Walgreen Co. v. Abigail E. Hinchy , 21 N.E.3d 99 ( 2014 )

Nov 14 2014, 10:06 am
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
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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
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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
whether the actions were within the scope of the officer’s employment was an issue to be
determined by the trier of fact. Id. at 1148.
Here, as in Ingram, Withers’s actions were of the same general nature as those
authorized, or incidental to the actions that were authorized, by Walgreen. Specifically,
Withers was authorized to use the Walgreen computer system and printer, handle
prescriptions for Walgreen customers, look up customer information on the Walgreen
computer system, review patient prescription histories, and make prescription-related
printouts. Withers was at work, on the job, and using Walgreen equipment when the
actions at issue occurred. Hinchy belonged to the general category of individuals to
whom Withers owed a duty of privacy protection by virtue of her employment as a
pharmacist. The fact that some of Withers’s actions were authorized, or incidental to
authorized actions, or of the same general nature as authorized actions, precludes
summary judgment. In other words, Ingram dictates that whether Withers was acting in
the scope of her employment was properly determined by the jury rather than as a matter
of law by the trial court.
Walgreen directs our attention to Doe v. Lafayette School Corporation in support
of its argument that this issue should not have gone to the jury. 846 N.E.2d 691 (Ind. Ct.
App. 2006), abrogated on other grounds by State Farm Mut. Auto. Ins. Co. v. Jakupko,
881 N.E.2d 654 (Ind. 2008). In Doe, a teacher sexually molested a student, and the
student sued the school under a theory of respondeat superior, contending that because
the relationship began at school and the teacher used his school laptop to continue the
11
relationship, the school should be vicariously liable for his actions. This Court affirmed
summary judgment in the school’s favor, noting that “simply because an act could not
have occurred without access to the employer’s facilities does not bring it within the
scope of employment.” Id. at 702. While an employer may be liable for an employee’s
criminal acts, that can be the case only if the employee’s actions were at least for a time
authorized by the employer. Id. An act that is done on the employee’s own initiative,
with no intention to perform it as part of the service for which he is employed, is an act
for which the employer is not responsible. Id.
The Doe Court noted that while the teacher sent emails to the student during
school hours, and also from home with his school-provided laptop, “there [was] no
indication that [the school] authorized him to send emails to students for personal
reasons.” Id. The Court went on to “conclude that [the teacher], on his own initiative
and unrelated to any school function, instigated an intimate relationship with Doe. In
addition, we conclude that his actions were not incident to any service provided by [the
school corporation], but rather were fueled entirely by self-interest in a romantic
relationship with Doe.” Id. The Court found, therefore, that the employer was not
vicariously liable for the employee’s actions.
We find Doe to be distinguishable from the instant case. In Doe, none of the
teacher’s actions were authorized by the employer. He was not authorized to pursue a
personal relationship with a student and he was not authorized to send emails of a
personal nature to students. While he used a school computer to send emails to the
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student, he used his personal email account to do so and sent the emails from home.
None of this conduct was of the same general nature as the teacher’s ordinary job duties.
Here, on the other hand, much of Withers’s conduct was of the same general nature as her
ordinary job duties, and much of her conduct was of the same general nature authorized
by her employer. The Doe Court acknowledged that “[i]f some of the employee’s actions
were authorized, the question of whether the unauthorized acts were within the scope of
employment is one for the jury.” Id. at 457. Here, as stated above, some of Withers’s
actions were authorized. Consequently, the trial court did not err by denying Walgreen’s
motions for summary judgment and directed verdict and permitting the jury to rule on the
issue.
Walgreen also argues that the trial court erred by permitting the jury to rule on
Hinchy’s claim of negligent retention and supervision. The parties agree, however, that if
Walgreen were to be found vicariously liable via respondeat superior, Walgreen could
not also be liable for negligent supervision and retention. Inasmuch as we have found
that the trial court properly permitted the jury to consider Walgreen’s liability based upon
respondeat superior, we need not, and will not, address the issue of negligent retention
and supervision.
B. Underlying Liability
Although Walgreen does not appeal the jury verdict itself, we observe that for
respondeat liability to attach, there must also be underlying liability of the acting party.
Hinchy proceeded to trial on two separate theories of direct liability against Withers:
13
professional malpractice and public disclosure of private facts. The jury was instructed
on both claims. Inasmuch as the verdict form was general, there is no way of knowing on
what basis the jury found Withers—and, by extension, Walgreen—liable for Hinchy’s
damages. Under these circumstances, we will affirm the verdict upon any theory
consistent with the evidence. Everage v. N. Ind. Pub. Serv. Co., 825 N.E.2d 941, 951
(Ind. Ct. App. 2005).
Without expressing opinion upon the recognition of the tort of public disclosure of
private facts in Indiana, we turn to the tort of negligence by virtue of professional
malpractice of a pharmacist. Negligence is comprised of three elements: (1) a duty on
the part of the defendant to the plaintiff; (2) a breach of that duty; and (3) an injury to the
plaintiff resulting from the breach. Kolozsvari v. Doe, 943 N.E.2d 823, 826 (Ind. Ct.
App. 2011). Indiana law recognizes a relationship between a pharmacist and her
customer that gives rise to a duty on the pharmacist’s part. Hooks SuperX, Inc. v.
McLaughlin, 642 N.E.2d 514, 517 (Ind. 1994). Furthermore, Indiana law provides that
“[a] pharmacist shall hold in strictest confidence all prescriptions, drug orders, records,
and patient information.” Ind. Code § 25-26-13-15(a). Unquestionably, therefore,
Withers had a duty of confidentiality to Hinchy. Also unquestionable is Withers’s breach
of that duty. Furthermore, Hinchy provided evidence of the damages she sustained as a
result of that breach. Under these circumstances, we find that the jury verdict can be
affirmed based upon the respondeat superior liability of Walgreen, which attaches via the
liability of Withers for her negligence/professional malpractice.
14
II. Ex Parte Communication
Walgreen next argues that the verdict should be reversed because of the trial brief
that Hinchy tendered to the court, under seal, without serving Walgreen with a copy. See
In re Anonymous, 729 N.E.2d 566, 569 (Ind. 2000) (noting that “[i]mproper ex parte
communications undermine our adversarial system” and “threaten[] . . . the fairness of the
resolution at hand”). In this case, Hinchy provided the trial court with a copy of her trial
brief. The trial court acknowledged that it had reviewed portions of the brief. Walgreen
objected and argued that it had a right to read the brief, and over Walgreen’s objections,
the trial court permitted Hinchy to withdraw the brief.
We do not condone this practice and strongly urge trial courts to prohibit the filing
of briefs “under seal.” With obvious exceptions for trade secrets and other legally
protected confidential information, nothing good can come from this practice. Had the
trial court realized that a copy of the brief had not been provided to Walgreen, the trial
court should have refrained from reading it. Inasmuch as Hinchy did not indicate to the
trial court that she had ostensibly filed the brief “under seal,” however, the trial court had
no reason to avoid the pleading, and we find no error in that regard. Once the trial court
realized what had happened, however, the better practice would have been to have
ordered Hinchy to provide a copy of the brief to Walgreen.
That said, we do not find this to be a reversible error. Had this been a bench trial,
this would be a different discussion. The jury, as factfinder, did not see the brief that
Hinchy filed and accordingly there was no jury taint. The trial court stated that it had not
15
thoroughly reviewed the brief and Walgreen points to no separate legal or procedural
error that could have only come from knowledge gained from the brief. We decline to
reverse on this basis. See tr. p. 808 (“review is a generous term . . . I couldn’t tell you
what’s in [the trial brief] quite honestly”).
III. Jury Instructions
Walgreen contends that several of the jury instructions were improper. In
reviewing a trial court’s decision to give a tendered jury instruction, we must determine
whether the instruction (1) correctly states the law, (2) is supported by the evidence in the
record, and (3) is not covered in substance by other instructions. Wal-Mart Stores, Inc. v.
Wright, 774 N.E.2d 891, 893 (Ind. 2002). When an instruction is challenged as an
incorrect statement of the law, we apply a de novo standard of review. Id. at 893-94.
When an instruction is challenged under the other two prongs, we defer to the trial court
and will reverse only for an abuse of discretion. Id. at 893. If a jury instruction
incorrectly states the law, “we assume that the erroneous instruction influenced the
verdict and will reverse unless the verdict would have been the same under a proper
instruction.” Id. at 895.
A. Jury Instructions 8 and 10: Respondeat Superior
1. Instruction 8
Final Instruction 8 reads as follows:
An employer is liable for the wrongful acts of its employee which
are committed within the scope of employment.
16
An act is within the scope of employment if it is incidental to the
employee’s job duties, that is to say, the employee’s wrongful act
originated in activities closely associated with her job.
In deciding whether an employee’s wrongful act was incidental to
her job duties or originated in activities closely associated with her
job, you may consider:
1. whether the wrongful act was of the same general nature as her
authorized job duties;
2. whether the wrongful act is intermingled with authorized job
duties; and
3. whether the employment provided the opportunity or the means
by which to commit the wrongful act.
Appellant’s App. p. 825.
Walgreen argues that this instruction is an incorrect recitation of Indiana law with
respect to its explanation of the term “incidental.” It directs our attention to the Bushong
definition of incidental: “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.” 790 N.E.2d at 473.
According to Walgreen, the fact that instruction 8 makes no mention of these standards
makes it erroneous as a matter of law.
Initially, we note that Walgreen’s argument amounts to a position that instruction
8 is an incomplete, rather than incorrect, statement of the law. As such, Walgreen was
required to tender a more complete instruction. FMC Corp. v. Brown, 526 N.E.2d 719,
731 (Ind. Ct. App. 1988). Walgreen makes no argument on appeal as to why its tendered
instructions on respondeat superior would have been preferable.
17
Moreover, to the extent that Walgreen argues that the mere facts that Withers was
on duty and using Walgreen equipment is insufficient to establish respondeat superior,
Hinchy agrees. But we agree with Hinchy that these facts are relevant and that a
reasonable jury may consider them in reaching its conclusion on the ultimate issue. Thus,
the instruction is a correct statement of Indiana law.
Furthermore, the definition of “incidental” included within instruction 8 is derived
from multiple sources. Celebration Fireworks, 727 N.E.2d at 453; Wilson v. Isaacs, 917
N.E.2d 1251 (Ind. Ct. App. 2009), vacated in part by 929 N.E.2d 200 (Ind. 2010); Ellis v.
City of Martinsville, 940 N.E.2d 1197 (Ind. Ct. App. 2011); Smith v. Ind. Dep’t of
Correction, 871 N.E.2d 975, 986 (Ind. Ct. App. 2007). Additionally, to the extent that
Walgreen finds fault with the clause regarding intermingling with job duties, we note that
this clause likewise finds support in Indiana caselaw. Stropes v. Heritage House
Childrens Ctr., 547 N.E.2d 244 (Ind. 1989); Celebration Fireworks, 727 N.E.2d at 453-
54; Interim Healthcare of Fort Wayne, Inc. v. Moyer, 746 N.E.2d 429 (Ind. Ct. App.
2001); Kemezy v. Peters, 622 N.E.2d 1296 (Ind. 1993); Wilson, 917 N.E.2d at 1258. We
find instruction 8 to be a correct statement of the law and decline to reverse on this basis.
2. Instruction 10
Final Instruction 10 reads as follows: “You are instructed that [Withers] admits
she was acting in the course and scope of her employment with Walgreen Co. when she
reviewed [Hinchy’s] prescription information.” Appellant’s App. p. 827.
18
Walgreen argues that this instruction is misleading because it could have led the
jury to find that Withers’s admission was binding on Walgreen. See 22 Ind. Prac., Civil
Trial Practice § 26.2 (observing that an “admission is not binding on any party other than
the admitting party”). Over Walgreen’s objection, the trial court removed a second
sentence to the instruction: “You are to accept this fact as conclusive and binding as to
[Withers].” Tr. p. 1027-28. The trial court removed the sentence because it made it
sound as if it only applied to the case against Withers. Id. at 1028. Walgreen argues that
the instruction should not have been given at all, but if it were given, should have at least
included the second sentence.
Walgreen overlooks the distinction between Withers’s admission being “binding”
and being “relevant.” While her admission was not binding as to Walgreen, it was
relevant to whether she was acting in the course of her employment, which is relevant to
the ultimate determination of vicarious liability. Additionally, we note that Walgreen
extensively cross-examined Withers and made sure the jury understood that the
admission had been made by Withers’s attorney and that she did not necessarily
understand what it meant. Tr. p. 690-91. Therefore, any error was cured by Walgreen’s
own questioning.
B. Jury Instructions 5 and 11: Public Disclosure of Private Facts
Walgreen next argues that two of the jury instructions related to the tort of public
disclosure of private facts were erroneous. Initially, we note that Walgreen is not
appealing the denial of summary judgment on the claim of privacy invasion through
19
public disclosure of private facts. Instead, it is merely objecting to the jury instructions
on this claim. Its entire argument with respect to Instruction 5 rests on the position that
the tort is not recognized in Indiana and the jury should never have been instructed
thereon. This is merely an attempt to make a back-door argument to the trial court’s
denial of summary judgment on this issue. Inasmuch as Walgreen has not taken the
position on appeal that the trial court erred by denying summary judgment on this tort, we
will not address this claim of error.
With respect to Instruction 11, Walgreen argues that it uses the so-called
“Beaumont standard,” which Walgreen argues has not been adopted in Indiana. We
cannot agree. To establish public disclosure of private facts, a plaintiff must demonstrate
that the defendant gave publicity to a matter concerning the private life of another that
would be highly offensive to a reasonable person and that is not of legitimate public
concern. Vargas v. Shepherd, 903 N.E.2d 1026, 1031 (Ind. Ct. App. 2009). As
explained by our Supreme Court,
In the seminal Beamont[v. Brown, 257 N.W.2d 522 (Mich. 1977),]
case, the Supreme Court of Michigan held that even if a disclosure
were not made to the general public, it could still be actionable if
made to a “particular public” with a special relationship to the
plaintiff, such as co-workers, family members, or neighbors. Id. at
531.
Doe v. Methodist Hospital, 690 N.E.2d 681, 692-93 (Ind. 1997). This Court has
repeatedly held that the “particular public” standard included in Beaumont is to be
applied in this State as well. See Vargas v. Shepherd, 903 N.E.2d 1026, 1031 (Ind. Ct.
20
Ohio App. 2009); Munsell v. Hambright, 776 N.E.2d 1272, 1283 (Ind. Ct. App. 2002). Under
these circumstances, we do not find that Instruction 11 improperly stated the law by
incorporating the Beaumont standard.2
IV. Amount of Jury Verdict
Finally, Walgreen argues that the damages award was excessive and based on
improper factors. A person injured by the conduct of another is entitled to reasonable
compensation. Zambrana v. Armenta, 819 N.E.2d 881, 890 (Ind. Ct. App. 2005). Juries
have a great deal of discretion in assessing damage awards, but this discretion, “while
broad, is not limitless.” Id. Where a damage award “is so outrageous as to indicate the
jury was motivated by passion, prejudice, partiality, or the consideration of improper
evidence, we will find the award excessive.” Id. In considering this issue, we will look
only at the evidence and inferences that support the jury’s verdict, and will deem a
verdict to be the result of improper considerations only when it cannot be explained on
any other reasonable ground. Sears Roebuck & Co. v. Manuilov, 742 N.E.2d 453, 462
(Ind. 2001).
At trial, the following evidence was admitted involving Hinchy’s damages:
 Withers gained information about Hinchy’s private health
information, including her social security number, and then shared
that information with Peterson, who then shared the information
with at least three other people.
2
We engage in this analysis without expressing an opinion on the viability of the tort itself in Indiana. As
noted above, that question is not properly raised in the context of this appeal, so we will not address it
herein.
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 Hinchy’s father learned about Hinchy’s use of birth control, that
Hinchy had herpes, and that Hinchy had stopped taking birth
control shortly before becoming pregnant.
 Hinchy testified that she experienced mental distress, humiliation,
and anguish as a result of the breach. She stated that she was
upset, crying, and feeling “completely freaked out . . . .” Tr. p.
416-17, 431. She felt “violated,” “shocked,” and “confused.” Id.
at 419.
 The disclosure led to Peterson berating Hinchy for “getting
pregnant on purpose” and eventually extorting Hinchy by
threatening to release the details of her prescription usage to her
family unless she abandoned her paternity lawsuit. Id. at 423-24;
569-70.
 Hinchy testified that she experienced uncontrollable crying that
affected her ability to care for her child, going to a counselor to
address the emotional toll of the privacy breach, experiencing a
general distrust of all healthcare providers, and feeling a persistent
and continuous loss of “peace of mind.” Id. at 444.
 Hinchy also testified that she now takes Celexa, an anti-depressant,
which costs $75 per month. Before the breach, she had taken a
weaker anti-depressant intermittently, and had not taken it for more
than one year before the breach.
Walgreen directs our attention to the following facts in support of its damages
argument: (1) Hinchy does not have a physical injury or condition resulting from the
breach, (2) Hinchy has had no lost wages as a result of the breach, and (3) Hinchy did not
offer any testimony from a medical professional or counselor supporting her claim of
emotional distress. These arguments amount to a request that we reweigh the evidence, a
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practice in which we do not engage when evaluating a damages award. We find that the
evidence in the record supporting the award is sufficient to affirm it.3
We also note that the jury reduced its award by 20%, finding Peterson responsible
for Hinchy’s damages to that extent. This indicates “that the jury exercised its discretion
to evaluate and weigh the evidence to reach a conclusion regarding damages.” Reed v.
Bethel, 2 N.E.3d 98, 104 (Ind. Ct. App. 2014). Consequently, we decline to disturb the
damages award assessed by the jury.
CONCLUSION
In conclusion, we have found as follows: (1) the trial court did not err denying
Walgreen’s summary judgment and directed verdict motions on respondeat superior
liability; (2) the trial court did not commit reversible error with respect to an ex parte
brief filed by Hinchy; (3) the jury instructions were not erroneous; and (4) the damages
award was not excessive or based on improper factors.
The judgment of the trial court is affirmed.
KIRSCH, J., and ROBB, J., concur.
3
To the extent that Walgreen directs our attention to a question asked by one of the jurors as support for
its argument regarding damages, we note that Walgreen did not object to the question at trial.
Consequently, we find that any argument related to this question has been waived.
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