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Walgreen Co. v. Hinchy

Court of Appeals of Indiana

November 14, 2014

WALGREEN CO., Appellant-Defendant,
ABIGAIL E. HINCHY, Appellee-Plaintiff

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APPEAL FROM THE MARION SUPERIOR COURT. The Honorable David J. Dreyer, Judge. Cause No. 49D10-1108-CT-29165.


ATTORNEY FOR APPELLEE: NEAL F. EGGESON, JR., Eggeson Appellate Services, Indianapolis, Indiana.

BAKER, Judge. KIRSCH, J., and ROBB, J., concur.


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BAKER, Judge

In this case, a pharmacist breached one of her most sacred duties by viewing the prescription records of a customer and divulging the information she learned from those records to the client's ex-boyfriend. A jury heard extensive evidence during a four-day trial and ultimately found that the pharmacist and her employer are liable for the damages sustained by the customer as a result of the breach. We are loath to

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disturb jury verdicts and decline to do so in this case.

Walgreen Company raises a number of issues in this appeal. First, it argues that the trial court erred by refusing to grant summary judgment or a directed verdict in Walgreen's favor on Abigail Hinchy's claims based on respondeat superior and negligent retention and supervision of an employee. Second, Walgreen argues that Hinchy's attorney engaged in improper ex parte communication when he filed a trial brief under seal with the trial court and did not provide a copy to Walgreen. Third, Walgreen contends that the jury was improperly instructed on issues surrounding respondeat superior and the tort of public disclosure of private facts. Fourth, Walgreen argues that the $1.8 million jury verdict was excessive and based on improper factors. Finding no reversible error, we affirm.


Although the parties dispute the precise beginning and ending dates, at some point between fall 2006 and spring 2010, Hinchy was engaged in an on-and-off sexual relationship with Davion Peterson. During this period, Hinchy filled all of her prescriptions, including oral birth control pills, at a Walgreen pharmacy. At some point in 2009, Peterson began dating Walgreen pharmacist Audra Withers. In August 2009, Hinchy became pregnant with Peterson's child. On an unknown date, Peterson learned that he had contracted genital herpes. Hinchy gave birth to a son on May 22, 2010.

At some point during the week of May 26, 2010, Peterson mailed a letter to Withers informing her about the baby and about the possibility that he may have exposed her to genital herpes. Withers became terrified about the possibility of contracting a sexually transmitted disease. Consequently, during her shift and while at work, Withers looked up Hinchy's prescription profile in the Walgreen computer system to see if she could find any information about Hinchy's sexually transmitted disease. The next day, Withers again looked up Hinchy's profile to confirm that she had spelled it correctly the day before. Withers has consistently maintained that she never revealed to anyone what she had learned about Hinchy's prescription profile, did not look for any information related to birth control, and did not print anything out relating to Hinchy's prescription profile.

On May 29, 2010, Peterson sent the following text message to Hinchy:

I'm not trying to start any crap but I have a print out showing that you didn't even refill ur birth control perscription for july or august. The last time you filled ur prescription was june. I know uve lied to ur mom and harmony and anybody willing to listen but the printout does not lie. I know you lied to me wth tears and curse words and misplaced righteousness. U really should think about what you did...on ur own. You really should think about that FACT before you call me another name. What kind of person does something like that?

Tr. Ex. 1A (internal spelling and grammatical errors original). In response, Hinchy sent the following text to Peterson:

Print out. It's illegal for u to obtain any kind of information like that regarding me. And if u knew anything about my medical history u would know that I was on multiple types of birth control since I was 15[.]

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Tr. Ex. 1B (internal spelling and grammatical errors original). Peterson responded with the following return text:

Abby, you ddnt refill ANYTHING at all. No type of birth control medication at all. June you did. You did NOT in july and august. Jeez....r you really still trying to claim? Again, I'm not trying to start shit. What's done is done, but what's happening was totally avoidable. You are NOT a victim. You did something wrong abby. Very wrong. is not illigall for ME to have it. Ime being very technical here but I ddnt break any laws myself.

Tr. Ex. 1C (internal spelling and grammatical errors original).

It was, in fact, true that Hinchy had not filled her birth control prescriptions in July or August 2009. Unable to understand how Peterson had accessed a printout containing her private prescription information, Hinchy immediately contacted her local Walgreen but was unable to reach anyone. She then called a Walgreen in her mother's hometown of Schererville and was told by the Walgreen employee at that location that there was no way to track whether her records had been accessed. With no idea how to proceed, Hinchy took no further action at that time.

On March 18, 2011, Peterson mailed his son a gift. The package had a return address that Hinchy did not recognize. After conducting an internet search regarding the address, she learned that the address belonged to Withers. She also learned that Peterson and Withers were married and that Withers was a pharmacist at the local Walgreen where she fills her prescriptions. Hinchy immediately contacted her local Walgreen to report her suspicion that Withers had looked at her personal records and disclosed the information she learned to an unauthorized individual.

Over the next three weeks, Hinchy was in regular contact with Walgreen's regional office and loss prevention department. When Withers was confronted about the situation, she admitted that she had accessed Hinchy's prescription profile for personal reasons. On April 15, 2011, Loss Prevention Detective Michael Bryant confirmed to Hinchy that (1) a HIPAA/privacy violation had occurred, (2) Withers had viewed Hinchy's prescription information without consent and for personal purposes, and (3) Walgreen could not confirm that Withers had revealed that information to a third party. As a result of Walgreen's investigation, Withers received a written warning and was required to retake a computer training program regarding HIPAA.

The Litigation

On August 1, 2011, Hinchy filed a complaint against Walgreen and Withers. Against Withers, Hinchy filed claims of negligence/professional malpractice, invasion of privacy/public disclosure of private facts, and invasion of privacy/intrusion. Against Walgreen, Hinchy filed claims seeking liability for the counts she filed against Withers by way of respondeat superior, as well as direct claims for negligent training, negligent supervision, negligent retention, and negligence/professional malpractice.

On July 2, 2012, Walgreen moved for summary judgment. On November 26, 2012, the trial court granted the motion in part with respect to Hinchy's claims for negligent training (against Walgreen) and invasion of privacy by intrusion (against Withers), but otherwise denied the motion.

On July 22, 2013, Hinchy's attorney tendered a trial brief to the trial court " under seal" and asked the trial court to " maintain this Trial Brief under seal until the close of evidence." Appellant's App. p. 792-93. Counsel explained why it filed the brief under seal:

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to help [the court] out with legal issues, my thought on how exhibits should go and things like that. But the reality is I submitted this with the intention that you were the only person who was going to see this until the evidence was over [because] there's stuff ...

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