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Mimms v. CVS Pharmacy, Inc.

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

February 23, 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 Parties.

ENTRY ON MOTION FOR PARTIAL RECONSIDERATION

          TANYA WALTON PRATT, JUDGE

         This matter is before the Court on a Motion for Reconsideration of Order on Parties' Motions for Summary Judgment (“Motion for Partial Reconsideration”) (Filing No. 150), filed pursuant to Federal Rule of Civil Procedure 59(e) by Defendant CVS Pharmacy, Inc. (“CVS”). On May 20, 2015, Plaintiff Anthony Mimms (“Dr. Mimms”) filed a Complaint alleging defamation, tortious interference with contractual relationships and tortious interference with business relationships. (Filing No. 1-2 at 7-13.) On January 3, 2017, following cross-motions for summary judgment, the Court granted in part and denied in part CVS's Motion for Summary Judgment, and granted in part and denied in part Dr. Mimms' Motion for Partial Summary Judgment (“Order”). (Filing No. 143.) Thereafter, on January 24, 2017, CVS filed this Motion for Partial Reconsideration, asserting the Court erred in applying incorrect legal standards. (Filing No. 150.) Thereafter, CVS filed a Request for Summary Ruling on its Motion for Partial Reconsideration of the Court's Order on the Parties' Motions for Summary Judgment (Filing No. 157), noting that Dr. Mimms did not respond to CVS's Motion. For the following reasons, the Court grants CVS's Motion for Summary Ruling and grants in part and denies in part CVS's Motion for Partial Reconsideration.

         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. The facts of this case are set forth in detail in the Entry on Pending Motions (Filing No. 143) and will therefore only be summarized as needed in this Entry.

         On May 20, 2015, Dr. Mimms filed this action against CVS in Marion Superior Court on behalf of himself and Mimms Functional Rehabilitation, P.C. (“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 qualified privilege.

         Both parties moved for summary judgment and, on January 3, 2017, the Court granted in part and denied in part CVS's Motion for Summary Judgment and granted in part and denied in part Dr. Mimms' Motion for Partial Summary Judgment. (Filing No. 143.) CVS's Motion for Summary Judgment was granted with respect to MFR's defamation claim. Id. at 10-11. With respect to Dr. Mimms' defamation claims, the Court specifically concluded, among other things, the statement to David Seeman that “Dr. Mimms' license has been suspended or revoked” was defamatory per se. In addition, the Court found that the statements to Jerame Smith, Judith Mason, Cynthia Miller, and William Miller that “Dr. Mimms is under DEA investigation, ” the statement to Terry McIntosh that “CVS doesn't fill Dr. Mimms' prescriptions or prescriptions for any other pill mills, ” the statement to Kim Petro that “CVS no longer fills prescriptions for Dr. Mimms because Dr. Mimms has been to jail, ” and the statement to Deborah Doyle-Blanton that “Dr. Mimms has been arrested, and if he hasn't been, he soon would be” were defamatory; however, a genuine issue of material fact remained regarding whether any of the defamatory statements were made with actual malice. The Court also denied CVS's qualified privilege claim.

         CVS now asks the Court to reconsider its judgment asserting that the Court misapprehended the applicable law relating to malice and qualified privilege. (Filing No. 150.)

         II. LEGAL STANDARD

         The purpose of a motion to alter or amend judgment under Rule 59(e) is to ask the court to reconsider matters properly encompassed in a decision on the merits. Osterneck v. Ernst & Whinney, 489 U.S. 169, 174 (1989). A Rule 59(e) motion will be successful only where the movant clearly establishes: (1) that the court committed a manifest error of law or fact, or (2) that newly discovered evidence precluded entry of judgment. Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 954 (7th Cir. 2013); United States v. Resnick, 594 F.3d 562, 568 (7th Cir. 2010). Relief pursuant to a Rule 59(e) motion to alter or amend is an “extraordinary remed[y] reserved for the exceptional case.” Foster v. DeLuca, 545 F.3d 582, 584 (7th Cir. 2008). In this regard, a manifest error is not demonstrated by merely presenting “the disappointment of the losing party.” Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (a manifest error is “the wholesale disregard, misapplication, or failure to recognize controlling precedent.”). Further, a motion to alter or amend a judgment is not an opportunity to “relitigate motions or present arguments, issues, or facts that could and should have been presented earlier.” Brownstone Publ'g, LLC v. AT&T, Inc., No. 1:07-CV-1630-SEB, 2009 WL 799546, at *3 (S.D. Ind. Mar. 24, 2009). See also Sigsworth v. City of Aurora, Ill., 487 F.3d 506, 512 (7th Cir. 2007).

         III. DISCUSSION

         CVS asks the Court to reconsider its Entry, because the Court applied the incorrect legal standard for actual malice and improperly found that Dr. Mimms presented legally sufficient evidence relating to the testimonies of David Seeman, Jerame Smith, Danny Smith and Cynthia Miller and William Miller. CVS also argues that the Court erred in concluding that qualified privilege does not apply to its pharmacy technicians. As an initial matter, the Court notes that Dr. Mimms did not respond to CVS's Motion, accordingly, pursuant to Local Rule 7-1(c)(4), the Court now summarily rules on CVS's pending Motion, and CVS's Request for Summary Ruling (Filing No. 157) is granted.

         A. Indiana's Actual Malice Standard.

         CVS argues persuasively that the Court erred in its application of Indiana's “actual malice” standard. Specifically, CVS asserts that the Court incorrectly concluded:

[u]nder Indiana law, ‘actual malice' means a defendant knew that a defamatory statement was false or was recklessly indifferent to whether it was true or false… ‘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 ...

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