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`Case: 1:19-cv-08402 Document #: 58 Filed: 01/19/21 Page 1 of 15 PageID #:433
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`
`MARY CRUMPTON, individually
`and on behalf of all others similarly
`situated,
`
` Plaintiff,
`
` v.
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`OCTAPHARMA PLASMA, INC.,
`
` Defendant.
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`MEMORANDUM OPINION AND ORDER
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`
`
`
`
`No. 19 C 8402
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`Judge Virginia M. Kendall
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`
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`Plaintiff Mary Crumpton filed this proposed class action against a plasma-
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`donation company, Octapharma Plasma, Inc. (“Octapharma”). Crumpton alleges
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`Octapharma violated the Illinois Biometric Information Privacy Act (“BIPA”). 740
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`ILCS 14/1, et seq.; (Dkt. 1-1). BIPA prohibits private entities from collecting
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`“biometric identifiers”—including fingerprints—from a person unless the entity
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`obtains informed, written consent and provides certain disclosures. 740 ILCS
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`14/15(b). Crumpton alleges Octapharma violated BIPA § 15(b) by using a donor-
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`identification system that relied upon the collection, storage, and use of donors’
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`fingerprints and biometric information without proper written consent and without
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`making required disclosures. (Dkt. 1-1).
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`Crumpton moves to strike Octapharma’s First and Second Affirmative
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`Defenses, raised in Octapharma’s answer. (Dkt. 43). For the reasons set forth below,
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`the motion is granted in part and denied in part.
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`Page 1 of 15
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`BACKGROUND
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`
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`When considering a motion to strike an affirmative defense, courts must take
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`as true all facts alleged in the defense and construe all reasonable inferences in
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`favor of the defendant.1 See, e.g., Mittelstaedt v. Gamla-Cedron Orleans LLC, No.
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`12 C 5131, 2012 WL 6188548, at *1 (N.D. Ill. Dec. 12, 2012).
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`Plasma, a component of human blood, is used to create life-saving treatments
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`and therapies for patients suffering various maladies. (Dkt. 16 at 15 ¶¶ 1–2).
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`Octapharma, a company incorporated in Delaware and headquartered in North
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`Carolina, operates a nationwide chain of blood plasma donation centers. (Dkt. 16 at
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`1 ¶ 1, 3 ¶ 9). Before donating plasma for the first time, Octapharma requires donors
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`to provide a scan of their fingerprint. (Dkt. 16 at 1 ¶ 2). Using this fingerprint scan,
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`Octapharma creates a biometric template as a method of positively identifying
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`individual donors. (Dkt. 16 at 22 ¶ 12). A donor’s biometric template is associated
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`with a Donor History Record which includes his or her donation history, results of
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`health screening exams and blood testing, and interviews and questionnaires. (Dkt.
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`16 at 22 ¶¶ 12–15, 26 ¶¶ 30). Octapharma requires donors to scan their fingerprint
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`each time they donate plasma. (Dkt. 16 at 23 ¶ 15).
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`Crumpton is an Illinois citizen who donated plasma at Octapharma between
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`June 2017 and August 2018 and submitted a scan of her fingerprint to do so. (Dkt.
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`16 at 3¶ 8, 8 ¶¶ 28–29). Crumpton filed suit against Octapharma on behalf of a
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`putative class in the Circuit Court of Cook County on December 2, 2019 alleging
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`1 At the request of the parties, the Court also accepts as true the facts alleged in the Declaration of
`Monica H. Byrd attached to Octapharma’s Response. (Dkt. 45-1; Dkt. 51 at 11 n. 1).
`Page 2 of 15
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`violation of BIPA § 15(a) and § 15(b). (Dkt. 1-1). The action was subsequently
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`removed to federal court on December 23, 2019. (Dkt. 1). Presently before this Court
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`is Crumpton’s cause of action under BIPA § 15(b) in which Crumpton alleges
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`Octapharma failed to obtain donors’ informed consent or make required disclosures
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`prior to obtaining the fingerprint template. (Dkt. 1-1 ¶ 41).
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`In its Answer, Octapharma raised various affirmative defenses, the first two
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`of which are the subject of this motion. Octapharma’s First Affirmative Defense is
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`that BIPA is preempted by federal law, specifically the Food, Drug, and Cosmetics
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`Act (“FDCA”), the Public Health Act, and the regulations promulgated by the Food
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`and Drug Administration (“FDA”) under those laws. (Dkt. 16 at 30–31 ¶¶ 50–56).
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`Octapharma’s Second Affirmative Defense is that it is exempt from BIPA. (Dkt. 16
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`at 31–32 ¶¶ 57–60). Crumpton moves to strike both the First and Second Affirmative
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`Defense. (Dkt. 43).
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`LEGAL STANDARD
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`
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`Motions to strike are governed by Federal Rule of Civil Procedure 12(f), which
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`provides “[t]he court may strike form a pleading an insufficient defense[.]” Fed. R.
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`Civ. P. 12(f). Motions to strike are generally disfavored and affirmative defenses “will
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`be stricken only when they are insufficient on the face of the pleadings.” Heller Fin.,
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`Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989). A court should
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`only strike an affirmative defense if it appears beyond a reasonable doubt the pleader
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`can prove no set of facts in support of his defense that would plausibly entitle him to
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`relief. See, e.g., Mittelstaedt, No. 12 C 5131, 2012 WL 6188548, at *2. To survive a
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`motion to strike, an affirmative defense must satisfy a three-part test: “(1) the matter
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`must be properly pleaded as an affirmative defense; (2) the matter must be
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`adequately pleaded under the requirements of Federal Rules of Civil Procedure 8 and
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`9; and (3) the matter must withstand a Rule 12(b)(6) challenge.” Sarkis’ Café, Inc. v.
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`Sarks in the Park, LLC, 55 F. Supp. 3d 1034, 1039 (N.D. Ill. 2014). Bare legal
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`conclusions are insufficient and must be stricken. Heller, 883 F.2d at 1294–95
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`(granting motion to strike affirmative defenses where defendants omitted any short
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`and plain statement of facts and failed to allege necessary elements of a claim). A
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`majority of district court decisions in this circuit apply the pleading standards set
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`forth in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556
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`U.S. 662 (2009), to affirmative defenses, and this Court will do so as well. See Maui
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`Jim, Inc. v. SmartBuy Guru Enters., 286 F. Supp. 3d 926, 938 (N.D. Ill. 2019)
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`(collecting cases).
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`A.
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`Timeliness
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`DISCUSSION
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`Under Rule 12(f), a party seeking to strike an affirmative defense must file a
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`motion within 21 days of being served with the challenged pleading. Fed. R. Civ. P.
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`12(f)(2). Octapharma filed its Answer on February 3, 2020, meaning Crumpton’s
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`deadline to move to strike an affirmative defense was February 24, 2020. (Dkt. 16).
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`However, the Court issued a stay pending the Seventh Circuit’s decision regarding
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`standing in Bryant v. Compass Grp., No. 20-1443 on February 13, 2020. (Dkt. 21).
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`This stay was lifted on May 8, 2020. (Dkt. 31). Accounting for the 9 days elapsed
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`prior to the February 13th stay, the new deadline for Crumpton to move to strike was
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`May 21, 2020. Crumpton filed the present motion to strike on May 28, 2020. (Dkt.
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`36 at1). However, in response to the ongoing COVID-19 pandemic, the Northern
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`District of Illinois issued a series of General Orders extending “all deadlines [in civil
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`cases], whether set by the court or by the Rules of Civil Procedure or Local Rules.”
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`See Amended General Order 20-0012 dated March 16, 2020 (extending all deadlines
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`by 21 days); Second Amended General Order 20-0012 dated March 30, 2020
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`(extending all deadlines by an additional 28 days); Third Amended General Order
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`dated April 24, 2020 (extending all deadlines by an additional 28 days).
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`Even imagining Crumpton’s motion to strike was untimely, Rule 12 empowers
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`a court to act on its own to strike insufficient defenses. Fed. R. Civ. P. 12(f)(1). A
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`court acting under Rule 12(f)(1) has the discretion “to consider a motion to strike at
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`any point in a case” when the court’s attention “was prompted by an untimely filed
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`motion.” Williams v. Jader Fuel Co., 944 F.2d 1388, 1399 (7th Cir. 1991). This Court
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`therefore addresses the merits of Crumpton’s motion.
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`B.
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`First Affirmative Defense: Preemption
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`Preemption, rooted in the Supremacy Clause, recognizes Congress’s power to
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`preempt or invalidate state laws through federal legislation. Oneok, Inc. v. Learjet,
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`Inc., 575 U.S. 373, 376–77 (2015). Congress may do so expressly in the statutory
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`language or implicitly through conflict preemption or field preemption. Id.
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`Congressional purpose “is the ultimate touchstone in every preemption case” and
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`courts presume state police power has not been preempted. Medtronic, Inc. v. Lohr,
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`518 U.S. 470, 485 (1996). Here, Octapharma argues express, conflict, and field
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`preemption all apply and bar the claims against it under BIPA. (Dkt. 45 at 8–13).
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`1.
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`Express Preemption
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`Express preemption exists when Congress “declares its intention to preempt
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`state regulation through a direct statement in the text of federal law.” C.Y.
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`Wholesale, Inc. v. Holcomb, 965 F.3d 541, 546 (7th Cir. 2020) (quoting Fifth Third
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`Bank ex rel. Trust Officer v. CSX Corp., 415 F.3d 741, 745 (7th Cir. 2015)).
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`Octapharma argues the Medical Device Amendments of 1976 (“MDA”) applies to
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`Octapharma’s donor management software system (“DMS”) and plasmapheresis
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`device (“PCS”) and expressly preempts BIPA. (Dkt. 45 at 9–11). The MDA includes
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`an express preemption provision that states:
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`No State . . . may establish or continue in effect with respect to a
`device intended for human use any requirement: (1) which is different
`from, or in addition to, any requirement applicable under this chapter
`to the device, and (2) which relates to the safety or effectiveness of the
`device or to any other matter included in a requirement applicable to
`the device under this chapter.
`
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`21 U.S.C. § 360k(a) (emphasis added). While the MDA regulates medical devices,
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`BIPA regulates “private entit[ies] in possession of biometric identifiers or biometric
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`information”, in this instance, Octapharma. 740 ILCS 14/15. BIPA imposes no
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`requirements upon Octapharma’s DMS or PCS, only upon Octapharma itself.
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`Moreover, BIPA’s requirements are only triggered by the collection of biometric
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`identifiers, which the MDA does not mandate. Express preemption is inapplicable.
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`2.
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`Conflict Preemption
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`To establish conflict preemption, Octapharma “must show either that it would
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`be ‘impossible’ . . . to comply with both state and federal law or that state law . . .
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`constitutes an ‘obstacle’ to satisfying the purpose and objectives of Congress.” C.Y.
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`Wholesale, Inc., 965 F.3d at 546 (quoting Nelson v. Great Lakes Educ. Loan Servs.,
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`Inc., 928 F.3d 639, 650 (7th Cir. 2019)). Octapharma bears the burden of
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`demonstrating that applying BIPA would do “‘major damage’ to clear and substantial
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`federal interests.” Id. (citing Patriotic Veterans, Inc. v. Indiana, 736 F.3d 1041, 1049
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`(7th Cir. 2013)). Absent “the clear and manifest purpose of Congress,” courts should
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`not find conflict preemption. Id. (quoting Arizona v. U.S., 567 U.S. 387, 400 (2012)).
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`Octapharma points to no federal statute or regulation incompatible with
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`simultaneous compliance with BIPA. BIPA applies only when an entity collects
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`biometric information; the FDCA does not require Octapharma to collect or use
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`biometric information. See, e.g., Marsh and Hilson v. CSL Plasma, Inc., No. 19 C
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`6700, 2020 WL 7027720, at *5 (N.D. Ill. Nov. 30, 2020). Although the FDCA does
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`require screening procedures for identity, it does not prescribe an exclusive or
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`preferred method. 80 Fed. Reg. 29, 869 (May 22, 2015) (“[W]e have not specified the
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`means of establishing proof. We believe that photographic identification, a valid
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`driver’s license, valid biometric means, or other means can be useful in establishing
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`the donor’s identity.”). Octapharma’s decision to use biometric information, or
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`assessment that such a method is superior to the alternatives, does not alter the fact
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`that it is not required by federal law. (Dkt. 45 at 12). Octapharma may satisfy both
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`federal law and BIPA by using an alternate method of proving donor identity.
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`Conflict preemption, then, does not apply.
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`3.
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`Field Preemption
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`“Field preemption is rare.” Nelson, 928 F.3d at 651. Field preemption occurs
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`“when federal law occupies a ‘field’ of regulation ‘so comprehensively that it has left
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`no room for supplementary state legislation.” Id. at 651–52 (quoting Int’l Ass’n of
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`Machinists Dist. Ten v. Allen, 904 F.3d 490, 498 (7th Cir. 2018)). The FDA “did not
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`intend its regulation to be exclusive” in the plasma-donation industry. Hillsborough
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`County, Fla. v. Automated Med. Labs., Inc., 471 U.S. 707, 714 (1985) (citing 38 Fed.
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`Reg. 19365 (1973) (“These regulations are not intended to usurp the power of State
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`or local authorities to regulate plasmapheresis procedures in their localities.”)). The
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`FDA’s statement is “dispositive on the question of implicit intent to pre-empt unless
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`either the agency’s position is inconsistent with clearly expressed congressional
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`intent . . . or subsequent developments reveal a change in that position.” Id. at 714–
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`15. Octapharma’s cursory reference to the FDA’s health and safety-based goals and
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`observation that BIPA is “wholly distinct from plasmapheresis regulation” falls short
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`of altering the scope of the FDCA as expressed by the FDA. (Dkt. 45 at 7–8; 11–12).
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`Octapharma has not demonstrated that Congress occupied the entire field of either
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`the plasma donation industry or biometric privacy such that BIPA is preempted.
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`Field preemption is inapplicable.
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`Crumpton’s motion to strike Octapharma’s First Affirmative Defense is
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`granted with prejudice.
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`Page 8 of 15
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`C.
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`Second Affirmative Defense: Octapharma is Excepted from BIPA
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`Octapharma’s Second Affirmative Defense is that it is excepted from BIPA
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`because its records are subject to HIPAA, the biometric identifiers are collected in a
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`“health care setting” and “collected, used, or stored for health care treatment”, and
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`are used to “validate scientific testing or screening”. (Dkt. 16 at 31–32 ¶¶ 57–60; Dkt.
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`45 at 13–16).
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`1.
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`Subject to HIPAA
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`Under BIPA, biometric identifiers do not include “information collected, used,
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`or stored for health care treatment, payment, or operations under the federal Health
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`Insurance Portability and Accountability Act of 1996.” 740 ILCS 14/10. Octapharma
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`argues that, because it is a licensed clinical laboratory under the Clinical Laboratory
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`Improvements Act (“CLIA”) and Illinois’s Laboratory and Blood Bank Act (“Illinois
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`Laboratory Act”), it “may be required to disclose its laboratory testing results of a
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`donor subject to HIPAA.” (Dkt. 45 at 15–16). At the outset, Crumpton seeks to
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`judicially estop Octapharma from forwarding this argument. (Dkt. 43 at 10). Judicial
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`estoppel is a common-law doctrine that prohibits a party from asserting a claim in a
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`legal proceeding that is inconsistent with a claim taken by that party in a previous
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`proceeding. New Hampshire v. Maine, 532 U.S. 742, 749 (2001). The doctrine makes
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`litigants “‘choose one position irrevocably,’” thereby “‘rais[ing] the cost of lying.’”
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`Cannon-Stokes v. Potter, 453 F.3d 446, 448 (7th Cir. 2006) (quoting Chaveriat v.
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`Williams Pipe Line Co., 11 F.3d 1420, 1428 (7th Cir. 1993)). Courts invoke the
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`doctrine at their discretion, and the “circumstances under which [it] may be invoked
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`are probably not reducible to any general formulation of principle.” New Hampshire,
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`532 U.S. at 749. Courts generally assess three factors to determine whether applying
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`judicial estoppel is appropriate. First, the party’s later position must be “clearly
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`inconsistent” with its previous position. Id. at 750. Second, courts consider whether
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`the party succeeded in persuading a court to accept its earlier position, “so that
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`judicial acceptance of an inconsistent position in a later proceeding would create ‘the
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`perception that either the first or the second court was mislead.’” Id. (quoting
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`Edwards v. Aetna Life Ins. Co., 690 F.2d 565 (6th Cir. 1982)). Third, courts consider
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`“whether the party seeking to assert an inconsistent position would derive an unfair
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`advantage or impose an unfair detriment on the opposing party if not estopped.” Id.
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`Octapharma’s current position with respect to the applicability of HIPAA
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`regulations is not “clearly inconsistent” with positions adopted in other cases.
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`Octapharma’s argument is distinct from its position on motion to dismiss in Levorsen
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`v. Octapharma Plasma, Inc., an action under Title III of the Americans with
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`Disabilities Act (“ADA”) in which Octapharma contested whether it was a “place of
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`public accommodation” under the ADA. No. 2:12-cv-325, Dkt. 10 at 3. In Levorsen,
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`Octapharma argued it was not a “professional office of a health care provider” under
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`the ADA because “plasma donation centers do not provide ‘health care services’ and
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`its donors are not ‘patients.’” Id., Dkt. 10 at 8. The “plasma donation centers are
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`exempt from HIPAA requirements” language Crumpton identifies is plucked from a
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`parenthetical in service of this point about Octapharma’s status as a health care
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`Page 10 of 15
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`provider. Id., Dkt. 10 at 8. Octapharma is not estopped from making its HIPAA
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`argument.
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`Octapharma’s Second Affirmative Defense inadequately pleads a connection
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`between collecting a biometric template from donors on the front end and how that
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`template is “collected, used, or stored for health care treatment, payment, or
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`operations under [HIPAA].” 740 ILCS 14/10. Octapharma’s claim that it is subject
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`to the CLIA and the Illinois Laboratory Act which are, in turn, subject to HIPAA does
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`not elucidate the matter. (Dkt. 16 at 31 ¶ 60). First, it is unclear that the Illinois
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`Laboratory Act is subject to HIPAA. Other than borrowing a few definitions from
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`HIPAA, the Illinois Laboratory Act merely provides that “laboratory test results may
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`be reported or transmitted to: . . . (3) an electronic health information exchange for
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`the purposes of transmitting, using, or disclosing clinical laboratory test results in
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`any manner required or permitted by HIPAA.” 210 ILCS 25/7-102(a)(3) (emphasis
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`added); see also 210 ILCS 25/2-134–37. This provision is permissive, not compulsory.
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`Second, Octapharma does not explain how the fact that its compliance under CLIA
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`with respect to its records extends to biometric templates collected from donors for
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`identification. (Dkt. 43 at 15–16). With respect to Octapharma’s argument that it is
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`subject to HIPAA and thus exempt from BIPA, Crumpton’s motion to strike the
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`Second Affirmative Defense is granted without prejudice.
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`2.
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`“Patient” in a “Health Care Setting”
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`BIPA does not apply to “information captured from a patient in a health care
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`setting.” 740 ILCS 14/10. Crumpton seeks to estop Octapharma from arguing the
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`Page 11 of 15
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`biometric identifiers it collects fall within this exception because they are collected
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`along with medical information provided by a donor. (Dkt. 43 at 11–12; Dkt. 45 at
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`13). Here, Octapharma makes an argument regarding the scope of BIPA’s statutory
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`text. This position is not inconsistent with Octapharma’s arguments in either
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`Levorsen or Maley v. Octapharma Plasma, Inc., another case arising under the ADA
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`in which Octapharma argued it was not a place of public accommodation. See No. 12-
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`13892, Dkt. 6 at 8–9. In both Levorsen and Maley, Octapharma argued it was not a
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`health care provider under the ADA. See Levorsen, No. 2:12-cv-325, Dkt. 10 at 8 (“[A]
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`plasma collection center is not a ‘health care provider’ as a matter of federal law.”)
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`(emphasis added); Maley, No. 12-13892, Dkt. 6 at 11. Crumpton has not identified
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`any position regarding the scope of the BIPA exception, which Octapharma contends
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`does not track HIPAA’s Privacy Rule definitions, which justify judicial estoppel. (Dkt.
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`45 at 13–14).
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`The crux of this argument is twofold: donors are “patients” and Octapharma
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`collects the fingerprint templates “in a health care setting.” Leaving aside the
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`ultimate merit of the argument, Octapharma plead sufficient facts to survive a
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`motion to strike. BIPA does not define the term “patient” and Crumpton does not
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`offer a definition, relying instead upon the semantic distinction between donors and
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`patients in the Answer. (Dkt. 16 at 15 ¶ 1, 16 ¶ 6, 22 ¶ 12). Absent guidance from
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`the Illinois legislature or the briefing, the common definition of the term “patient”
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`controls: An “individual awaiting or under medical care and treatment” or “the
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`recipient of any of various personal services.” Merriam Webster, “Patient”,
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`Page 12 of 15
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`https://merriam-webster.com/dictionary/patient (last visited January 4, 2020).
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`Octapharma alleges it assesses the donor’s “health vitals and characteristic,”
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`conducts initial and annual “head-to-toe physical examination[s],” provides
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`counseling “for vital results that are repeatedly out-of-limit,” and, when appropriate,
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`“provides documentation, including copies of [] test results, so that the donor can take
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`the information to their physician.” (Dkt. 45-1 ¶¶ 14, 37, 39, 47, 70). Crumpton has
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`not demonstrated beyond a reasonable doubt that Octapharma can prove no set of
`
`facts indicating donors are also patients under BIPA. See, e.g., Mittelstaedt, No. 12
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`C 5131, 2012 WL 6188548, at *2.
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`Neither does BIPA define the term “health care.” The disjunctive “or”
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`separating the “health care setting” and “information collected, used, or stored for
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`health care treatment” clauses of the exception render the HIPAA Privacy Rule
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`definitions uninstructive. 740 ILCS 14/10. For want of other guidance, the common
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`meaning of “health care” as “efforts made to maintain or restore physical, mental, or
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`emotional well-being especially by trained and licensed professionals[]” applies.
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`Merriam Webster, “Health Care”, https://merriam-webster.com/dictioanry/health-
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`care (last visited January 4, 2020). From this definition, it is not clear that the donor
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`must be the beneficiary of such efforts for the donation to take place in a “health care
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`setting.” Octapharma alleges the fingerprint templates are collected along with the
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`donor’s medical information, including their personal health history and health-
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`affecting conduct. (Dkt. 45-1 ¶¶ 14–15, 24–28). A medical screener takes the donor’s
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`vials and, if the results are “repeatedly out-of-limits”, a physician substitute counsels
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`Page 13 of 15
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`the donor. (Dkt. 45-1 ¶ 39). Donors also receive a “head-to-toe physical examination”
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`by a Medical Director of physician substitute. (Dkt. 45-1 at 42, 47–48). Finally, the
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`donor’s blood and plasma are tested for “relevant transfusion-transmitted infections”
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`and, should a test yield a positive result, Octapharma contacts the donor, requests
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`the donor return to the facility where they are counseled by a Medical Director or
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`physician substitute and provided documentation, “including copies of the test
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`results, so that the donor can take the information to their physician.” (Dkt. 45-1
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`¶¶ 67–70). These allegations are sufficient to survive a motion to strike. With respect
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`to Octapharma’s argument the biometric identifiers are “captured from a patient in
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`a health care setting,” Crumpton’s motion to strike is denied.
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`3.
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`“Validates Scientific Testing or Screening”
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`Under BIPA, biometric identifiers do not include:
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`[A]n X-ray, roentgen process, computed tomography, MRI, PET scan,
`mammography, or other image or file of the human anatomy used to
`diagnose, prognose, or treat an illness or other medical condition or to
`further validate scientific testing or screening.
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`740 ILCS 14/10. Octapharma argues the fingerprint templates fall under this
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`exception because they are “collected to validate the donor’s identity for the medical
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`screening and the ‘scientific testing’ of their blood and plasma” and serves to “‘further
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`validate’ those processes and donor’s test results.” (Dkt. 45 at 16). Ultimately,
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`Octapharma’s allegations amount to the biometric templates are used to “ensure the
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`positive identification of [] donors” and associate donors with their medical records.
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`(Dkt. 45-1 ¶¶ 17–19).
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` Octapharma does not allege the biometric identifiers
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`themselves are integral to screening or testing the donor or their plasma or blood for
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`Page 14 of 15
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`Case: 1:19-cv-08402 Document #: 58 Filed: 01/19/21 Page 15 of 15 PageID #:447
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`any condition or disease. Moreover, validating donor identity is not the same as
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`validating the underlying testing or screening.
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`With respect to Octapharma’s argument that the fingerprint templates are
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`used to validate medical screening and scientific testing and thus exempt from BIPA,
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`Crumpton’s motion to strike the Second Affirmative Defense is granted without
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`prejudice.
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`CONCLUSION
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`
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`For the foregoing reasons, Crumpton’s Motion to Strike Defendant’s First and
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`Second Affirmative Defenses is granted in part and denied in part. (Dkt. 43).
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`Octapharma’s First Affirmative Defense, as well as its arguments within the Second
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`Affirmative Defense that it is subject to HIPAA and that the biometric templates are
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`used to validate medical screening and scientific testing, are stricken. To the extent
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`Octapharma argues within the Second Affirmative Defense the biometric templates
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`are obtained from patients in a health care setting, Crumpton’s Motion to Strike
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`Defendant’s First and Second Affirmative Defense is denied.
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`
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`The Court grants Octapharma leave to amend its Answer consistent with this
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`Opinion, if possible, within 21 days of the filing of this Opinion.
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`Date: January 19, 2021
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`____________________________________
`Virginia M. Kendall
`United States District Judge
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`Page 15 of 15
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