Cases & Deals

UPMC obtains federal officer removal in putative digital data privacy class action

Clients University of Pittsburgh Medical Center (UPMC)

On behalf of a University of Pittsburgh Medical Center (UPMC), Jones Day removed a digital privacy case to federal court, asserting two separate bases for federal jurisdiction. First, Jones Day cited the strong federal interest in promoting the use of electronic health records and online patient portals. This interest has led the Centers for Medicare & Medicaid Services (“CMS”) to utilize cookies and other targeted online marketing techniques to promote its own patient portal. CMS also oversees the federal government's Meaningful Use Program, which incentivizes healthcare providers to actively use and promote online patient portals and electronic records. Jones Day argued that UPMC's participation in this program assisted CMS and other federal officers achieve increased use of electronic health records, warranting removal under the federal officer statute, 28 U.S.C. § 1442(a)(1). Second, Jones Day argues that the Class Action Fairness Act (“CAFA”) also permitted removal because some members of the class were citizens of other States and the amount in dispute exceeded $5,000,000. Plaintiffs moved to remand, filed a separate motion seeking extensive discovery in support of that motion, and requested that UPMC be forced to post notice of the lawsuit on its websites as part of that discovery.

Following extensive briefing and oral argument, the district court recognized that this was a case of first impression --no court had previously considered federal officer removal in the context of the Meaningful Use program. Based on the record UPMC developed in support of removal, the court held that UPMC's participation in that program and the assistance UPMC provided to federal officers charged with increasing public awareness and usage of electronic health records conferred federal jurisdiction over Plaintiffs' state-law claims. To the extent Plaintiffs alleged that UPMC's actions in promoting and operating its websites had crossed the line and become tortious under Pennsylvania law, that was a matter for a federal court to decide in light of the important federal interests in online health records. Accordingly, the court denied Plaintiffs' motion to remand the case back to the Court of Common Pleas, declined to rule on the CAFA issues, and denied Plaintiffs' discovery requests. Plaintiffs then moved to certify the ruling for interlocutory appeal, which the court denied as well. On October 5, 2020, Plaintiffs voluntarily dismissed the case.

Jane Does I & II v. UPMC, No. 2:20-cv-00359-MJH (W.D. Pa.)