A doctor who sued Walgreens alleging the company’s pharmacists defamed him by telling his patients he was under investigation by the Drug Enforcement Agency has lost his bid to revive the case.
The U.S. Court of Appeals for the Third Circuit denied Dr. Lance Yarus’ request to vacate a jury verdict in favor of Walgreens. Yarus claimed the jury instructions and verdict sheets in the case contained errors, and that the judge was wrong to conclude that some of his claims were time-barred.
Yarus, an orthopedic surgeon, claimed that Walgreens’ computer system, which provides pharmacists with information on prescribing doctors, contained the comment that he was “under investigation by the [Drug Enforcement Administration (DEA)],” and that some of Walgreens’ pharmacists allegedly repeated this to his patients when refusing to fill his prescriptions, according to Third Circuit Judge Joseph Greenaway’s opinion.
Yarus filed suit in 2013 in the Philadelphia Court of Common Pleas and the case was removed to federal court in the Eastern District of Pennsylvania. There, a jury ultimately found in favor of the defendant.
The doctor argued on appeal that the judge should not have instructed the jury to determine whether the alleged false statements made by pharmacists were false statements of fact rather than statements of opinion.
Greenaway agreed with Yarus that the jury instructions were incorrect. But, Greenaway added, “Although the questions in the verdict sheet were legally incorrect, their inclusion as instructions to the jury did not constitute plain error.”
Yarus further argued he should be given a new trial because the weight of the evidence shows he met his burden to prove that the alleged statements were false statements of fact and not opinions.
“Here, the Walgreens pharmacists who allegedly made the defamatory comments testified that they did not do so, thereby creating a genuine dispute of material fact as to whether the alleged statements were actionable to begin with, and which the jury resolved as reflected in its verdict,” Greenaway said.
Yarus also argued that the district court was wrong in refusing to give an instruction that Walgreens had the burden of proving truth. The doctor claimed this omission implicitly required him to prove the falsity of the defamatory statement, but Greenaway said Yarus waived his right to appeal that issue by failing to object during trial.
Regardless, Greenaway said, the absence of such an instruction was not an error.
“Walgreens did not substantially advance at trial the theory that Dr. Yarus was actually being investigated by the DEA,” Greenaway said. “Rather, its primary theory was that the alleged defamatory statements were never spoken. The instruction was therefore unnecessary and its omission had no effect on the burden of proof—indeed, its excision was far from plain error.”
Lastly, Yarus maintained his claims were not barred by the statute of limitations, arguing the statute was tolled by the fraudulent concealment doctrine.
“We find this argument to be specious,” Greenaway said. “Here, Dr. Yarus’s complaint is clear that his counsel wrote to Walgreens about the May 1, 2009, comment on May 7, 2009, and about the May 23, 2010, comment on July 26, 2010. By his own admission, Dr. Yarus was aware of the alleged defamatory comments on these dates, meaning that the statute of limitations would have expired at the latest on May 7, 2010, and July 26, 2011, respectively. Dr. Yarus did not commence this action until Nov. 26, 2013, or well outside the one-year limitations period.”
Yarus’ attorney, John F. Innelli of Philadelphia, and Walgreens’ attorney, Robert L. Sanzo of Litchfield Cavo in Philadelphia, did not respond to requests for comment.