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By Jimmy H. Koo
A nonprofit corporation that operates hospitals in Minnesota and sells medical devices didn’t violate federal robocall rules, the U.S. Court of Appeals for the Eighth Circuit affirmed ( Zean v. Fairview Health Servs. , 2017 BL 177421, 8th Cir., No. 16-1747, 5/26/17 ).
Judge James B. Loken said May 26 that Fairview Health Services’ two exhibits, although heavily redacted, show plaintiff Samuel Zean’s express consent to receive calls to his mobile phone relating to the purchase of replacement supplies for a medical device he purchased from the company.
Dissenting, Judge Jane L. Kelly said the court “has no evidence aside from Fairview’s affidavit that these heavily redacted exhibits are the contract,” and noted that the authenticity of the exhibits is disputed. Kelly said the court mistakenly relied on the exhibits and should have remanded the case instead.
According to the class action complaint, Zean purchased from Fairview a medical device that requires the periodic purchase of replacement supplies. Zean allegedly started receiving automated telemarketing phone calls from Fairview on his mobile phone, inquiring whether he would like to purchase replacement supplies. When Zean didn’t answer the calls, Fairview left prerecorded messages providing instructions on how to order supplies.
Until Zean asked a Fairview employee to stop calling him with offers, he allegedly received approximately 25 calls between September 2014 and August 2015.
Alleging that the phone calls and the voicemail messages were left without the express consent of class members, Zean asserted violations of the Telephone Consumer Protection Act. The lower court dismissed the suit, concluding that the two heavily redacted exhibits establish that Zean gave Fairview prior express consent to make calls to his phone.
Appealing, Zean argued that the lower court shouldn’t have relied on the redacted exhibits and challenged their authenticity. However, the appeals court said the authenticity of the document “is a bogus issue.” Even though Zean objected to the lower court considering the exhibits, he never argued that the documents weren’t properly authenticated, the court concluded.
Baillon Thome Jozwiak & Wanta LLP represented Zean. Stinson Leonard Street LLP represented Fairview.
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Full text of the appeals court's opinion is available at http://src.bna.com/pkj
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