EAST ST. LOUIS - Chief U.S. District Judge Nancy Rosenstengel must decide whether a class action claim that Anderson Hospital shared private information with Facebook belongs in her court or in Madison County.
Plaintiff Erin Hischier of Edwardsville filed the complaint, Anderson removed it to district court, and Hischier moved to remand it.
Attorney David Cates of Swansea represents Hischier in association with Lynn Toops of Indianapolis and Gerard Stranch of Nashville.
The complaint alleged that Anderson encouraged Hischier to access online platforms, and the plaintiff reasonably expected her communications would not be transmitted to a third party.
They claimed Anderson used Meta Pixel and tracking technology to send Hischier’s private Information to Facebook, Google, and others.
Anderson allegedly assisted Facebook, Google, and others with intercepting Hischier’s confidential communications.
Cates, Toops and Stranch claimed Hischier and class members thought they communicated exclusively with their trusted provider.
They claimed Anderson surreptitiously forced Hischier and class members to transmit intimate details about their treatment to third parties.
They added that a pixel tracks pages viewed, buttons clicked, and information submitted, and transmits the information to a website server and third parties.
They claimed Meta Pixel can link website interactions with Facebook ID, allowing information to then be linked with a Facebook profile.
The attorneys claimed Anderson effectively planted a bug on web browsers.
The suit states that Facebook builds data profiles to target advertisements and sells them for profit.
They claimed third party marketers then target class members.
Third parties could allegedly infer from the data that a specific patient was being treated for a specific condition.
The suit states that Facebook generated $117 billion in revenue in 2021.
Anderson counsel Amy Lenz of Chicago removed the complaint to district court on grounds that the hospital acted as an officer of the federal government.
Lenz claimed the government has directed a public and private initiative to develop a national structure for health information since 2004.
She added that the government directed providers in Medicare and Medicaid to offer patients online access to their records and optimize their engagement with their information.
“Defendant has faithfully assisted and followed the federal government’s direction in connection with the actions challenged by Plaintiff here,” she wrote.
Hischier’s counsel Toops moved to remand the complaint to Madison County, claiming Anderson made no showing that Anderson helps to carry out duties of a federal superior.
Toops claimed the government didn’t hire or enlist Anderson to perform a particular function, and Anderson didn’t act pursuant to any federal program.
“Defendant is simply not a federal officer. It is a private actor,” she wrote.
“To say otherwise would turn practically every regulated entity into a federal officer,” she added.
Lenz responded that Anderson implemented tracking technologies in conformance with a model for providers to follow using marketers like Facebook to increase engagements.
“Anderson was at minimum assisting the federal government,” she wrote.
Lenz claimed the government monitors compliance through reports Anderson submits.
“Through these reports, the federal government monitored Anderson’s activities in increasing the use of the patient portal,” she wrote.
She claimed the argument that the government didn’t direct Anderson to make health records accessible ignored that a national coordinator is responsible for leading this effort
“Some communication is made to a third party every time a visitor visits any website, merely for the Internet to function,” she wrote.