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Court reverses doctor’s $1M defamation award against CVS

May 10, 2018

An Indianapolis doctor awarded $1.025 million in defamation damages against CVS after a federal jury trial lost it all Thursday when the 7th Circuit Court of Appeals reversed the decision.

The judgment for Dr. Anthony Mimms was vacated by the Chicago appellate panel that found District Court Judge Tanya Walton Pratt erred in allowing three allegedly defamatory comments regarding Mimms to be tried to a jury. The 7th Circuit also concluded that CVS was entitled to a new trial on the fourth and final allegedly defamatory statement.

The award for Mimms in January 2017 came after CVS workers allegedly told patients that his prescriptions were no longer being filled for various reasons. Mimms’ patients said they were refused prescriptions at Greenfield, McCordsville, and Rushville CVS stores after pharmacists and technicians at those stores said he was running a pill mill; he had gone to jail; he had been or would be arrested; and that he was under investigation by the U.S. Drug Enforcement Agency.

The 7th Circuit said the first three of those remarks never should have been tried to the jury. CVS was entitled to summary judgment as a matter of law on those comments, because Mimms provided no evidence they were made with actual malice, the standard for defamation under Indiana law.

As to whether Mimms was under DEA investigation, the district court should have allowed CVS to present evidence that the statement was true — a complete shield to defamation.

“CVS sought to introduce evidence that the clinic Mimms formerly worked for, Rehabilitation Associates of Indiana, had been subpoenaed for records of Mimms’s former patients, including patients that had died or been charged or convicted of drug crimes. Mimms objected to the introduction of the evidence, arguing that he had left the practice before the subpoenas were served and thus the subpoenas could not be part of any investigation of Mimms,” Judge Michael S. Kanne wrote for the panel in Anthony Mimms v. CVS Pharmacy, Incorporated, 17-1918.

“The district court agreed and suppressed the evidence. While this may not be conclusive evidence that the DEA was investigating Mimms specifically, the fact that the DEA was seeking records for Mimms’s patients shortly after he left the practice supports CVS’s claim that Mimms was under investigation,” the court wrote.

“So we leave untouched the district court’s denial of summary judgment as to the fourth statement. We find, however, that the district court abused its discretion when making several evidentiary rulings and that these errors prevented CVS from presenting its case. Therefore, the jury’s verdict is vacated and CVS is entitled to a new trial on the fourth statement,” Kanne wrote.

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