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Mimms v. CVS Pharmacy, Inc.

United States Court of Appeals, Seventh Circuit

May 9, 2018

Anthony Mimms, Plaintiff-Appellee,
v.
CVS Pharmacy, Inc., Defendant-Appellant.

          Argued December 8, 2017

          Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 15-cv-970 - Tanya Walton Pratt, Judge.

          Before Kanne and Rovner, Circuit Judges, and Durkin, District Judge. [*]

          KANNE, CIRCUIT JUDGE.

         Dr. Anthony Mimms is a physician licensed by the Indiana Medical Licensing Board. He started his own pain management practice, Mimms Functional Rehabilitation, in November 2013. He previously worked at Rehabilitation Associates of Indiana. As part of his practice, he prescribes opioids and other controlled substances to many of his patients.

         On several occasions, starting in 2013, CVS Pharmacy employees informed some of Mimms's patients that they would not fill their prescriptions. Mimms sued CVS, alleging the pharmacy employees made defamatory statements when refusing to fill the prescriptions. His complaint details nine allegedly defamatory statements.

         To prove his claims, Mimms needed to show that the speakers knew that their statements were false. CVS repeatedly moved for summary judgment on the basis that Mimms had no evidence that the speakers knew their statements were false. Ultimately, the district court granted summary judgment as to five of the statements and denied judgment for the remaining four statements. It concluded there was a material question of fact regarding whether the speakers of those four statements knew that their statements were false in light of evidence that CVS's corporate office had concluded an investigation of Mimms and had not stopped stores from filling his patients' prescriptions. In so concluding, the court rejected CVS's argument that knowledge held by the corporate office could not be imputed to the individual speakers.

         The case proceeded to trial before a jury. The four statements at trial were:

. "CVS doesn't fill Dr. Mimms'[s] prescriptions or
prescriptions for any other pill mills."
. "Dr. Mimms went to jail."
. "Dr. Mimms has been … or will be arrested."
. "Dr. Mimms is under DEA investigation."

(R. 211 at 10.)

         CVS moved for judgment as a matter of law as to the first three statements at the close of Mimms's presentation of evidence, again arguing that knowledge held by the corporate office could not be imputed to the speakers. The district court denied the motion, and the jury found CVS liable for defamation per se on all four statements and awarded Mimms $1, 025, 000 in damages. CVS appeals. ...


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