Alms v. Laboratory Corporation of America et al

Filing 76

ORDER granting 61 Defendant Winn-Dixie Mongtomery, LLC's Motion for Summary Judgment; granting 64 Defendant Lexis Nexis Occupational Health Solutions Inc.'s Motion for Summary Judgment. Defendant "Charlene" is dismissed as set out. Signed by Judge Kristi K. DuBose on 3/1/2012. (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BRENDA H. ALMS,
Plaintiff,
v.
LEXIS NEXIS OCCUPATIONAL
HEALTH SOLUTIONS INC., and
WINN-DIXIE MONTGOMERY, LLC,
Defendants.

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CIVIL ACTION NO. 10-00646-KD-M

ORDER
This matter is before the Court on the motions for summary judgment filed by Defendant
Winn-Dixie Montgomery, LLC (“Winn-Dixie”) (Doc. 61) and Defendant Lexis Nexis
Occupational Health Solutions Inc. (“Lexis Nexis”) (Doc. 64). Upon consideration of the parties’
briefs and evidentiary submissions (Docs. 62, 63-1 to 63-7, 65, 65-1 to 65-19, 67, 67-1 to 67-2, 68,
and 69), Defendants’ motions are due to be GRANTED.
I.

Procedural History
On October 25, 2010, Plaintiff Brenda H. Alms (“Alms”), an Alabama resident,

commenced this action by filing an unsigned, four-count complaint in the Circuit Court of Baldwin
County, Alabama that alleged certain causes of action against Defendant Lexis Nexis (a Tennessee
corporation), Defendant Winn-Dixie (a Florida limited liability company), and former Defendant
Laboratory Corporation of America Holdings (“LabCorp”) (a Delaware corporation).

(Doc. 1-1

at 11-18; Doc. 1 at 2-3; Doc. 14 at 2-3). Alms also pled a cause of action for defamation against a
fourth defendant identified in the case caption as “‘Charlene,’ whose name is otherwise unknown.”
(Doc. 1-1 at 15-16, ¶¶ 23-27). “Charlene” was alleged to be a resident of Baldwin County,

1

Alabama, who, at all times relevant to Alms’ claims, was employed by Winn-Dixie. (Id. at 12,
¶ 4).1
On November 15, 2010, Alms filed a signed, three-count complaint against LabCorp,
Lexis Nexis, Winn-Dixie, and “Charlene.” (Doc. 14-6 at 2-6). Two weeks later, on November
29, 2010, Lexis Nexis, Winn-Dixie, and LabCorp removed Alms’ case to federal court on the basis
of diversity jurisdiction. (Doc. 1). On May 26, 2011, Alms’ claims against LabCorp were
dismissed with prejudice. (Docs. 37 & 38). On December 16, 2011, the Court determined that
“Charlene” had been fraudulently joined, whereas Alms’ complaint failed to state a viable claim
against her. Alms v. Lexis Nexis Med. Review Servs., No. 10-00646-KD-M, 2011 WL 6304946
(S.D. Ala. Dec. 16, 2011).2
What presently remains of Alms’ case is a cause of action for negligence and wantonness
alleged against Lexis Nexis (“Count I”), a cause of action for defamation alleged against Lexis
Nexis (“Count II”), and a cause of action for defamation alleged against Winn-Dixie (“Count III”).
Lexis Nexis and Winn-Dixie have separately moved for summary judgment as to the respective
claim(s) against them. (Docs. 61 & 64). Whereas Alms’ response (Doc. 67) and Defendants’
replies (Docs. 68 & 69) have been timely filed, the motions are now ripe for consideration.
II.

Standard of Review
“The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). Rule 56(c) governs procedures and provides as follows:
1

Discovery revealed that “Charlene” is Charlene Outlaw, a Grocery Associate at the
Winn-Dixie store in Robertsdale, Alabama. (Doc. 63-6 at 2).
2

Because “Charlene” was fraudulent joined, it is ORDERED that she be and hereby is
DISMISSED as a defendant in this action. See Florence v. Crescent Res., LLC, 484 F.3d 1293,
1297 (11th Cir. 2007).

2

(1) Supporting Factual Positions. A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits
or declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials;
or
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may
object that the material cited to support or dispute a fact cannot be presented in
a form that would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials, but it
may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or
oppose a motion must be made on personal knowledge, set out facts that would
be admissible in evidence, and show that the affiant or declarant is competent to
testify on the matters stated.
Fed. R. Civ. P. 56(c).
Defendants, as the parties seeking summary judgment, bear the initial responsibility of
informing the district court of the bases for their motions and identifying those portions of the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, which they believe demonstrate the absence of a genuine issue of material fact.
Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991) (quoting Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986)). The mere existence of a factual dispute will not automatically
necessitate denial; rather, only factual disputes that are material preclude entry of summary
judgment. Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804, 809 (11th Cir.
2004).
If the non-moving party fails to make a sufficient showing on an essential element of her

3

case with respect to which she has the burden of proof, the moving parties are entitled to summary
judgment. Celotex, 477 U.S. at 323. In reviewing whether the non-moving party has met her
burden, the Court must stop short of weighing the evidence and making credibility determinations
of the truth of the matter. Instead, the evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in her favor. Tipton v. Bergrohr GMBH-Siegen, 965 F.2d
994, 998-99 (11th Cir. 1992) (internal citations and quotations omitted).
III.

Factual Background
From sometime in December 2001 until her termination in March 2010, Alms was

employed at Winn-Dixie Store 570 in Foley, Alabama. (Doc. 63-1 at 5). On February 11, 2010,
approximately 30 minutes after reporting for work, Alms tripped over a pallet jack and sustained
an injury for which she was treated at South Baldwin Regional Medical Center (“South Baldwin”),
a hospital in Foley. (Doc. 67-2 at 1; Doc. 65-3 at 3). While at South Baldwin, Alms received at
least one intravenous dose of Dilaudid, a brand of hydromorphone hydrochloride, an opioid
painkiller. (Doc. 65-2 at 10-12; Doc. 65-5 at 8-9; Doc. 65-19 at 2).
Winn-Dixie instructed Alms to provide a urine sample for post-accident drug testing after
receiving treatment at South Baldwin. (Doc. 65-2 at 12-13; Doc. 65-5 at 2; Doc. 67-2 at 2).
LabCorp’s Southaven, Mississippi laboratory received Alms’ sample on February 12, 2010.
(Doc. 65-5 at 3; Doc. 67-2 at 2). LabCorp initially performed a five-panel immunoassay to screen
for the presence of amphetamines, cocaine, marijuana metabolites, opiates, and phencyclidine
(PCP). (Doc. 65-5 at 20; Doc. 65-15 at 5-6 & 12; Doc. 67-2 at 2-3). Immunoassay is an
“extremely sensitive” test that LabCorp uses for the qualitative purpose of identifying
“presumptive positives.” (Doc. 65-4 at 13; Doc. 65-15 at 12). If a sample is identified as a
presumptive positive, LabCorp will specially prepare the sample for a confirmation test performed

4

by gas chromatography/mass spectrometry (“GC/MS”). (Doc. 65-4 at 13; Doc. 65-15 at 13).
GC/MS is a “tandem technology” that identifies substances on a molecular level. (Doc. 65-15 at
6 & 13). In the drug testing industry, GC/MS is considered the “gold standard” test because of its
accuracy, precision, and ability to distinguish between compounds with similar molecular
structures. (Doc. 65-10 at 10). The immunoassay performed on Alms’ sample detected the
likely presence of opiates. (Doc. 65-4 at 14-16; Doc. 65-5 at 20). LabCorp’s GC/MS test
confirmed that Alms’ sample contained codeine, an opiate, at a concentration of 2,209 ng/mL.
(Doc. 67-2 at 2).
On February 13, 2010, LabCorp reported the result of Alms’ drug test to Lexis Nexis, the
successor to ChoicePoint WorkPlace Solutions, Inc., a company that Winn-Dixie engaged in
November 2008 to review and verify the results of occupational drug tests. (Doc. 65-4 at 5-6 &
11-12; Doc. 65-5 at 1, 4 & 25-30; Doc. 65-9 at 1-2). Lexis Nexis verifies test results by
submitting those results to a Medical Review Officer (“MRO”). An MRO is a licensed physician
who possesses clinical experience and whose knowledge includes but is not limited to the areas of
pharmacology, toxicology, controlled substance abuse disorders, and medical explanations for
positive laboratory drug test results. (Doc. 65-9 at 1-2; Doc. 65-14 at 3; Doc. 67-2 at 11). When
presented with a positive test result, Lexis Nexis’ MROs will interview the specimen donor in an
effort to determine whether a legitimate medical explanation for the positive result exists. (Doc.
65-9 at 1-2; Doc. 65-14 at 3-4). Specimen donors are responsible for providing Lexis Nexis’
MROs with proof, such as a valid prescription or other supporting documentation, of any proffered
explanation. (Doc. 65-9 at 2). If an MRO determines that a legitimate medical explanation
exists, the MRO will overturn the result reported by the laboratory and will report a negative result
to the specimen donor’s employer.

(Id.). As expressed by Lexis Nexis, an MRO is “an

5

independent and impartial ‘gatekeeper’” who will “convert” a laboratory positive report into a
negative report, “if a positive drug test is the result of the donor using legally prescribed
medications.” (Doc. 67-2 at 4). However, in the context of occupational drug tests performed at
the behest of private, non-regulated employers3 (e.g., Winn-Dixie), if a drug test indicates the
presence of codeine at a concentration greater than 2,000 ng/mL, and if the specimen donor fails to
provide a legitimate medical explanation therefor, Lexis Nexis will report the test as positive.
(Doc. 65-9 at 3).4

3

The U.S. Department of Transportation (“DOT”) has promulgated regulations at 49 C.F.R.,
Part 40 (“Part 40”) that prescribe procedures and requirements with respect to drug and alcohol
testing of aviation employees, commercial motor vehicle drivers, transit employees, and railroad
employees. (Doc. 65-9 at 2). Employers whose employees are not subject to the provisions of
Part 40 may elect to adhere to DOT’s protocols, but many do not. (Id.).
4

Lexis Nexis’ opiate policy sets forth that, in the non-regulated context, a specimen that
contains a concentration of codeine less than 2,000 ng/mL will be reported as negative without the
need for the donor to offer any explanation. (Doc. 67-2 at 34). However, the test will be
reported as positive if 1) the codeine concentration is greater than 2,000 ng/mL but less than 7,000
ng/mL; and 2) the donor does not profess to have ingested poppy seeds (which naturally contain
codeine, see id. at 32) and/or a legally prescribed medication that would explain the presence of
codeine in his or her urine:
Summary of MRO Responses to Lab Opiate Reports
Regulated
Non-Regulated
0,000-1,999 ng/mL
Negative
Negative
2,000-5,000 ng/mL
Negative
Negative
Codeine RX or OTC
Codeine present to L.O.D.
2,000-6,999 ng/mL
Negative
Negative
With poppy-seeds or RX
Opiate Physical Positive
2,000-6,999 ng/mL
Without poppy-seeds or RX

(Id. (emphasis added)).
In an endeavor to create a disputed issue of fact, Alms has failed to address the information
summarized above. Instead, she has directed the Court to a portion of Lexis Nexis’ opiate policy
that addresses the procedural burden of proof that an MRO is instructed, under Lexis Nexis’
internal operating procedures, to follow in determining the results of a test. (Doc. 67 at 7 & 14).
However, as explained in footnote 7, infra, this issue is not before the Court.

6

On February 15, 2010, a Lexis Nexis MRO contacted Alms to discuss the fact that
LabCorp detected codeine in her urine specimen. (Doc. 65-2 at 15-16 & 18; Doc. 67-2 at 43).
The MRO asked Alms whether she “had taken anything that would cause an issue with [the] drug
screen.” (Doc. 65-2 at 15-16). Alms reported to the MRO that, after she fell at Winn-Dixie on
February 11, 2010, she had been given “something” at the hospital and also that she had taken
some prescription cough medicine on February 9, 2010, two days prior to her fall. (Id. at 15-17).
On February 16, 2010, Alms faxed Lexis Nexis several pictures of a bottle of Tussionex, a cough
suppressant that contains hydrocodone (a semi-synthetic opioid) and chlorpheniramine (an
antihistamine), which she claimed to have taken on February 9. (Doc. 65-2 at 19; Doc. 65-5 at
6-7; Doc. 65-10 at 5; Doc. 65-15 at 21-22; Doc. 65-17 at 2; Doc. 65-18 at 2-3; Doc. 67-2 at 43-44).
Additionally, on February 17, 2010, Alms faxed Lexis Nexis a copy of her medical chart from
South Baldwin, which indicated that she had been administered Dilaudid a few hours before
providing a urine sample for drug testing. (Doc. 65-2 at 20-21; Doc. 65-5 at 8-9; Doc. 65-17 at 2;
Doc. 67-2 at 44). Alms did not disclose to Lexis Nexis any other legitimate or illegitimate drug
use, and it is her taking of Tussionex on February 9, 2010 and South Baldwin’s administration of
Dilaudid on February 11, 2010 that, according to Alms, provide a legitimate medical explanation
for the test results reported by LabCorp. (Doc. 65-2 at 24-26; Doc. 65-16 at 2; Doc. 65-17 at 2).
On February 18, 2010, Dr. Abraham Hammell (“Hammell”), a Lexis Nexis MRO, verified
Alms’ drug test as positive for opiates. (Doc. 65-9 at 4-5). After reviewing the test results
reported by LabCorp, pictures of the Tussionex bottle that Alms had faxed to Lexis Nexis, and the
medical records from South Baldwin that indicated Alms had been administered Dilaudid,
Hammell concluded that there was no legitimate medical explanation for the presence for codeine
in Alms’ urine. (Id. at 2-5). Accordingly, Lexis Nexis forwarded a Controlled Substance Test

7

Report to Winn-Dixie that indicated that Alms’ urine was positive for opiates. (Id. at 5; Doc. 67-2
at 3 & 43).
Hammell’s conclusion was based in part on the facts that 1) neither Tussionex nor Dilaudid
contains codeine; and 2) codeine is molecularly distinct from both hydrocodone (the opioid
contained in Tussionex) and hydromorphone (the opioid in Dilaudid). (Doc. 65-9 at 4; Doc.
65-10 at 5-7). Whereas a codeine molecule contains single-bonded oxygen and hydrogen atoms
at carbon #6, a hydrocodone molecule contains a double-bonded oxygen atom at that location;
whereas both hydrocodone and codeine molecules have a methoxy group (O-CH3 group) at
carbon #3, a hydromorphone molecule has a phenolic group (H-O group) at that location:

Hydrocodone
(Doc. 65-10 at 5-7).

Codeine

Hydromorphone

Hammell also considered that the GC/MS technology used by LabCorp to

confirm Alms’ presumptively positive drug test is sufficiently precise to distinguish between
codeine, hydrocodone, and hydromorphone and would not have mistaken the presence of one such
substance for the presence of another. (Doc. 65-9 at 4; Doc. 65-10 at 10; Doc. 65-14 at 5).
Finally, Hammell considered the well-documented facts that 1) the human body does not
metabolize either hydrocodone or hydromorphone into codeine once ingested; and 2) humans do
not excrete codeine in urine following ingestion of either hydrocodone or hydromorphone. (Doc.
65-9 at 4; Doc. 65-10 at 8; Doc. 65-14 at 5).5

5

At her deposition, Alms claimed that a Winn-Dixie pharmacist whose name she could not
recall told her that Tussionex is made from codeine. (Doc. 67 at 19-20; Doc. 65-2 at 19-20; Doc.
8

On March 5, 2010, at the direction of Winn-Dixie’s human resources department, the
manager of the Winn-Dixie store in Foley terminated Alms for failing her post-accident drug test.
(Doc. 63-1 at 7; Doc. 63-4 at 4; Doc. 65-3 at 1). One week after Alms’ termination, Winn-Dixie’s
human resources department asked Lexis Nexis’ Chief MRO, Dr. Stuart Hoffman (“Hoffman”), to
re-examine Alms’ drug test results and to give particular consideration to the fact that Alms “was
given the medication Dilaudid prior to taking her post accident drug test.” (Doc. 67-1 at 18 &
33-34; Doc. 67-2 at 42). Winn-Dixie asked Hoffman to “please have [Alms’] drug test result
changed from a positive to a negative a.s.a.p.,” if he thought such a change was possible. (Doc.
67-1 at 33-34; Doc. 67-2 at 42). On March 26, 2010, Hoffman responded that it was not possible
to change Alms’ result because the administration of Dilaudid could not explain the presence of
codeine in Alms’ urine. (Doc. 67-1 at 34; Doc. 67-2 at 43-44).
As grounds for her defamation claim against Winn-Dixie, Alms alleges that, sometime
after she was terminated, Brian Begue (“Begue”), a merchandiser who delivered magazines and
other publications to Winn-Dixie stores in South Alabama in early 2010, had a conversation with
Charlene Outlaw (“Outlaw”), an employee of the Winn-Dixie store in Robertsdale, Alabama,
during which Outlaw stated that Alms “had been found with codeine in her system and had been

67-2 at 18). Lexis Nexis has properly objected that this alleged statement is inadmissible hearsay
(Doc. 68 at 6 n.4), which the court may not consider on summary judgment. See Fed. R. Civ. P.
56(c)(2). In any event, Lexis Nexis does not dispute that hydrocodone, the semi-synthetic opioid
contained in Tussionex, may be derived from codeine, as the Winn-Dixie pharmacist allegedly
said. (Doc. 68 at 6 n.4; Doc. 65-10 at 5). However, this undisputed fact does not explain Alms’
drug test results (and therefore is not material) given that, as set forth above, hydrocodone —
whether derived from codeine or any other opioid — is not biotransformed into codeine by the
human body.
Similarly, the stated belief of a Winn-Dixie human resources employee that South Baldwin’s
administration of Dilaudid could explain Alms’ test results, see Doc. 67-2 at 41, fails to create a
material issue of fact, whereas Alms has failed to lay any foundation to suggest that person is
qualified to offer such an opinion.

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fired.” (Doc. 14-16 at 6; Doc. 63-1 at 13; Doc. 63-5 at 2-3; Doc. 63-6 at 2). Though Begue and
Outlaw admit that they spoke about Alms’ termination, Begue claims that Outlaw did not tell him
why Winn-Dixie had let Alms go. (Doc. 63-5 at 3). Similarly, Outlaw denies revealing Alms’
drug test results to Begue and claims that, at the time she spoke with Begue, she did not know why
Alms had been terminated. (Doc. 63-6 at 3).6
IV.

Analysis
A. Count I: Negligent and Wanton Conduct by Lexis Nexis
Under Alabama law, “[t]he elements of a negligence claim are a duty, a breach of that duty,

causation, and damage.” Armstrong Bus. Servs., Inc. v. AmSouth Bank, 817 So. 2d 665, 679
(Ala. 2001). Lexis Nexis does not challenge Alms’ ability to prove damage, but it maintains that,
on the record before the Court, Alms cannot establish any of the other three essential elements of
her claim. (Doc. 65 at 13- 19).
With respect to the existence or non-existence of a duty, Lexis Nexis concedes that no
Alabama court has held as a matter of law that an MRO does not owe a duty of care to a third party
donor. (Id. at 13). In urging this Court to be the first, Lexis Nexis cites Willis v. Roche
Biomedical Laboratories, Inc., 61 F.3d 313 (5th Cir. 1995), in which the Court of Appeals made an
“Erie ‘guess’” that, under Texas law, a drug testing lab owes a specimen donor no duty to use
reasonable care in performing tests and reporting results. Id. at 315-16. Because Willis’ roots
are entirely in Texas common law, it is neither persuasive nor particularly helpful here.
However, even assuming without deciding that Lexis Nexis owed Alms the same duty that
6

Alms testified at her deposition about other statements that Outlaw and other Winn-Dixie
employees and vendors allegedly made concerning her termination. (Doc. 63-1 at 8-17 & 24-25).
However, Alms failed to mention or refer to any of those statements in her complaint.
Accordingly, the Court will not address whether any of those statements were defamatory. See
Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 974-75 (11th Cir. 2008) (affirming district
court’s refusal to consider claims not alleged in complaint).

10

it contractually owed Winn-Dixie — namely to determine whether there was a legitimate medical
explanation for confirmed positive drug test results (Doc. 67-2 at 7)7 — Alms’ claim fails because
Lexis Nexis fully satisfied its obligation to consider Alms’ proffered explanations for the presence
of codeine in her urine. Alms reported to Lexis Nexis that the only drugs she had ingested prior to
her February 11, 2010 drug test were two semi-synthetic opioids: hydrocodone (Tussionex) and
hydromorphone (Dilaudid). (Doc. 65-17 at 2). Lexis Nexis considered whether either or both of
these substances could explain the result of the confirmatory GC/MS test, which is sufficiently
precise to distinguish between different opioids on a molecular level. Even after Lexis Nexis
determined that there was no legitimate medical explanation for Alms’ confirmed positive drug
test result and reported the same to Winn-Dixie, it reconsidered its conclusion at Winn-Dixie’s
request. Lexis Nexis’ diligent investigation of alternative explanations for Alms’ drug test result
forecloses any argument that Lexis Nexis breached its alleged duty of care.
Lexis Nexis’ assiduousness is also fatal to Alms’ claim of wantonness. “Wantonness” is
statutorily defined as “[c]onduct which is carried on with a reckless or conscious disregard of the
rights or safety of others.”

Ala. Code § 6-11-20(b)(3) (LexisNexis 2005).

The Alabama

Supreme Court has clarified that “wantonness involves the conscious doing of some act, or the
omission of some duty, under knowledge of existing conditions and while conscious that from the
doing of such act or omission of such duty injury will likely or probably result.” Ridgeway v.
CSX Transp., Inc., 723 So. 2d 600, 608 (Ala. 1998). In support of her claim, Alms offers little
7

Alms’ complaint alleges that Lexis Nexis “negligently, wantonly, recklessly or willfully failed
to determine and/or report whether a legitimate medical explanation could account for the positive
results obtained by the laboratory or the ‘confirmed positive’ result obtained by the medical review
service and/or the medical review officer.” (Doc. 14-6 at 4). However, in her opposition brief,
Alms attempts to redefine her cause of action by suggesting that Lexis Nexis owed Alms a duty to
properly follow its internal operating procedures. (Doc. 67 at 14-19). With respect to this new
breach-of-procedures claim, the issue has not been joined. See Doc. 60 (order denying Alms’
untimely motion for leave to amend her complaint).

11

more than a handful of conclusory assertions pertaining to Lexis Nexis’ alleged failure to evaluate
evidence that would explain her test results,8 but, as discussed above, the record demonstrates that
Lexis Nexis diligently considered every explanation Alms offered.
Lexis Nexis is entitled to judgment in its favor on Alms’ negligence and wantonness claim.
B. Counts II and III: Defamation by Lexis Nexis and Winn-Dixie’s Vicarious Liability for
Defamation by Outlaw
The elements of a cause of action for defamation under Alabama law are “1) a false and
defamatory statement concerning the plaintiff; 2) an unprivileged communication of that statement
to a third party; 3) fault amounting at least to negligence on the part of the defendant; and 4) either
actionability of the statement irrespective of special harm or the existence of special harm caused
by the publication of the statement.” McCaig v. Talladega Publ’g Co., 544 So. 2d 875, 877 (Ala.
1989). Both Defendants have moved for summary judgment on the defamation claims asserted
against them, but Alms has not responded to Defendants’ arguments, thereby abandoning her
claims. See Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995)
(“[G]rounds alleged in the complaint but not relied upon in summary judgment are deemed
abandoned.”). Nonetheless, even if Alms had responded, she would be unable to prevail. Lexis
Nexis’ report that Alms’ drug test was positive for opiates and Outlaw’s alleged statement that
Alms was terminated because codeine was found in her urine specimen were literally true, and
“[t]ruth is an absolute defense to defamation.” Foley v. State Farm Fire & Cas. Ins. Co., 491 So.
2d 934, 937 (Ala. 1986).9

8

See, e.g., Doc. 67 at 22 (“The non-medical staff acted in conscious disregard of Plaintiff’s
rights.”); id. (“The facts show that Defendant’s ‘Opiate Policy’ was consciously or recklessly
violated with the foreseeable result of job termination for Plaintiff.”).
9

The Court need not address the merits of Defendants’ alternative arguments that Lexis Nexis’
report to Winn-Dixie was privileged (Doc. 65 at 23-24), that Alms cannot prove Outlaw’s alleged
statement with admissible evidence (Doc. 62 at 11-16), that Alms cannot prove special damages
12

V.

Conclusion
In accordance with the foregoing, it is ORDERED that Defendant Winn-Dixie’s Motion

for Summary Judgment (Doc. 61) and Defendant Lexis Nexis’ Motion for Summary Judgment
(Doc. 64) are GRANTED.
As provided in Rule 58 of the Federal Rules of Civil Procedure, Judgment shall be entered
by separate document.
DONE and ORDERED this the 1st day of March 2012.

/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

(id. at 22-24), or that Winn-Dixie is not vicariously liable for Outlaw’s alleged statement because it
was not made within the scope of her employment (id. at 24-26).
13