Stryker Slams TCPA Case As Wasteful And Financially-Inspired

Last Monday Stryker Corp. released a vehement rebuttal of a proposed class action against it, calling the Telephone Consumer Protection Act case, which claims the company sent illegal promotional faxes, a money grab that will do more harm than good.

Stryker accused the company of putting financial gain before the legitimate interests of doctors.

Urging U.S. District Judge Robert J. Jonker to refuse certification, Stryker attacked plaintiff Physicians Healthsource Inc., a medical practice known to be litigious, claiming that the best interests of physicians who needed to know about education opportunities were starkly different to Physicians Healthsource’s own. The suit claims that Stryker illegally sent faxes that promoted its orthopedic technology seminars to more than 8,000 companies and individuals whose numbers it acquired from the American Medical Association.

In its brief, Stryker accused the company of putting financial gain before the legitimate interests of doctors, noting that ‘[Physicians Healthsource] has usurped the professional interests of PCPs in receiving notice of medical education seminars provided through the AMA’s Physician Masterfile, to advance its personal goal of profit.’

Stryker also questioned the timing of the suit, filed three years after the alleged faxes were received. The company noted that the delay allowed more potential class members to be brought in, despite the exclusion of anyone who received the faxes before July 2008 due to a statute of limitations. “Accepting as true [Physicians Healthsource's] allegations that these facsimiles were unwelcome, these actions smack of gamesmanship, not fiduciary obligation or the ‘vigorious pursuit’ of class interests,” the company said.

Stryker may not be an entirely innocent victim of untold nefarious schemes, however. The company has already been unsuccessful in having the complaint dismissed after the judge ordered an inquiry into the faxes’ content. Plaintiffs alleged that of the more than 15,000 faxes sent, not one included the mandatory opt-out clause required by the TCPA. The inquiry is set to determine whether the faxes were merely informational or whether they do in fact construe advertisements for Stryker services, in which case TCPA rules may apply. As TCPA regulations recently becomes more strict and litigation begins to lean in plaintiffs’ favor, it seems likely that Stryker would lose any case brought under the TCPA if the faxes indeed failed to comply with regulations.

Among its other criticism of the case, Stryker questioned Physicians Healthsource’s qualification to act as lead plaintiff, whether the use of shared fax machines meant that 15,000 separate determinations would be required and, adding some personal flair to its defense, whether the plaintiff’s attorney should really have let it be known that they have previously been admonished by the Seventh Circuit for seeking clients during trial discovery in a TCPA case while practicing in Michigan.

Of course, this could all be a diversion tactic used by Stryker to sidestep the fact that, if they have broken TCPA rules, the company faces a large fine. The company has also cited a survey that allegedly shows that the majority of doctors and medical staff value the seminars and have no objection to receiving the faxes. That may well be true, but just because people don’t mind, does not make allegedly violating a federal act suddenly okay – just as a less-than-above-reproach plaintiff does not automatically mean that a class action is entirely groundless.

Is one company accusing another of mildly unethical practices rather a case of the pot calling the kettle black? It will now fall to Judge Jonker to separate legitimate complaints from corporate petulance. The case, Physicians Healthsource Inc. v. Stryker Sales Corp., case number 1:12-cv-00729, in the U.S. District Court for the Western District of Michigan, continues.