Walgreens
WILMINGTON, Del. - A male model who was offended by a pharmacist who asked if he was in line for an HIV screen on a national testing day has no defamation case, a Delaware court ruled.
Not only did the plaintiff fail to plead any economic or physical damages, but the pharmacist was asking everyone the same question on national HIV testing day, the court said.
Kenneth Flowers, representing himself, sued Walgreens after he visited the Wilmington store on June 27, 2024. When he reached the front of the line, Flowers said, the pharmacist asked if he was there for an HIV test. Others in line stared, making him feel “some kind of way,” Flowers said.
Flowers called in a complaint after leaving the store and the pharmacist called back to apologize. But the plaintiff sued anyway in August 2024, claiming defamation and negligence for violating the Health Insurance Portability and Accountability Act, or HIPAA.
Walgreens moved to dismiss and the Delaware Superior Court granted the request.
“The statement at issue is not defamatory because the pharmacist simply asked plaintiff if he wanted an HIV test,” wrote Judge Danielle J. Brennan in a Jan. 2 decision. “The pharmacist did not accuse plaintiff of having HIV.”
Even if the claim was valid, the judge said, Flowers failed to plead special damages, such as economic loss, as required under Delaware law. All he said was he was an “established model” and the pharmacist’s question might damage his reputation.
Flowers also failed to provide any evidence the emotional harm caused physical symptoms as required under Delaware law, the judge said.
Flowers tried to get around the requirement for special damages by pleading slander per se, which includes wrongfully accusing someone of committing a crime or having “a loathsome disease.” Although there is little case law addressing accusations of “loathsome disease,” such a case requires some evidence of bad faith.
The pharmacist asked on HIV testing day, undermining any such claim, the court concluded.
