IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
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`PAYDHEALTH, LLC, :
` Plaintiff, :
` :
` v. : CIVIL ACTION NO. 24-259
` :
`DAWN G. HOLCOMBE, doing business :
`as DGH Consulting, :
` Defendant. :
`
`MEMORANDUM
`KENNEY, J. November 4, 2025
`In this defamation action, Plaintiff Paydhealth, LLC (“Plaintiff,” “Paydhealth,” or the
`“Company”), alleges one claim of defamation per se against Dawn G. Holcombe (“Defendant” or
`“Ms. Holcombe”) for statements made at a 2023 pharmaceutical industry conference in
`Philadelphia, Pennsylvania, and for the republication of such statements in a February 2024 online
`article. Discovery is now complete, and Ms. Holcombe moves for summary judgment as to
`Paydhealth’s claim of defamation per se. ECF No. 93. Paydhealth has also filed its own partial
`motion for summary judgment, see ECF No. 94, and a motion to exclude Ms. Holcombe’s expert
`testimony, see ECF No. 92.
`Upon consideration of all relevant filings (ECF Nos. 92–103), the docket, and the
`undisputed factual record before the Court, for the reasons set forth below, Ms. Holcombe’s
`Motion (ECF No. 93) is GRANTED in full , and Paydhealth’s Partial Motion for Summary
`Judgment (ECF No. 94) and Daubert Motion (ECF No. 92) are DENIED as moot.1 An appropriate
`order will follow.
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`1 “[A] District Court should consider cross -motions for summary judgment separately and apply
`the appropriate burden of production to each motion.” Beenick v. LeFebvre, 684 F. App’x 200,
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`I. FACTUAL BACKGROUND2
`The facts of the case are largely straightforward. Paydhealth is a Texas Limited Liability
`Company wholly owned by Desert Shore Capital Partners and based in Dallas, Texas . ECF No.
`95 (“Plaintiff’s Stipulated Facts” or “PSF”) ¶¶ 1–2. The owners of Desert Shore Capital Partners,
`including Dr. David Galardi (“Dr. Galardi”) , the Company’s Chief Commercial Officer, and Dr.
`Mark Strollo (“Dr. Strollo”), the Company’s Chief Operating Officer, founded Paydhealth in 2019.
`Id. ¶ 3; ECF No. 93-2 (“Defendant’s Stipulated Facts” or “DSF”) ¶¶ 12, 24. The Company’s Chief
`Legal Officer, Talcott J. Franklin, joined Paydhealth on October 1, 2023, after previously serving
`as Plaintiff’s counsel both pro bono and on an hourly basis. PSF ¶ 4.
`Dawn Holcombe is a 67 -year-old resident of Connecticut who serves as the Editor -and-
`Chief of Oncology Practice Management and President of DGH Consulting. DSF ¶¶ 1–3. As part
`of her work with Oncology Practice Management , Ms. Holcombe “regularly publishes articles
`related to the healthcare industry.” Id. ¶ 2. Ms. Holcombe’s work with DGH Consulting involves
`providing “ consulting and speaking services to practices, pharma, and payers in strategy
`development, MD/payer negotiations and relationships, and oncology management and
`pathways.” Id. ¶ 3.
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`205 (3d Cir. 2017) (citing Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d Cir. 2008)). A
`District Court will not “violate this rule” when it addresses the defendant’s “ motion for summary
`judgment first,” rather than “consider[ing] the cross -motions simultaneously.” Id. Because the
`Court considers Ms. Holcombe’s motion for summary judgment first and—construing all material
`facts in favor of Paydhealth , the non -movant—finds that Defendant is entitled to summary
`judgment on Plaintiff’s claim for defamation per se, “any need to consider [Paydhealth’s] cross -
`motion for partial summary judgment” is mooted. Id. at 205–06. Further, the question of whether
`Dawn Holcombe satisfies the Daubert standard, see Daubert v. Merrell Dow Pharmaceuticals,
`Inc., 509 U.S. 579 (1993), to qualify as an expert is now moot.
`2 The facts are largely drawn from the parties’ stipulated fact submissions (ECF Nos. 93-2, 95)
`and the exhibits cited therein.
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`A. Paydhealth’s AFP Categorization and the Company’s Response: 2022–2023
`Paydhealth is sometimes referred to as an “alternative funding provider” or “AFP,” a
`categorization used to describe Patient Assistance Programs (“PAPs”) “that provide funding for
`patients who cannot afford very expensive prescription drugs,” as well as entities “that provide
`services to help patients gain access to funding from PAPs or other sources of funds .” Id. ¶¶ 19,
`28. Members of the health care industry publicly categorized Plaintiff as an AFP in online articles
`in 2022 and 2023. Id. ¶¶ 29, 40; ECF No. 93-4 at 152, 169.
`With Paydhealth’s AFP characterization came negative press. For example, on August 2,
`2022, Dr. Galardi received an email from an outside pharmacist requesting comment on an article
`written by Adam Fein, Ph.D., titled “The Shady Business of Specialty Carve -Outs, a.k.a.,
`Alternative Funding Programs.” DSF ¶ 29. The article, which purported to discuss the “scheme”
`of “specialty carve outs, also known as alternative funding programs (AFP),” explained that
`“[s]ome or all specialty drugs are administered by a secretive third -party vendor that is separate
`from the commercial plan’s PBM,” and listed Paydhealth as one such “third-party vendor.” ECF
`No. 93-4 at 153. The article later stated that the “third -party vendor helps the patient disguise
`themselves as ‘uninsured’ so they can apply for the manufacturer’s PAP funds to cover the cost of
`the prescriptions,” and is estimated to “retain up to 20% to 25% of a drug’s full list price, i.e., the
`value of charitable funds provided to the patient.” Id. When asked about the article in his
`deposition, Dr. Galardi described it as “obviously quite pejorative about AFPs,” and noted that “it
`specifically mention[ed] Paydhealth as an AFP.” DSF ¶ 30.
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`In June 2023, Dr. Galardi received another email “referr[ing] to an article about a federal
`court lawsuit by the pharmaceutical company . . . AbbVie against an AFP by the name of Payer
`Matrix.” DSF ¶ 35. The article referred to AbbVie’s previous decision to update its
`patient assistance program application to include the following comments: Patients
`with insurance plans or employers participating in an alternate funding program
`(also sometimes referred to as patient advocacy programs, specialty networks,
`SHARx, Paydhealth, or Payer Matrix, among other names) requiring them to apply
`to a manufacturer’s patient assistance program or otherwise pursue specialty drug
`prescription coverage through an alternate funding vendor as a condition of,
`requirement for, or prerequisite to coverage of relevant AbbVie products, or that
`otherwise denies, restricts, eliminates, delays, alters, or withholds any insurance
`benefits or coverage contingent upon application to, or denial of eligibility for,
`specialty drug prescription coverage through the alternate funding program are not
`eligible for the myAbbVie Assist program.
`Id. ¶ 36.
`B. October 2, 2023 Conference (“October 2023 Conference”)
`Against this backdrop, Ms. Holcombe gave her presentation on AFPs. On October 2, 2023,
`Ms. Holcombe gave “a three-hour presentation and ‘workshop’” titled “Understand the Nuances
`and Impact of Alternat e Funding Programs” at the Copay, Reimbursement and Access Congress
`conference in Philadelphia, Pennsylvania, hosted by Informa Connect . DSF ¶ 4 ; PSF ¶¶ 10–11.
`A slide deck, which discussed AFPs generally and individual service providers labeled as AFPs ,
`accompanied her oral presentation . PSF ¶ 13a ; ECF No. 96- 1 at 124. Prior to the Conference,
`Informa Connect alerted Ms. Holcombe that “stakeholders” were present in the audience. PSF ¶
`10. Dr. Strollo was also present, attending as a partner of Desert Shore Capital Partners, LL C.
`DSF ¶¶ 13–14.
`While Ms. Holcombe discussed various entities she classified as “Third Party Vendors”
`during her presentation, she most notably presented nine slides regarding Paydhealth specifically.
`ECF No. 96-1 at 146, 151–59. Ms. Holcombe’s Paydhealth-related slides primarily depicted (1)
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`a description of Paydhealth’s business model and client messaging, (2) a list of prescription drugs,
`labeled on the slides as “PaydHealth Select Drugs and ProductsSM List 1/1/22,” which she referred
`to verbally as a “non -essential health benefit list,” and (3) excerpts from a Payd health contract
`with a Tennessee entity. Id.; PSF ¶ 13b.
`Paydhealth claims that, during the presentation, Ms. Holcombe made the following
`defamatory statements regarding Paydhealth:3
`• Statement #1 : “Holcombe told the live and online audiences that Paydhealth
`misclassified hundreds of drugs as ‘non-essential’ and deliberately ‘fooled’ PAPs into
`approving aid requests. She also asserted that Paydhealth usurped from prescribing
`physicians ‘final authority over the prescribed products and drugs’ patients receive and
`that ‘these companies’ like Paydhealth will compromise patient safety by ‘deliver[ing]
`the drugs to your home or your office’ instead of allowing doctors to administer them.”
`¶ 1.
`• S
`tatement #2 : “She said next: These folks are absolutely promising: No more copays
`for qualifying employees, and we will deliver the drugs to your home or your office.
`They’re doing both, brown bagging and white bagging.
`o Holcombe explained that ‘this is a very, very important issue’ because ‘brown
`bagging and white bagging’ make doctors ‘very worried about . . . patients
`receiving drugs from a source’ the doctors do not ‘trust.’ She added that ‘most
`of these [drugs] are toxic,’ making ‘stability and handling’ of the drugs ‘very
`important.’” ¶ 33.
`• Statement #3: “She claimed, falsely, that Paydhealth has a ‘non-essential health benefit
`list’ that includes up to ‘500 drugs,’ which she described as ‘pervasive’.” ¶ 34.
`• S tatement #4 : “Further on in her presentation, Holcombe asserted that Paydhealth
`disappoints its healthcare plan clients ‘because they don’t get a choice’ about whether
`Paydhealth provides advocacy services for their plans’ participants. The ‘health plan
`sometimes isn’t happy,’ she claimed, since the plan ‘built their risk profile on having
`all the services.’” ¶ 36.
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`3 The statements are quoted verbatim from an email from Plaintiff’s counsel dated November 26,
`2024, later repeated in Plaintiff’s Fourth Supplemental Response to Defendant’s Second Set of
`Interrogatories, and cite directly to the Amended Complaint. See DSF ¶ 8 & n.1; see also ECF
`No. 93-3 at 215–16; ECF No. 96-3 at 92–106.
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`• Statement #5 : “Holcombe next accused Paydhealth of sometimes overriding the
`doctor’s ‘final authority over the prescribed products and drugs.’ Showing a slide
`quoting language in Paydhealth’s contract, she said (with emphasis added):
`o They did say the customer acknowledges that the doctor has final authority over
`the prescribed products and drugs. This is not always the case. Sometimes
`they’ll come in with an alternative drug that they suggest, and it’s one that they
`have found a more favorable or more amenable or more easily fooled assistance
`program. And so they say, well, ‘don’t use this drug, use this drug because we
`can get this drug through our program. But this one we can’t [get] because the
`manufacturer or the assistance folks have our, they’re onto us, and they won’t
`let us process it’ and they’ll lose their margin, their 30 percent fee.” ¶ 37.
`• Statement #6 : “Holcombe’s final accusation specifically about Paydhealth implied
`that Paydhealth misleads healthcare plan clients about the savings Paydhealth can
`deliver. The statement noted that Paydhealth uses First Databank’s reports of list prices
`as the benchmark for computing savings. ‘I really thought First Databank was out of
`business.’” ¶ 38.
`C. Immediate Reception
`Dr. Strollo expressed during his deposition that as Ms. Holcombe’s presentation
`progressed, the attendees grew angry, “like it was a mob activity.” ECF No. 96 -2 at 8 7. He
`explained that “you could tell that everyone was just getting, like, more and more, like,
`unbelievable that that type of activity was occurring. And my—I guess what I was observing was
`the same feeling I had, was that this is very upsetting that this type of activity was going on.” Id.
`Dr. Strollo did not speak to any of the attendees at the October 2, 2023 conference, nor has he
`“spoken to any of them since then.” DSF ¶ 16.
`D. Lawsuit
`Ms. Holcombe did not have contact with anyone from Paydhealth in the months
`immediately following the October 2023 conference. See ECF No. 96-6 at 216. This silence from
`Paydhealth broke on January 19, 2024, when Paydhealth filed its first Complaint against Ms.
`Holcombe before this Court, alleging one claim of defamation per se. DSF ¶ 5; see also ECF No.
`1 at 12 . In the initial Complaint, Paydhealth alleged that Ms. Holcombe made various false
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`statements regarding Paydhealth’s operations and business model during the October 2, 2023
`presentation. See PSF ¶ 15. Specifically, Plaintiff lodged the following allegations, inter alia: (a)
`“Paydhealth recognizes that the physician who prescribes a specialty drug for a plan participant
`has sole authority to determine which drug to prescribe,” (b) “[u]sing the leading reporters of list
`prices for specialty drugs, First Databank, Inc. and MediSpan, clients can easily compute the
`Paydhealth fee it receives to provide advocacy services to a plan participant when a fee is based
`on the list price of a specialty drug,” (c) “Paydhealth does not have a non-essential benefits list.
`The list Holcombe showed her audience was Paydhealth’s Select Drugs and Products SM list,” (d)
`“Paydhealth clients have discretion to include or exclude a particular drug on the program list.
`Paydhealth’s compliance with the contracts does not disappoint clients or make them unhappy. In
`fact, it does the exact opposite . . . . ,” (e) “Paydhealth provides no clinical services to plan
`participants, does not engage in therapeut ic drug substitution, and does not control any plan’s
`coverage policy or the selection and ranking of drugs on the plan’s formulary,” and (f) “ First
`Databank has an active website, which states that it creates and delivers trusted drug databases. ”
`Id.; see also ECF No. 1 ¶¶ 20–21, 33–35, 37.
`Ms. Holcombe was served with the Complaint on January 26, 2024. ECF No. 12.
`Immediately thereafter, she began reaching out to industry colleagues and family members
`regarding the suit, expressing “counterpoint[s] to [Paydhealth’s] assertion[s],” “commentary” on
`the lawsuit, and—often—requests for support. See, e.g., ECF No. 96-6 at 216–17, 219, 221, 223,
`225–27, 229.
`E. February 2024 Online Article
`In February 2024, Ms. Holcombe published an article titled “AFPs in 2024—A Hotspot
`for Concern and Action” in that month’s issue of Oncology Practice Management (“February 2024
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`Article”). DSF ¶ 6; PSF ¶ 17. In the February 2024 Article, Ms. Holcombe stated that “[s]ome
`known AFP vendors include ImpaxRx, PaydHealth, Payer Matrix, RxFree4me, SHARx,
`SavOnSP, and ScriptSourcing.” ECF No. 96-6 at 286–87. The Article did not otherwise address
`Paydhealth directly. Id.
`Paydhealth asserts that Ms. Holcombe’s February 2024 Article “republish[ed] her
`defamatory statements,” see ECF No. 33 (“Am. Compl.”) ¶ 41, in the following ways:
`• Statement #7 : “Holcombe again condemned AFPs, accused AFPs of various
`misconduct, and imputed that misconduct to Paydhealth by specifically identifying
`Paydhealth by name as a ‘known AFP vendor[].’” ¶ 42.
`• S tatement #8 : “Holcombe wrote, for instance, that AFPs (which, she claimed, included
`Paydhealth) ‘convince the employer to simply eliminate or delay coverage for specific,
`or in some cases all, specialty drugs,’ forcing employees to “enroll with the AFP in
`order for the AFP to bill the employer for claimed services or savings under the AFP
`model.” Holcombe further asserted that the ‘AFP suggests that they can find alternative
`pricing or sources for the needed drug (including foreign drug importation) or
`sometimes alternative drugs (tantamount to nonmedical switching)’ and implied that
`AFPs keep physicians in the dark about this conduct. She also made other claims of
`business misconduct, including that ‘the AFP’ pressures plan participants ‘with very
`negative alternatives’ and ‘disrupts medical treatment’ and that AFPs’ business model
`‘make[s] no medical or ethical sense.’” ¶ 43.
`See supra n.3.
`F. Alleged Harm to Plaintiff
`Paydhealth maintains that Ms. Holcombe’s statements during the October 2023
`Conference and in the February 2024 Article “caused actual injury to Paydhealth’s reputation.”
`Am. Compl. ¶ 47 (“ Holcombe’s publication of the defamatory statements, both at the Congress
`and in the February 2024 article, caused actual injury to Paydhealth’s reputation by calling into
`doubt in the minds of her audiences Paydhealth’s fitness for the conduct of its busi ness.”). Per
`Plaintiff’s Fourth Supplemental Response to Defendant’s Second Set of Interrogatories , see ECF
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`No. 96-3 at 83, it is the Court’s understanding that Paydhealth conveyed to Ms. Holcombe that it
`suffered the below six major categories of reputational harm:4
`• AbbVie: “Abbvie has sued Payer Matrix over some of the same conduct that Holcombe
`falsely accuses Paydhealth of engaging in. An Abbvie representative was present at
`Holcombe’s presentation . . . and would therefore place Paydhealth into the same
`category as Payer Matrix.” ECF No. 96-3 at 108–09.
`• P aydhealth’s Chief Legal Officer : “Even though [Mr. Franklin’s] subsequent
`investigation demonstrated Holcombe was not telling the truth, Paydhealth’s reputation
`has still been diminished in his eyes. He is no longer proud to tell people he is
`Paydhealth’s Chief Legal Officer and disassociates himself from the business . . . .” Id.
`at 110. Further, “Paydhealth’s Chief Legal Officer passed on a significant opportunity
`to introduce Paydhealth to a large group of potential clients because he was afraid
`Holcombe’s misrepresentations would negatively taint some pro bono work,” and
`“gave up on another opportunity to promote Paydhealth during a presentation he made
`at the 2025 VITAL conference on February 6, 2025.” Id. at 110–11.
`• C
`arl Schmid of HIV + HEP Policy Institute : “Carl Schmid of HIV + HEP Polic y
`Institute (HIV + HEP) attended Holcombe’s presentation about ‘ Alternative Funding
`Programs’ at the 2022 Informa Connect Conference. He was clearly negatively
`influenced by her presentation . . . . Schmid was negatively influenced by Holcombe’s
`[October 2023] presentation, and, indeed, moved to share the P owerpoint with NBC
`Universal’s Jean Lee . . . . Schmid later was moved to prepare and send the
`correspondence” from HIV + HEP, wh ich referenced Ms. Holcombe’s work, to
`Congress. Id. at 111–12.
`• P aydhealth’s Chief Operations Officer : “Paydhealth’s Chief Operations Officer . . .
`attended Holcombe’s October 2, 2023 presentation at the 2023 Informa Connect
`Conference” and “observed a shift in the mood of the attendees from interest to hostility
`to a nearly mob mentality.” Id. at 112–13. As a result of her statements, “[h]e did not
`want to be associated with Paydhealth given how Holcombe had turned the attendees
`against AFPs in general and Paydhealth in particular, and he therefore did not make
`any statement in defense of Paydhealth.” Id. at 113–14. Further, Dr. Strollo observed
`that “Holcombe solicited from the audience ideas of what could be done to stop AFPs.
`One such response was ‘Why doesn’t somebody like Pfizer sue them?’” Id. at 114.
`• P
`aydhealth’s Chief Commercial Officer: “Holcombe’s misrepresentations
`concerning Paydhealth switching plan participants to alternative drugs, Paydhealth
`importing medications, Paydhealth having a non-essential benefits list, and Paydhealth
`acting as a pharmacy and/or an unlicensed medical pra cticioner [sic] have foreclosed
`Paydhealth from entering into two critical markets that Paydhealth was created to
`service: doctors’ offices and pharmaceutical companies / patient assistance programs
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`4 The following are mere summaries of the harm alleged in Plaintiff’s Fourth Supplemental
`Response to Defendant’s Second Set of Interrogatories , see ECF No. 96 -3 at 83, and do not
`completely reflect the information contained therein.
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`. . . . Until Holcombe’s misrepresentations are corrected or adjudicated as false,
`Paydhealth is unable to enter these markets.” Id. at 114–15.
`• Patient Assistance Program Eligibility: “Shortly after Holcombe’s presentation, the
`following patient assistance programs changed their enrollment forms to exclude all
`members in the Paydhealth program from signing up to receive assistance: Benlysta
`Gateway and Genentech -Access . . . . A representative of GlaxoSmithKline, which
`owns the Benlysta trademark, and funds the Benlysta Gateway program, attended
`Holcombe’s presentation,” as well as “[a] representative of Genentech.” Id. at 115–18.
`Paydhealth’s alleged harm is discussed in further detail below, infra Section IV.C.
`II. PROCEDURAL HISTORY
`As described above, Paydhealth filed suit against Ms. Holcombe on January 19, 2024,
`alleging one claim of defamation per se . ECF No. 1 at 12. Following the grant of a 60- day
`extension to respond, see ECF No. 15, Ms. Holcombe filed a Motion to Dismiss for Failure to
`State a Claim on April 30, 2024. ECF No. 23. Briefing was complete as of June 5, 2024, and the
`Court granted the Motion to D ismiss for failure to adequately plead actual harm to Paydhealth’s
`reputation on July 11, 2024. See ECF Nos. 31, 32.
`On August 12, 2024, Paydhealth filed its Amended Complaint against Ms. Holcombe,
`again alleging one claim of defamation per se. See Am. Compl. at 13. Ms. Holcombe moved soon
`thereafter to dismiss the Amended Complaint, see ECF No. 34, which the Court denied. See ECF
`No. 37. Discovery, including a quashed third-party subpoena to the law firm of Arnold & Porter,
`ensued. See ECF Nos. 45, 78.
`The parties filed their cross motions for summary judgment on May 6, 2025. See ECF
`Nos. 93, 94. In its partial summary judgment motion, Paydhealth requests that the Court find in
`its favor on the following grounds: (1) that Ms. Holcombe’s “statements are capable of defamatory
`meaning per se”; (2) that Ms. Holcombe cannot show that her statements are true; (3) that Ms.
`Holcombe “acted with actual malice”; and (4) that “Paydhealth is not libel-proof.” See ECF No.
`94 at 1. Ms. Holcombe moves for complete summary judgment on the ground that Paydhealth has
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`failed to meet its burden of showing reputational harm. See ECF No. 93 at 1. The Court considers
`Ms. Holcombe’s motion first and will grant summary judgment in full in favor of Ms. Holcombe.
`III. LEGAL STANDARD
`Summary judgment shall be granted “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). Indeed, “[s]ummary judgment is appropriate when the pleadings, depositions, answers to
`interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
`genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter
`of law.” Mann v. Palmerton Area Sch. Dist., 872 F.3d 165, 170 (3d Cir. 2017), as amended (Sept.
`22, 2017) (internal quotations omitted) (quoting Wright v. Owens Corning, 679 F.3d 101, 105 (3d
`Cir. 2012)). A fact is “material” if it “might affect the outcome of the suit under the governing
`law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If “the evidence is such that a
`reasonable jury could return a verdict for the nonmoving party,” there exists a genuine issue of
`material fact. Id. It is incumbent upon the party moving for summary judgment to “inform[] the
`district court of the basis for its motion, and identif[y] those portions of the pleadings, depositions,
`answers to interrogatories, and admissions on file, together with the affidavits, if any, which it
`believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett ,
`477 U.S. 317, 323 (1986) (cleaned up).
`The party opposing summary judgment must demonstrate more than the “mere existence
`of a scintilla of evidence” to defeat summary judgment. Anderson, 477 U.S. at 252. Likewise, “a
`plaintiff cannot rely on unsupported allegations, but must go beyond pleadings and provide some
`evidence that would show that there exists a genuine issue for trial,” Jones v. United Parcel Serv.,
`214 F.3d 402, 407 (3d Cir. 2000), as arguments made in the briefing “are not evidence and cannot
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`by themselves create a factual dispute sufficient to defeat a summary judgment motion.” Jersey
`Cent. Power & Light Co. v. Lacey Twp., 772 F.2d 1103, 1109–10 (3d Cir. 1985).
`To determine whether a genuine issue of material fact exists, the court must “examine the
`evidence of record in the light most favorable to the party opposing summary judgment, and
`resolve all reasonable inferences in that party’s favor.” Wishkin v. Potter , 476 F.3d 180, 184 (3d
`Cir. 2007). The ultimate question for the Court to decide is whether “a fair -minded jury could
`return a verdict for the plaintiff on the evidence presented.” Anderson, 477 U.S. at 252. “Where
`the record taken as a whole could not lead a rational trier of fact to find for the non-moving party,”
`the court should grant summary judgment, as “there is no genuine issue for trial.” Matsushita
`Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (cleaned up).
`IV. DISCUSSION
`A. Defamation Under Pennsylvania Law
`The sole claim in the case is for defamation per se. See Am. Compl. at 13. In an action
`for defamation under Pennsylvania law, the Plaintiff maintains the burden of proving t he
`defamatory character of the communication, publication by the defendant, its application to the
`plaintiff, the understanding by the recipient of its defamatory meaning, the understanding by the
`recipient of it as intended to be applied to the plaintiff, special harm resulting to the plaintiff from
`its publication, and abuse of a conditionally privileged occasion. 42 Pa. Cons. Stat. Ann. § 8343(a).
`“Defamation per se can be either words imputing (1) criminal offense, (2) loathsome disease, (3)
`business misconduct, or (4) serious sexual misconduct.” Synygy, Inc. v. Scott -Levin, Inc., 51 F.
`Supp. 2d 570, 580 (E.D. Pa. 1999) (cleaned up) (internal quotations omitted), aff’d, Synygy, Inc.
`v. Scott-Levin, 229 F.3d 1139 (3d Cir. 2000). A defendant’s “statement is defamatory per se as an
`accusation of business misconduct if it ascribes to another conduct, characteristics or a condition
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`that would adversely affect his fitness for the proper conduct of his lawful business.” Id. (cleaned
`up). Typically, the phrase “business misconduct refers to conduct that is illegal or connotes illegal
`activity.” Jungclaus v. Waverly Heights, Ltd., No. CV 17- 4462, 2018 WL 1705961, at *4 (E.D.
`Pa. Apr. 9, 2018).
`Notably, although the plaintiff bears the burden of showing that it suffered “[s]pecial harm
`resulting . . . from [the] publication” of the defendant’s statements, 42 Pa. Cons. Stat. Ann. §
`8343(a), when a statement “constitutes defamation pe r se . . . proof of ‘special’ damages is not
`required.” Rose v. Dowd, 265 F. Supp. 3d 525, 531 (E.D. Pa. 2017) (citations omitted). 5 Indeed,
`when bringing a claim of defamation per se, plaintiff need plead only “general damages . . . which
`are proven upon a showing of ‘actual harm.’” Ralston v. Garabedian, 623 F. Supp. 3d 544, 613
`(E.D. Pa. 2022). Actual harm includes “impairment of reputation and standing in the community,
`personal humiliation, and mental anguish and suffering.” Joseph v. Scranton Times L.P., 129 A.3d
`404, 429 (Pa. 2015).
`Ms. Holcombe moves for s ummary judgment on the grounds that Paydhealth “ lacks
`evidence of general damages, i.e. , harm to its reputation caused by the alleged defamatory
`statements at issue.” ECF No. 93-1 at 5. In her Motion, Ms. Holcombe argues that the evidence
`set forth in Plaintiff’s Fourth Supplemental Response to Defendant’s Second Set of Interrogatories
`constitutes the universe of alleged harm in the case and addresses each alleged harm in turn. Id. ;
`see supra Section I.F.
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`5 Ms. Holcombe does not assert that Paydhealth need prove “special damages,” nor does she appear
`to challenge in her own motion that each alleged defamatory statement is capable of defamatory
`meaning per se. Therefore, the Court will analyze the record evidence to determine only whether
`Paydhealth has established a genuine dispute of material fact as to general damages , that is,
`reputational harm.
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`In its Response, Paydhealth alleges that it need not show damages because Ms. Holcombe
`acted with actual malice, meaning that it is entitled to “presumed damages.” ECF No. 97 at 9–11.
`In support of its assertion, Paydhealth raises two instances in which Ms. Holcombe’s statements
`were made with actual malice: first, when she stated that she “really though t First Databank was
`out of business . . . I apologize if I’m wrong,” and second, because Ms. Holcombe allegedly
`“repeated her October 2, 2023 defamatory statements in an article she published after being served
`with Paydhealth’s Complaint.” Id. Paydhealth further argues that, even if the Court does not find
`a material dispute of fact over whether Ms. Holcombe acted with actual malice, it still need only
`prove “evidence of harm to reputation or ‘any other injury.’” Id. at 11. Paydhealth lists its
`purported reputational harm as: (1) the Gilead lawsuit, (2) observations and personal humiliation
`of its Chief Operations Officer, (3) the disassociation of its Chief Legal Officer, (4) the distress
`felt by its Chief Commercial Officer due to the inability to enter markets, (5) the records requests
`from Arnold & Porter and the AbbVie lawsuit, (6) the reaction of Carl Schmid and the HIV + HEP
`Letter to Congress, and (7) that GlaxoSmithKlein and Genentech changed their financial assistance
`program patient enrollment forms following Holcombe’s presentation. Id. at 13–25.
`Ms. Holcombe’s reply briefing takes issue with Paydhealth’s raising of the “actual malice”
`and “presumed damages” theory at the eleventh hour, argues that Paydhealth has failed to establish
`any evidence that Ms. Holcombe acted with actual malice, and explains how each argument
`Paydhealth raises in support of its theory of actual harm to reputation fails. See generally ECF
`No. 103.
`The Court agrees that Paydhealth cannot now raise the issue of actual malice and presumed
`damages and, in addition, that Paydhealth has failed to show actual harm to reputation resulting
`from Ms. Holcombe’s statements.
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`B. Paydhealth’s “New” Presumed Damages Argument
`The Court must first analyze Ms. Holcombe’s argument that Paydhealth cannot now raise
`its entitlement to presumed damages on the ground that “it has never raised, through pleading it or
`otherwise[,] that it need not prove reputational harm caused by Ms. Holcombe’s statements
`because Ms. Holcombe supposedly made her statements with ‘actual malice’ and that it therefore
`can recover based only on presumed damages.” ECF No. 103 at 5. Ms. Holcombe argues that
`raising the presumed