Desert Palm Surgical Group v. Petta (CA1/15/15)

The moral of this one is to avoid whenever possible doctors and lawyers and judges.

Dissatisfied by the result of her nose job, Defendant posted negative comments about her doctors on various websites and established her own website criticizing them. They almost immediately sued her for various defamation torts and moved for a TRO to make her stop posting and take down her website, which she agreed to do. She counterclaimed for battery, arguing that she hadn’t authorized some things the doctors did to her nose. (There was more to the acrimonious relationship between the parties but since it isn’t necessary to understanding the holdings we leave it out.)

The doctors won summary judgment on the battery claim. Defendant won summary judgment on some of the doctors’ claims but two – defamation and false-light invasion of privacy – went to trial. The jury must not have thought that her face looked too bad because it awarded her doctors eleven million dollars and an additional million in punitives. The trial court denied her post-trial motions but entered an amended judgment to correct a mistake in calculating interest.

Defendant appealed. The plaintiffs challenged jurisdiction because her Notice of Appeal listed the original judgment as well as the orders denying her post-trial motions but for some reason didn’t mention the final, amended judgment. The Court of Appeals decides, though, that because the doctors weren’t misled or prejudiced Defendant’s Notice was good enough.

Defendant argued first that the trial court should have granted summary judgment on all claims. That court had concluded that damages were speculative as to some of them; she contended that the same conclusion applied to all. The court explains that it does not review the denial of summary judgment on appeal unless the issue is solely one of law or has been reasserted in a JMOL motion or post-trial motion. The damage argument, the court concludes, was not purely legal since it depended the assessment of facts. Defendant had made a motion for JMOL but hadn’t argued then about damages. But the court mentions in a footnote that Defendant did raise the damages issue in her post-trial motions. The doctors argued that she hadn’t raised it in her summary-judgment motion. What had she raised in that motion? The court doesn’t tell us. And it concludes the analysis by observing in passing that the trial court could have concluded that there were general damages to support the two successful claims. So whether the court decided that it could or couldn’t review the substantive issue, and whether it did or didn’t review it, are also speculative.

Defendant’s basic argument was that her online comments were either true or matters of opinion and that she should have gotten JMOL on that. She also made the damage argument. The court devotes two long paragraphs to explaining defamation law before “analyzing” the issues by saying “legitimate questions of fact existed” (without mentioning what they were) and “it was within the jury’s province to consider any actual damage.”

Defendant argued that statements she made to the Arizona Medical Board were privileged. The court agrees that there is a qualified privilege but says there was evidence she acted in bad faith and in any event since she did not ask for special interrogatories it can’t tell whether the jury awarded damages based on statements subject to a privilege.

Defendant also sought new trial on damages or remittitur; the trial court denied both but here the Court of Appeals remands for new trial. The doctors’ damages were based entirely on their own, subjective testimony. The court concludes that this was not adequate to support the amount awarded, which shocks the conscience and indicates passion or prejudice. The court spends more long paragraphs on this as it has to walk the fine line of saying that the trial court was right that there could be damages but the plaintiffs didn’t really prove that there were.

On the issue of punitive damages, as it had before the opinion states uncontested law at length but then announces a summary conclusion: there was evidence to support a finding of “evil mind.”

As to the battery claim the Court of Appeals reverses. After – predictably by now – explaining the law of medical battery it comes to a brief, evidence-based conclusion: there was evidence that Defendant hadn’t consented to everything done to her.

We’re not sure what the publishable part of these 26 pages (including 22 footnotes) was intended to be. In the old, old days there were appellate judges (particularly one or two on Division Two) who would have dealt with this in two pages and a half. Back then we thought those opinions thoughtless and slapdash (especially when we lost them). That was back then.

(link to opinion)