Schwartz v. Bamz Enterprises, LLC, No. 1:23-cv-608, 2025 WL 1371433 (S.D. Ohio May 12, 2025)
Plaintiff filed suit, claiming Defendant violated the Telephone Consumer Protection Act (“TCPA”) when he received multiple telemarketing calls to his cell phone although his number was listed on the National Do Not Call Registry. According to Plaintiff, he received six calls from individuals who identified themselves by different names, attempting to sell him medical test kits. The first call discussed a cancer testing kit. The remaining calls each purported to offer free COVID test kits through Medicare. Each caller claimed to be calling on behalf of “Living Well Screening,” and one of the callers said that “Living Well Screening” was located in Largo Florida.
Defendant, who is located in Florida and does business under the registered name “Living Well Screening,” primarily provides telephonic “kit chasing” services to companies offering at-home medical testing kits to patients. These services include ensuring patients receive medical test kits ordered, answering questions about test kits and paperwork, and helping get kits back to laboratories and clients.
Based on the information Plaintiff claimed he received during the calls, he sued Defendant. But Defendant denied that the calls were made by its employees or agents, and moved for summary judgment on the grounds that Plaintiff could not offer any admissible evidence to refute sworn testimony that –notwithstanding the caller’s statements they were calling on behalf of Defendant—Defendant did not make or authorize the calls.
In support of this motion, Defendant offered testimony that: (1) none of the calls came from Defendant; (2) it had no agents or employees with names provided during the calls, and (3) it did not authorize any individual to make the calls on its behalf. Defendant also offered testimony that it never allowed third parties to use its trade name except for the limited purpose of informing patients that once their test kits were mailed out, they may receive a call from Living Well Screening. Plaintiff’s evidence on the other hand was limited to circumstantial evidence, which the Court rejected, and recorded statements made by the callers themselves, mostly in heavily accented English, that they were calling for “Living Well Screening.” In granting summary judgment, the Court held that “[t]hose recorded statements are clearly hearsay, insofar as they are out-of-court statements offered for the truth of the matter asserted. Pursuant to Rule 56(c)(1)(B), a party is entitled to summary judgment if it can show ‘that an adverse party cannot produce admissible evidence to support the fact,’” adding that “‘[t]he Court cannot consider evidence at summary judgment that a jury could not consider at trial.’”
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Joshua Threadcraft is a trial and class action attorney in Burr & Forman’s Financial Services Practice Group with more than two decades of experience, including serving as first chair counsel in bench and jury trials and ...