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Before Ruling on Motion for Summary Judgment, Court Grants Plaintiff Limited Discovery in Defamation Suit

Jennifer Kimbler v. Kevin Spear, et al.
No. 1:16CV00047 (April 11, 2017) United States District Court for the Western District of Virginia

by Julia L. Houp, Law Clerk
Semmes, Bowen & Semmes (

Available at:

Jennifer Kimbler is a dosimetrist who was employed by Mountain States Health Alliance (“MSHA”) at the Johnston Memorial Hospital in Abingdon, Virginia.; In her role as a dosimetrist, Kimbler worked as part of a team with a physicist from Hannleb, Michelle Schwer, and an oncologist, Dr. Tisdale.

Hannleb is a medical physics and dosimetry company that provides certain services, such as review services, to MSHA.; Kevin Spear, in his capacity as an agent of Hannleb, conducted an external audit 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 Counseling/Correction Action Notice” from MSHA that referred to the audit.; Following the notice, Kimbler resigned from her position with MSHA.; After her 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 suit against Spear and Hannleb, alleging that the external audit conducted “contain[ed] false and defamatory statements about [her] professional ability.”; She alleged that the audit “falsely suggest[ed] that [she] purposefully mistreated patients,” and that its purpose was to “state or imply that [she] was guilty of unethical and unprofessional conduct and that her employment should be terminated.”; She also claimed 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.”

The defendants filed a Motion for Summary Judgment, arguing that they were 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.”; Kimbler argued in response that the statements made 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 declares have been sufficiently alleged.”

Pursuant to the Federal Rules of Civil Procedure, a court is required 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).; The non-moving party must address the movant’s assertions as to material facts, thus, “[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).; Accordingly, where a non-movant 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, 721 F.2d at 483-84.

The United States District Court for the Western District of Virginia found that Kimbler was forced to oppose the defendants’ Motion for Summary Judgment with limited information.; The court held that not only did Kimbler lack discovery, but additionally—due to the defendants’ failure to file an answer—she lacked factual information regarding the defendants’ position. ;In order to succeed on a Rule 56(d) motion, “[n]on-movants must generally file an affidavit or declaration . . . or . . . put the district court on notice as to which specific facts are yet to be discovered.”; McCray, 741 F.3d at 484.; Kimbler has done so.

Additionally, Kimbler seeks discovery of evidence that is within the control of others.; “[S]ufficient time for discovery is considered especially important when the relevant facts are exclusively in the control of the opposing party.”; Harrods Ltd. V. Sixty internet Domain Names, 302 F.2d 214, 246-47 (4th Cir. 2002). Kimbler also aims to show that the defendants acted maliciously in order to overcome the immunity and qualified privilege defenses.; “Summary judgment prior to discovery can be particularly inappropriate when a case involves complex factual questions about intent and motive.”; Id. at 247.

Based on the circumstances, the court granted Kimbler limited discovery before ruling on the defendants’ Motion for Summary Judgment.; In light of the issues concerning immunity and qualified privilege, the court granted discovery, limiting Kimbler to (1) conduct a deposition by oral examination of Spear solely as to matters relevant to the defenses of immunity and qualified privilege and (2) require the defendants prior to the deposition to provide to the plaintiff a full copy of the Service Agreement and Business Associate Addendum between Hannleb and MSHA, before ruling on the Motion for Summary Judgment.