This case is about whether an alleged defamation was privileged. Although based on a particular statute, it has some language and guidance useful in similar cases.

Tri-City’s Dr. Kaplan wrote to the Arizona Medical Board alleging that Arizona Cardiac doctors were implanting stolen pacemakers and ones they bought on eBay. Arizona Cardiac sued for defamation.

A statute (32-1451A) requires doctors to report things to the Board, similar to the way we have to report things to the Bar. The statute creates a privilege for doing so. The first issue was whether the privilege is absolute or conditional. Arizona Cardiac argued, based on a fairly technical reading of certain changes to the statutory language over time, that it was absolute for those required to report to the Board (i.e., doctors) and qualified for others providing information to it. The opinion holds that it is qualified even for doctors – a privilege applies, according to the statute, if the information is provided “in good faith.”

The question then became whether there was evidence that Kaplan had abused the privilege. This happens, said the court, when there is actual malice or excessive publication. One would have thought that it happens, under the terms of this statute, when the actor did not act in good faith. But the court cited cases about other privileges and said that a qualified privilege is abused when there is actual malice or excessive publication.

Arizona Cardiac argued that Kaplan didn’t do enough to check on the truth of the information he reported. The court said that the burden was on Arizona Cardiac, not Kaplan, and that the issue is not whether Kaplan did enough to check but whether he “actually entertained serious doubt” about the truth of what he reported. (The latter part is a bit hard to follow since there is some sort of typo in paragraph 14.) Negligence is not the standard in the case of a qualified privilege, the standard is actual malice or excessive publication.

The moral, however, is: always ask to see the doctor’s receipt.

This case holds that there is no cause of action for “third-party” spoliation.

Lips got a hip replacement at Scottsdale/Osborn. Part of it broke, requiring its replacement. She wanted to sue its manufacturer but the hospital had thrown the old hardware away, so she sued the hospital for spoliation.

The hook that makes this publishable, apparently, is that there is no Arizona case on third-party spoliation, though a number of cases hold that there is no claim for spoliation by a defendant. The opinion takes three pages to explain this.

It then spends several more pages briefing cases from other jurisdictions on third-party spoliation pro and con before abruptly remembering that Arizona doesn’t have the tort of spoliation. But it adds that Scottsdale didn’t, anyway, intend to disrupt plaintiff’s litigation, which is what courts that have recognized the tort require. In other words, even if the first fourteen pages of the opinion are wrong we can resolve the case in one sentence.

Lips also wanted the court to recognize a tort of negligent spoliation, which nobody else has and which this court didn’t, either.

Finally, Lips claimed that she alleged “prima-facie tort” (Restatement 870 – intentionally harming someone is a tort even if it isn’t any tort), though the allegation evidently wasn’t prima facie since she had to argue about whether her Complaint included it. It only takes the opinion a couple of pages to decide that she hadn’t raised that argument below.

The opinion is a bit odd. It is as if someone were trying to be as middle-of-the-road as possible, covering their you-know-what in case of criticism (from the Supreme Court on review?), writing an opinion without actually expressing an opinion.