Octapharma Affirmative Defenses Partially Survive Dismissal in BIPA Suit

On Tuesday, Judge Virginia Kendall of the Northern District of Illinois partially granted a motion by plaintiff Mary Crumpton and a proposed class to strike affirmative defenses raised by Octapharma Plasma Inc. after Crumpton alleged that the defendant violated the Illinois Biometric Information Privacy Act (BIPA) through its use of a plasma donor identification system housing donors’ fingerprints and biometric data without prior “proper written consent” and “required disclosures.”

According to the opinion, Octapharma is a chain plasma donation company with centers across the United States. The company requires donors to scan their fingerprint before donating plasma for the first time — and each subsequent time they donate — so the company can create a “biometric template” that is unique to each donor, which includes a donation history record, blood testing and health screening results, and interviews and questionnaires.

Illinois resident Crumpton donated plasma at Octapharma between June 2017 and August 2018, and then filed a complaint in the Cook County Circuit Court on behalf of a putative class on Dec. 2, 2019, alleging proper consent was not gathered before the fingerprinting process nor was the proper information disclosed to her, which was removed to federal court. Octapharma’s two affirmative defenses of interest in response to Crumpton’s complaint are that the Food, Drug, and Cosmetics Act (FDCA), the Public Health Act (PHA), and the Food and Drug Administration’s (FDA) regulations pursuant to those two acts, and that the company is exempt from BIPA because of Health Insurance Portability and Accountability Act (HIPAA) regulations, the court explained.

After examination, the court found that none of the three types of preemption argued by the defense – express, conflict, and field – apply. In short, the court found that federal power does not usurp the state’s authority in the matter at hand, thus granting Crumpton’s motion to strike Octapharma’s first affirmative defense.

Regarding the second affirmative defense, the court sided with Crumpton in the question of whether HIPAA makes the defendant exempt from BIPA, finding the defendant’s explained position on when HIPAA should apply is inconsistent. 

However, the latter part of the second affirmative motion concerns whether donors are considered patients and whether the donation center is a health care setting, as “BIPA does not apply to ‘information captured from a patient in a health care setting,’ ” the court explained. The court found that this part of the affirmative defense survives pursuant to Merriam Webster definitions of “patient,”  an “individual awaiting or under medical care and treatment” or “the recipient of any of various personal services,” and “health care,” “efforts made to maintain or restore physical, mental, or emotional well-being especially by trained and licensed professionals.” The court evaluated Octapharma’s donor assessment of “health vitals and characteristic” and “head-to-toe physical examination” and collection of medical information as reflective of these dictionary definitions.

The court granted Octapharma leave to amend. The plaintiff is represented by Edelson PC and The Fish Law Firm. The defendant is represented by Clark Hill PLC.