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Mimms v. CVS Pharmacy, Inc.

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

February 27, 2017

ANTHONY MIMMS, M.D., MIMMS FUNCTIONAL REHABILITATION, P.C., Plaintiffs,
v.
CVS PHARMACY, INC. a Rhode Island corporation, Defendant. INDIANA ATTORNEY GENERAL, Medicaid Fraud Control Unit, Interested Parties.

          ORDER ON PARTIES' MOTIONS IN LIMINE

          TANYA WALTON PRATT, JUDGE

         This matter is before the Court on the parties' Motions in Limine. Plaintiff Anthony Mimms (“Dr. Mimms”) seeks to prohibit Defendant CVS Pharmacy, Inc. (“CVS”) from introducing into evidence or providing testimony regarding seven topics (Filing No. 158). CVS's Motion in Limine seeks to prohibit evidence and testimony regarding fifteen topics (Filing No. 175). For the reasons stated below, the parties' respective motions in limine are granted in part and denied in part.

         I. LEGAL STANDARD

         “[J]udges have broad discretion in ruling on evidentiary questions during trial or before on motions in limine.” Jenkins v. Chrysler Motors Corp., 316 F.3d 663, 664 (7th Cir. 2002). The Court excludes evidence on a motion in limine only if the evidence clearly is not admissible for any purpose. See Hawthorne Partners v. AT&T Techs., Inc., 831 F.Supp. 1398, 1400 (N.D. Ill. 1993). Unless evidence meets this exacting standard, “evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and potential prejudice may be resolved in proper context.” Id. at 1400-01. Moreover, denial of a motion in limine does not necessarily mean that all evidence contemplated by the motion is admissible; rather, it only means that, at the pretrial stage, the court is unable to determine whether the evidence should be excluded. Id. at 1401.

         II. DISCUSSION

         The dispute in this matter surrounds Dr. Mimms' claims that CVS employees at numerous Indiana locations uttered false and defamatory statements to his patients, from late 2013 through 2015, which impute misconduct on the part of Dr. Mimms in his profession as a medical doctor and prescriber of medication. Following rulings on the parties' cross motions for summary judgment and CVS's motion for reconsideration, the issues remaining for trial are Dr. Mimms' defamation claim with respect to Terry McIntosh's, Judith Mason's, Kim Petro's and Deborah Doyle-Blanton's respective testimonies that a CVS employee stated: 1) “CVS doesn't fill Dr. Mimms' prescriptions or prescriptions for any other pill mills”; 2) “Dr. Mimms is under DEA investigation”; 3) “Dr. Mimms went to jail”; and 4) “Dr. Mimms has been…or would…be arrested” and whether the defamatory statements were made with malice, as well as Dr. Mimms' claims for damages. Dr. Mimms and CVS each seek an order in limine to prohibit the introduction of certain evidence and testimony during trial. The Court will address the parties' Motions in turn.

         A. Dr. Mimms' Motion in Limine (Filing No. 158).

         Dr. Mimms moves in limine on seven topics. CVS filed a Response on February 22, 2017, opposing each of Dr. Mimms' seven motions (Filing No. 204).

         1. Any reference to Dr. Mimms' personal relationships, including alleged instances of marital infidelity.

         Dr. Mimms seeks to exclude any testimony or reference regarding his personal relationships including alleged instances of marital infidelity. Dr. Mimms argues that any reference should be excluded pursuant to Indiana Rules of Evidence 401, 402, and 403[1], because it is irrelevant, constitutes improper character evidence, and is unduly prejudicial. In response, CVS contends that Dr. Mimms admitted to having extramarital affairs during his employment at Rehabilitation Associates of Indiana, P.C. (“RAI”). Specifically, CVS contends that Dr. Mimms admitted to an extramarital affair with a nurse at Community Westview Hospital (“Westview”) in 2013; thereafter, Westview administrators no longer desired to have Dr. Mimms provide services at their facility. Following discovery of the affair, Dr. Mimms abruptly resigned from RAI without notice to his patients. CVS also asserts that Dr. Mimms was suspended for 30 days in 2001, during his residency at William Beaumont Hospital, for inappropriate behavior with a female employee. In addition, Dr. Mimms admits that he had an extramarital affair with a nurse at Community East Hospital in 2006. CVS argues by suing for defamation, Dr. Mimms has put his character and professional reputation squarely at issue. (Filing No. 204 at 4.) CVS asserts evidence that Dr. Mimms has acted unprofessionally and misbehaved is directly relevant to Dr. Mimms' defamation claim, and his assertions of damages to his reputation. See Bularz v. Prudential Ins. Co. of Am., 93 F.3d 372, 379 (7th Cir. 1996) (reputation evidence was relevant to determine whether plaintiff's reputation was already compromised at the time that defendant allegedly defamed him, and thus to the jury's computation of damages).

         With respect to these instances of extramarital affairs, the Court is not persuaded that they are relevant to the issues at trial. That Dr. Mimms resigned abruptly from RAI without notice to his patients is relevant, but the discovery of Dr. Mimms' affair as the reason for his resignation is not relevant. The Court concludes that any mention regarding Dr. Mimms' personal relationships or marital infidelities is irrelevant and has no bearing on the defamation claim remaining for trial or the issue of damages. At issue is Dr. Mimms' professional reputation for acts such as over-prescribing medication or being under investigation by the DEA; not his reputation as a womanizer or adulterer. In addition, the probative value of the acts, some of which occurred as early as 2001 and 2006, is clearly outweighed by the risk of undue prejudice. Accordingly, the Court grants Dr. Mimms' Motion in Limine regarding his extramarital affairs.

         2.Any reference that Dr. Mimms' committed sexual harassment or had inappropriate conversation with patients.

         Next, Dr. Mimms seeks to exclude any testimony or reference alleging that he committed sexual harassment or had inappropriate conversations with his patients. Dr. Mimms again argues that reference to this evidence should be excluded pursuant to Indiana Rules of Evidence 401, 402, and 403, because it is irrelevant, constitutes improper character evidence, and is unduly prejudicial.

         CVS seeks to offer evidence that RAI filed a complaint with the Indiana Attorney General in October 2013, relaying accounts of inappropriate conduct by Dr. Mimms towards a female patient. CVS contends that this as well as other “inappropriate behavior” resulted in Dr. Mimms' removal from RAI and Dr. Mimms' relationships with other medical entities and their perception of his professionalism is centrally important to Dr. Mimms' claim against them. CVS argues that because Dr. Mimms bases his purported damages on a lowered reputation amongst members of the medical community, evidence that he has acted unprofessionally and has received complaints or discipline for such actions is directly relevant to Dr. Mimms' defamation claim, and his assertions of damages to his reputation.

         The Court concludes that testimony alleging that Dr. Mimms committed sexual harassment or had inappropriate conversations with his patients is irrelevant and has no bearing on the defamation issue remaining for trial in this case. The Court, however, is unable to determine at this stage of the litigation whether evidence of inappropriate sexual conduct with patients might be relevant as it relates to damages. See Bularz, 93 F.3d at 378-379 (prior customer complaints, lawsuits, and testimony regarding unethical business practices were admissible and “relevant to determining whether Bularz's reputation was already compromised at the time that Prudential allegedly defamed him, and thus to the jury's computation of damages.”). Accordingly, the Court grants in part and denies in part this section of Dr. Mimms' Motion in Limine.

         3. Any reference to criminal proceedings, investigations or charges against any party other than Dr. Mimms.

         Dr. Mimms moves to exclude any reference to criminal proceedings, investigations or charges against any party other than himself pursuant to Indiana Rules of Evidence 401, 402, and 403, because it is irrelevant and serves to confuse or mislead the jury. Specifically, Dr. Mimms seeks to exclude evidence that witness Jerame Smith was convicted of a Class D felony for Theft on August 13, 2009. CVS argues in response, that such evidence is relevant to the credibility of Dr. Mimms' witness and admissible under Federal Rule of Evidence 609, subject to Rule 403's balancing test. Dr. Mimms has not demonstrated that the probative value of Smith's criminal conviction is substantially outweighed by a danger of unfair prejudice, misleading the jury, or any of the other risks identified in Rule 403. For this reason, the Court denies Dr. Mimms' Motion in Limine as it relates to Mr. Smith.

         In addition, CVS seeks to offer into evidence under Federal Rule of Evidence 803(8), criminal records of three of Dr. Mimms' former patients who have been convicted of either dealing or improperly using controlled substances. CVS argues these criminal records are probative to show the statement that Dr. Mimms was “under investigation” or “under DEA investigation” was true or belief could reasonably have been held, and thus was not made with actual malice; provides context to subpoenas the DEA issued to CVS and RAI regarding Mimms and his patients; and is relevant to Mimms' professional reputation. The relevancy of these records appears to be remote, however, at this point in the litigation, it is difficult to determine the relevancy of these criminal records. In addition, there is little context on which to determine the admissibility of such evidence.

         The Court prefers not to make a determination outside the context of the trial on this issue, because an order in limine at this stage could bar potentially permissible evidence from being presented during trial. Accordingly, the Motion in Limine on these criminal records is denied.

         4. Any reference to governmental or regulatory investigations relating directly or indirectly to RAI.

         Dr. Mimms asks the Court to exclude any testimony or reference to governmental or regulatory investigations relating to RAI. Dr. Mimms argues that any reference should be excluded pursuant to Indiana Rules of Evidence 401, 402, and 403, because it is irrelevant as the RAI investigations occurred outside the time period that the relevant defamatory statements at issue were made and serves to confuse or mislead the jury. In response, CVS presents evidence of several instances where subpoenas were issued investigating RAI and requesting information regarding patients of Dr. Mimms.

         The Court agrees with Dr. Mimms that investigations which occurred after the alleged defamatory statement were made are not relevant. In particular, the Court previously ruled that the Health and Human Services letter that CVS received on August 8, 2016 is not relevant regarding whether CVS defamed Dr. Mimms from late 2013 to 2015 or CVS's defense of truth. (Filing No. 143 at 24.) The Court also found that the subpoenas CVS produced from the DEA and the Indiana Attorney General's Office that are addressed to RAI, well after Dr. Mimms resigned from working at RAI[2], were not relevant. Id. In addition, the November 2016 visit by DEA agents and the Indiana State Police is not relevant. To the extent that Dr. Mimms seeks to exclude the above evidence, the Court grants this section of Dr. Mimms' Motion in Limine.

         The Court is unable, at this stage of litigation, to determine the admissibility of evidence relating to investigations of RAI which occurred between December 2012 and November 2014.

         Therefore, the determination of admissibility will be made by the Court ...


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