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Mimms v. CVS Pharmacy, Inc.

United States District Court, S.D. Indiana, Indianapolis Division

January 3, 2017

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.

          ENTRY ON PENDING MOTIONS

          TANYA WALTON PRATT, JUDGE.

         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. 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.) 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, 587106 S.Ct. 1348 (1986). Under Federal Rule of Civil Procedure 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).

         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 “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.
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: Plaintiffs' claims are barred by their lack of ...

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