MIMMS ET AL. v. CVS PHARMACY, INC.

Filing 143

ENTRY ON PENDING MOTIONS - For the reasons stated above, Dr. Mimms' Motion for Partial Summary Judgment (Filing No. 71 ), and CVS's Motion for Summary Judgment (Filing No. 74 ), are GRANTED in part and DENIED in part. Dr. Mimms' M otion to Strike ( Filing No. 58 ) is DENIED. CVS's Motion for Leave to Amend its Witness and Exhibit Lists (Filing No. 127 ) is GRANTED and CVS's Motion to Supplement Summary Judgment Record (Filing No. 130 ) is DENIED. (See Entry.) Signed by Judge Tanya Walton Pratt on 1/3/2017. (JLS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ANTHONY MIMMS, M.D., and MIMMS
FUNCTIONAL REHABILITATION, P.C.,
Plaintiffs,
v.
CVS PHARMACY, INC., a Rhode Island
corporation,
Defendant.
______________________________________
INDIANA ATTORNEY GENERAL,
Medicaid Fraud Control Unit,
Interested Party.

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ENTRY ON PENDING MOTIONS
This matter is before the Court on the parties’ Cross-Motions for Summary Judgment. On
May 20, 2015, Plaintiff Anthony Mimms (“Dr. Mimms”) filed a Complaint alleging defamation,
tortious interference with contractual relationships and tortious interference with a business
relationship against Defendant CVS Pharmacy, Inc., (“CVS”). On June 15, 2016, Dr. Mimms filed
a Motion for Partial Summary Judgment on behalf of himself and his business, Mimms Functional
Rehabilitation, P.C., (“MFR”) (Filing No. 71). On that same date, CVS filed a Cross Motion for
Summary Judgment (Filing No. 74). Also pending is a Motion to Strike Certain Defendant’s
Affirmative Defenses filed by Dr. Mimms, (Filing No. 58), a Motion to Amend Witness and
Exhibit Lists filed by CVS (Filing No. 127), and a Motion to Supplement Summary Judgment
Record filed by CVS (Filing No. 130). For the following reasons, the Court denies in part and
grants in part the parties’ Cross-Motions for Summary Judgment, denies Dr. Mimms’ Motion to

Strike, grants CVS’s Motion to Amend Witness List, and denies CVS’s Motion to Supplement
Summary Judgment Record.
I.

BACKGROUND

The dispute in this matter surrounds Dr. Mimms’ claims that CVS employees at numerous
Indiana locations, uttered false and defamatory statements to his patients, causing him to suffer
embarrassment, damage to himself and his practice and loss of clients from his pain management
practice. Dr. Mimms is a physician who resides in Indianapolis, Indiana. In 2004, Dr. Mimms was
licensed with the Indiana Medical Licensing Board. As such, he was licensed and registered to
prescribe drugs classified by the United States Drug Enforcement Administration (“DEA”) as
Schedule I, II, IID, III, IIID, IV and V (“prescriptions”). In November 2013, Dr. Mimms resigned
from a practice with Rehabilitation Associates of Indiana (“RAI”) and started his own pain
management practice, MFR. Thereafter, employees at various CVS stores within the Southern
District of Indiana refused to fill prescriptions prescribed by Dr. Mimms.
In late 2013, Cynthia Miller, a patient of Dr. Mimms, traveled to CVS Store #4633 located
in Greenfield, Indiana to refill a prescription written by Dr. Mimms. (Filing No. 73-10.) A CVS
employee informed Miller that they were not filling prescriptions written by Dr. Mimms because
he was under investigation by the DEA. Id. Later that same day, Miller returned to the same CVS
store with her husband and talked to Richard, a CVS pharmacy manager. Id. at 3. Richard repeated
that CVS did not fill prescriptions written by Dr. Mimms because he was under DEA investigation.
Id. at 4.
On June 24, 2014, Terry McIntosh traveled to CVS Store #4633 to gather information
regarding narcotic pain medications he had previously taken. (Filing No. 73-4 at 2.) While at the
CVS store, Anthony, a CVS pharmacist, stated that CVS does not fill prescriptions for Dr. Mimms.
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Id. Anthony then compared Dr. Mimms to a pill mill and explained that pill mills are physicians
“who just parade patients one after another through their office writing prescriptions. Some get
kickbacks, some give them, they over-write the prescriptions too because they get kickbacks.” Id.
In October 2014, Judith Mason attempted to get a prescription written by Dr. Mimms filled
at CVS Store #4633, but a CVS employee informed Mason that they refuse to fill any prescription
written by Dr. Mimms. (Filing No. 73-2 at 2.) Mason then traveled to CVS Store #0045 located
on Pendleton Pike in Indianapolis. Id. There, Alexis Field (“Field”), a CVS pharmacy technician,
stated that Dr. Mimms was under investigation by the DEA and that Mason should find another
doctor. Id. Field admits that she made the statement. (Filing No. 73-3 at 4.)
Kim Petro (“Petro”) also informed Dr. Mimms that she went to CVS Store #6645 located
in Rushville, Indiana to refill a prescription that he had written. (Filing No. 73-7 at 8.) Dana, a
CVS technician, informed Petro that they could not fill prescriptions written by Dr. Mimms
because he went to jail and is a bad doctor. Id. at 9. Another patient of Dr. Mimms, Jerame Smith
(“Smith”), traveled to a CVS store to fill a prescription written by Dr. Mimms, and a CVS
pharmacy technician named Jason looked at the prescription, looked over at something on the wall
and then informed Smith that he could not fill the prescription because Dr. Mimms was under DEA
investigation. (Filing No. 73-9 at 6.) Jason further stated, “well, either they think your doctor is
a pill pusher or he doesn’t care about his clients or he’s a shady doctor.” Id.
Most recently, Dr. Mimms’ patient Deborah Doyle-Blanton (“Blanton”) informed Dr.
Mimms that, on March 4, 2015, a Caucasian CVS employee with dark hair and a lean build at CVS
Store #7541 located in McCordsville, Indiana, stated that Dr. Mimms had been under investigation
and arrested for controlled substances, and if he was not arrested then Dr. Mimms would soon be
arrested. The employee suggested that Blanton find a new doctor. (Filing No. 73-1 at 2.)
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Blanton’s brother, David Seeman, who is not Dr. Mimms’ patient, also informed Dr. Mimms that
a CVS employee at Store #6594 refused to fill a prescription written by Dr. Mimms for Blanton.
(Filing No. 73-5 at 2.) The employee stated that Dr. Mimms’ license was revoked and that it was
best that Blanton go to another doctor. Id. Seeman described the CVS employee as a young
Caucasian woman. Id. at 6.
On February 10, 2014, Dr. Mimms filed a Consumer Complaint against CVS with the
Indiana Attorney General’s Office, complaining that CVS stores across Indiana were refusing to
fill his patients prescriptions. (Filing No. 73-11 at 2-3.) On May 23, 2014, the Indiana Attorney
General’s Office sent Dr. Mimms a letter stating that it was closing his Complaint against CVS,
but provided no other information. Id. at 6. On November 17, 2014, DEA agent Madeline Kuzma
and Amy Andercyk from the Indiana Attorney General’s Office visited CVS regarding CVS’s
refusal to fill Dr. Mimms’ prescriptions. (Filing No. 73-13 at 2.) The agents asked whether there
were other doctors that concerned CVS. Id. Thereafter, on May 20, 2015, Dr. Mimms filed this
action against CVS in Marion Superior Court on behalf of himself and MFR, asserting defamation,
tortious interference with contractual relationships, and tortious interference with a business
relationship. (Filing No. 1-2.) On June 19, 2015, CVS removed the case to federal court. CVS
disputes that its employees made any actionable defamatory statements, and contends that if the
employees did make defamatory statements, they are protected by a qualified privilege. Both
parties move for summary judgment.
II.

LEGAL ANALYSIS

The purpose of summary judgment is to pierce the pleadings and to assess the proof in
order to see whether there is a genuine need for trial.” Matsushita Electric Industrial Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 106 S. Ct. 1348 (1986). Under Federal Rule of Civil Procedure
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56, summary judgment is appropriate only where there exists “no genuine issue as to any material
facts and . . . the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56. In
ruling on a motion for summary judgment, the court reviews “the record in the light most favorable
to the non-moving party and draw[s] all reasonable inferences in that party’s favor.” Zerante v.
DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (citation omitted). “However, inferences that are
supported by only speculation or conjecture will not defeat a summary judgment motion.” Dorsey
v. Morgan Stanley, 507 F.3d 624, 627 (7th Cir. 2007) (citation and quotation marks omitted).
Additionally, “[a] party who bears the burden of proof on a particular issue may not rest on its
pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a
genuine issue of material fact that requires trial.” Hemsworth v. Quotesmith.com, Inc., 476 F.3d
487, 489–90 (7th Cir. 2007) (citation omitted). “The opposing party cannot meet this burden with
conclusory statements or speculation but only with appropriate citations to relevant admissible
evidence.” Sink v. Knox County Hosp., 900 F. Supp. 1065, 1072 (S.D. Ind. 1995) (citations
omitted).
These same standards apply even when each side files a motion for summary judgment.
The existence of cross-motions for summary judgment does not imply that there are no genuine
issues of material fact. R.J. Corman Derailment Serv., LLC v. Int’l Union of Operating Eng’rs.,
335 F.3d 643, 647 (7th Cir. 2003). The process of taking the facts in the light most favorable to
the non-moving party, first for one side and then for the other, may reveal that neither side has
enough to prevail without a trial. Id. at 648. “With cross-motions, [the Court’s] review of the
record requires that [the Court] construe all inferences in favor of the party against whom the
motion under consideration is made.” O’Regan v. Arbitration Forums, Inc., 246 F.3d 975, 983
(7th Cir. 2001) (citation and quotation marks omitted).
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III.

DISCUSSION

Dr. Mimms moves this Court for partial summary judgment on the defamation claim only,
arguing that the statements made by CVS are defamatory per se. CVS cross motions for summary
judgment, contending that the statements are inactionable opinions, true statements or protected
by qualified privilege. CVS also seeks summary judgement on the tortious interference claims,
arguing they fail as a matter of law.
A.

Motion to Strike (Filing No. 58)
As an initial matter, Dr. Mimms asks the Court to strike certain affirmative defenses filed

by CVS. Federal Rule of Civil Procedure 12(f) allows the Court to “strike from a pleading an
insufficient defense or redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P.
12(f). The Court may, (1) act on its own, or (2) on a motion made by a party either before
responding to the pleading or, if a response is not allowed, within 21 days after being served with
the pleading. Id. Motions to strike are generally disfavored; however, “where . . . motions to
strike remove unnecessary clutter from the case, they serve to expedite, not delay.” Heller Fin.,
Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989).
On May 5, 2016, in reply to Dr. Mimms’ Complaint, CVS filed an Amended Answer
asserting thirteen affirmative defenses. 1 Dr. Mimms argues that defenses four through eleven are
legal conclusions and CVS failed to plead any short and plain statements of facts as required under
Indiana law. Affirmative defenses that are “nothing but bare bones conclusory allegations”, that

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1) Failure to state a claim for which relief can be granted, 2) qualified privilege, 3) inactionable opinions, 4) truth, 5)
innocent construction rule, 6) doctrine of unclean hands, 7) public concern, 8) failure to mitigate damages, 9) doctrine
of comparative fault, 10) doctrine of waiver, 11) lack of standing, 12) statutory immunity, 13) Dr. Mimms did not
suffer actual damages. (Filing No. 57 8-11.)

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“omit[] any short and plain statement of facts and fail[] … to allege the necessary elements of the
alleged claims” should be stricken. Id.
In response, CVS argues that the Court should deny the Motion to Strike because it is
untimely. CVS filed its original Answer and affirmative defenses on November 5, 2015, which
included defenses one through eleven, and also filed a Motion for Leave to File an Amended
Answer on April 15, 2016. Dr. Mimms filed his Motion to Strike on May 10, 2016, five days after
CVS filed its Amended Answer. CVS asserts that Dr. Mimms should have filed his Motion within
21 days after the original Answer, or prior to the Court granting CVS’s Motion for Leave on May
5, 2016. Under Rule 12(f), a party may move to strike within 21 days after being served with the
pleading if no response is required. Fed. R. Civ. P. 12(f)(2).
The operative pleading in this case is the Amended Answer. See Heckler & Koch, Inc. v.
German Sport Guns GmbH, 71 F. Supp. 3d 866, 878 (S.D. Ind. 2014) (holding defendants’ motion
to strike plaintiffs’ answer was moot where plaintiffs filed an amended answer because “amended
answers, like amended complaints, supersede a previous pleading”). Accordingly, Dr. Mimms
Motion to Strike is timely, because it was filed five days after service of CVS’s Amended Answer,
well within the 21 day requirement.
CVS argues that the Motion to Strike fails on the merits, and should be denied because
CVS satisfied the “short and plain” statement requirement and Dr. Mimms was sufficiently
notified of the defenses. “A pleading that states a claim for relief must contain… a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
Defenses four through eleven are as follows:
Fourth Affirmative Defense: Plaintiffs’ claims are barred because truth is a
complete defense to defamation claims. Any statement of fact made by CVS
Pharmacy’s employees, alleged to be false but true, is inactionable.
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Fifth Affirmative Defense: Plaintiffs’ claims are barred by the innocent
construction rule. Accordingly, if any alleged defamatory words are susceptible
to two meanings, one defamatory and one innocent, the defamatory meaning must
be rejected and the innocent meaning adopted.
Sixth Affirmative Defense: Plaintiffs’ claims are barred by the doctrine of unclean
hands.
Seventh Affirmative Defense: Plaintiffs’ claims involve alleged statements about
a matter of public concern. Therefore, Plaintiffs may not recover presumed
damages in the absence of a showing by Plaintiffs by clear and convincing
evidence that a statement was published with actual malice as defined in New
York Times Co. v. Sullivan, 376 U.S. 254 (1964) and Gertz v. Robert Welch, Inc.,
418 U.S. 323 (1974).
Eighth Affirmative Defense: To the extent Plaintiffs have failed to mitigate,
minimize, or otherwise avoid any alleged losses or damages, Plaintiffs’ damages
claim must be reduced accordingly.
Ninth Affirmative Defense: Plaintiffs’ claims are barred by the doctrine of
comparative fault.
Tenth Affirmative Defense: Plaintiffs’ claims are barred by the doctrine of waiver.
Eleventh Affirmative Defense:
standing.

Plaintiffs’ claims are barred by their lack of

(Filing No. 57.) The Court agrees with Dr. Mimms that CVS failed to allege the necessary
elements for each affirmative defense and the affirmative defenses contain “conclusory
allegations” and omit a short and plain statement of the facts. See Perez v. PBI Bank, Inc., No.
1:14- CV-01429-SEB, 2015 WL 500874, at *6 (S.D. Ind. Feb. 4, 2015) (citing Heller, 883 F.2d at
1295). However, in his Motion for Partial Summary Judgment, Dr. Mimms provides details which
show that sufficient discovery has taken place to afford Dr. Mimms adequate notice of the
affirmative defenses. See id. at 8 (holding an affirmative defense must provide a plaintiff fair notice
of the grounds underlying each defense). For this reason, the Court denies Dr. Mimms’ Motion
to Strike CVS’s affirmative defenses four through eleven.
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B.

Defamation
Dr. Mimms moves this Court for partial summary judgment, arguing that CVS, by and

through its employees, defamed him. To maintain an action for defamation a plaintiff “must
demonstrate (1) a communication with a defamatory imputation; (2) malice; (3) publication; and
(4) damages.” Kelly v. Tanoos, 865 N.E.2d 593, 596-97 (Ind. 2007). “A defamatory
communication is one that ‘tend[s] to harm a person’s reputation by lowering the person in the
community’s estimation or deterring third persons from dealing or associating with the person.’”
Id. at 596 (quoting Rambo, 587 N.E.2d 140, 145 (Ind.Ct.App.1992)).
Under Indiana law, defamation per se exists when a statement, without reference to
extrinsic evidence, imputes: “(1) criminal conduct; (2) a loathsome disease; (3) misconduct in a
person’s trade, profession, office, or occupation; or (4) sexual misconduct.” Id. “If words spoken
convey such a message, they are deemed obviously and naturally harmful such that separate proof
of their injurious character is not needed.” Worldwide Battery Co., LLC v. Johnson Controls, Inc.,
No. 1:06CV00602 DFHTAB, 2006 WL 3201915, at *4 (S.D. Ind. July 7, 2006). CVS does not
dispute the “publication” element and agrees that in an action for defamation per se a plaintiff “is
entitled to presumed damages ‘as a natural and probable consequence’ of the per se defamation.”
Id. at 597 (quoting Rambo v. Cohen, 587 N.E.2d at 145). Accordingly, the issues before the Court
are whether (1) a communication with a defamatory imputation and (2) malice exist.
1.

Communication with a Defamatory Imputation

Dr. Mimms contends that CVS, through its employees, defamed him with the following
statements:
•
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“Dr. Mimms’ license has been suspended or revoked;”
“Dr. Mimms has been arrested, and if he hasn’t been, he soon would be, therefore []
find a new doctor;”
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•
•
•

“CVS no longer fills prescriptions for Dr. Mimms because Dr. Mimms has been to
jail, and is a bad doctor;”
“Dr. Mimms is under DEA investigation;” and
“CVS doesn’t fill Dr. Mimms’ prescriptions or prescriptions for any other pill mills.”

(Filing No. 72 at 6.) Dr. Mimms asserts that he has never been arrested, his license has never been
revoked or suspended, and he has no knowledge regarding a DEA investigation. He argues that
these assertions amount to defamation per se because they imply that he engaged in criminal
conduct and was unable to freely practice medicine or write prescriptions. Dr. Mimms contends
that the statements are straightforward and leave no susceptibility to either a defamatory or
nondefamatory interpretation. “Whether a communication is defamatory or not is a question of
law for the court, unless the communication is susceptible to either a defamatory or nondefamatory
interpretation—in which case the matter may be submitted to the jury.” Kelley, 865 N.E.2d at 596
(citation omitted). “In making the determination, the communication is to be viewed in context
and given its plain and natural meaning, ‘according to the idea they are calculated to convey to
whom [it is] addressed.’” Rambo, 587 N.E.2d at 145 (citing Jacobs v. City of Columbus, 454
N.E.2d 1253, 1264 (Ind. Ct. App. 1983); Martin v. Indiana Bell Tel. Co., 415 N.E.2d 759 (Ind. Ct.
App. 1981)).
2.

MFR’s Defamation Claim

CVS first argues, and Dr. Mimms does not dispute, that MFR cannot assert a defamation
claim because Dr. Mimms failed to allege that any defamatory remarks were made regarding
MFR. The Court agrees. Accordingly, Dr. Mimms’ Motion for Partial Summary Judgment is
denied regarding his defamation claim on behalf of MFR and CVS’s Motion for Summary
Judgment is granted on this claim. See Lee v. Weston, 402 N.E.2d 23, 26 (Ind. Ct. App. 1980)

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(observing “defamation is personal to the plaintiff, and cannot be founded on the defamation of
another”).
3.

Dr. Mimms’ Defamation Claim

CVS relies on Bagwe and Houk, when asserting that Dr. Mimms’ defamation argument
fails because the witness statements of Seeman, Petro, Mr. and Mrs. Miller, and Smith lack
foundation and did not identify when the alleged statements were made and who made them. See
Bagwe v. Sedgwick Claims Mgmt. Servs., Inc., No. 11 CV 2450, 2014 WL 4413768, at *15 (N.D.
Ill. Sept. 5, 2014) (holding “the testimony of an individual who did not personally witness the
alleged defamatory statement” and did “not identify the source of the [communication]” is
inadmissible for lack of foundation and hearsay); Houk v. Vill. of Oak Lawn, No. 86 C 139, 1987
WL 7498, at *2 (N.D. Ill. Feb. 26, 1987) (foundation for affidavits “should include information
as to (1) when and where the conversation occurred, (2) who was present and (3) who said what
to whom”). CVS argues that Seeman, Petro, Mr. and Mrs. Miller, and Smith failed to provide
names of CVS employees who made the statements and asserts that the names that they did offer
were “generic first names” that Dr. Mimms has not tied to an identifiable CVS employee. CVS
also contends that the witnesses failed to identify specific dates. CVS further asserts that a
material dispute of fact exists and Dr. Mimms’ partial summary judgment motion should be
denied because Petro testified that an employee named Dana stated that they could not fill
prescriptions written by Dr. Mimms anymore because he went to jail and is a bad doctor. Dana
Flynn, a former CVS pharmacy technician, contends that she never made that statement.
In response, Dr. Mimms argues that CVS’s reliance on Bagwe is misplaced, because unlike
the witness in Bagwe who did not personally witness any alleged defamatory statement and could
not identify the source of the statement, Dr. Mimms’ witnesses personally witnessed the statements
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made by CVS employees. Dr. Mimms contends that every witness identified the store location
they were in when they heard the statements, some witnesses identified the exact date, and most
of his witnesses identified the employees by name, while others described how the employees
looked. Dr. Mimms further argues that CVS should not be granted summary judgment because
some witness cannot remember the names of CVS employees where CVS refused to cooperate
during discovery in providing the names and photographs of employees at the locations where
statements were made, to facilitate identifying the individuals involved by name.
In reply, CVS again relies on Bagwe when contending that the testimonies of Seeman,
Petro, Mr. and Mrs. Miller, and Smith lack foundation, but also asserts that a material issue of
disputed fact exists regarding Blanton’s testimony. Blanton testified that a Caucasian CVS
employee with dark hair and a lean build stated that Dr. Mimms had been under investigation and
arrested for controlled substances, and if he was not arrested then Dr. Mimms would soon be
arrested. CVS provided redacted time records of employees who worked on March 4, 2015, at
Store #7541 (Filing No. 99-15), and contends that Michael Salazar and Ryan Durham are the only
CVS employees who fit Blanton’s description. Both employees submitted sworn declarations
asserting that they never made the statement to Blanton. (Filing No. 110-1: Filing No. 110-2).
The Court agrees with Dr. Mimms that CVS’s reliance on Bagwe is misplaced. As Dr.
Mimms persuasively argues, unlike the witness in Bagwe who did not personally witness any
alleged defamatory statement and could not identify the source of the statement, Dr. Mimms
identified with specificity the statements made, where they were made, and identified or described
who made the statements.
The Court finds that, when viewed in context and given its plain and natural meaning, the
statements: “Dr. Mimms’ license has been suspended or revoked;” “Dr. Mimms has been arrested,
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and if he hasn’t been, he soon would be, therefore, [] find a new doctor;” “CVS no longer fills
prescriptions for Dr. Mimms because Dr. Mimms has been to jail, and is a bad doctor;” and “Dr.
Mimms is under DEA investigation” amount to communications with defamatory imputation.
Even without reference to extrinsic evidence, the above statements impute that Dr. Mimms was
involved in criminal conduct as well as misconduct in his profession as a physician. Accordingly,
the Court determines the above statements are defamatory per se.
CVS next argues that the statement “find a new doctor,” and referring to Dr. Mimms as a
“bad doctor,” a “pill pusher” and a “pill mill” are statements of opinion. “A statement is not
defamatory unless it conveys a defamatory imputation of fact—and ‘loose, figurative, or
hyperbolic language [may] negate the impression that the writer was seriously maintaining’ that
his assertion is factual. Brewington v. State, 7 N.E.3d 946, 960 (Ind. 2014) (quoting Milkovich v.
Lorain Journal Co., 497 U.S. 1, 21 (1990)). CVS contends that the meaning of these statements
are subjective and whether Dr. Mimms is a “pill mill” or “pill pusher” is susceptible to multiple
meanings. In response, Dr. Mimms contends only that CVS’s former employee, Anthony, after
comparing Dr. Mimms to a “pill mill,” explained that “pill mill physicians” are those who
overwrite prescriptions to get kickbacks. Dr. Mimms argues that this statement goes beyond mere
opinion and implies that he engaged in misconduct in his trade, profession, office, or occupation.
A statement “categorized as [an] ‘opinion’ rather than [a] ‘fact’ is not dispositive.” McQueen v.
Fayette Cty. Sch. Corp., 711 N.E.2d 62 (Ind. Ct. App. 1999). “[T]he dispositive question is
whether a reasonable fact finder could conclude that the statement implies facts which may be
proven true or false.” Id. at 66. “[A]n idea or opinion that conveys a defamatory imputation of
fact, even if couched in humor, can be actionable.” Hamilton v. Prewett, 860 N.E.2d 1234 (Ind.
Ct. App. 2007) (citations omitted).
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The Court agrees with Dr. Mimms and finds the statement that Dr. Mimms is operating a
“pill mill” is not “loose, figurative, or hyperbolic language” because a reasonable fact finder could
conclude that the statement implies facts which may be proven true or false. Anthony not only
defined “pill mill,” but, in its Cross-Motion for Summary Judgment, CVS contends that because
Dr. Mimms is a high prescriber of controlled substances, a CVS employee has ample reason to
consider Dr. Mimms a “pill mill” or “pill pusher.” Therefore, the Court finds that the statement by
Anthony that, “CVS doesn’t fill Dr. Mimms’ prescriptions or prescriptions for any other ‘pill
mills,’” is not a mere opinion.
With respect to the statements that Dr. Mimms is a “bad doctor” or “shady doctor” and his
patient needed to “find a new doctor,” the Court concludes, and Dr. Mimms does not dispute, that
these phrases are subjective, “unverifiable statements of opinion.” See Eversole v. Spurlino
Materials of Indianapolis, LLC, 804 F. Supp. 2d 922, 937 (S.D. Ind. 2011).
CVS lastly asserts that Dr. Mimms’ defamation claim fails because the statements
regarding the DEA investigating Dr. Mimms are true. Under Indiana law, “[t]rue statements never
give rise to liability for defamation.” N. Indiana Pub. Serv. Co. v. Dabagia, 721 N.E.2d 294, 301
(Ind. Ct. App. 1999) (citing Conwell v. Beatty, 667 N.E.2d 768, 774 (Ind.Ct.App.1996)). CVS
presents testimony from CVS employees that DEA and Indiana Attorney General agents visited
CVS stores in late 2013 seeking records relating to Dr. Mimms and his patients. CVS contends
that the DEA and Indiana Attorney General agents made repeated visits to CVS stores and
informed CVS that they were looking into Dr. Mimms’ prescribing practices. CVS further argues
that the DEA’s ongoing review, monitoring, and inquiries relating to Dr. Mimms’ practices, and
repeated requests to produce documents from CVS and RAI, Dr. Mimms’ former employer, make
it clear that Dr. Mimms was under investigation during the relevant time period.
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In response, Dr. Mimms contends that CVS failed to properly present evidence regarding
the DEA and Indiana Attorney General agents’ visits to CVS in 2013, and asserts that the DEA
and Indiana Attorney General’s Office never issued subpoenas regarding Dr. Mimms’ prescribing
practices. Dr. Mimms asserts that the DEA and Indiana Attorney General’s Office issued
subpoenas for RAI’s patient files, and at that time he was no longer an employee at RAI. Dr.
Mimms also states that no regulatory or governmental agency provided documentation that he has
ever been arrested, his medical license was revoked or suspended, or that he operates a pill mill.
Dr. Mimms contends that these statements are not true and there is no justification for them.
The Court finds that CVS has not presented sufficient evidence that the DEA and Indiana
Attorney General’s Office were investigating Dr. Mimms. CVS contends that agents visited CVS
stores in late 2013 seeking records related to Dr. Mimms and his patients, however, CVS produced
no evidence or records that the agents subpoenaed and received any records from CVS relating to
Dr. Mimms and his patients during the relevant time period. Additionally, the subpoenas that CVS
produced as evidence are insufficient because the DEA and Indiana Attorney General’s Office
requested records and information from RAI, well after Dr. Mimms stopped working there, and
the subpoenas did not mention Dr. Mimms. (Filing No. 77-32; Filing No. 77-33.) Accordingly,
because there is not sufficient evidence that Dr. Mimms was under DEA investigation during the
alleged time period, CVS’s affirmative defense of truth fails and summary judgment is not
warranted.
4.

Malice

Dr. Mimms does not contest that he is a “public figure,” which requires that he prove CVS
acted with actual malice. Under Indiana law, “actual malice” means a defendant knew that a

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defamatory statement was false or was recklessly indifferent to whether it was true or false.
Desnick v. Am. Broad. Companies, Inc., 233 F.3d 514, 517 (7th Cir. 2000).
“Reckless indifference” denotes [] knowledge by the defendant that there was a
high risk of harm to the plaintiff coupled with a failure to take any feasible measure
to counter the risk, either by investigating further to see whether there really is a
risk and how serious it is or by desisting from the risky activity.
Id. Dr. Mimms contends that CVS, through its employees, acted with malice when they continued
to publish false statements about his ability to freely practice medicine and falsely stating that Dr.
Mimms had been or would be arrested. Dr. Mimms asserts that information regarding a suspended
license or an arrest are not only available to the public, but CVS has sufficient resources to
investigate and determine if the statements are true. Dr. Mimms argues that CVS’s actions
amounted to “reckless indifference.”
In its Cross Motion for Summary Judgment, CVS relies on Brewington when contending
that Dr. Mimms failed to prove that any CVS employee “entertained serious doubts as to the truth
of [the allegedly defamatory] statements” or had a “high degree of awareness of their probable
falsity” when making the statements. See Brewington, 7 N.E.3d at 960 (“actual malice does not
hinge on whether [d]efendant’s claims are true or false, nor even whether they are objectively
reasonable… [i]nstead, it is a matter of his subjective sincerity—whether he ‘in fact entertained
serious doubts as to the truth of’ those statements…, or had a ‘high degree, of awareness of their
probable falsity’”). CVS argues that the DEA and Indiana Attorney General agents repeatedly
visited CVS stores seeking information about Dr. Mimms and the employees were aware of the
visits. CVS also contends that Dr. Mimms is a high prescriber of controlled substances and,
because of this, CVS employees had great reason to believe that Dr. Mimms was under DEA
investigation, a “pill mill,” or a “pill pusher.” CVS further contends that the employees did not

16

act with malice, or bore any ill will toward Dr. Mimms, when stating that “Dr. Mimms has
been…or will be arrested.”
In response, Dr. Mimms designated evidence showing that CVS published specific
protocols to its stores and pharmacy employees for dealing with customers and refusing to fill
prescriptions. CVS protocol CVS00186 instructs that pharmacists must deliver information
directly to the patient and communicate the reason why they are refusing to fill the prescription.
(Filing No. 140 at 25). The protocol provides examples of what pharmacists should explain when
refusing to fill a prescription, such as: “I am not comfortable filling this prescription” or “due to
company guidelines, I am unable to fill your prescription.” CVS protocols CVS00186, as well as
CVS00011, additionally states as follows:
Under no circumstances are you to make any disparaging comments about the
customer’s prescriber. Examples of disparaging comments include, but are not limited
to the following:
•
•
•
•
•
•

The prescriber is under investigation by the DEA or local police
The prescriber is under investigation by CVS
The prescriber is operating a pill mill
The prescriber is going to lose his or her license
The prescriber is going to jail/should go to jail/may go to jail
The prescriber is a criminal, about to be arrested, should be arrested, etc….

CVS00011 and CVS00186 (emphasis in original). (Filing No. 140 at 25-26). CVS pharmacist,
Christian Krenk confirmed being familiar with the protocol, that all pharmacists were familiar with
the protocol, and conceded that the above statements are “serious statements to make and they
need to be founded in truth.” (Filing No. 140 at 21; Filing No. 113-14 at 6-7).
The Court concludes, although CVS contends that its employees had great reason to believe
the statements, Dr. Mimms presented sufficient evidence to raise a question of fact regarding
whether CVS employees acted with actual malice when stating: Dr. Mimms is a “pill mill” and a
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“pill pusher,” “Dr. Mimms’ is under investigation by the DEA,” and “Dr. Mimms has been…or
will be arrested” because CVS’s own policy warns against making those “disparaging comments.”
The Court also finds, and CVS does not dispute, that the statement “Dr. Mimms’ license has been
suspended or revoked” was made with actual malice. Accordingly, the parties’ Cross-Motions for
Summary Judgment regarding Dr. Mimms’ defamation claim is granted in part and denied in
part.
5.

Qualified Privilege

Finally, CVS contends that all of the statements are protected by a qualified privilege,
therefore, Dr. Mimms’ defamation claim fails. A qualified privilege rebuts the element of malice
when the alleged defamatory remarks are “communications made in good faith on any subject
matter in which the party making the communication has an interest or in reference to which
he has a duty, either public or private, either legal, moral, or social, if made to a person
having a corresponding interest or duty.” Bals v. Verduzco, 600 N.E.2d 1353, 1356 (Ind. 1992)
(quoting Chambers v. American Trans Air, Inc., 577 N.E.2d 612, 615 (Ind. App. Ct. 1991)). “The
protection arises from the need for full and unrestricted communication regarding matters on
which the parties have a common interest or duty.” Boydston v. Chrysler Credit Corp., 511 N.E.2d
318, 320 (Ind. Ct. App. 1987). “The scope of the qualified privilege is not amenable to a fixed or
precise definition and must adapt to current societal interest and particular situations.” Williams
v. Tharp, 914 N.E.2d 756, 765 (Ind. 2009). Absent a factual dispute, whether a statement is
protected by a qualified privilege is a question of law. Bals, 600 N.E.2d at 1356 (citing Lawson
v. Howmet Aluminum Corp., 449 N.E.2d 1172, 1175 (Ind. Ct. App. 1983)).
CVS asserts that its employees had a duty to warn patients and withhold prescriptions
because pharmacists are required to “‘exercise [their] professional judgment in the best interests
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of the patient’s health while engaging in the practice of pharmacy.’” See Kolozsvari v. Doe, 943
N.E.2d 823, 827 (Ind. Ct. App. 2011) (quoting Ind. Code § 25-26-13-16). (Ind. 1994)). CVS
contends that a pharmacist’s duty of care is based on the fact that “[i]t is a matter of common
understanding that customers rely upon pharmacists for [their] expertise” regarding the dispensing
of prescription drugs. See Hooks SuperX, Inc. v. McLaughlin, 642 N.E.2d 514, 517 (Ind. 1994).
CVS relies on Lefrock when arguing that the statements made by its employees regarding Dr.
Mimms is subject to qualified privilege because CVS and its customers share a common interest
regarding the customers’ health, treatment, and their doctor’s prescribing practices. See Lefrock
v. Walgreens Co., 77 F. Supp. 3d 1199, 1202 (M.D. Fla. 2015) (statements made by Walgreens’
pharmacists to customers about a prescribing doctor’s medical reputation were privileged). CVS
asserts that Dr. Mimms’ witnesses agreed that patients share a relationship with their pharmacists
and seek advice and counseling in furtherance of their medical treatment. CVS also contends that
the witnesses agreed that whether a prescribing physician was engaged in illegal or unethical
behavior is information they want to know and is relevant to their medical treatment.
CVS further argues that the remaining requirements under qualified immunity are met
because each statement was made solely to the customer, or their designated agent for filling their
prescriptions, when the customer presented a prescription or asked a question regarding Dr.
Mimms and controlled substances. CVS contends that the statements were limited to the scope
of Dr. Mimms and his prescriptions practices and there is no evidence of bad faith because the
evidence demonstrates that its employees had ample reason to believe that their statements were
true.
In response, Dr. Mimms contends that CVS’s argument fails because the law that CVS
relies on regards only licensed pharmacists. Dr. Mimms asserts that qualified immunity does not
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apply because CVS’s employees were not pharmacists, but rather, pharmacy technicians. Dr.
Mimms argues that pharmacy technicians do not have the same duties and responsibilities as
pharmacists and are not entitled to the protections of a qualified privilege. See Ind. Code Ann.
§ 25-26-19-2 (a “pharmacy technician is an individual who:

(1) works under the direct

supervision of a pharmacist licensed under this article; and (2) performs duties to assist a
pharmacist in activities that do not require the professional judgment of a pharmacist”). Dr.
Mimms further argues that the statutes and cases cited by CVS do not stand for the proposition
that “pharmacy employees share a common interest with its customers regarding the customers’
health, treatment, and prescribers.” (Filing No. 95 at 16). Dr. Mimms contends that Kolozsvari
recognized that pharmacists, rather than all pharmacy employees, owe a duty of reasonable care
to customers, but did not determine what that duty entails. Dr. Mimms acknowledges that Lefrock
is factually similar to the instant case, but argues that Lefrock is inapplicable because the court
determined that qualified immunity applied where pharmacists had a state law duty to “give
general advice” to its customers. Dr. Mimms contends that no Indiana statute or case law exist
that creates a similar duty on pharmacists.
The Court finds that qualified privilege does not apply to pharmacy technicians, because
as Dr. Mimms persuasively argues, Indiana laws regarding licensed pharmacist and pharmacy
technicians are different. Under Indiana law, pharmacy technicians are prohibited from providing
certain advice or consultation to patients and from performing any activity required by law to be
performed only by a pharmacist. Ind. Code § 25-26-19-8. The case law and statutes that CVS
relies on refers only to licensed pharmacists. In addition, the statements at issue were particularly
disparaging and went beyond the scope of the purposes for which qualified privilege exists.
Accordingly, CVS is not entitled to summary judgment motion on this affirmative defense.
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C.

Tortious Interference with Contractual Relationship and Business Relationship
CVS also moves for summary judgment on Dr. Mimms’ tortious interference claims. CVS

asserts that these claims fail as a matter of law because CVS did not cause any breach of contract
between Dr. Mimms and his patients and CVS did not interfere with any business relationships
between Dr. Mimms and his patients.
A plaintiff alleging tortious interference with a contractual relationship must establish five
elements: (1) the existence of a valid and enforceable contract; (2) the defendant’s knowledge of
the existence of the contract; (3) the defendant’s intentional inducement of the breach of the
contract; (4) the absence of justification; and (5) damages resulting from the defendant’s wrongful
inducement of the breach. Allison v. Union Hosp., Inc., 883 N.E.2d 113, 118 (Ind. Ct. App. 2008).
A cause of action for tortious interference with a business relationship is the same as that
for tortious interference with a contract, “except there is no requirement that a valid contract
exists.” Furno v. Citizens Insurance Company of America, 590 N.E.2d 1137, 1140 (Ind. App.
1992). Tortious interference with a business relationship claim requires nearly the identical
elements, except “the plaintiff must also show the existence of a protectable business relationship
rather than a contract.” Rice v. Hulsey, 829 N.E.2d 87, 91 (Ind. Ct. App. 2005). It also “requires
some independent illegal action.” Id. (quoting Brazauskas v. Fort Wayne–South Bend Diocese,
Inc., 796 N.E.2d 286, 291 (Ind. 2003).
CVS acknowledges that Dr. Mimms maintains an agreement amongst his patients that
limits his patients to filling their prescription at CVS stores. Dr. Mimms explained that it makes
it easier to track, builds relationships with pharmacists, and prevents the appearance that patients
are pharmacy hopping. (Filing No. 75 at 37). CVS, however, argues that despite its refusal to fill
Dr. Mimms’ prescriptions, the agreement between Dr. Mimms and his patients was not breached,
21

nor did CVS interfere with a business relationship, because Dr. Mimms did not lose a single
patient. CVS contends that, even if its conduct resulted in a breach of contract or interference with
a business relationship, it was justified in making the statements and Dr. Mimms did not provide
evidence that he suffered any damages as a result of CVS’s actions.
In response to CVS’s Motion for Summary Judgment, Dr. Mimms does not address the
tortious interference claims. Dr. Mimms does not put forward any evidence that CVS interfered
with any contracts between him and his patients or his business relationship, nor does he dispute
the above assertions made by CVS. Without more information the Court cannot reasonably find
that CVS interfered with Dr. Mimms’ contracts or business relationships. Accordingly, summary
judgment is granted to CVS with respect to Dr. Mimms’ claims of tortious interference with
contractual and business relationships. See Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir.
2010) (“Failure to respond to an argument . . . results in waiver,” and “silence leaves us to
conclude” a concession.); Myers v. Thoman, 2010 U.S. Dist. LEXIS 107502, at *11 (S.D. Ind. Oct.
6, 2010) (“The Seventh Circuit has clearly held that a party who fails to respond to points made .
. . concedes those points.”).
D.

Motion to Supplement Summary Judgment Record (Filing No. 130)
If a party fails to properly support an assertion of fact or fails to properly address another

party’s assertion of fact as required by Rule 56(c), the court may give an opportunity to properly
support or address the fact. Fed. Rule Civil Procedure 56-1(e)(1). CVS seeks leave, pursuant to
local rule 56-1, to supplement its Motion for Summary Judgment, asserting that after filing and
briefing its summary judgment motion, CVS received additional documents establishing that Dr.
Mimms was under investigation. CVS contends that the supplement includes: (1) publiclyavailable transcripts from a criminal trial proceeding of one of three former patients of Dr. Mimms
22

identified on a subpoena CVS received from the DEA on July 8, 2016; (2) publicly-available
certified copies of the death certificates of the remaining two former patients identified on the DEA
subpoena; and (3) a letter dated August 8, 2016, from the Department of Health and Human
Services to CVS, requesting certain documents “[p]ursuant to an official federal criminal
investigation into Dr. Anthony Mimms’ prescribing methods . . .” (Filing No. 130). CVS argues
that these documents are each highly relevant as they—individually and cumulatively—establish
that in 2014, at the time the statements by CVS employees occurred, Dr. Mimms was “under DEA
investigation.” CVS contends that, on February 25, 2014, then-Health and Human Services Agent,
David White, testified that he was conducting a criminal investigation into Dr. Mimms’ practice
in December 2012. Agent White further testified that he referred the investigation to the DEA for
further proceedings. CVS argues that this testimony demonstrates, unequivocally, that Dr. Mimms
was “under investigation” and “under DEA investigation.”
In response, Dr. Mimms contends that Local Rule 56-1 does not allow for belated
supplementation, rather, the rule lays out strict filing deadlines. Dr. Mimms argues that CVS’s
Motion to Supplement is well outside the required discovery time period and the transcript that
CVS seeks to admit is irrelevant and would inflame and mislead a jury. Dr. Mimms states that if
the Court admits the transcript he would suffer prejudice because he lacked the opportunity to
cross-examine the witnesses involved. Dr. Mimms also contends that the transcript concerns the
testimony of a Health and Human Service investigation rather than a DEA investigation. Dr.
Mimms next argues that the letter CVS received is well outside the relevant time frame presented
by the facts, lacks foundation, is inadmissible hearsay, and does not relate to a DEA investigation.
Lastly, Dr. Mimms asserts that the death certifications are inadmissible because they lack
foundation.
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The Cross-Motions for Summary Judgment have been ripe for ruling since August 2016
and the inclusion of the proposed supplements would require additional briefing, possible delay
and prejudice to Dr. Mimms. In addition, the Court finds that the death certificates and the Health
and Human Services letter that CVS received on August 8, 2016 are not relevant regarding whether
CVS defamed Dr. Mimms from late 2013 to 2015 or CVS’s defense of truth. More importantly,
after reviewing the evidence, despite the criminal trial of Dr. Mimms’ former patient occurring in
2014, the Court finds the transcript and testimony of Agent White insufficient to establish that Dr.
Mimms was being investigated during the relevant time period. Agent White testified that he
investigated Dr. Mimms in late 2012, but did not conduct further investigation thereafter. (Filing
No. 131-1 at 31, 34, 49.) Also, although, Agent White testified that he referred the investigation
to the DEA for further proceedings, there is no evidence that the DEA actually investigated Dr.
Mimms during the time alleged in the Complaint. The subpoenas that CVS produced from the
DEA and the Indiana Attorney General’s Office are addressed to Dr. Mimms’ former employer,
RAI. (Filing No. 77-32; Filing No. 77-33.) Not only do the subpoenas list more than Dr. Mimms’
three purported former patients, but the subpoenas were issued well after Dr. Mimms resigned
from working at RAI. 2 (Filing No. 77-35.) Accordingly, because the proffered supplements are
untimely, highly disputed and of questionable relevance, CVS’s Motion to Supplement the
Summary Judgment Record is denied.
E. Motion to Amend Witness and Exhibit Lists.
Finally, CVS seeks to amend its trial exhibit list to include: (1) a subpoena and documents
issued by the DEA and served upon CVS on July 8, 2016, seeking the production of documents

2

Dr. Mimms resigned on November 5, 2013 and the subpoenas from the DEA and Indiana Attorney General’s Office
were issued on June 17, 2014 and June 18, 2014, respectively.

24

relating to three former patients of Dr. Mimms, (2) transcript excerpts from the criminal trial
proceedings of one of Dr. Mimms’ former patients, (3) death certificates of the remaining two
former patients identified on the DEA subpoena, and (4) a letter dated August 8, 2016 from the
Department of Health and Human Services. CVS further seeks leave to amend its trial witness list
to include Special Agents David White and Connie Murray to testify to the existence of criminal
investigations regarding Dr. Mimms.
Dr. Mimms objects to the amended exhibits and witnesses because their disclosure is
untimely and irrelevant. The standard for exclusion of a witness based on late disclosure is the
totality of the circumstances. In determining whether the late disclosure is harmless, the Court
considers: (1) prejudice or surprise to the party against whom the evidence is offered, (2) ability
of the party to cure the prejudice, (3) the likelihood of disruption of the trial, and (4) bad faith and
willfulness involved in not disclosing at an earlier date. See Tribble v. Evangelides, 670 F.3d 753,
760 (7th Cir. 2012). CVS has adequately explained the late disclosure of the two witnesses and
the exhibits, and there is no allegation of bad faith. The trial on this matter is nearly three months
away, and CVS can be ordered to pay the costs for depositions of the witnesses so as to cure any
prejudice to Dr. Mimms. The question of whether the proposed exhibits and witnesses are relevant
to any issues remaining for trial is one to be determined on another day. Accordingly, CVS’s
Motion to Amend its trial witness and exhibit lists is granted. CVS shall make its newly
discovered witnesses available for deposition and shall be responsible for the reasonable expenses
associated with said depositions.
IV.

CONCLUSION

For the reasons stated above, Dr. Mimms’ Motion for Partial Summary Judgment (Filing
No. 71), and CVS’s Motion for Summary Judgment (Filing No. 74), are GRANTED in part and
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DENIED in part. Dr. Mimms’ Motion to Strike (Filing No. 58.) is DENIED. CVS’s Motion for
Leave to Amend its Witness and Exhibit Lists (Filing No. 127) is GRANTED and CVS’s Motion
to Supplement Summary Judgment Record (Filing No. 130) is DENIED.
The Court grants CVS’s Motion for Summary Judgment with respect to Dr. Mimms’
claims for tortious interference of contractual and business relationships.
The Court finds that the statement “Dr. Mimms’ license has been suspended or revoked”
is defamatory per se. Accordingly, Dr. Mimms’ Motion for Partial Summary Judgment regarding
this statement is granted and CVS’s Motion for Summary Judgment is denied.
The Court finds that the following statements are defamatory: “Dr. Mimms is under DEA
investigation,” “CVS doesn’t fill Dr. Mimms’ prescriptions or prescriptions for any other pill
mills,” “CVS no longer fills prescriptions for Dr. Mimms because Dr. Mimms has been to jail,”
and “Dr. Mimms has been arrested, and if he hasn’t been, he soon would be.” However, a genuine
issue of material fact remains whether any of the defamatory statements were made with malice.
In addition, a genuine issue of material fact remains regarding Petro’s testimony that a CVS
employee named Dana made the statement, and Blanton’s testimony that a Caucasian employee
with dark hair and lean build made the defamatory statement. Accordingly, the parties’ CrossMotions for Summary Judgment on these statements are denied. The issues remaining for trial are
the defamation claim with respect to Petro’s and Blanton’s testimony, whether the defamatory
statements were made with malice, and Dr. Mimms’ damages.
SO ORDERED.
Date: 1/3/2017

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DISTRIBUTION:
Jason D. May
[e-mail]
Jonathan W. Garlough
FOLEY & LARDNER LLP
[e-mail]
Robert H. Griffith
FOLEY & LARDNER LLP
[e-mail]
Amanda Elizabeth Fiorini
INDIANA ATTORNEY GENERAL
[e-mail]
Dennis E. Mullen
INDIANA ATTORNEY GENERAL
[e-mail]

27