Sufficiency of Evidence – Expert Testimony

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7^th Circuit Court of Appeals

Case Name: Anthony Mimms v. CVS Pharmacy, Inc.,

Case No.: 17-1918

Officials: KANNE and ROVNER, Circuit Judges, and DURKIN, District Judge.

Focus: Sufficiency of Evidence – Expert Testimony

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.

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.  CVS contends the district court should have granted judgment in its favor as to all four of the challenged statements. Alternatively, CVS argues the district court made several errors that merit a new trial. We review the district court’s denial of summary judgment and of judgment as a matter of law de novo, Winters v. Fru‐Con Inc., 498 F.3d 734, 743, 745 (7th Cir. 2007), and generally review its evidentiary and jury instruction rulings for abuse of discretion, Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc., 831 F.3d 815, 833, 835 (7th Cir. 2016). The judgment of the district court is reversed and the case is remanded in part.

Reversed and Remanded in part

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.