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Mimms v. CVS Pharmacy, Inc.

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

March 22, 2017

CVS PHARMACY, INC. a Rhode Island corporation, Defendant. INDIANA ATTORNEY GENERAL, and MEDICAID FRAUD CONTROL UNIT, Interested Parties.



         This matter is before the Court on Defendant CVS Pharmacy Inc.'s (“CVS”) Motion for Summary Judgment as to the Statements Alleged by Plaintiff's Witness Betsy Winters (“Winters”). (Filing No. 240.) CVS seeks summary judgment regarding Plaintiff Dr. Mimms' (“Dr. Mimms”) claim for defamation as to any statement alleged by Winters. CVS asserts that Dr. Mimms failed to offer evidence in his Complaint or summary judgment pleadings with respect to the statement made to Winters and that the alleged statement is not defamatory. For the reasons stated below, the Court GRANTS CVS's Motion for Summary Judgment.

         I. BACKGROUND

         The facts of this case are set forth in detail in the Entry on Pending Motions (Filing No. 143) and other entries, and therefore will be added as needed in this Entry. As with any summary judgment motion, the facts are reviewed in the light most favorable to Dr. Mimms, the nonmoving party, and the Court draws all reasonable inferences in Dr. Mimms' favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009).

         The dispute in this matter surrounds Dr. Mimms claim 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. This action is scheduled for trial by jury beginning March 27, 2017. Following cross motions for summary judgment, and motions 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 soon would be arrested” and whether the defamatory statements were made with malice, as well as Dr. Mimms' claims for damages.

         A final pretrial conference was held on March 1, 2017. During the conference, Dr. Mimms stated that he intends to call Winters as a witness to solicit testimony regarding a statement made to her by a CVS employee. CVS objected, arguing Dr. Mimms failed to make Winters available for deposition during discovery. In the alternative, CVS requested permission to conduct a late discovery deposition of Winters in advance of trial. Because Winters was ill during the time the parties conducted discovery depositions and only recently became available, the Court granted CVS's alternative request and permitted CVS to file a late dispositive motion regarding Winters.

         CVS deposed Winters on March 7, 2017. Winters is a resident of Richmond, Indiana and a former patient of Dr. Mimms. Winters believed that Benjamin Railsback (“Railsback”) was the head pharmacist for CVS in Richmond Indiana, however in fact, he is the pharmacy manager for Pharmacy Store Number 6647. Winters has known Railsback for many years and had gone to his pharmacy often for her medication. In addition, Railsback had been familiar with Dr. Mimms prior to Winters encounter, in his capacity as a floater for CVS. In June 2014, Winters visited CVS store Number 6647 to fill a prescription written by Dr. Mimms. (Filing No. 242-1 at 11-12). However, Railsback informed Winters that a memo prevented CVS stores in Indiana from filling prescriptions written by Dr. Mimms due to “something about a license issue.” Winters describes the encounter as follows:

Q. And at this CVS visit following your appointment with Dr. Mimms, you've said that Ben said to you that he could not fill the prescription?
A. Yes.
Q. Are those the words that he used?
A. Yes. He said that he couldn't fill the prescription, don't shoot the messenger. Because I started to get upset. He said, don't shoot the messenger. It was in a memo that the state - the CVS in Indiana could not fill Dr. Mimms' prescriptions. And he said nowhere in the state of Indiana could fill it. I then went -- I called Dr. Mimms' office to see what to do. And I took it to Phillips Drugs, which is - the Phillips Drugs that I took it to is on South 7th and Promenade. They had no issue taking it. They filled it for me. And to this day, they still fill my pain medicine. I --I still have my other prescriptions at CVS, but my pain medicine still goes through Phillips. …..
Q. Okay. Is there anything that you recall the CVS pharmacist saying to you in this conversation that you've just described?
A. He mentioned something about Dr. Mimms' license. And I said, I know he's still practicing, I just came from his office. And that's when he said there was something in the memo saying that they couldn't fill Dr. Mimms' prescriptions.

         (Filing No. ...

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