United States District Court, S.D. Indiana, Indianapolis Division
ANTHONY MIMMS, M.D., and MIMMS FUNCTIONAL REHABILITATION, P.C., Plaintiffs,
CVS PHARMACY, INC. a Rhode Island corporation, Defendant. INDIANA ATTORNEY GENERAL, and MEDICAID FRAUD CONTROL UNIT, Interested Parties.
ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
AS TO THE STATEMENTS ALLEGED BY PLAINITIFF'S WITNESS
WALTON PRATT, JUDGE
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
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).
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.
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
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?
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
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'