## Facts

- Abigail Hinchy filled prescriptions, including oral contraceptives, at a Walgreen pharmacy.
- Hinchy had an on-and-off relationship with Davion Peterson (2006–2010) and became pregnant with his child in 2009.
- Peterson began dating Walgreen pharmacist Audra Withers in 2009.
- While working a shift, Withers used Walgreen’s computer system to access Hinchy’s prescription profile for personal reasons, seeking information related to possible sexually transmitted disease exposure.
- Soon after, Peterson texted Hinchy that he had a printout indicating she had not refilled birth-control prescriptions before the pregnancy, suggesting that Hinchy’s pharmacy records had been accessed and shared.
- Hinchy later linked Peterson to Withers and reported the suspected improper access/disclosure to Walgreen.
- Walgreen investigated and concluded Withers accessed the records for personal reasons, but asserted it could not confirm third-party disclosure.
- Hinchy sued Withers and Walgreen, alleging vicarious liability and Walgreen’s own negligence (including negligent retention and supervision).
- A jury returned a verdict for Hinchy and awarded approximately $1.8 million in damages.

## Issues

1. Whether Walgreen was entitled to judgment as a matter of law because Withers’s access and alleged disclosure were outside the scope of employment, defeating respondeat superior liability.
2. Whether Walgreen was entitled to judgment as a matter of law on claims for negligent retention and supervision based on foreseeability and notice.
3. Whether the trial court committed reversible error in jury instructions addressing scope of employment and public disclosure of private facts.
4. Whether a sealed trial brief not served on Walgreen required reversal as improper ex parte communication.
5. Whether the damages award was excessive under Indiana law.
6. Whether Hinchy adequately pled and preserved a direct negligence/professional-malpractice theory against Walgreen under Indiana notice pleading.

## Decision

- The Court of Appeals of Indiana affirmed the judgment for Hinchy in all material respects.
- The court held the evidence permitted a reasonable jury to find Withers acted within the scope of employment for respondeat superior purposes, despite a personal motive.
- The court held the evidence permitted a reasonable jury to find Walgreen directly liable for negligent retention and supervision.
- The court found no reversible error in the challenged jury instructions when read as a whole.
- The court held the sealed, unserved trial brief did not warrant reversal absent a showing of prejudice.
- The court upheld the approximately $1.8 million verdict as not legally excessive.
- On rehearing, the court rejected Walgreen’s late argument that a direct negligence/professional-malpractice claim was not pled, concluding the operative facts and litigation conduct provided adequate notice.

## Legal Principles

- Scope of employment is commonly a fact question; an employee’s wrongful act may support respondeat superior liability when the act occurs at work using employer systems and is connected to the employee’s job-created access, even if personally motivated.
- An employer may be directly liable for negligent retention and supervision when it has notice of an employee’s prior conduct indicating a risk of harm and fails to take reasonable steps to prevent foreseeable misuse of access to sensitive information.
- Jury instructions are reviewed as a whole; reversal is warranted only when instructions misstate the law or mislead the jury to the appellant’s prejudice.
- Procedural irregularities in trial communications do not justify reversal without a showing of specific prejudice affecting the outcome.
- A damages award will not be set aside as excessive unless it is so extreme that it indicates the jury acted from improper motives rather than the evidence.
- Under Indiana notice pleading, a plaintiff need not use precise labels if the operative facts, filings, and trial presentation provide fair notice of the theory pursued.

## Conclusion

The court upheld a substantial jury verdict imposing both vicarious liability and direct negligence liability on a pharmacy after a pharmacist accessed a customer’s prescription records at work for personal reasons and the evidence supported a finding that the confidential information was wrongfully disclosed, causing compensable harm.


Walgreen Co. v. Hinchy, 21 N.E.3d 99 (Ind. Ct. App. 2014)