United States District Court, W.D. Kentucky, Louisville
DR. GARY LLOYD REASOR PLAINTIFF
WALMART STORES EAST, L.P., DEFENDANTS
MEMORANDUM OPINION AND ORDER
Charles R. Simpson III, Senior United States District Judge.
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.
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.
December 10, 2018, Plaintiff sued Defendant in Kentucky State
Court. 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 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
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
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.
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).
Defendant's refusal to fill prescriptions from Dr.
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.
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).
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] ...