Inadmissible Hearsay Will Not Create Genuine Issue of Fact Regarding Whether Plaintiff Revoked Consent
The Southern District of Texas recently entered summary judgment in favor of a TCPA defendant, holding that the plaintiff had failed to present competent proof that she had orally revoked her consent to be called by a collection agency. Young v. Medicredit Inc., No. 17-3701, 2019 WL 1923457, at *4 (S.D. Tex. Apr. 26, 2019).
The plaintiff in Young alleged that the defendant had violated the TCPA by repeatedly calling her about overdue medical debts. Id. at *1. The defendant moved for summary judgment, relying in large part on the fact that the plaintiff had voluntarily given the medical facility her cellphone number and had signed a treatment form in which she consented to being contacted by phone, including through “‘pre-recorded/artificial voice messages and/or use of an automatic dialing system.’” Id. The plaintiff conceded that she had initially consented to the defendant’s calls, but argued that she had subsequently revoked that consent. Id. at *3. The question then became whether the plaintiff had created a genuine issue of fact regarding her alleged revocation.
The court found that she had not. Although the plaintiff cited her own testimony—during which she claimed that she asked the defendant to stop calling her—the court noted that the plaintiff could not remember when that happened and could not present any call recordings or other evidence to corroborate her claim. Id. at *3. And although the plaintiff’s mother testified that she had overheard the plaintiff tell the defendant to stop calling her, the plaintiff herself testified that her mother had not answered the call, had not been on the line listening to the call, and had later asked her daughter who had been on the phone. Id. The court therefore found that the mother lacked personal knowledge about the identity of the caller, and that her testimony was inadmissible hearsay. Id. In contrast, the defendant presented recordings of its only two calls with the plaintiff. Id. The court found that nothing in the recordings could be construed as the plaintiff revoking her prior consent. Id.
In granting the defendant summary judgment, the court held that the plaintiff had “failed to present evidence that raise[d] a genuine, triable issue regarding an alleged oral revocation of that consent.” Id. As shown here, plaintiffs must present more than unsubstantiated allegations of consent revocation to defeat summary judgment—competent proof is required.