbers and intended recipients can be resolved
by a self-attestation process whereby each member of the
proposed classes would assert 1) whether he or she was the user
of the number in question on the date of Boston Scientific’s
- 12 -
Case 1:18-cv-11826-NMG Document 120 Filed 10/23/19 Page 13 of 18
call and 2) whether he or she registered the number on the
National Do-Not-Call Registry.
The First Circuit Court of Appeals has stated that
unrebutted testimony contained in affidavits is sufficient to
identify proposed class members.
See In re Nexium Antitrust
Litigation, 777 F.3d 9, 21 (1st Cir. 2015).
Where testimony is
genuinely challenged and relevant to an element of a party’s
affirmative case, however, a class cannot be certified without
providing the defendant an opportunity to litigate its defenses.
In re Asacol Antitrust Litigation, 907 F.3d at 53.
Here, consent is a defense to the TCPA claim of each member
of the putative class.
Defendant has a right to challenge, and
has expressly stated its intention to do so, any submitted
affidavits purporting to self-identify as class members on the
ground of consent.
See, e.g., Wilson, 329 F.R.D. at 459-60.
a result, the challenged affidavits would be inadmissible and
each of the thousands of putative class members would be subject
to cross-examination at trial.
Such a procedure has been
expressly rejected in this Circuit as a means for identifying
class members. See In re Asacol Antitrust Litigation, 907 F.3d
- 13 -
Case 1:18-cv-11826-NMG Document 120 Filed 10/23/19 Page 14 of 18
Although this Court is convinced that plaintiff has failed
to establish that the proposed classes are ascertainable, it
need not definitively resolve that issue because it finds that
plaintiff has not demonstrated that common issues predominate
under Rule 23(b)(3).
See Wilson, 329 F.R.D. at 459 (noting a
“general reluctance by many courts to deny class certification
because of administrative difficulties”).
Plaintiff seeks certification of both classes under
Rule 23(b)(3) which requires that 1) common questions
predominate and 2) a class action is the superior method of
Fed. R. Civ. P. 23(b)(3).
Common questions of law or fact predominate over individual
questions if liability and damages can be established through
common proof. In re Nexium Antitrust Litigation, 777 F.3d at 18.
The Court must formulate some prediction as to how specific
issues will be resolved to determine whether common issues
predominate. See In re New Motor Vehicles, 522 F.3d at 20.
Here, plaintiff has not met his burden of demonstrating
that common issues predominate.
As discussed above, consent is
a defense under the TCPA. 47 U.S.C. § 227(b)(1)(A), (B).
universe of potential class members includes only individuals
- 14 -
Case 1:18-cv-11826-NMG Document 120 Filed 10/23/19 Page 15 of 18
who are associated with telephone numbers that Boston Scientific
and its partner clinics believed to be registered to clinic
This is not a case where the defendant engaged in
Wilson, 329 F.R.D. at 460.
plaintiff does not dispute that intended recipients are excluded
from the potential class.
At oral argument, plaintiff argued that the reverse-append
process combined with analysis of subpoenaed phone records can
be utilized to determine which numbers were “wrong numbers” and
therefore associated with nonconsenting recipients.
aside the inconsistencies identified by defendant and its expert
which cast doubt on Ms. Verkhovskaya’s ability reliably to
identify wrong numbers, defendant would still have a potential
consent defense against each class member.
For example, defendant’s expert has proffered that up to
75% of cell phone carrier plans are friends and family plans
meaning that a single subscriber is associated with multiple
The individual users of the associated numbers
sometimes do and sometimes do not share a last name with the
As a result, defendant has a unique potential
consent defense against every proposed class member, and, for
- 15 -
Case 1:18-cv-11826-NMG Document 120 Filed 10/23/19 Page 16 of 18
the reasons discussed above, plaintiff cannot rely on affidavits
to establish lack of consent.
Plaintiff has also failed to demonstrate that common proof
can be used to establish 1) whether the varying messages for
each of the Seminars were health care messages or telephone
solicitations, 2) whether a landline or a cell phone was called,
3) whether the prerecorded message was actually transmitted and
4) whether the individual who received the call was the
individual who registered his or her name on the Do-Not-Call
Accordingly, plaintiff has not satisfied its burden of
demonstrating that common issues predominate under
III. Plaintiff’s Motion to Strike
Plaintiff moves to strike the testimony of Boston
Scientific’s proposed expert Mr. Kostyun (Docket Entry No. 85).
Under Federal Rule of Evidence 702, an expert may testify in the
form of opinion or otherwise if:
the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact
to understand the evidence or to determine a fact
the testimony is based on sufficient facts or
- 16 -
Case 1:18-cv-11826-NMG Document 120 Filed 10/23/19 Page 17 of 18
the testimony is the product of reliable
principles and methods; and
the expert has reliably applied the principles
and methods to the facts of the case.
Fed. R. Evid. 702.
Expert testimony should be excluded only if it is so
“fundamentally unsupported that it can offer no assistance to
the jury.” Pac. Indem. Co. v. Dalla Pola, 65 F. Supp. 3d 296,
302 (D. Mass. 2014) (internal citations omitted).
demonstrated that Mr. Kostyun’s testimony is sufficiently
relevant and reliable to qualify as expert testimony under Rule
702. See Daubert v. Merrell Dow Pharms., 509 U.S. 579, 589
Mr. Kostyun has 35 years of experience in the
telecommunications industry and has submitted expert testimony
on TCPA issues in federal courts during the past ten years.
Moreover, Mr. Kostyun employed virtually the same methodology as
plaintiff’s expert but reached a contrary conclusion based on
testing the opinions of plaintiff’s expert against publicly
Accordingly, plaintiff’s motion to strike
Mr. Kostyun’s testimony will be denied.
- 17 -
Case 1:18-cv-11826-NMG Document 120 Filed 10/23/19 Page 18 of 18
For the forgoing reasons, the motions of plaintiff are,
a. with respect to class certification (Docket Entry No.
39), DENIED; and
b. with respect to striking defendant’s expert testimony
(Docket Entry No. 85), DENIED.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated October 23, 2019
- 18 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?