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Physicians Healthsource v. Boehringer Ingelheim Pharmaceuticals

United States District Court, D. Connecticut

April 18, 2018

PHYSICIANS HEALTHSOURCE, Plaintiff,
v.
BOEHRINGER INGELHEIM PHARMACEUTICALS, et al., Defendants.

          MEMORANDUM OF DECISION

          STEFAN R. UNDERHILL UNITED STATES DISTRICT JUDGE.

         Physicians Healthsource sued Boehringer Ingelheim Pharmaceuticals, Boehringer Ingelheim Corp. (collectively, “Boehringer”), Medica, Inc., and John Does 1-10 for violation of the Telephone Consumer Protection Act of 1991 (“TCPA”), as amended by the Junk Fax Prevention Act of 2005, 47 U.S.C. § 227. Physicians Healthsource is a medical clinic based in Cincinnati, Ohio; it alleges that a fax sent to one of its doctors by the defendants was an “unsolicited advertisement” that violated the TCPA. The defendants have moved for summary judgment, arguing that under the undisputed facts, the fax was not an “advertisement” as a matter of law. For the reasons that follow, I grant the motions for summary judgment.

         I. Standard of Review

         Summary judgment is appropriate when the record demonstrates that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). When ruling on a summary judgment motion, the court must “view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor.” Sologub v. City of New York, 202 F.3d 175, 178 (2d Cir. 2000); Aldrich v. Randolph Ctrl. Sch. Dist., 963 F.2d 520, 523 (2d Cir. 1992) (court is required to “resolve all ambiguities and draw all inferences in favor of the nonmoving party”). “The burden of showing that no genuine factual dispute exists rests upon the moving party.” Carlton v. Mystic Transp., 202 F.3d 129, 133 (2d Cir. 2000). When a motion for summary judgment is properly supported by documentary and testimonial evidence, however, the nonmoving party may not rest upon the mere allegations or denials of the pleadings, but must present sufficient evidence supporting its position “to require a jury or judge to resolve the parties' differing versions of the truth at trial.” Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986); Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).

         “The trial court's function at this stage is to identify issues to be tried, not decide them, ” Graham v. Long Island R.R. Co., 230 F.3d 34, 38 (2d Cir. 2000), and so “[o]nly when no reasonable trier of fact could find in favor of the non-moving party should summary judgment be granted.” White v. ABCO Eng'g Corp., 221 F.3d 293, 300 (2d Cir. 2000). Summary judgment therefore is improper “[w]hen reasonable persons, applying the proper legal standards, could differ . . . on the basis of the evidence presented.” Sologub, 202 F.3d at 178. Nevertheless,

the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. . . . Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.

Anderson, 477 U.S. at 247-48.

         “[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial, ” and in such circumstances, there is “no genuine issue as to any material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); accord Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (movant's burden satisfied if it can point to an absence of evidence to support an essential element of nonmoving party's claim). To present a “genuine” issue of material fact and avoid summary judgment, the record must contain contradictory evidence “such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248.

         II. Background[1]

         On April 6, 2010, Dr. Jose Martinez-a general practitioner employed by Physicians Healthsource in Cincinnati, Ohio-received a fax from defendant Medica. The fax invited Dr. Martinez to an “awareness dinner meeting” on April 28, 2010 at a McCormick & Schmick's restaurant in Cincinnati, sponsored by defendant Boehringer and featuring a presentation by board-certified obstetrician/gynecologist David Portman. The pertinent text reads as follows:

Boehringer Ingelheim Pharmaceuticals, Inc. cordially invites you to join us for a dinner meeting entitled, It's Time to Talk: Recognizing Female Sexual Dysfunction and Diagnosing Hypoactive Sexual Desire Dis. Based on recent data from a large U.S. study (PRESIDE), 43% of U.S. women aged > 18 years have experienced a sexual problem in their lives and 9.5% of the same group of women have experienced decreased sexual desire with distress. This program has been developed to discuss Female Sexual Dysfunction (FSD), including Hypoactive Sexual Desire Disorder (HSDD) including pathophysiology models, epidemiology, and diagnosis. We hope you will join us for this informative and stimulating program.

Fax, Ex. A to Compl., Doc. No. 1, at 15. The remainder of the fax concerns logistics, such as the time, date, and location of the dinner meaning, and the process of registration.

         Around the time of the dinner meeting, Boehringer was seeking approval from the Food and Drug Administration (“FDA”) for a new drug, flibanserin. Flibanserin was intended as a treatment for FSD/HSDD.[2] The fax sent to Dr. Martinez does not name any product designed to treat FSD/HSDD, however-in fact, it does not mention treatment of the disorders at all. On June 18, 2010, an FDA advisory panel recommended against approving flibanserin, and Boehringer halted development of the drug. Boehringer subsequently sold its rights in flibanserin to Sprout Pharmaceuticals, which (following FDA approval) brought flibanserin to market under the trade name Addyi. Boehringer has never commercially produced flibanserin.

         On March 30, 2014, Physicians Healthsource sued the defendants for violating the TCPA by faxing an “unsolicited advertisement” without a proper opt-out notice. Physicians Healthsource brought a putative class action on behalf of: “All persons who (1) on or after four years prior to the filing of this action, (2) were sent telephone facsimile messages of material advertising the commercial availability of any property, goods, or services by or on behalf of Defendants, and (3) did not display a proper opt-out notice.” Compl., Doc. No. 1, at 4.

         Medica and Boehringer moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) on May 21, 2014, and May 22, 2014, respectively. Docs. Nos. 19 & 22. The defendants argued that Physicians Healthsource failed to state a claim because the fax was not an “advertisement” as defined by the TCPA. On January 12, 2015, I granted the motions to dismiss, reasoning that “[n]othing in the [f]ax indicates that the dinner was a pretext for pitching a Boehringer product or service related to FSD/HSDD or links the potential registrant with Boehringer's other products and services.” Physicians Healthsource v. Boehringer Ingelheim Pharm., ...


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