Readers Digest Ass'n v. Superior Court, 690 P.2d 610, 614 (Cal. 1984) (en banc); DiLeo v. Koltnow, 613 P.2d 318, 323 (Colo. 1980) (en banc); Gardner v. Boatright, 455 S.E.2d 847, 848 (Ga. Ct. App. 1995); Jenkins v. Liberty Newspapers Ltd. Partnership, 971 P.2d 1089, 1093 (Haw. 1999); Wiemer v. Rankin, 790 P.2d 347, 357 (Idaho 1990); Heeb v. Smith, 613 N.E.2d 416, 420 (Ind.Ct.App. 1993); Carr v. Bankers Trust Co., 546 N.W.2d 901, 904-05 (Iowa 1996); Knudsen v. Kansas Gas Elec. Co., 807 P.2d 71, 81 (Kan. 1991); Sassone v. Elder, 626 So.2d 345, 351 (La. 1993); Tucci v. Guy Gannett Publishing Co., 464 A.2d 161, 167 (Me. 1983); ELM Med. Laboratory, Inc. v. RKO General, Inc., 532 N.E.2d 675, 680 (Mass. 1989); Foley v. WCCO Television, Inc., 449 N.W.2d 497, 503 (Minn. Ct. App. 1989); Johnson v. Delta-Democrat Publishing Co., 531 So.2d 811, 815 (Miss. 1988); Scacchetti v. Gannett Co., 507 N.Y.S.2d 337, 339 (N.Y. App. Div. 1986); Proffitt v. Greensboro News Record, Inc., 371 S.E.2d 292, 293-94 (N.C. Ct. App. 1988); Perez v. Scripps-Howard Broadcasting Co., 520 N.E.2d 198, 202 (Ohio 1988); Ertel v. Patriot-News Co., 674 A.2d 1038, 1040 (Pa. 1996); Krueger v. Austad, 545 N.W.2d 205, 211 (S.D. 1996); Palmer v. Bennington Sch. Dist., Inc., 615 A.2d 498, 504 (Vt. 1992); Herron v. Tribune Publishing Co., 736 P.2d 249, 255 (Wash. 1987) (en banc); Long v. Egnor, 346 S.E.2d 778, 78

Further, whether a statement is reasonably susceptible to a defamatory inference is, in the first instance, an issue of law for the court to decide. Heeb v. Smith, 613 N.E.2d 416, 423 (Ind. Ct. App. 1993), trans. denied.

While this may not be conclusive evidence that the DEA was investigating Mimms specifically, the fact that the DEA was seeking records for Mimms’s patients shortly after he left the practice supports CVS’s claim that Mimms was under investigation. See Heeb v. Smith , 613 N.E.2d 416, 420 (Ind. Ct. App. 1993) (noting that "literal truth is not required" to defend a defamation claim and that "it is sufficient if the statement is substantially true"). CVS also sought to introduce a transcript from a criminal trial in which a Health and Human Services agent testified that he had investigated Mimms with a DEA agent.

Substantial truth can be a defense to defamation. SeeHaynes v. Alfred A. Knopf, Inc. , 8 F.3d 1222, 1227 (7th Cir. 1993) ("[I]f the gist of a defamatory statement is true, if in other words the statement is substantially true, error in detail is not actionable."); Heeb v. Smith , 613 N.E.2d 416, 421 (Ind. Ct. App. 1993) ("Under the Constitution, literal truth is not required; it is sufficient if the statement is substantially true."). Here, however, defendants do not actually make a substantive argument that their assertions that Pierson lied to the Indiana Supreme Court were substantially true.

To be held liable for defamation, a defendant must make a false statement of fact. See Journal-Gazette Co., Inc. v. Bandido's, Inc., 712 N.E.2d 446, 457 (Ind. 1999) (citing Heeb v. Smith, 613 N.E.2d 416, 420 (Ind. Ct. App. 1993)). However, while truth is a defense to defamation, the literal truth is not required.

To be held liable for defamation, a defendant must make a false statement of fact. See Journal-Gazette Co., Inc. v. Bandido's, Inc., 712 N.E.2d 446, 457 (Ind. 1999) (citing Heeb v. Smith, 613 N.E.2d 416, 420 (Ind. Ct. App. 1993)). However, while truth is a defense to defamation, the literal truth is not required.

Id. Truth is a defense to defamation, but the literal truth is not required. See Hustler Magazine v. Falwell, 485 U.S. 46 (1988); Heeb v. Smith, 613 N.E.2d 416, 420 (Ind.Ct.App. 1993). It is enough that the "gist" or the "sting" of the statement is true. Heeb, 613 N.E.2d at 421. "The test for determining whether a statement is substantially true is whether any inaccuracies caused the statement to produce a different effect on the audience than would have been produced had the literal truth been spoken."

However, even if defendant's publication of Officer Gardenhire's statement constitutes defamation per se, defendant is still protected by the qualified privilege set forth in Journal-Gazette, which requires that plaintiff present proof of actual malice in order to overcome that privilege. Heeb v. Smith, 613 N.E.2d 416, 419 (Ind.Ct.App. 1993) (speech was defamatory per se, but "actual malice" requirement still applied); Henrichs v. Pivarnik, 588 N.E.2d 537, 542 (Ind.Ct.App. 1992) (same). Therefore, the proper focus of this inquiry is whether plaintiff has done so.

See Biomet, Inc., 238 F. Supp. 2d at 1047-48; cf. Vachet v. Cent. Newspapers, Inc., 816 F.2d 313, 313 (7th Cir. 1987) (inconsistency in "inoffensive details of secondary importance" — e.g., whether someone was arrested pursuant to a warrant or authorized by state statute — which do not alter the harmful aspects of the statement do not defeat the truth defense). Biomet relies on Heeb v. Smith, 613 N.E.2d 416 (Ind.Ct.App. 1993), for the proposition that the truth defense is established if the "gist" or "sting" of the statement was true. Biomet claims that the sting of the statement that it uttered — that Smith said that he was coming to the shareholders' meeting with a gun — was true.

If taken literally, those statements are defamatory per se because they impute judicial misconduct. Heeb v. Smith, 613 N.E.2d 416, 419 (Ind.Ct.App.1993). Yet actual malice does not hinge on whether Defendant's claims are true or false, nor even whether they are objectively reasonable.