FOR PUBLICATION ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE: THOMAS E. WHEELER II NEAL F. EGGESON, JR. MAGGIE L. SMITH Eggeson Appellate Services Frost Brown Todd LLC Indianapolis, Indiana Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA WALGREEN CO., ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-1311-CT-950 ) ABIGAIL E. HINCHY, ) ) Appellee-Plaintiff. ) APPEAL FROM THE MARION SUPERIOR COURT The Honorable David J. Dreyer, Judge Cause No. 49D10-1108-CT-29165 November 14, 2014 OPINION—FOR PUBLICATION BAKER, Judge In this case, a pharmacist breached one of her most sacred duties by viewing the prescription records of a customer and divulging the information she learned from those records to the client’s ex-boyfriend. A jury heard extensive evidence during a four-day trial and ultimately found that the pharmacist and her employer are liable for the damages sustained by the customer as a result of the breach. We are loath to disturb jury verdicts and decline to do so in this case. Walgreen Company raises a number of issues in this appeal. First, it argues that the trial court erred by refusing to grant summary judgment or a directed verdict in Walgreen’s favor on Abigail Hinchy’s claims based on respondeat superior and negligent retention and supervision of an employee. Second, Walgreen argues that Hinchy’s attorney engaged in improper ex parte communication when he filed a trial brief under seal with the trial court and did not provide a copy to Walgreen. Third, Walgreen contends that the jury was improperly instructed on issues surrounding respondeat superior and the tort of public disclosure of private facts. Fourth, Walgreen argues that the $1.8 million jury verdict was excessive and based on improper factors. Finding no reversible error, we affirm. FACTS1 Although the parties dispute the precise beginning and ending dates, at some point between fall 2006 and spring 2010, Hinchy was engaged in an on-and-off sexual 1 We held oral argument in this case in Indianapolis on October 14, 2014. We commend counsel for both parties for their stellar oral and written advocacy. 2 relationship with Davion Peterson. During this period, Hinchy filled all of her prescriptions, including oral birth control pills, at a Walgreen pharmacy. At some point in 2009, Peterson began dating Walgreen pharmacist Audra Withers. In August 2009, Hinchy became pregnant with Peterson’s child. On an unknown date, Peterson learned that he had contracted genital herpes. Hinchy gave birth to a son on May 22, 2010. At some point during the week of May 26, 2010, Peterson mailed a letter to Withers informing her about the baby and about the possibility that he may have exposed her to genital herpes. Withers became terrified about the possibility of contracting a sexually transmitted disease. Consequently, during her shift and while at work, Withers looked up Hinchy’s prescription profile in the Walgreen computer system to see if she could find any information about Hinchy’s sexually transmitted disease. The next day, Withers again looked up Hinchy’s profile to confirm that she had spelled it correctly the day before. Withers has consistently maintained that she never revealed to anyone what she had learned about Hinchy’s prescription profile, did not look for any information related to birth control, and did not print anything out relating to Hinchy’s prescription profile. On May 29, 2010, Peterson sent the following text message to Hinchy: I’m not trying to start any crap but I have a print out showing that you didn’t even refill ur birth control perscription for july or august. The last time you filled ur prescription was june. I know uve lied to ur mom and harmony and anybody willing to listen but the printout does not lie. I know you lied to me wth tears and curse words and misplaced righteousness. U really should think about what you did…on ur own. You really should think about that FACT before 3 you call me another name. What kind of person does something like that? Tr. Ex. 1A (internal spelling and grammatical errors original). In response, Hinchy sent the following text to Peterson: Print out. It’s illegal for u to obtain any kind of information like that regarding me. And if u knew anything about my medical history u would know that I was on multiple types of birth control since I was 15[.] Tr. Ex. 1B (internal spelling and grammatical errors original). Peterson responded with the following return text: Abby, you ddnt refill ANYTHING at all. No type of birth control medication at all. June you did. You did NOT in july and august. Jeez….r you really still trying to claim? Again, I’m not trying to start shit. What’s done is done, but what’s happening was totally avoidable. You are NOT a victim. You did something wrong abby. Very wrong. Ps….it is not illigall for ME to have it. Ime being very technical here but I ddnt break any laws myself. Tr. Ex. 1C (internal spelling and grammatical errors original). It was, in fact, true that Hinchy had not filled her birth control prescriptions in July or August 2009. Unable to understand how Peterson had accessed a printout containing her private prescription information, Hinchy immediately contacted her local Walgreen but was unable to reach anyone. She then called a Walgreen in her mother’s hometown of Schererville and was told by the Walgreen employee at that location that there was no way to track whether her records had been accessed. With no idea how to proceed, Hinchy took no further action at that time. 4 On March 18, 2011, Peterson mailed his son a gift. The package had a return address that Hinchy did not recognize. After conducting an internet search regarding the address, she learned that the address belonged to Withers. She also learned that Peterson and Withers were married and that Withers was a pharmacist at the local Walgreen where she fills her prescriptions. Hinchy immediately contacted her local Walgreen to report her suspicion that Withers had looked at her personal records and disclosed the information she learned to an unauthorized individual. Over the next three weeks, Hinchy was in regular contact with Walgreen’s regional office and loss prevention department. When Withers was confronted about the situation, she admitted that she had accessed Hinchy’s prescription profile for personal reasons. On April 15, 2011, Loss Prevention Detective Michael Bryant confirmed to Hinchy that (1) a HIPAA/privacy violation had occurred, (2) Withers had viewed Hinchy’s prescription information without consent and for personal purposes, and (3) Walgreen could not confirm that Withers had revealed that information to a third party. As a result of Walgreen’s investigation, Withers received a written warning and was required to retake a computer training program regarding HIPAA. The Litigation On August 1, 2011, Hinchy filed a complaint against Walgreen and Withers. Against Withers, Hinchy filed claims of negligence/professional malpractice, invasion of privacy/public disclosure of private facts, and invasion of privacy/intrusion. Against Walgreen, Hinchy filed claims seeking liability for the counts she filed against Withers 5 by way of respondeat superior, as well as direct claims for negligent training, negligent supervision, negligent retention, and negligence/professional malpractice. On July 2, 2012, Walgreen moved for summary judgment. On November 26, 2012, the trial court granted the motion in part with respect to Hinchy’s claims for negligent training (against Walgreen) and invasion of privacy by intrusion (against Withers), but otherwise denied the motion. On July 22, 2013, Hinchy’s attorney tendered a trial brief to the trial court “under seal” and asked the trial court to “maintain this Trial Brief under seal until the close of evidence.” Appellant’s App. p. 792-93. Counsel explained why it filed the brief under seal: to help [the court] out with legal issues, my thought on how exhibits should go and things like that. But the reality is I submitted this with the intention that you were the only person who was going to see this until the evidence was over [because] there’s stuff about instructions, there’s a lot of trial strategy in there frankly. Tr. p. 805. Hinchy’s counsel never served a copy of the brief on Walgreen, and to date, Walgreen has not seen it. When Walgreen learned about the brief, it raised the issue with the trial court, argued it was improper ex parte communication, and contended that Walgreen was entitled to see it. The trial court acknowledged that it had “closely” and “actively looked through it,” but had assumed Walgreen’s attorney had also gotten a copy. Tr. p. 807. Over Walgreen’s objection, the trial court permitted Hinchy’s attorney to withdraw the brief without serving it on Walgreen. 6 The four-day jury trial began on July 23, 2013. Among other things, the parties argued about final jury instructions. Walgreen objected to two of Hinchy’s three instructions regarding respondeat superior and to two of Hinchy’s instructions regarding public disclosure of private facts. Over Walgreen’s objections, the trial court permitted the jury to receive those instructions. The jury found in Hinchy’s favor and found that the total amount of damages suffered by Hinchy was $1.8 million, that non-party Peterson was responsible for 20% of the damages, and that Walgreen and Withers were jointly responsible for the remaining 80%. Walgreen now appeals. DISCUSSION AND DECISION I. Summary Judgment and Directed Verdict Walgreen first argues that the trial court erred by partially denying its motion for summary judgment and by denying its motion for a directed verdict. Specifically, Walgreen contends that it was entitled to judgment as a matter of law on Hinchy’s claims for respondeat superior and negligent retention and supervision, and that those claims should never have been presented to a jury. We apply a de novo standard of review to a trial court’s order granting or denying summary judgment. Alldredge v. Good Samaritan Home, Inc., 9 N.E.3d 1257, 1259 (Ind. 2014). Therefore, we apply the same standard as the trial court: summary judgment is appropriate only where the movant demonstrates there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Id. We resolve all questions and 7 view all evidence in the light most favorable to the non-movant, so as to not improperly deny him his day in court. Id. A motion for a directed verdict, also known as a motion for judgment on the evidence, challenges the legal sufficiency of the evidence. Farmers Elevator Co. v. Hamilton, 926 N.E.2d 68, 75 (Ind. Ct. App. 2010). Judgment may be entered only if there is no substantial evidence or reasonable inference to be drawn therefrom to support an essential element of the nonmovant’s claim. Id. We review an appeal from a directed verdict de novo, considering only the evidence most favorable to the nonmovant along with all reasonable inferences that may be drawn therefrom. Deaton v. Robison, 878 N.E.2d 499, 501 (Ind. Ct. App. 2007). A motion for a directed verdict should be granted only when the evidence is not conflicting and susceptible to only one inference, supporting judgment for the movant. Id. A. Respondeat Superior Liability Vicarious liability will be imposed upon an employer under the doctrine of respondeat superior “where the employee has inflicted harm while acting ‘within the scope of employment.’” Barnett v. Clark, 889 N.E.2d 281, 283 (Ind. 2008). To fall within the scope of employment, “the injurious act must be incidental to the conduct authorized or it must, to an appreciable extent, further the employer’s business.” Id. An act “is incidental to authorized conduct when it ‘is subordinate to or pertinent to an act which the servant is employed to perform,’ or when it is done ‘to an appreciable extent, to further his employer’s business.’” Bushong v. Williamson, 790 N.E.2d 467, 473 (Ind. 8 2003) (quoting Celebration Fireworks, Inc. v. Smith, 727 N.E.2d 450, 453 (Ind. 2000)) (internal citations omitted). In Barnett, our Supreme Court turned to the Restatement (Third) of Agency for further exploration of these concepts: The Restatement of Agency advises that “[a]n employer is subject to vicarious liability for a tort committed by its employee acting within the scope of employment.” Restatement (Third) of Agency, § 7.07(1) (2006); see also id. at § 2.04. Further, “[a]n employee acts within the scope of employment when performing work assigned by the employer or engaging in a course of conduct subject to the employer’s control. An employee’s act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer.” Id. at § 7.07(2) (emphasis added). Comment c to Section 7.07 explains that “[a]n employee may engage in conduct, part of which is within the scope of employment and part of which is not.” To illustrate this principle, the Comment describes an employee driving a truck in the scope of employment, and who becomes irate at another motorist, leans out the truck cab, and shoots the driver whose conduct enraged him. While the shooting occurred in the midst of the employee’s duties of employment, the shooting “is not within the scope of employment.” Id. at § 7.07 cmt. c. 889 N.E.2d at 284. An employer is not held liable under the doctrine of respondeat superior because it did anything wrong, but rather “because of the [employer’s] relationship to the wrongdoer.” Sword v. NKC Hosps., Inc., 714 N.E.2d 142, 148 (Ind. 1999). It is well established that whether an employee’s actions were within the scope of employment is a question of fact to be determined by the factfinder. Trinity Lutheran Church, Inc. v. Miller, 451 N.E.2d 1099, 1102 (Ind. Ct. App. 1983). Even if some of the 9 actions were unauthorized, the question of whether the actions were within the scope of employment is for the jury. Konkle v. Henson, 672 N.E.2d 450, 457 (Ind. Ct. App. 1996). Only if none of the employee’s acts were authorized is the question a matter of law that need not be submitted to the trier of fact. City of Fort Wayne v. Moore, 706 N.E.2d 604, 607 (Ind. Ct. App. 1999). Furthermore, conduct is within the scope of employment when it is “of the same general nature as that authorized, or incidental to the conduct authorized.” Celebration Fireworks, 727 N.E.2d at 453. Additionally, the fact that a tortfeasor is empowered to commit the tort because of his employment weighs in favor of respondeat superior. Southport Little League v. Vaughn, 734 N.E.2d 261, 268 (Ind. Ct. App. 2000). We find the case of Ingram v. City of Indianapolis to be instructive. 759 N.E.2d 1144 (Ind. Ct. App. 2001). In Ingram, a police officer detained and solicited sex from an exotic dancer. This Court found that several of the officer’s actions were, on their face, “within the scope and arising out of the performance of a police officer’s official duties.” Id. at 1148. Specifically, the officer first pulled over the complainant, asked for her driver’s license and registration, and administered a breath test. In another incident, the officer pulled the complainant out of a taxi, told the driver he would be arrested if he drove away with her, and then handcuffed her and placed her inside his police vehicle. The Ingram Court concluded that these actions were of the same general nature as those authorized, or incidental to the actions that were authorized, by his employer. As a result, 10