Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Reasor v. Walmart Stores East, L.P.

United States District Court, W.D. Kentucky, Louisville

October 30, 2019

DR. GARY LLOYD REASOR PLAINTIFF
v.
WALMART STORES EAST, L.P., DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          Charles R. Simpson III, Senior United States District Judge.

         This matter is before the Court on motion for partial summary judgment, DN 20, and motion to stay discovery, DN 21, by Defendant. For the following reasons, Defendant's motion for partial summary judgment, DN 20, will be GRANTED, and Defendant's motion to stay discovery, DN 21, will be DENIED AS MOOT.

         I. Background

         Dr. Gary Reasor (“Dr. Reasor” or “Plaintiff”) is a board-certified anesthesiologist who concentrates his work on pain management. DN 1-1, p. 3. As part of his medical practice, Dr. Reasor prescribes opioids and other controlled substances to his patients. Id. at 4. Walmart Stores East, L.P. (“Defendant” or “Walmart”) is a Delaware corporation that operates pharmacies in the Louisville region. DN 2, p. 2. Plaintiff alleges that in July or August of 2018, Defendant directed its stores in the Louisville region to stop filling prescriptions issued by Plaintiff. DN 1-1, p. 4. Plaintiff further alleges that “Customers seeking to fill said prescriptions were told “things such as ‘This doctor is under investigation,' and ‘We are no longer allowed to fill his prescriptions.'” Id.

         On December 10, 2018, Plaintiff sued Defendant in Kentucky State Court.[1] Count One alleges “actions and statements of the Defendant were published to third parties and were defamatory per se.” DN 1-1, p. 5. Count Two alleges “the conduct of the Plaintiff invaded the good name and privacy of the Plaintiff and cast him in a false light in his community.” Id. Count Three alleges “The Defendant published the defamatory information regarding Reasor with reckless disregard of the probability that doing so would cause emotional distress to the Plaintiff.” Id. at 6. According to the complaint, three allegations serve as the basis for Plaintiff's claims: (1) Defendant's refusal to fill prescriptions, (2) Defendant's statement[2] that Walmart pharmacies were “not allowed to” fill Plaintiff's prescriptions, and (3) Defendant's statement that Plaintiff was “under investigation” (“or some similar or substantively similar explanation”).

         On July 3, 2019, Defendant filed a motion for partial summary judgment on Plaintiff's first two allegations: “Walmart's refusal to fill prescriptions by Plaintiff” and “any communication of that refusal to patients.” DN 20-1, p. 1. Defendant styles these allegations as Plaintiff's “prescription refusal defamation claim.” Id. Defendant asserts that “Walmart's refusal to fill prescriptions written by Plaintiff is not actionable” and “any communication of that refusal to patients is not defamatory … and is otherwise protected under a qualified privilege.” Id.

         II. Legal standard

         A party moving for summary judgment must demonstrate “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 263 (1986). An issue of material fact is genuine if a rational fact-finder could find in favor of either party on the issue. Id. at 248.

         In undertaking this analysis, the Court must view the evidence in a light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007). The party moving for summary judgment bears the burden of establishing the nonexistence of any issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). They can meet this burden by “citing to particular parts of materials in the record” or “showing that the materials cited do not establish the … presence of a genuine dispute.” Fed.R.Civ.P. 56 (c)(1). This burden can also be met by demonstrating that the nonmoving party “fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. “Summary judgment should not ordinarily be granted before discovery is completed." Smith v. Freland, 954 F.2d 343, 348 (6th Cir. 1992). However, summary judgment prior to the close of discovery may be appropriate if, in opposing a motion for summary judgment, a party fails to submit an affidavit under Federal Rule of Civil Procedure 56(f) stating why the party cannot present “facts essential to justify the party's opposition.” Plott v. Gen. Motors Corp., Packard Elec. Div., 71 F.3d 1190, 1196 (6th Cir. 1995).

         III. Discussion

         A. Defendant's refusal to fill prescriptions from Dr. Reasor

         Defendant's refusal to fill prescriptions written by Dr. Reasor was not defamatory because the action of not filling prescriptions does not meet the prima facie elements of defamation. Defamation is “mak[ing] a false statement about someone to a third person in such a way as to harm the reputation of the person spoken of.” Toler v. Sud-Chemie, Inc., 458 S.W.3d 276, 286 (Ky. 2014). To establish a claim for defamation, Plaintiff must prove the following elements: (1) Defendant used defamatory language, (2) about Plaintiff, (3) which was published, and (4) which caused injury to reputation. Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781, 793 (Ky. 2004) (overruled on other grounds by Toler v. Süd-Chemie, Inc., 458 S.W.3d 276 (Ky. 2014)). “[D]efamatory language is broadly construed as language that ‘tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.'” Id. Defamatory words must be construed in their most natural meaning and in the sense in which they would be understood by those to whom they were addressed. Digest Pub. Co. v. Perry Pub. Co., 284 S.W.2d 832, 834 (Ky. App. 1955). Defamatory statements should also be measured by the “natural and probable effect on the mind of the average reader.” Stringer, 151 S.W.3d at 793.

         Here, Defendant's refusal to fill prescriptions from Plaintiff cannot be defamatory because it does not meet the first prima facie element of defamation. Plaintiff's argument that “the very practice of not filling [Dr. Reasor's] prescriptions implied that Plaintiff was “in trouble” or “under investigation” is without merit because the action of not filling a prescription is not “defamatory language.” DN 22, p. 3. Some state courts have found that defamation actions may be brought for non-verbal communications when circumstances so justify. See, e.g., Bennett v. Norban, 396 Pa. 94, 151 A.2d 476 (1959) (finding that when plaintiff was accosted and searched in the street outside a store by the store's employees, the nonverbal conduct was capable of defamatory meaning). However, Plaintiff has failed to provide the Court with any Kentucky case law establishing that an action, like the refusal to fill a prescription, can form the basis of a defamation claim. Cf. Sequeira v. Gate Safe, Inc., Civil Action No. 16-24542-Civ, 2017 U.S. Dist. LEXIS 179445, at *7 (S.D. Fla. Oct. 27, 2017) (dismissing a claim for defamation based on nonverbal actions because the plaintiff failed to produce any case law supporting such a cause of action).

         Even if this Court were to accept that some non-verbal actions can be defamatory under Kentucky law, summary judgment is appropriate here because Plaintiff has not demonstrated that Defendant's failure to fill a prescription has a defamatory implication. A case from the District of D.C. is instructive. Gaujacq v. Electricite De Fr. Int'l N. Am., Inc., 572 F.Supp.2d 79 (D.D.C. 2008). In Gaujacq, a defendant employer removed a plaintiff employee from her position as a president with the company, and announced to the employee's coworkers that the plaintiff was no longer allowed to sign checks; defendant also voided two checks that the plaintiff had already signed. Id. at 94. The plaintiff alleged that the action of voiding the already signed checks constituted defamation. Id. The court granted summary judgment in favor of the employer on that limited defamation claim because the plaintiff failed to show that the defendant's actions had a defamatory implication. Id. The court found that the action of voiding two checks “show[ed] ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.