A federal judge has dispensed with a class action lawsuit under Illinois' biometrics privacy law against health care technology company Becton Dickinson, signaling to plaintiffs' lawyers in the process that judges could quickly lose patience with further attempts to press on with similar lawsuits despite a recent Illinois Supreme Court decision that appeared to slam the door on such suits.
On April 23, U.S. District Judge Sara Ellis granted the request from Becton Dickinson (BD) to dismiss one of a handful of class actions brought against BD under the Illinois Biometric Information Privacy Act. The class actions all generally accuse BD of allegedly violating the BIPA law by requiring nurses in hospitals and other clinical settings to scan their fingerprints to verify their identity when accessing locked medication drawers using BD's Pyxis medication dispensing systems.
The lawsuit subject to the ruling from Ellis in Chicago federal court was brought by attorneys with the firm of Stephan Zouras LLP, of Chicago, on behalf of named plaintiff Andres Socorro. According to court documents, Socorro works as a registered intensive care nurse and assistant clinical manager at Advocate Illinois Masonic Medical Center in Chicago.
U.S. District Judge Sara Ellis
| Law.uchicago.edu/
He filed the lawsuit in August 2023 in Cook County Circuit. Advocate then removed the case to federal court in the Northern District of Illinois in September.
The lawsuit was similar to another filed earlier against BD under BIPA by the same attorneys on behalf of respiratory therapist Corey Heard, also accusing BD over its fingerprint scanners on its Pyxis system.
The lawsuits both assert BD has violated the BIPA law by requiring health care workers to scan their fingerprints - known as a biometric identifier - when using the Pyxis drug dispensing drawers without first securing written consent from the workers or providing them with certain notices allegedly required by the law concerning how their scanned fingerprint data would be used.
The lawsuits are part of an ever-building wave of thousands of such class actions in courts in Chicago, elsewhere in Illinois and in California and other U.S. jurisdictions under the BIPA law.
While some of the lawsuits have taken aim at tech giants, like Facebook-parent Meta and Google, the bulk of the litigation has targeted employers, who require workers to scan fingerprints when punching the clock to begin and end work shifts, or to access secure systems or areas within a workplace. Hospitals and health care vendors, like BD, have been targeted by such class actions over access to drug lockers.
The lawsuits threaten employers and other targeted defendants with potentially massive payouts. Under the law, plaintiffs are allowed to demand damages of $1,000-$5,000 per violation. The Illinois Supreme Court has interpreted the BIPA law to define "individual violations" as each time a company scans a worker's fingerprint or other biometric identifier, not just the first such scan.
So, when multiplied across entire workforces, scanning fingerprints multiple times per day, potential payouts could quickly climb far into the many millions or even billions of dollars. Nurses, for instance, are required to scan their fingerprints to verify their identity each time they retrieve narcotics or other medications from a Pyxis dispenser unit in a patient's room, an action they take routinely multiple times per shift.
BD's Pyxis system is ubiquitous in hospitals in Illinois, placing the company at risk of a potential untold massive judgment from the lawsuits.
Faced with such risk, a growing number of businesses have opted to settle, rather than roll the dice and potentially face a ruinous judgment at trial.
The settlements have particularly benefited the growing cadre of trial lawyers who brought the lawsuits, generating hundreds of millions of dollars in fees for the lawyers who have brought the BIPA claims since the first such lawsuits landed in court in 2015.
Illinois lawmakers are considering legislation to revise the BIPA law specifically to address such concerns, and limit the risk to Illinois employers and the state's economy from such lawsuits. However, that legislation has not yet passed.
In the meantime, the Illinois Supreme Court has rendered some decisions helpful to some businesses.
In late 2023, in a case docketed as Mosby v Ingalls Memorial Hospital, the state high court ruled hospitals and others can be shielded from BIPA lawsuits by an exclusion within the BIPA law for biometric scans conducted "in a health care setting ... for health care treatment, payment or operations" under the federal Health Insurance Portability and Accountability Act (HIPAA).
Seizing on that decision, BD asked the federal judges to dismiss the class action lawsuits against them.
In response, the lawyers from the Stephan Zouras firm - who were on the losing side in the Mosby case before the Illinois Supreme Court - attempted to argue the state high court only meant for its Mosby decision to apply to hospitals and other health care providers, and not to the companies that supply and maintain the technology those hospitals and clinics may use.
In her ruling, however, Judge Ellis said such attempts to continue suing BD in light of the Mosby decision "border on the frivolous." She noted such arguments are particularly notable coming from the very lawyers who lost before the Illinois Supreme Court in the Mosby case and "thus should be especially familiar with its holding."
"Despite BD being a defendant in Mosby in whose favor the Illinois Supreme Court rule, Socorro argues that the health care exclusion applies only to entities covered by HIPAA and not to BD, a systems and software provider," Ellis wrote. "This argument has no merit.
"The Illinois Supreme Court's reading of the health care exclusion does not require the defendant to be a HIPAA-covered entity; the use of the phrase 'under HIPAA' in the health care exclusion merely applies HIPAA's definition of the terms 'treatment,' 'payment,' and 'operations' to the health care exclusion. Because the Court refuses to read a limitation into Mosby that does not exist, the Court dismisses this case as barred by BIPA's health care exclusion," Ellis wrote.
The dismissal was with prejudice, meaning the plaintiffs are not allowed to amend their case and try again. They can attempt to appeal.
Following the dismissal of Socorro's case, BD has asked the judge hearing the other case to take notice of Ellis' ruling in evaluating BD's request to dismiss the case from Corey Heard.
BD is represented by attorneys Matthew C. Wolfe, Amy Y. Cho and Kathleen M. Ryan, of the firm of Shook Hardy & Bacon, of Chicago.
Socorro has been represented by attorneys Lauren A. Warwick, Ryan F. Stephan, James B. Zouras and Catherine Mitchell, of Stephan Zouras, of Chicago.