United States District Court, S.D. Indiana, Indianapolis Division
ANTHONY MIMMS, M.D., MIMMS FUNCTIONAL REHABILITATION, P.C., Plaintiffs,
CVS PHARMACY, INC. a Rhode Island corporation, Defendant. INDIANA ATTORNEY GENERAL, Medicaid Fraud Control Unit, Interested Parties.
ORDER ON PARTIES' MOTIONS IN LIMINE
WALTON PRATT, JUDGE
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.
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.
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.
Dr. Mimms' Motion in Limine (Filing No.
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).
Any reference to Dr. Mimms' personal relationships,
including alleged instances of
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, 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).
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
reference that Dr. Mimms' committed sexual harassment or
had inappropriate conversation with
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.
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
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.
Any reference to criminal proceedings, investigations or
charges against any party other
than Dr. Mimms.
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.
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
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.
Any reference to governmental or regulatory
investigations relating directly or
indirectly to RAI.
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.
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, 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.
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.
the determination of admissibility will be made by the Court