Roberts v. Express Scripts Holding Company et al

Filing 76

MEMORANDUM AND ORDER - Accordingly, IT IS HEREBY ORDERED that defendants motion for summary judgment 44 is GRANTED as to plaintiffs First Cause of Action. IT IS FURTHER ORDERED that plaintiffs Second Cause of Action is dismissed without prejudice for the reasons discussed above. IT IS FURTHER ORDERED that all other pending motions are DENIED as moot. A separate judgment in accord with this Memorandum and Order is entered this same date. Signed by District Judge Catherine D. Perry on July 26, 2016. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JENNIFER ROBERTS, individually
and on behalf of all others similarly
situated,
Plaintiff,
vs.
MEDCO HEALTH SOLUTIONS,
INC., et al.,
Defendants.

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Case No. 4:15 CV 1368 CDP

MEMORANDUM AND ORDER
Plaintiff Jennifer Roberts alleges that defendants Medco Health Solutions
and Accredo Group, Inc.1 placed more than 100 calls to her cell phone number
without obtaining her consent. She claims the calls violated the Telephone
Consumer Protection Act, 48 U.S.C. § 227, as well as the Missouri Merchandising
Practices Act, Mo. Rev. Stat. § 407.1076, and she has brought this case both
individually and as a class action. The parties have now filed cross-motions for
summary judgment on Robert’s individual claims, and no class certification
proceedings have been held.

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Medco is a pharmacy benefits manager and owns affiliated entities that operate mail-order
pharmacies. Accredo is a pharmacy that dispenses specialty medication. Both defendants place
calls to patients related to medications or prescription benefits.

The summary judgment briefing was rife with disputed facts, including the
total number of calls made, whether the calls were consented to, and whether
defendants were on notice that plaintiff was not the intended call recipient. But the
facts disputed in the briefs are not material to this decision. For reasons discussed
below, only five phone calls are at issue in this matter, and the content of those is
undisputed. I conclude that all five fall under the TCPA exception for calls made
for an emergency purpose. Defendants’ motion for summary judgment will
therefore be granted as to Roberts’ TCPA claim. Additionally, both because the
federal Missouri Merchandising Protection Act claim is now dismissed and
because Roberts’ MPA claim raises a novel and complex issue of state law, I
decline to exercise jurisdiction over her Missouri claim, and it will be dismissed
without prejudice. See 28 U.S.C. § 1367(c).
DISCUSSION
Roberts’ TCPA Claim
Initially it is important to clarify the nature of Roberts’ TCPA claim. The
TCPA provides:
(1) Prohibitions
It shall be unlawful for any person within the United States, or any person
outside the United States if the recipient is within the United states--(A) To make any call (other than a call made for emergency purposes or
made with the prior express consent of the called party) using any
automatic telephone dialing system or an artificial or prerecorded
voice—
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(iii) To any telephone number assigned to a … cellular telephone
service….
47 U.S.C. § 227(b) (emphasis added). As indicated in her amended complaint and
confirmed by her attorney at the motion hearing, and despite much discussion of
“robocalls” in the filings for this case, Roberts is claiming only that the defendants
violated the TCPA by using an artificial or prerecorded voice. She has not asserted
any TCPA violation arising from the use of an automatic telephone dialing system.
Factual Background
In March 2015 Roberts purchased a pre-paid cell phone and was assigned a
phone number that had previously been assigned to someone else. Shortly
thereafter, she began receiving automated calls from defendants that were intended
to reach the former owners of the number.
The prior owners of the phone number were family members – Wife,
Husband, and Son – for whom defendants, who are pharmacy benefit managers,
provided prescription and health benefit services. The evidence indicates that
each of the family members was receiving one or more prescription medications
from defendants that would have been important to their continued health. The
family members had provided the phone number during a February 24, 2015 phone
call between Husband and a representative for defendants. Husband indicated that
the medicine Son was taking was “a must” and without it, Son could end up in the
hospital. The representative made a note in Son’s file that an update in Son’s
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insurance was needed immediately because he was “very, very desperate for very
expensive medication.”
Roberts alleges that 115 calls were made to her phone. She answered only
two of them. She alleges that an additional eleven calls went to her voicemail, but
she saved only three of the voicemails. After talking to her lawyers, Roberts
deleted the remaining eight calls and later got rid of the telephone. Because
Roberts herself intentionally destroyed all evidence of those eight voicemails, and
has given no explanation for having done so, I will not consider them as part of her
claim.
At some time after the first few calls, Roberts installed a call-blocking
application on her phone. The application allowed her to see that she had been
called by defendants, but it stopped her phone from ringing and prevented the calls
from going through to her voice mail. Because a call in which a prerecorded voice
“might, but does not, play” does not trigger violation of the TCPA, any calls that
were blocked by the call-blocking application do not constitute violations and are
not at issue here. See Ybarra v. Dish Network, L.L.C., 807 F.3d 635, 641 (5th Cir.
2015). Therefore, I am only considering five calls as part of Roberts’ claim – two
answered calls and three voice messages. All of the calls were made using an
automated or prerecorded voice.

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The two calls answered by Roberts occurred on March 23, 2015 and,
probably, March 27, 2015. Accredo’s data indicates both calls proceeded as
follows, though there is no recording of either call:
Accredo:

Hello. This is Accredo, an Express Scripts company, calling
with important information. I’d like to speak to [Son]. Is this
[Son]?

Roberts:

No.

Accredo:

Would you be willing to take a message for [Son]?

Roberts:

No.

Accredo:

OK, this was regarding their order. Our toll free number is
[phone], should you be able to pass the information on.
Thank you. Good bye.

Roberts could not recall the content of the March 27 call and does not
dispute that this was the initial content of the March 23 call. However, she
contends that the March 23 call continued and she spoke to a human
representative, a contention that defendants dispute. Whether Roberts did or did
not speak to a representative is not material to my decision.
The three voicemails Roberts did not delete stated as follows:
Voicemail 1:
This is Express Scripts calling for [Husband] about a recent order. On July
6, we sent a request to your doctor who has not yet responded. We need your help.
Please call your doctor and ask them to return Express Scripts’ renewal request by
July 15. We will be unable to fill your request without your doctor’s response.

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Voicemail 2:
This is Accredo, an Express Scripts company. Calling for [Son]. We’re
trying to reach you about an order. Since it’s important that you place this order
soon, please call us back toll free at [phone]. We’ll be unable to ship your
order without speaking with you first. Again, the number is [phone].
Thank you. Good-bye.
Voicemail 3:
Hello. This is Express Scripts calling for the [Family] household. We are
calling to let you know that we received an order for you on July 6. We’re
currently working to process your order and ship it to you. You can expect it to
arrive within the next two to five business days. If there are any delays, we will be
sure to contact you. Otherwise, there’s nothing more you need to do. If you’d like
more information about the status, you can always visit our website at expressscripts.com. Thank you for your time and using Express Scripts. Have a good
day. Good-bye.
Analysis
I conclude that Roberts’ claim under the TCPA fails because each of the five
calls at issue is covered under the “emergency purposes” exception to the TCPA.
The TCPA prohibits any call “other than a call made for emergency purposes” to a
cell phone using an artificial or prerecorded voice. 47 U.S.C. § 227(b)(1)(iii). The
FCC has defined calls made for an emergency purpose as “calls made necessary in
any situation affecting the health and safety of consumers.” 47 C.F.R. § 64.1200.
Roberts has argued that this exception is limited to large scale emergencies, such
as natural disasters, that affect significant portions of the population. But the plain
language of the regulation in no way limits its application based on the size or
public impact of the reason for the call.
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As noted by defendants, in many instances a patient’s ability to timely
receive a prescribed medicine is critical in preventing a major health emergency.
In this case, one of the family members who was the intended recipient of the calls
was taking medications whose absence would have significantly impacted his
ongoing health. Calls like the ones here, involving an attempt to confirm or refill a
prescription order, schedule a prescription delivery, or confirm that a prescription
is on its way, fall within the ambit of “calls made necessary in any situation
affecting the health and safety of consumers.”
Roberts has pointed out that the FCC recently created an exemption from the
TCPA for calls “for which there is exigency and that have a healthcare treatment
purpose.” In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of
1991, 30 F.C.C. Rcd. 7961, 8031 (2015) (Omnibus Ruling). She avers that if calls
regarding an individual’s healthcare were already covered under the emergency
purposes exception, there would have been no need for the FCC to create this
exemption. However, Roberts’ interpretation would defy the plain language of the
emergency purposes definition. Furthermore, the FCC addressed this issue in a
brief defending its Omnibus Ruling. There, the Commission seemed to
acknowledge that many healthcare calls fall within both the emergency purposes
exception and the healthcare exemption. For those that do not fall within the
healthcare exemption, the FCC opined that parties are free to rely on the
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emergency purposes exception as appropriate. See ACA International, et al., v.
FCC, No. 15-1211, 2016 WL 194146 (C.A.D.C.), Brief for Respondent at *71-72
(“Rite Aid has not identified any HIPAA-covered healthcare calls that would fall
within the statutory exception for calls made for an emergency purpose, but outside
the Omnibus Ruling's [healthcare] exemption. … Should such calls arise, parties
can rely on the emergency-purposes exception on a case-by-case basis.”).
Summary Judgment is appropriate when the undisputed facts, reviewed in
the light most favorable to the non-moving party, show that the movant is entitled
to judgment as a matter of law. Here the undisputed evidence shows that plaintiff
received five phone calls using a recorded voice. Based on the content and
purpose of those calls, I conclude that they are all covered by the emergency
purposes exemption and so none of them violated the TCPA. Defendant is
therefore entitled to judgment on the TCPA claim.
Finally, Plaintiff’s claims under the Missouri Merchandising Practices Act
§407.7076, Mo.Rev.Stat., depend on whether the calls constitute “telemarketing”
under that Act. It appears that no Missouri court has ever interpreted this portion
of the statute. Additionally, the statute requires proof of actual damages, although
that is also undefined in the context of this case. Federal law provides the courts
with discretion in whether to exercise supplemental jurisdiction over a state law
claim where the state law claim raises a novel or complex issue of state law or
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where all claims over which the court has original jurisdiction have been
dismissed. See 28 U.S.C. § 1367(c). Because both circumstances exist here, I am
declining to exercise supplemental jurisdiction over plaintiff’s Missouri
Merchandising Practices Act claim, and Roberts’ second cause of action will be
dismissed without prejudice.
Accordingly,
IT IS HEREBY ORDERED that defendants’ motion for summary
judgment [44] is GRANTED as to plaintiff’s First Cause of Action.
IT IS FURTHER ORDERED that plaintiff’s Second Cause of Action is
dismissed without prejudice for the reasons discussed above.
IT IS FURTHER ORDERED that all other pending motions are DENIED as
moot.
A separate judgment in accord with this Memorandum and Order is entered
this same date.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 26th day of July, 2016.

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