Ruth Ann Cooper, DPM v. Neilmed Pharmaceuticals, Inc.

Filing 88

OPINION AND ORDER granting 87 Parties' Joint Motion Seeking Bench Determination of any Disputed Facts and entering judgment in NeilMed's favor on Dr. Cooper's claim. Because the Court grants judgment after a bench trial, it denies 81 and 82 both motions for summary judgment as moot. And the Court denies 86 NeilMed's Motion to Strike as moot. Signed by Judge Douglas R. Cole on 2/6/24. (sct)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
RUTH ANN COOPER, DPM,
Plaintiff,

Case No. 1:16-cv-945

v.
NEILMED PHARMACEUTICALS,
INC.,

JUDGE DOUGLAS R. COLE

Defendant.
OPINION AND ORDER
This now seven-year-old lawsuit stems from a single sheet of paper. In 2016,
Plaintiff Dr. Ruth Ann Cooper, DPM, received a one-page fax. Defendant NeilMed
Pharmaceuticals, Inc. (NeilMed) sent that fax, which Dr. Cooper claims was
unsolicited. (Compl., Doc. 1, #3–4). The fax, addressed to “Physician and Office Staff,”
stated that NeilMed wished to send free samples of its pharmaceutical products to
the recipient physician’s office and asked that the recipient verify its address. (Doc.
1-1). Rather than tossing the fax in the trash, Dr. Cooper decided to file a putative
class action against NeilMed under the Junk Fax Prevention Act of 2005 (JFPA), 47
U.S.C. § 227, for sending an unauthorized fax. (Doc. 1). After years of litigation, which
included the Court’s denial of class certification (see Doc. 77), the parties have now
cross moved for summary judgment on Dr. Cooper’s claim. (Docs. 81, 82). Beyond
that, the parties have asked the Court to resolve the motions as if it were conducting
a bench trial on the papers—with full authority to weigh the evidence and to
adjudicate any disputed issues of fact. (Doc. 87); see Fed. R. Civ. P. 39(b). The Court

GRANTS that latter joint motion (Doc. 87). And because that means the Court will
consider the summary judgment motions only for the persuasive value of their
contents, and not as a basis for summary judgment, the Court DENIES both of those
motions (Docs. 81, 82) as MOOT. Finally, after reviewing the record and weighing
the evidence the parties have presented, the Court enters JUDGMENT in NeilMed’s
favor.
BACKGROUND
Under Federal Rule of Civil Procedure 52(a)(1), whenever an action is “tried
on the facts without a jury … the court must find the facts specially and state its
conclusions of law separately.” Pursuant to that rule, the Court, after reviewing the
record, finds the following facts:
A.

Findings of Fact
—The Fax
1. On August 24, 2016, NeilMed sent a fax to Dr. Cooper’s office. (Doc. 1-1). It

stated, “Dear Physician and Office Staff, We would like to send you NeilMed product
samples. Please fill out the form below to verify your address and confirmation for
samples.” (Id.). It described NeilMed products by stating, “NeilMed® Sinus Rinse™
and NeilMed® Baby Care, Ear Care, and First Aid devices have become an acceptable
line of treatment for various self care for simple ailments.” (Id.). It asked the recipient
to “update your current address and contact information and fax back to us.” (Id.). It
also invited the recipient to opt out of further faxes by checking a “remove my name”
box and returning the fax. (Id.). At the bottom of the fax, a footer read, “This fax was
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received

by

GFI

FaxMaker

fax

server.

For

more

information,

visit

http://www.gfi.com.” (Id.).
—Dr. Cooper’s Office
2. Plaintiff Dr. Ruth Ann Cooper (Dr. Cooper) is a podiatrist with a practice in
Cincinnati, Ohio. (Doc. 64-1, #1276, 1297–98, 1303).
3. Randal Cooper is Dr. Cooper’s business manager. (Id. at #1281–82).
4. Dr. Cooper’s office employs around five office staff members at any one time,
but has experienced staff turnover from 2011 to 2016. (Id. at #1295–96).
5. All of the employees who work and have worked for Dr. Cooper know the
office fax number or have “easy access to look it up.” (Id. at #1296–97).
6. Dr. Cooper’s office also uses business cards that display the office fax
number. Those business cards are available to all office employees, and the employees
are not restricted in giving them out. (Id. at #1297–99).
7. Neither before nor after commencing this lawsuit did Dr. Cooper or Randal
Cooper query any current or former staff members about those staffers’
communications with NeilMed. (Doc. 63-1, #1262; Doc. 64-1, #1318).
8. During discovery, Randal Cooper stated that Dr. Cooper’s office no longer
possessed employment records from before 2013. (Doc. 64-1, #1279, 1296).
9. While this litigation was pending, Dr. Cooper’s office returned the leased
Sharp printer device to the lessor—the same device that printed the August 2016 fax.
They did so without preserving any data or evidence pertaining to the print job. (Id.
at #1294–95).

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10. Dr. Cooper and Randal Cooper do not recall giving NeilMed consent to send
the office advertisements by fax. (Doc. 63-1, #1263; Doc. 64-1, #1316, 1318, 1327–28).
—NeilMed
11. NeilMed manufactures and sells medical products, including nasal/sinus
rinses and ear care products. (Doc. 61-1, #892–93).
12. NeilMed distributes free samples of its products to healthcare professionals
upon their request. (Doc. 66-3, #1603–04).
13. One way that NeilMed communicates with doctors is by facsimile
transmission. (Id. at #1603).
14. It is, and always has been, NeilMed’s practice to send faxes regarding
product samples or medical literature only to persons who expressly consented to
receive them. (Doc. 66-2, #1582, 1597–99; Doc. 66-3, #1603–04).
15. NeilMed built an extensive database of doctors’ fax numbers over 20 years
through various methods:
• NeilMed sales representatives personally visit doctors’
offices to distribute product samples to obtain their contact
information, business cards, and consent to send faxes, and
to assess their interest in receiving product samples and
medical literature.
• Personal contacts of NeilMed’s founder, Dr. Ketan
Mehta, often provided their consent to him directly.

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• NeilMed hosts exhibit booths at hundreds of tradeshows
and medical conventions where it demonstrates its
products and obtains attendees’ contact information and
consent to send faxes regarding product samples and
medical literature.
• Customers also contact NeilMed directly by phone, fax,
text message, regular mail, and email, and through
NeilMed’s website, to provide their contact information and
to request to receive faxes regarding product samples and
medical literature.
(Doc. 61-1, #917–20, 923–25; Doc. 66-2, #1582, 1597–99; Doc. 66-3, #1603–04).
16. NeilMed’s database maintains records of health care professionals to whose
offices NeilMed sent free samples upon request. (Doc. 66-3, #1604).
17. NeilMed never purchased lists of customer information to add to its
customer database. (Doc. 62-1, #1097).
18. NeilMed’s records confirm NeilMed sent product samples to Dr. Cooper’s
office on or about September 25, 2013. (Doc. 66-3, #1604).
19. NeilMed does not retain actual requests for samples, so it cannot determine
the identity of the person from Dr. Cooper’s office who requested the samples or by
what means. (Doc. 61-1, #909, 922, 926; Doc. 62-1, #1082–83).
20. NeilMed’s practice at the time was to send samples only to doctors’ offices
and only upon request. (Doc. 66-3, #1603–04).

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21. NeilMed added Dr. Cooper’s office fax number to its contact database in
2013. (Doc. 62-1, #1082; Doc. 66-3, #1604).
22. NeilMed could not determine who initially entered Dr. Cooper’s fax number
or other information in its database, nor why. (Doc. 61-1, #922, 926; Doc. 62-1, #1083).
B.

Procedural History
About one month after receiving the fax, Dr. Cooper decided to sue NeilMed

alleging that by sending the fax NeilMed violated the JFPA, 47 U.S.C. § 227. (Doc.
1). That statute prohibits using “any telephone facsimile machine, computer, or other
device to send, to a telephone facsimile machine, an unsolicited advertisement.” 47
U.S.C. § 227(b)(1)(C). Dr. Cooper maintains that NeilMed’s fax was unsolicited
because NeilMed never obtained Dr. Cooper’s “prior express invitation or permission”
to send fax advertisements before sending the fax. (Doc. 1, #4); see also 47 U.S.C.
§ 227(a)(5).
NeilMed moved to dismiss arguing that the fax at issue was not an
“advertisement” within the meaning of the JFPA. (Doc. 14). The judge then assigned
to the matter denied the motion to dismiss holding that the fax plausibly constituted
an advertisement. (Doc. 27, #211–16).
Dr. Cooper then moved to certify a class consisting of all “successful recipients
of the P3990 Fax [(the fax at issue here)] and [sic] can be ascertained entirely from
WestFax’s [(a third-party fax service)] broadcast records.” (Doc. 59, #496). After Dr.
Cooper’s motion was briefed, the matter was reassigned to the undersigned. (Doc. 71).
The Court ultimately denied the motion for class certification holding that
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individualized questions as to whether a fax recipient solicited the fax would
predominate over any common issues of fact or law. (Doc. 77, #3565).
The parties then filed cross motions for summary judgment and corresponding
responses. 1 (Docs. 81, 82, 84, 85). They subsequently filed a joint motion requesting
that the Court conduct a bench trial on the papers. (Doc. 87).
LEGAL STANDARD
When adjudicating disputes of fact and weighing evidence in a bench trial, the
Court applies the Federal Rules of Evidence. Broad. Music, Inc. v. Xanthas, Inc., 855
F.2d 233, 238 (5th Cir. 1988) (“The district court erred when it admitted this evidence
on the ground that hearsay is admissible in a bench trial; it is not.”); Genosource, LLC
v. SECURA Ins., No. 21-cv-86, 2023 WL 4700657, at *2 (N.D. Iowa Mar. 13, 2023);
see also Fed. R. Evid. 1101. Based on its findings of fact, the Court enters judgment
for whichever party is entitled to judgment as a matter of law.

NeilMed also moved to strike Dr. Cooper’s response to its motion for summary judgment,
on the grounds that Dr. Cooper falsely claims NeilMed’s interrogatories were unverified and
unsigned and that Dr. Cooper violated this Court’s standing orders by failing to file a list of
undisputed facts. (Doc. 86). While NeilMed is correct on both counts, the Court finds it
unnecessary to strike the response. The Court has relied on NeilMed’s list of proposed
undisputed facts and ultimately finds in its favor. So the Court DENIES NeilMed’s Motion
to Strike (Doc. 86) as MOOT.
1

That said, the Court notes its disappointment with Dr. Cooper’s counsel. Counsel claimed,
despite having email strings and evidence to the contrary, that NeilMed never signed or
verified its response to Dr. Cooper’s interrogatories. (Doc. 84, #3708, 3714). That goes beyond
acceptable sparring over legal issues. NeilMed, in its motion to strike, provided email strings
from some four years ago showing that, after NeilMed switched over its legal representation,
new counsel provided signed verifications for both sets of interrogatories. (Docs. 86-1, 86-2).
That means Dr. Cooper’s counsel had every reason to know of NeilMed’s proffered
verifications and failed to ensure his accusations had evidentiary support. See Fed. R. Civ. P.
11(b). What’s worse, when NeilMed emailed Dr. Cooper’s counsel to notify him of the error in
his motion, it appears he failed to respond. The Court expects better from members of the bar
who practice here.

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LAW AND ANALYSIS
The JFPA prohibits any person from using “any telephone facsimile machine,
computer, or other device to send, to a telephone facsimile machine, an unsolicited
advertisement.” 47 U.S.C. § 227(b)(1)(C). To make out a claim under the statute, then,
a plaintiff must have received an (1) unsolicited (2) advertisement (3) on a telephone
facsimile machine. The parties dispute each element. The Court finds that Dr. Cooper
(or someone in her office on her behalf) solicited facsimile advertisements from
NeilMed. Because the solicitation issue disposes of the whole claim, the Court begins
and ends its analysis there.
The JFPA does not prohibit all fax advertisements—only unsolicited ones. 47
U.S.C. § 227(b)(1)(C). A fax is unsolicited when it is “transmitted to any person
without that person’s prior express invitation or permission, in writing or otherwise.”
Id. at § 227(a)(5). However, the “voluntary provision of a [fax] number” to an entity
constitutes express permission to receive faxes related to the reasons for which the
number was provided. Physicians Healthsource, Inc. v. Cephalon, Inc., 954 F.3d 615,
619 (3rd Cir. 2020); see Fober v. Mgmt. & Tech. Consultants, LLC, 886 F.3d 789, 792–
93 (9th Cir. 2018) (holding, in the analogous Telephone Consumer Protection Act
context, that the provision of a phone number constitutes prior express consent to
receive calls related to the reason the number was originally given). And permission,
once given, is generally effective until revoked by the recipient. See Advantage
Healthcare, Ltd. v. DNA Diagnostics Ctr., Inc., No. 17-cv-9001, 2019 WL 3216026, at
*3 & n.1 (N.D. Ill. July 17, 2019); Rules and Regulations Implementing the Telephone
71 Fed. Reg. 25967 at 25972 (“Express permission need only be secured once from the
8

consumer in order to send facsimile advertisements to that recipient until the
consumer revokes such permission.”).
Dr. Cooper, citing 71 Fed. Reg. 25967 at 25972, argues that NeilMed bears the
burden of proof on this issue—that is, NeilMed must persuade the Court that it
received prior permission to send the fax. (Doc. 81, #3662). NeilMed does not argue
otherwise. They disagree, however, as to the appropriate standard of proof. Dr.
Cooper contends that NeilMed must show that it obtained prior express permission
by clear and convincing evidence. (Doc. 81, #3663). NeilMed believes that a
preponderance of the evidence is the appropriate standard. (Doc. 85, #3731–32).
NeilMed is correct. The portion of the FCC rule cited by Dr. Cooper does not
establish a clear and convincing evidence standard for all defendants asserting a
prior-permission defense. Rather, the cited language deals with fax senders who
assert a prior-permission defense after receiving an opt-out request from the
recipient. (See Doc. 81, #3663 (citing 71 Fed. Reg. at 25,971–72)). The rule reads,
[W]hen a consumer has made an opt-out request of the sender, it should
be up to the sender to demonstrate that the consumer subsequently gave
his express permission to receive faxes. … Senders that claim their
facsimile advertisements are delivered based on the recipient’s prior
express permission must be prepared to provide clear and convincing
evidence of the existence of such permission.
71 Fed. Reg. at 25,971. When read in context, the clear and convincing evidence
standard suggested by the FCC applies only to claims in which the plaintiff
affirmatively opted out from receiving faxes from the sender.
The on-point portion of the rule, the language dealing with the definition of
prior permission applicable to all JFPA claims, is silent as to the standard of proof.
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That portion simply reads, “[i]n the event a complaint is filed, the burden of proof
rests on the sender to demonstrate that permission was given.” 71 Fed. Reg. at
25,972. In the absence of a statutory provision or agency regulation to the contrary,
the Court reverts to the default standard of proof for a “civil case involving a monetary
dispute between private parties”—a preponderance of the evidence. Addington v.
Texas, 441 U.S. 418, 423 (1979); Physicians Healthsource, Inc. v. A-S Medication Sols.
LLC, 324 F. Supp. 3d 973, 978 (N.D. Ill. 2018) (citing Addington to hold, in a JFPA
case, that a defendant need prove prior permission only by a preponderance of the
evidence).
NeilMed has shown, by a preponderance of the evidence, that Dr. Cooper (or
someone in her office on her behalf) solicited the fax. NeilMed first sent Dr. Cooper’s
office product samples in 2013. Facts ¶ 18. And per its business practice, NeilMed
maintained Dr. Cooper’s information in its customer database. Facts ¶¶ 16, 21.
Included in the 2013 database entry was Dr. Cooper’s fax number. Facts ¶ 21.
Combine those facts with NeilMed’s sworn testimony—unrebutted by Dr.
Cooper—describing a consistent business practice of sending product samples and
faxes to only those physicians’ offices that requested them. Facts ¶¶ 12–14, 16, 20.
NeilMed’s sworn testimony also supports the conclusion that its customer database
was created organically over 20 years and was only ever populated entry by entry
upon the request of its would-be customers. Facts ¶¶ 14–15, 20. NeilMed did not
purchase customer lists to add fax numbers to its database. Facts ¶ 17.

10

Evidence of an organization’s routine practice is both relevant and admissible,
see Fed. R. Evid. 406, and in this case persuasive to the Court. See 71 Fed. Reg. at
25,972 (listing—as an encouraged method of proving prior permission to send faxes—
established business practices). The Court finds that it is more likely than not that
Dr. Cooper’s information was in NeilMed’s database because someone requested
samples on her behalf. The presence of Dr. Cooper’s fax number in NeilMed’s
database at that same time leads the Court to conclude that an individual voluntarily
provided that number to NeilMed in the process of requesting those samples. Such
voluntary provision constitutes express permission to receive faxes related to the
original reason for providing the fax number—the receipt of product samples from
NeilMed. See Cephalon, 954 F.3d at 619.
Dr. Cooper attacks the sufficiency of NeilMed’s evidence on both factual and
legal grounds. Factually, Dr. Cooper claims that testimony from NeilMed employees
shows that NeilMed never had a practice of obtaining permission before sending
faxes. (Doc. 84, #3709–11). She quotes the deposition of Srikanth Pai, NeilMed’s
database manager,
Q.
Prior to the two broadcasts in August of 2016, did you or anyone
at NeilMed call any of the doctors seeking permission to send Exhibit 1?
…
A.

I don’t know.

Q.
Do you have any information that anyone at NeilMed had called
any of the doctors seeking permission to send Exhibit 1?
…

11

A.

I don’t know.
*

*

*

Q.
Are you aware of any written policy to obtain permission from the
doctors to agree to receive advertisements by fax?
…
A.

I am not aware of any.

(Doc. 62-1, #1123, 1139). 2 These questions ask only whether the database manager
sought permission from customers already in the database to send the specific fax in
question (“Exhibit 1” in the questions above, which is the fax Dr. Cooper received
(Doc. 1-1)) as opposed to send faxes generally regarding a specific subject matter. This
misses the entire point of NeilMed’s argument. NeilMed does not argue that it
obtained permission to send each individual fax campaign to every customer already
in the database. Rather, NeilMed argues that it had previously obtained permission
to send faxes to everyone listed in the database about specific topics—here, free
samples of NeilMed products—and that the presence of those recipients’ database
entries is circumstantial proof that it obtained that permission. And once a sender
obtains permission to send fax advertisements of a certain kind, that permission is
effective until revoked. See 71 Fed. Reg. at 25,972.

The above omissions from the transcripts are objections from defense counsel arguing that
the questions either call for speculation by the deponent or are improper because the
deponent lacks the foundation to answer. (Doc. 62-1, #1123, 1139). Although not necessary
to the disposition, here, the Court notes that given the framing of the questions at issue,
defense counsel’s objections are well-taken.

2

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Dr. Cooper’s other examples of NeilMed’s employee’s testimony are much the
same. (Doc. 84, #3710). Their testimony establishes only either that they do not know
whether permission was sought for the specific August 24 fax at issue in this case or
do not know the circumstances leading to Dr. Cooper’s inclusion in NeilMed’s
database. (Id. at #3710–12). But NeilMed has already admitted it could not determine
how Dr. Cooper’s information appeared in the database, see Facts ¶ 22, which is why
it’s relying on its consistent business practice in the first place. All in all, none of the
testimony highlighted by Dr. Cooper undercuts NeilMed’s evidence of a consistent
business practice of obtaining permission to send faxes before entering a customer’s
information in its database.
On the legal front, Dr. Cooper argues that “inferring permission from the mere
presence of a fax number in a database is improper for the obvious reason that the
[JFPA] requires permission to be ‘express.’” (Doc. 84, #3712). She adds, “[c]onsent
may not be inferred from the mere distribution or publication of a fax number, or the
existence of a previous business relationship between an advertiser and the
recipient.” (Id. (quoting Jemiola v. XYZ Corp., 802 N.E.2d 745, 749 (Ohio Ct. C.P.
Cuyahoga Cnty. 2003))). But once again, Dr. Cooper misunderstands NeilMed’s
argument. NeilMed is not arguing that the permission was implied (whether from
conduct or circumstance) but that the Court should infer, from NeilMed’s reliable
circumstantial evidence, that it obtained express permission. Permission, under the
JFPA, must of course be “express.” 47 U.S.C. § 227(a)(5). But the evidence of that
express permission may be circumstantial. And here, as already stated, the

13

circumstantial evidence establishes that it is more likely than not that Dr. Cooper (or
someone in her office on her behalf) gave express permission to receive faxes from
NeilMed, thereby resulting in her fax number’s addition to NeilMed’s database.
Not only does Dr. Cooper fail to undermine NeilMed’s evidence of permission,
but she also presents virtually none of her own. True, she and her business manager
do not recall giving NeilMed permission to send faxes. Facts ¶ 10. But lack of
recollection is not evidence—especially when you consider that giving someone
permission to send you a fax is not exactly a momentous, life-changing event. United
States v. Mitchell, No. 2:20-cr-20034, 2020 WL 6709559, *4 (W.D. Tenn. Nov. 16,
2020) (“His lack of recollection is a reflection of an expected loss of memory over the
past

two

years,

not

an

implication

that

the

events

to

which

[other

witnesses] … testified did not occur as they stated.”), aff’d, No. 21-5571, 2021 WL
5772534 (6th Cir. Dec. 6, 2021). And Randal Cooper admitted that other employees
knew or could easily access the office fax number, so even if neither Cooper gave
permission, others could have. Facts ¶ 5.
Dr. Cooper tries to address this latter point through Randal Cooper’s claim
that no employee would have provided the office fax number to NeilMed. (Doc. 84,
#3713–14). But that assertion does not bear the indicia of reliability that accompanies
an organization’s settled business practice. See, e.g., Physicians Healthsource, Inc. v.
Masimo Corp., No. SACV 14-00001, 2019 WL 8138043, at *14 (C.D. Cal. Nov. 21,
2019) (finding that a written policy requiring employees to ask those who requested
fax numbers over the phone why the number was needed constituted competent

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circumstantial evidence that no employee would have provided the fax number to
receive the specific fax advertisements at issue). Unlike the policy in Masimo, Randal
Cooper’s assurances boil down to what is essentially an unfounded belief that the
office employees would simply refuse to provide the fax number. When asked “how do
you know that every employee would respond that way?” he replied, “I trust my
employees just as they trust me.” (Doc. 64-1, #1328). The Court declines to credit this
assertion as a general business practice, and thus in turn refuses to credit Randal
Cooper’s speculation about how Dr. Cooper’s office employees would have responded
to a request from NeilMed for the office fax number. See Fed. R. Evid. 602 (requiring
witnesses to have personal knowledge to testify).
On the whole, NeilMed has presented sworn testimony—by individuals with
personal knowledge of the company’s innerworkings—describing its consistent
practice of sending product samples and faxes only to those who request them. Given
the uncontroverted evidence that NeilMed sent Dr. Cooper’s office product samples
in 2013 and possessed her fax number at that time, the Court concludes that NeilMed
received prior express permission to send a product-sample-related fax to Dr.
Cooper’s office. Accordingly, the fax NeilMed sent to Dr. Cooper’s office on August 24,
2016, was not an “unsolicited advertisement” under the JFPA. And that means Dr.
Cooper’s JFPA claim fails as a matter of law.
CONCLUSION
For the foregoing reasons, the Court GRANTS the parties’ Joint Motion
Seeking Bench Determination of Any Disputed Facts (Doc. 87) and enters
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JUDGMENT in NeilMed’s favor on Dr. Cooper’s claim. Because the Court grants
judgment after a bench trial, it DENIES both motions for summary judgment (Docs.
81, 82) as MOOT. And the Court DENIES NeilMed’s Motion to Strike (Doc. 86) as
MOOT. The Court DIRECTS the Clerk to ENTER JUDGMENT consistent with
this Opinion and Order and to TERMINATE this matter on the Court’s docket.
SO ORDERED.
February 6, 2024
DATE

DOUGLAS R. COLE
UNITED STATES DISTRICT JUDGE

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