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Kimbler v. Spear

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

July 11, 2017

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.


          James P. Jones United States District Judge.

         In this diversity action under Virginia substantive law, 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. I previously deferred ruling on the Motion for Summary Judgment pending the completion of certain limited discovery. I now find that summary judgment is premature and, for that reason, will deny the defendants' Motion for Summary Judgment without prejudice.


         I recited certain undisputed facts in my previous Opinion. For the sake of simplicity, I reiterate those facts below:

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. [Bernie] Tisdale.
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. 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.

Op. & Order 2-3, Apr. 11, 2017, ECF No. 23 (footnotes omitted).

         On February 23, 2017, the defendants filed a Motion for Summary Judgment. The defendants relied 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." Mem. Supp. Summ. J. 5, ECF No. 8. Kimbler argued in opposition that summary judgment was premature and requested that this court permit her to conduct discovery of certain facts before ruling on the defendants' motion. The motion was fully briefed and orally argued on April 3, 2017. I granted Kimbler's request and deferred ruling on the motion pending the completion of limited discovery, namely, the production of the contracts between Hannleb and MSHA and the deposition by oral examination of defendant Spear as to matters relevant to the defenses of immunity and qualified privilege. Op. & Order 9, ECF No. 23.

         Counsel for Kimbler conducted the oral deposition of defendant Spear on April 27, 2017. Kimbler subsequently submitted a supplemental response to her opposition to the Motion for Summary Judgment. In her supplemental response, she argues that the "[immunity] statute does not apply because the audit of [her] work was not prepared and published in the performance of the Defendants' duties ... of the kind to which the immunity defense applies, " that the statements were not protected by a qualified privilege because they were made with common-law malice, and that there is a "genuine dispute of material fact as to whether the Defendants acted with reckless disregard for the truth." Suppl. Mem. Opp'n Summ. J. 13, 15, 17, ECF No. 31. She also reiterates her argument that summary judgment would be premature at this point and provides a specific list of the documents she would seek to have produced and the questions she would seek to have answered in the course of full discovery.

         In response, the defendants argue that an immunity defense does apply because the audit of Kimbler's work was "performed . . . and provided ... to [MSHA] pursuant to the Service Agreement" and that Kimbler has "failed to generate a genuine issue of material fact as to whether Defendants acted with a reckless disregard for the truth." Reply to PL's Suppl. Mem. Opp'n Summ. J. 2, 5, ECF No. 33. They assert that Kimbler's "mere beliefs as to the Defendants' motives" are "speculation" and are "insufficient to create a genuine issue of material fact sufficient to overcome summary judgment." Id. at 9-10. They also argue that Kimbler "has failed to set forth any basis ...

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