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Kimbler v. Spear

United States District Court, W.D. Virginia, Abingdon Division

April 11, 2017

JENNIFER KIMBLER, Plaintiff,
v.
KEVIN SPEAR, ET AL., Defendants.

          Steven R. Minor, Elliott Lawson & Minor, Bristol, Virginia, for Plaintiff;

          Cameron S. Bell, Penn Stuart & Eskridge, Abingdon, Virginia, and Ronald W. Cox, Jr., McCarthy Wilson LLP, Rockville, Maryland, for Defendants.

          OPINION AND ORDER

          James P. Jones United States District Judge

         In this diversity action for damages, the plaintiff, Jennifer Kimbler, asserts a claim for defamation per se against defendant Hannleb Physics, Inc. (“Hannleb”) and its employee, defendant Kevin Spear. The defendants have moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. In response, Kimbler opposes the Motion for Summary Judgment and alternatively seeks leave to conduct discovery before determination of the motion. See Fed. R. Civ. P. 56(d)(2). For the reasons that follow, I will partially grant Kimbler's request for discovery and defer decision on the defendants' Motion for Summary Judgment.

         I.

         The undisputed facts, taken from the Complaint and summary judgment record, are as follows.

         Plaintiff Jennifer Kimbler is a dosimetrist who, at the time of the events giving rise to this action, was employed by Mountain States Health Alliance (“MSHA”) at its Johnston Memorial Hospital in Abingdon, Virginia. A dosimetrist is a member of a radiation oncology team. In her role, Kimbler worked as part of a team with a physicist from Hannleb, Michelle Schwer, and an oncologist, Dr. Tisdale.[1]

         This action centers on an external audit conducted by defendant Kevin Spear in his capacity as an agent of defendant Hannleb. Hannleb is a medical physics and dosimetry company that provides certain services, including review services, to MSHA. The audit was conducted pursuant to a written Service Agreement between Hannleb and MSHA.[2] In conducting the audit, Spear reviewed the charts of patients, including patients treated by Kimbler.

         In April 2016, Kimbler received a “Written Counselling/Correction Action Notice” from MSHA that referenced the audit. Kimbler subsequently resigned from her position with MSHA. Following Kimbler's resignation, Hannleb was asked to provide temporary dosimetry services for Johnston Memorial Hospital until a permanent replacement could be hired.

         In December 2016, Kimbler filed this lawsuit against Spear and Hannleb. Specifically, Kimbler alleges that the external audit conducted by Spear on behalf of Hannleb “contains false and defamatory statements about [her] professional ability.” Compl. ¶ 11, ECF No. 1. She claims that the audit “falsely suggests that [she] purposefully mistreated patients, ” that its purpose was to “state or imply that [she] was guilty of unethical and unprofessional conduct and that her employment should be terminated, ” that the defendants published the audit “with actual knowledge that it was false or with reckless disregard of whether it was false or not, ” and that the audit was “willfully designed to discredit [her] in her profession.” Id. at ¶¶ 12, 16-17.

         The Motion for Summary Judgment has been briefed and orally argued. The defendants rely on three grounds: that they are entitled to statutory immunity under Virginia law; that they enjoy a qualified privilege in making the audit report; and that the audit “is not defamatory because it does not contain actionable statements.” Defs.' Mem. Supp. Summ. J. 5, ECF No. 8. Kimbler argues in response that the statements contained in the audit are actionable and that the immunity and privilege claimed by the defendants “do not defeat claims based on bad faith and malicious intent, ” which she asserts have been sufficiently alleged. Pl.'s Mem. Opp'n Summ. J. 6, ECF No. 16. She also contends that summary judgment is premature and requests that the court, prior to deciding whether to grant summary judgment, permit her to conduct discovery of certain facts regarding “the Defendants' contract with MSHA, ” the circumstances that resulted in the audit, the “substance of the audit, ” and an alleged conflict between her team members, Dr. Tisdale and Michelle Schwer, which she “believe[s] was the cause of the Defendants' attacks on [her] reputation.” Kimbler Decl. ¶ 3, ECF No. 16-1.

         II.

         Federal Rule of Civil Procedure 56(a) requires a court to grant a motion for summary judgment “if the movant shows that 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). In ruling on a motion for summary judgment, the court must view all facts in the light most favorable to the opposing party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A dispute about a material fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248. Although the party seeking summary judgment bears “the burden of showing the absence of a genuine issue as to any material fact, ” Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970), the party opposing summary judgment must nevertheless “properly address [the movant]'s assertion of fact” in order to proceed to trial. Fed.R.Civ.P. 56(e).

         Because the non-moving party must address the movant's assertions as to material facts, “[i]n general, summary judgment should only be granted ‘after adequate time for discovery.'” McCray v. Md. Dep't of Transp.,741 F.3d 480, 483 (4th Cir. 2014) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). Accordingly, where a nonmovant shows that she lacks “facts essential to justify [her] opposition” to summary judgment, the court may defer judgment on the motion and “allow time to . . . take discovery.” Fed.R.Civ.P. 56(d)(2). “A Rule 56(d) motion must be granted ‘where the nonmoving party has not had the opportunity to discover information that is essential to [her] opposition.'” McCray, 741 F.3d at 483-84 (quoting Harrods Ltd. v. Sixty Internet Domain Names, 302 F.2d 214, 244 (4th Cir. 2002)); see also Anderson, 477 U.S. at 250 n.5. “[S]uch motions are ‘broadly favored and should ...


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