Kahn v. Arizona Cvs ( 2017 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
SHAKEEL AZIZ KAHN MD, Plaintiff/Appellant,
v.
ARIZONA CVS STORES LLC, et al., Defendants/Appellees.
No. 1 CA-CV 16-0333
FILED 2-14-2017
Appeal from the Superior Court in Mohave County
No. B8015CV201304009
The Honorable Rick A. Williams, Judge
AFFIRMED IN PART; REVERSED IN PART AND REMANDED
COUNSEL
Law Office of Thomas E. Price P.C., Kingman
By Thomas E. Price
Counsel for Plaintiff/Appellant
Renaud Cook Drury Mesaros PA, Phoenix
By Margaret T. McCarthy, Denise J. Wachholz
Counsel for Defendants/Appellees
KAHN v. ARIZONA CVS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge James P. Beene delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Margaret H. Downie joined.
B E E NE, Judge:
¶1 Plaintiff/Appellant Shakeel A. Kahn appeals the superior
court’s summary judgment for Defendants/Appellees Arizona CVS Stores,
LLC and Carol San Vicente on his slander per se claim. For the following
reasons, we affirm in part, reverse in part, and remand for further
proceedings.
FACTS AND PROCEDURAL HISTORY1
¶2 In December 2012, Kahn, a physician, prescribed
phentermine, a Class IV controlled substance, for his patient, A.M. A.M.
attempted to obtain the medication at the CVS pharmacy in Kingman, but
San Vicente, the pharmacist on duty, refused to fill the prescription, stating:
“It’s not the amount that I have a problem with. It’s the doctor.” According
to Kahn, San Vicente further explained that she had heard that Kahn’s DEA
number2 was suspended and under investigation.
¶3 Several days later, Kahn’s patient, S.D., attempted to fill a
Suboxone prescription from Kahn at a CVS pharmacy in Bullhead City. The
pharmacy technician, Penny York, reportedly refused to fill the
1We view the facts in the light most favorable to Kahn. First Am. Title Ins.
Co. v. Johnson Bank, 239 Ariz. 348, 350, ¶ 8, 372 P.3d 292, 294 (2016) (noting
that when reviewing the superior court’s grant of summary judgment,
appellate court views the facts in the light most favorable to party against
whom judgment was entered).
2 A DEA number is a number assigned to a health care provider by the
United States Drug Enforcement Administration that allows the provider
to write prescriptions for controlled substances. See United States v.
Barsoum, 763 F.3d 1321, 1326 n.1 (11th Cir. 2014).
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KAHN v. ARIZONA CVS, et al.
Decision of the Court
prescription, stating: “We’re having problems with this doctor . . . He
writes too many controls to where the DEA is involved . . .”
¶4 Kahn filed this action against CVS and San Vicente, alleging
claims for defamation, slander per se, and false light invasion of privacy
arising out of San Vicente and York’s statements to A.M. and S.D. The
superior court granted summary judgment for CVS on all three claims,
ruling, as relevant, that San Vicente and York’s statements were
substantially true.
¶5 Kahn timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(1).3
¶6 Kahn argues the superior court erred in granting summary
judgment for CVS and San Vicente on his claim for slander per se because
the relevant statements were not substantially true.4
DISCUSSION
¶7 We review the entry of summary judgment de novo. Andrews
v. Blake, 205 Ariz. 236, 240, ¶ 12, 69 P.3d 7, 11 (2003). Summary judgment
is appropriate when “there is no genuine dispute as to any material fact and
the moving party is entitled to judgment as a matter of law.” Ariz. R. Civ.
P.56(a); see also Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008
(1990) (explaining that summary judgment is proper “if the facts produced
in support of the claim . . . have so little probative value, given the quantum
of evidence required, that reasonable people could not agree with the
conclusion advanced by the proponent of the claim or defense.”).
¶8 A statement is considered slander per se, and is actionable
without the need to prove special damages, when its publication “tends to
injure a person in his profession, trade or business . . . .” Modla v. Parker, 17
Ariz. App. 54, 56 n.1, 495 P.2d 494, 496 n.1 (1972); see also Restatement
3We cite the current version of applicable statutes unless revisions material
to this decision have occurred since the relevant events.
4Kahn does not challenge the superior court’s summary judgment for CVS
and San Vicente on his defamation and false light claims. Robert
Schalkenbach Found. v. Lincoln Found., 208 Ariz. 176, 180, ¶ 17, 91 P.3d 1019,
1023 (App. 2004), as amended (July 9, 2004) (stating appellate court generally
considers issues not raised in the opening brief to be abandoned or
conceded).
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KAHN v. ARIZONA CVS, et al.
Decision of the Court
(Second) of Torts §§ 570 & 573 (1977). Because slander is a type of
defamation, Boswell v. Phx. Newspapers, Inc., 152 Ariz. 1, 6 n.4, 730 P.2d 178,
183 n.4 (App. 1985), truth—or substantial truth—is an absolute defense to
the action. Fendler v. Phx. Newspapers, Inc., 130 Ariz. 475, 479, 636 P.2d 1257,
1261 (App. 1981). When the underlying facts are not disputed, the court
may determine the question of substantial truth as a matter of law. Id. at
480, 636 P.2d at 1262.5
¶9 When evaluating whether a statement is true or substantially
true, “[s]light inaccuracies will not prevent a statement from being true in
substance, as long as the ‘gist’ or ‘sting’ of the publication is justified.” Read
v. Phx. Newspapers, Inc., 169 Ariz. 353, 355, 819 P.2d 939, 941 (1991) (citation
omitted). Similarly, “a technically false statement may nonetheless be
considered substantially true if, viewed ‘through the eyes of the average
reader,’ the statement differs from the truth ‘only in insignificant details.’”
Desert Palm Surgical Grp., P.L.C. v. Petta, 236 Ariz. 568, 579, ¶ 27, 343 P.3d
438, 449 (App. 2015) (citation omitted).
¶10 Kahn alleges San Vicente’s statement that his DEA number
was suspended and under investigation, and York’s statement that Kahn
wrote too many prescriptions for controlled substances “to where the DEA
is involved,” were false because the DEA never conducted an investigation
into his prescription-writing practices and never suspended his authority
to prescribe controlled substances.6
5 We reject CVS and San Vicente’s argument that the Arizona Medical
Board’s subsequent suspension of Kahn’s license renders this appeal moot.
See Restatement (Second) of Torts § 581A, cmt. g (“The truth of a
defamatory imputation of fact must be determined as of the time of the
defamatory publication. Facts alleged to exist by the defamer may
subsequently occur, but his foresight or luck in anticipating them will not
protect him from liability for stating their pre-existence.”).
6 Kahn also complains that San Vicente and York falsely asserted that they
had heard the allegedly defamatory information. San Vicente and York’s
statements regarding how they learned the allegedly defamatory
information do not impugn Kahn’s reputation in his profession and are,
therefore, not material to his claim for slander per se. Modla, 17 Ariz. App.
at 56 n.1, 495 P.2d at 496 n.1. Similarly, San Vicente’s statement that she had
a problem with Kahn was an expression of opinion and not, therefore,
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KAHN v. ARIZONA CVS, et al.
Decision of the Court
¶11 Insofar as these statements assert that a governmental
licensing agency was investigating Kahn for improper prescribing, they
were substantially true. Kahn does not dispute that when the statements
were made, the Arizona Medical Board (the “Board”) had four open
investigations against him that concerned allegations of inappropriate
prescribing, including over-prescribing opioid medications. The fact that
the Board, and not the DEA, was the investigating agency is immaterial, as
any damage to Kahn’s reputation stems from the fact that a governmental
licensing agency was investigating him for possible improper prescribing
practices, not the identity of the particular agency.7 Accordingly, “the sting
of the two versions is not substantially different,” and the statements gave
a substantially true account of the ongoing investigation concerning Kahn.
Read, 169 Ariz. at 355-56, 819 P.2d at 941-42 (internal quotations omitted).
¶12 However, as to San Vicente’s alleged statement that Kahn’s
DEA number was “suspended,” there is no evidence that the DEA—or any
other agency—had suspended Kahn’s authority to write prescriptions.
Accordingly, we cannot conclude as a matter of law that the average listener
would view the difference between the statement and the truth as nothing
more than an “insignificant detail.” See Desert Palm Surgical Grp., 236 Ariz.
at 579, ¶ 27, 343 P.3d at 449. A reasonable listener could have understood
a statement that Kahn’s DEA number had been suspended to mean that
Kahn lacked the authority to prescribe controlled substances, but, in fact, at
the time of the statement, he retained that authority. Accordingly, the
superior court erred in ruling as a matter of law that San Vicente’s
purported statement to A.M. that Kahn’s DEA number was suspended was
substantially true.
CONCLUSION
¶13 For the foregoing reasons, we affirm the summary judgment
regarding the statements that Kahn was under investigation for improper
prescribing. We reverse the summary judgment regarding the statement
that Kahn’s DEA number was suspended and remand for further
defamatory. Burns v. Davis, 196 Ariz. 155, 165, ¶ 39, 993 P.2d 1119, 1129
(App. 1999).
7 The test is whether the average listener would find the difference
significant. Desert Palm Surgical Grp., 236 Ariz. at 579, ¶ 27, 343 P.3d at 449.
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KAHN v. ARIZONA CVS, et al.
Decision of the Court
proceedings consistent with this decision. Because both parties partially
prevailed on appeal, no costs will be awarded.8
AMY M. WOOD • Clerk of the Court
FILED: AA
8 On February 1, 2017, Appellees filed a motion to dismiss appeal as moot,
or, in the alternative, to consider the filing a supplement to the answering
brief. On February 7, 2017, Appellant filed a response to Appellee’s motion
to dismiss appeal and request for sanctions. We deny Appellee’s motion to
dismiss the appeal and request to consider the filing a supplement to the
answering brief, as well as Appellant’s request for sanctions.
6