Salo v. Tyler , 417 P.3d 581 ( 2018 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2018 UT 7
IN THE
SUPREME COURT OF THE STATE OF UTAH
DAVID SALO,
Appellant,
v.
LINDA TYLER, KAVISH CHOUDHARY, and JOHN VU,
Appellees.
No. 20150520
Filed February 22, 2018
On Direct Appeal
Third District, Salt Lake
The Honorable Richard D. McKelvie
No. 120905443
Attorneys:
Sean N. Egan, Salt Lake City, for appellant
Sean D. Reyes, Att’y Gen., Joshua D. Davidson, Asst. Att’y Gen.,
Salt Lake City, for appellees
ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in
which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUDGE BROWN, and
JUDGE HYDE joined.
Having recused himself, JUSTICE PEARCE does not participate herein;
DISTRICT COURT JUDGE JENNIFER A. BROWN sat.
Due to her retirement, JUSTICE DURHAM did not participate herein;
DISTRICT COURT JUDGE NOEL S. HYDE sat.
JUSTICE PETERSEN became a member of the Court on November 17,
2017, after oral argument in this matter, and accordingly did not
participate.
SALO v. TYLER
Opinion of the Court
ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
¶ 1 In 2011 David Salo was fired from Amgen, Inc., where he
worked as a pharmaceutical representative. Salo later filed claims for
defamation and interference with economic relations, asserting that
three administrators at the University of Utah Hospital pharmacy—
Linda Tyler, Kavish Choudhary, and John Vu—defamed him and
caused him to lose his job. The district court dismissed these claims
on summary judgment. We affirm.
¶ 2 In so doing we first clarify the operative summary
judgment standard under rule 56 of the Utah Rules of Civil
Procedure. Despite some confusing dicta to the contrary in Orvis v.
Johnson, 2008 UT 2, 177 P.3d 600, we hold that the Utah summary
judgment standard is in line with the federal standard as set forth in
Celotex Corp. v. Catrett, 477 U.S. 317 (1986). In recent cases we have
sought to clarify the standard as stated in Orvis and to reconcile it
with the Celotex formulation. See, e.g., Jones v. Trevor Mktg., Inc. v.
Lowry, 2012 UT 39, ¶ 30 n.9, 284 P.3d 630. But confusion has
continued—as evidenced by arguments in this case. And we now
disavow any suggestion in Orvis that our Utah standard is distinct
from the federal standard stated in Celotex. As in Celotex, we hold
that the moving party always bears the burden of establishing the
lack of a genuine issue of material fact, but the burden of production
of evidence may fall on the nonmoving party (if that party will bear
the burden of production at trial). And where the burden of
production falls on the nonmoving party, we clarify that the moving
party may carry its burden of persuasion without putting on any
evidence of its own—by showing that the nonmoving party has no
evidence to support an essential element of a claim.
¶ 3 We affirm summary judgment under this standard. We
hold that the defendants were entitled to summary judgment
under the Utah Governmental Immunity Act, Utah Code
sections 63G-7-101 through 63G-7-904. That statute protects the
governmental employees here from liability for acts within the scope
of their employment unless their acts are shown to be willful. See id.
§ 63G-7-202(3). Here it is evident that the defendants acted within
the scope of employment because they were clearly engaged in the
general type of work they were employed to perform. And Salo
produced no evidence that their actions were willful. We affirm on
those grounds.
¶ 4 We also affirm the district court’s decision to refuse to
strike an affidavit submitted by Linda Tyler in support of the motion
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for summary judgment filed by Choudhary and Vu. Tyler was not
listed as a potential witness at the time of the summary judgment
motion, as required by rule 26(a) of the Utah Rules of Civil
Procedure. But Tyler was identified in the defendants’ rule 26(a)
disclosures at every stage of the litigation until shortly before
summary judgment, as was the subject of Tyler’s testimony. For that
reason we conclude that Salo was in no way prejudiced by the
defendants’ failure to identify Tyler as a witness. And we conclude
that the district court acted within its discretion in denying the
motion to strike.
I
¶ 5 In 2011 David Salo was working as a pharmaceutical
representative for Amgen, Inc. His largest account was with the
University of Utah Hospital system. He worked particularly closely
with the Huntsman Cancer Hospital. Salo was also a member of the
Medical Service Representatives Committee (MSR) at the hospital. In
that volunteer capacity he helped coordinate the relationship
between pharmaceutical companies such as Amgen, their drug
representatives, and hospital administrators and staff.
¶ 6 On April 27, 2011, a nurse at the university hospital
contacted Salo about a patient who suffered from bony-metastatic
disease and giant cell tumor (GCT). The nurse reached out to Salo on
behalf of Dr. Lance Gouw, a physician in the University of Utah
hospital system. Dr. Gouw had developed a plan to treat the
patient’s GCT, a plan that included the use of denosumab, a drug
manufactured by Amgen. Since the U.S. Food and Drug
Administration (FDA) had not approved denosumab for treatment
of GCT, Dr. Gouw’s nurse inquired whether Salo had any
information on treating GCT with the drug. Salo had never heard of
GCT before and told the nurse he would get back to her. He also
directed her to Amgen Medical Information for more information.
Later Dr. Gouw’s physician assistant Grace Noda followed up with
Salo. Salo gave Noda the contact information of a doctor from MD
Anderson Cancer Center who had experience using denosumab for
GCT.
¶ 7 At the same meeting, Noda asked Salo about Amgen’s
patient assistance programs administered through the Amgen
Foundation. The patient in question did not have commercial health
insurance and thus was not eligible for the First Step Program. But
Salo did provide information about Amgen’s other program, the
Safety Net Program, designed for patients without insurance. Dr.
Gouw later applied to the program on behalf of his patient.
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¶ 8 Following his conversation with Noda, Salo called the
hospital’s pharmacy director to relate his conversations with Dr.
Gouw’s nurse and physician assistant, but the call dropped. Salo
then called Vu and reported that he was aware that Dr. Gouw
intended to use denosumab off-label but that he “had nothing to do
with Dr. Gouw wanting to use [the drug] off-label.” Salo also
reported that he had given Noda the name of a physician who had
experience using denosumab for GCT. Vu “took exception” to this
news, remarking that “we’re going to have to look into this.”
¶ 9 Vu reported this conversation to Choudhary, writing about
“perceived” off-label promotion of denosumab by Salo. Vu relayed
that the “action of giving out the MD Anderson physician info
would likely be considered off-label promotion.” Choudhary also
heard from the hospital’s pharmacy director, who reported that
certain hospital staff were under the impression that Salo had given
Dr. Gouw Amgen’s financial assistance debit cards for use for an off-
label treatment. Choudhary forwarded this information to Tyler.
¶ 10 Tyler assigned Choudhary to lead the pharmacy’s
investigation into the matter, and Vu, as Salo’s MSR liaison, was
assigned to assist Choudhary. Choudhary and Vu delegated some
fact-finding responsibilities to the clinical supervisor, Dan Sageser.
Soon after Choudhary began his investigation, he instructed Sageser
to file a complaint against Salo with the FDA.
¶ 11 Salo reported his interactions with Dr. Gouw’s staff to
Amgen compliance on April 28, 2011. The company later opened its
own internal investigation into Salo’s actions. In the course of this
investigation, Amgen contacted Choudhary to set up a meeting, and
he and Vu met with Amgen compliance officers on June 1, 2011, and
June 6, 2011. In these meetings Choudhary and Vu repeated the
accusations against Salo—that he had improperly promoted an off-
label treatment by passing on the information of a physician who
had experience using denosumab off-label and that he had
improperly given Noda information about Amgen’s patient
assistance programs to pay for these off-label treatments.
¶ 12 Amgen terminated Salo following its internal investigation.
The company made the decision on July 29, 2011. It alerted Salo on
August 18, 2011. The company cited four grounds for termination:
Salo contacted Amgen Medical Affairs on behalf of the hospital
rather than referring hospital staff directly to Amgen; Salo referred
Noda to a third-party physician who had experience with off-label
use of denosumab; Salo provided patient financial assistance
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information to hospital staff in the same meeting where discussing
an off-label treatment; and Salo did not document four related events
with a formal Amgen Business Reply Card.
¶ 13 Shortly before Salo found out about his termination, he
contacted Senator Mike Lee’s office. In response to an inquiry from
Senator Lee’s office, Tyler wrote an email on August 8, 2011, to
eleven administrators at the university—administrators directly
involved in the investigation or high-level officials who would
benefit from knowledge of the situation as they might need to field
questions from Senator Lee’s office.
¶ 14 Ray Lynch, executive director of the hospital, responded to
Tyler’s email. Tyler replied on August 10, 2011, copying two other
administrators. Her email to Lynch described FDA regulations “that
state that a company can’t market a drug for off-label use.” She also
noted that using patient assistance programs for off-label use “is not
in the best interest of our patients or the organization.”
¶ 15 Salo filed claims against Choudhary and Vu for defaming
him during their two June meetings with Amgen compliance
officials and for interfering with his employment with Amgen. He
also filed against Tyler for defamation and interference with
economic relations relating to her two emails to university
administrators.
¶ 16 After discovery Tyler—and later Choudhary and Vu—filed
motions for summary judgment. Salo opposed these motions. He
also moved to strike an affidavit that Choudhary and Vu submitted
in support of their motion—the affidavit of Linda Tyler. In Salo’s
view this affidavit was improper because Tyler had not been
identified as a witness under rule 26(a) of the Utah Rules of Civil
Procedure.
¶ 17 The district court granted the motions for summary
judgment and denied the motion to strike. In denying the motion to
strike the district court concluded there was no harm or prejudice to
Salo. It concluded that Choudhary and Vu had “been abundantly
diligent in making disclosures” and that Salo had a “full
opportunity” to depose Tyler and to question the basis for the
information contained in Tyler’s affidavit.
¶ 18 In granting the motions for summary judgment the district
court concluded that the defendants were entitled to immunity
under the Utah Governmental Immunity Act, Utah Code sections
63G-7-101 through 63G-7-904. It held, in particular, that the
defendants were acting within the scope of their employment and
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that Salo had not presented evidence of any “willful” misconduct.
On the latter point the district court concluded that Salo had failed to
“establish that Defendants knew any of the information that they
were relaying to Amgen, its representatives, or other interested
parties . . . was false.” And the court held that the defendants were
entitled to judgment as a matter of law because there was “no
evidence establishing that Defendants intentionally set out to
commit a wrongful act without just cause.”1
¶ 19 Salo challenges the entry of summary judgment and the
denial of the motion to strike. We review the summary judgment
decision de novo. See Bahr v. Imus, 2011 UT 19, ¶ 16, 250 P.3d 56. We
review the denial of the motion to strike under an abuse of discretion
standard. See Murdock v. Springville Mun. Corp., 1999 UT 39, ¶ 25, 982
P.2d 65.
II
¶ 20 Salo challenges both the decision granting defendants’
motion for summary judgment and the decision denying his motion
to strike. We affirm for reasons explained below.
A
¶ 21 Salo advances three grounds for challenging the decision
granting summary judgment under the Governmental Immunity
Act. He argues: (1) that the district court erred in assigning to him
the burden of coming forward with evidence in response to a motion
for summary judgment; (2) that there is a genuine issue of material
fact as to whether Choudhary and Vu were acting within the scope
of their employment; and (3) that there is a genuine issue of material
fact as to the willfulness of the defendants’ misconduct. We find
none of these points persuasive.
1
¶ 22 Salo questions the summary judgment standard applied by
the district court. Citing Orvis v. Johnson, 2008 UT 2, 177 P.3d 600, he
insists that the moving party always bears the burden of coming
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1 The district court also found, in the alternative, that (1) “all of
the alleged defamatory statements were subject to a qualified
privilege” that Tyler, Choudhary, and Vu did not abuse, and (2) Salo
could not establish the causation element of his interference with
economic relations claim. We do not reach these alternative grounds.
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forward with evidence establishing a basis for judgment as a matter
of law. Because Salo was not the moving party, he claims that the
district court erred in requiring him to produce evidence of willful
misconduct.
¶ 23 Salo’s position has an apparent foothold in dicta in Orvis.
There we admittedly stated that “Utah law does not allow a
summary judgment movant to merely point out a lack of evidence in
the nonmoving party’s case, but instead requires a movant to
affirmatively provide factual evidence establishing that there is no
genuine issue of material fact.” Orvis, 2008 UT 2, ¶ 16. And in so
stating we purported to distance ourselves from the federal standard
set forth in Celotex Corp. v. Catrett, 477 U.S. 317 (1986)—the U.S.
Supreme Court decision holding that a moving party may carry its
burden of persuasion on summary judgment without producing its
own affirmative evidence if the nonmoving party bears the burden
of persuasion at trial and the moving party “demonstrate[s] the
absence of a genuine issue of material fact.” Id. at 323; see Orvis, 2008
UT 2, ¶ 16 (noting that although Celotex “has been the law in the
federal courts for over two decades now, it is not Utah law,” and
expressly “declin[ing] to adopt the reasoning of the Celotex
decision”).
¶ 24 These statements were unnecessary to our decision in
Orvis, however, because the moving party in Orvis was seeking
summary judgment “on the merits of his own claim,” 2008 UT 2,
¶ 14—a claim on which he would bear the burden of persuasion at
trial. Everyone agrees that a moving party bears a burden of coming
forward with evidence on matters on which the movant bears the
burden at trial. See Celotex, 477 U.S. at 323 (noting that a party cannot
succeed on a claim without making “a sufficient showing” on
elements on which it “has the burden of proof”). And for that reason
the disavowal of Celotex was not relevant to the decision in Orvis.
¶ 25 The Orvis opinion, moreover, is not entirely consistent on
the question of the moving party’s burden. Despite its disavowal of
Celotex and its apparent adoption of a rule requiring the moving
party to “affirmatively provide factual evidence establishing that
there is no genuine issue of material fact,” the Orvis court proceeded
to articulate a standard that seems to mirror Celotex precisely:
A summary judgment movant, on an issue where the
nonmoving party will bear the burden of proof at trial,
may satisfy its burden on summary judgment by
showing, by reference to “the pleadings, depositions,
answers to interrogatories, and admissions on file,
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together with the affidavits, if any,” that there is no
genuine issue of material fact. UTAH R. CIV. P. 56(c).
Upon such a showing, whether or not supported by
additional affirmative factual evidence, the burden
then shifts to the nonmoving party, who “may not rest
upon the mere allegations or denials of the pleadings,”
but “must set forth specific facts showing that there is a
genuine issue for trial.” Id. (e).
2008 UT 2, ¶ 18.
¶ 26 This is essentially the Celotex standard. It says that the
extent of the moving party’s burden varies depending on who bears
the burden of persuasion at trial. A movant who seeks summary
judgment on a claim on which it will bear the burden of persuasion
at trial cannot seek summary judgment without producing
affirmative evidence in support of the essential elements of its claim.
But a movant who seeks summary judgment on a claim on which the
nonmoving party bears the burden of persuasion may show that
there is no genuine issue of material fact without producing its own
evidence.
¶ 27 Our recent cases have attributed this standard to Orvis. See,
e.g., Jones v. Trevor Mktg., Inc. v. Lowry, 2012 UT 39, ¶ 30, 284 P.3d 630
(citing Orvis as establishing the above-quoted standard). We have
even stated that “our summary judgment jurisprudence regarding
burden shifting” is “entirely consistent with Celotex.” Id. ¶ 30 n.9. Yet
we have never fully embraced Celotex. We have clung, perhaps
confusingly, to the notion that our Utah summary judgment
standard is somehow distinct from that set forth in Celotex. See id.
(asserting that “we have not adopted Celotex in its entirety”).
¶ 28 We now repudiate that notion. We hold that our Utah
summary judgment standard is in line with the federal standard set
forth in Celotex.
¶ 29 We do so because we find the Celotex standard entirely
compatible with the terms and conditions of our rules of civil
procedure. See UTAH R. CIV. P. 56(a). The governing rule states that a
party is entitled to summary judgment “if the moving party shows
that there is no genuine dispute as to any material fact and the
moving party is entitled to judgment as a matter of law.” Id. The
operative requirement is a showing of an absence of a genuine issue
of material fact and an entitlement to judgment as a matter of law.
And that showing can be made without affirmative evidence on the
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moving party’s side if the question presented is one on which the
nonmoving party bears the burden of persuasion at trial.
¶ 30 This follows not just from the terms and structure of rule
56, but also by negative implication from rule 50. Summary
judgment is judgment before trial. It is appropriate where there is no
reasonable basis for the cost and delay associated with trial—where
trial is unnecessary because no reasonable factfinder could rule in
the nonmoving party’s favor. We assess that question at trial under
rule 50. That rule says that a claim should be dismissed as a matter of
law “[i]f a party has been fully heard on an issue during a jury trial
and the court finds that a reasonable jury would not have a legally
sufficient evidentiary basis to find for the party on that issue.” See
UTAH R. CIV. P. 50(a). The operation of that standard depends on
who bears the burden of persuasion at trial. A defendant may move
for a directed verdict at the close of the plaintiff’s case-in-chief by
pointing to the plaintiff’s failure to adduce evidence in support of an
essential element of one of the plaintiff’s claims. Such a motion,
moreover, would not require any affirmative evidence on the
defense side. Because the plaintiff bears the burden of persuasion, it
is the plaintiff who is required to give the jury “a legally sufficient
evidentiary basis to find for” the plaintiff on an element of the
plaintiff’s claims. Id. And for that reason we allow the defendant to
seek a directed verdict merely by showing that the plaintiff has
failed to carry its burden of producing evidence.
¶ 31 The summary judgment standard anticipates—and
mirrors—the directed verdict inquiry. If a defendant can show that
the plaintiff has no legally sufficient evidentiary basis for its claims
at trial, the defendant may establish the lack of a genuine issue of
material fact and an entitlement to judgment as a matter of law. And
a defendant may make that showing without adducing any
affirmative evidence of its own.
¶ 32 This is the federal standard as stated in Celotex. And we
now embrace it without reservation as completely consistent with
our Utah Rules of Civil Procedure.
¶ 33 We also reject Salo’s threshold argument on appeal. We
conclude that the district court did not err in its statement of the
operative standard for summary judgment. Salo is the plaintiff in
this case. As plaintiff he bears the burden of establishing the
elements of his claims. Thus Tyler, Choudhary, and Vu bore the
threshold burden of showing the absence of a genuine issue of
material fact and of demonstrating their entitlement to judgment as a
matter of law. But they may carry that burden without adducing
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affirmative evidence of their own. If the defendants can show that
Salo has no evidence of essential elements of his claims then the
defendants are entitled to judgment as a matter of law.2
2
¶ 34 Salo also challenges the district court’s determination that
Choudhary and Vu acted within the scope of their employment in
investigating his alleged misconduct. Quoting Newman v. White
Water Whirlpool, 2008 UT 79, ¶ 10, 197 P.3d 654, Salo maintains that
“scope of employment questions are inherently fact bound.” He also
cites evidence that investigating off-label promotion was not part of
Choudhary’s or Vu’s regular duties. And he asserts that this
evidence creates a genuine issue of material fact, defeating
defendants’ entitlement to judgment as a matter of law.
¶ 35 We disagree. The scope of employment standard is
statutory. It comes from Utah Code section 63G-7-202(3)(a), which
protects employees from personal liability for actions “caused by an
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2 This determination is relevant to the second of the two issues
addressed below—whether there is a genuine dispute as to whether
defendants engaged in “willful misconduct” under Utah Code
section 63G-7-202(3)(c)(i). It has no bearing on the threshold question
of whether the defendants’ alleged acts were within the scope of
employment under Utah Code section 63G-7-702(3)(a).
The assertion of governmental immunity is an affirmative
defense, see Scott v. Universal Sales, Inc., 2015 UT 64, ¶ 14, 356 P.3d
1172, and the defendants accordingly bear the burden of establishing
the prima facie basis for immunity—that their alleged conduct is
within the “scope of employment” under Utah Code section
63G-7-202(3)(a). But proof of “willful misconduct” is different.
“Willful misconduct” appears in a list of grounds for establishing an
abuse of the governmental immunity privilege—acts like “fraud,”
“willful misconduct,” or the intentional fabrication of evidence, for
which a defendant is liable (and not immune) even if performed
within the scope of employment. See UTAH CODE § 63G-7-202(3)(c).
And, as Salo concedes, the plaintiff bears the burden of establishing
the existence of such grounds. Cf. Ferguson v. Williams & Hunt, Inc.,
2009 UT 49, ¶ 20, 221 P.3d 205 (noting that once a defendant has
shown the existence of a qualified privilege, the burden shifts to the
plaintiff to show abuse of the privilege).
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act or omission that occurs . . . within the scope of employment.”
This incorporates a principle from the law of agency. And the
analysis is accordingly informed by our case law defining the agency
principle of “scope of employment”—in particular the standard set
forth in Birkner v. Salt Lake County, 771 P.2d 1053, 1057–58 (Utah
1989), as modified in M.J. v. Wisan, 2016 UT 13, ¶ 55, 371 P.3d 21.3
¶ 36 The district court’s approach was in line with the standard
set forth in Birkner. An employee’s action is within the scope of
employment under Birkner if it is (1) “of the general kind the
employee is employed to perform” and (2) “motivated, at least in
part, by the purpose of serving the employer’s interest.”4 Birkner, 771
P.2d at 1057. Thus, an employee acts within the scope of
employment when her acts are “generally directed toward the
accomplishment of objectives within the scope of the employee’s
duties and authority, or reasonably incidental thereto.” Id. The
question is whether the worker is performing “duties assigned by
the employer, as opposed to being wholly involved in a personal
endeavor.” Id.
¶ 37 It is beside the point under this standard that investigating
off-label promotion was not a “regular” duty for Choudhary and
Vu—or, as Salo indicates, that “there were no policies or procedures
to guide an investigation” of this sort. Regularity is not the question.
And an employer need not have an established policy or procedure
for everything within the scope of employment. All that matters is
that the work is “of the general kind” assigned to the employee and
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3 See Maxfield v. Herbert, 2012 UT 44, ¶ 31, 284 P.3d 647 (“[W]hen a
word or phrase is ‘transplanted from another legal source, whether
the common law or other legislation, it brings the old soil with it.’”
(quoting Felix Frankfurter, Some Reflections on the Reading of Statutes,
47 COLUM. L. REV. 527, 537 (1947))); Nuñez v. Albo, 2002 UT App 247,
¶ 11–18, 53 P.3d 2 (applying Birkner in the governmental immunity
context).
4 Birkner also sets out a third element—that “the employee’s
conduct must occur within the hours of the employee’s work and the
spatial boundaries of the employment.” Birkner, 771 P.2d at 1058. But
we have repudiated that element on the ground that “spatial and
time boundaries are no[t] . . . essential hallmarks of an agency
relationship.” M.J., 2016 UT 13, ¶ 55.
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that the employee is motivated at least to some degree “by the
purpose of serving the employer’s interest.” Id.
¶ 38 There is no genuine issue under the governing standard.
This was not a rogue action by isolated employees. It was a
coordinated hospital investigation. The hospital had a strong interest
in investigating and resolving a matter that could lead to the
imposition of sanctions by the FDA. And Tyler was acting
appropriately in assigning someone within the hospital system to
investigate the allegations against Salo. Choudhary and Vu,
moreover, were acting under direction from their supervisors. They
were protecting the interests of the hospital and performing “duties
assigned by the employer”; in no sense were they “involved in a
personal endeavor.” See id.
¶ 39 We affirm on this basis. We conclude that there was no
genuine issue of material fact on the question of whether the
defendants were acting within the scope of their employment. In so
holding we clarify that the notion that a particular question may
often be “fact bound,” see Newman, 2008 UT 79, ¶ 10, is no categorical
barrier to its resolution on summary judgment. The relevant
question is not whether a particular question generally or typically is
susceptible to summary disposition; it is whether there is a genuine
dispute of fact in an individual case as presented on the record
before the court. Here we find that there is no genuine issue of
material fact. And we affirm summary judgment despite the notion
that scope of employment questions may often be subject to dispute.
3
¶ 40 Salo also claims that there is a genuine issue of material fact
as to whether Tyler, Choudhary, and Vu engaged in willful
misconduct. Here Salo points to evidence in the record that the
defendants held ill will toward him and sought to injure him. And
because Salo sees willfulness as turning on a defendant’s state of
mind, he contends that this matter should not have been resolved on
summary judgment.
¶ 41 Willfulness, again, is a statutory construct. See UTAH CODE
§ 63G-7-202(3)(c)(i) (immunity for acts within the scope of
employment may be defeated if the defendant engaged in “willful
misconduct”). By statute, “willful misconduct” is “the intentional
doing of a wrongful act, or the wrongful failure to act, without just
cause or excuse, where the actor is aware that the actor’s conduct
will probably result in injury.” Id. § 63G-7-102(11). Thus, willfulness
requires a showing (1) that the government actor intentionally
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performed a wrongful act (2) with an awareness that injury will
likely result.
¶ 42 We affirm the entry of summary judgment under this
standard. We conclude that the defendants were entitled to
judgment as a matter of law because Salo failed to adduce evidence
that the defendants intentionally engaged in any wrongful act.
¶ 43 Salo has charged defendants with two sets of wrongful
acts—defamation and interference with economic relations. But the
allegation of defamation is at the heart of both claims. The
interference claim requires proof of wrongful interference. Eldridge v.
Johndrow, 2015 UT 21, ¶ 70, 345 P.3d 553. And Salo’s only assertion of
wrongfulness is his allegation of defamatory statements. So both
claims rise or fall on the basis of Salo’s ability to establish not just a
false, defamatory statement but an intentional one.
¶ 44 A defamatory statement is wrongful only if it is false. And
defamation is intentional (and thus willful) only if the defendant had
knowledge of its falsity. That means that Salo bears the burden of
showing not just that the defendants made false, defamatory
statements but that they did so with knowledge of falsity.
¶ 45 We affirm the entry of summary judgment because Salo has
failed to carry his burden of producing such evidence. Much of the
evidence cited by Salo goes to the defendants’ knowledge that their
statements would likely cause Salo harm. But that is insufficient. To
defeat summary judgment, Salo must do more than just show that
the defendants knew their statements would harm him; he must
present evidence that they knew their statements were false.
¶ 46 Salo points to two pieces of evidence in support of his
assertion that the defendants knew that their statements were false.
But neither of them is sufficient to defeat summary judgment.
¶ 47 First, Salo highlights a letter that Linda Tyler received from
Dr. Gouw. The letter, sent and received before Tyler sent her
allegedly defamatory emails, indicates Dr. Gouw’s view that Salo
“represented himself in a completely professional manner and never
tried to promote the use of his products outside the authorized FDA
indications.” Salo cites the letter in support of his view that the
patient’s “treatment was ordered based on Dr. Gouw’s clinical
judgment and not on advice or counsel of Mr. Salo.”
¶ 48 This letter, however, falls far short of showing that Tyler
knew that the contents of her emails were false. Tyler’s emails
accused Salo of indirectly promoting off-label use by giving
information to Dr. Gouw’s staff about patient assistance. And the
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Opinion of the Court
Gouw letter does nothing to show that Tyler knew that these
accusations were false. The letter establishes only Dr. Gouw’s views;
and Dr. Gouw seems to be speaking of direct promotion. As to
indirect promotion, the Gouw letter actually reinforces the basis for
the concerns expressed in Tyler’s emails.
¶ 49 Tyler’s concerns about indirect promotion were rooted in a
report from John Vu—a report suggesting that Salo had provided the
information of an out-of-state physician who had used denosumab
off-label. Tyler was concerned that this amounted to indirect
promotion of an off-label use. And Dr. Gouw’s letter does nothing to
rebut this concern. If anything the letter seems to reinforce it. It states
that “Mr. Salo also provided contact information for another
specialist at MD Anderson Cancer Center to discuss their
institutional experience with denosumab.”
¶ 50 The Gouw letter also reinforced another concern about
Salo’s indirect promotion—that he had provided information about
Amgen’s patient assistance programs while knowing that Dr. Gouw
intended to use the drug off-label. Dr. Gouw wrote that “Mr. Salo
provided information on First Step Program as well as about Safety
Net” and that the “[a]pplication has been completed for assistance
from Amgen.”
¶ 51 For these reasons the Gouw letter in no way shows that
Tyler knew that the statements in her emails were false. That letter
speaks only to Dr. Gouw’s view that Salo had not engaged in direct
promotion. And it reinforces a basis for Tyler’s concerns about
indirect promotion.
¶ 52 Salo also highlights a comment made by Kavish
Choudhary to a colleague—a comment suggesting that Salo had
been fired for being in the clinic areas and for harassing clinic staff.
Choudhary had been informed earlier that Salo had never been in
the clinic area, so in Salo’s view Choudhary must have known that
this statement was false. But Choudhary made the statement about
Salo’s firing months after Amgen terminated Salo. So the cited
statement tells us nothing about whether Choudhary knew of the
falsity of statements he made months earlier (at the time of Salo’s
termination). At most the cited statement could provide a basis for a
determination that Choudhary had some sort of malice toward Salo.
But again that is insufficient.
¶ 53 For these reasons we affirm the entry of summary
judgment on the ground that Salo failed to produce evidence of
willfulness. In so doing we also reject Salo’s assertion that
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Opinion of the Court
willfulness turns on state of mind, and that state of mind is always a
question for the factfinder. That is often the case. But not always. It
depends on whether there is a genuine issue of material fact. As with
the scope-of employment question, Salo is not entitled to go to trial
on a factual question on which he fails to identify evidence
establishing a basis for a reasonable jury verdict in his favor. We
affirm because Salo has failed to present a basis for a reasonable jury
to conclude that Tyler, Choudhary, or Vu engaged in willful
misconduct by disseminating information they knew to be false.
B
¶ 54 Salo moved to strike the affidavit of Linda Tyler, submitted
by Choudhary and Vu in support of their motion for summary
judgment. The basis for challenging the affidavit was the failure of
these defendants to identify Tyler as a witness in the final disclosure
they submitted under rule 26(a) of the Utah Rules of Civil Procedure.
The district court denied Salo’s motion on the ground that the lack of
disclosure caused no harm or prejudice to Salo. It concluded,
specifically, that Choudhary and Vu had “been abundantly diligent
in making disclosures,” that Salo knew that Tyler would likely be a
witness, and that Salo had a “full opportunity” to depose Tyler and
inquire into the basis for the information in Tyler’s affidavit.
¶ 55 Salo challenges this decision as an abuse of discretion. He
asserts that the district court could not rely on Tyler’s affidavit
because Choudhary and Vu failed to follow rule 26(a), which
requires each party to identify “each fact witness the party may call
in its case-in-chief and, except for an adverse party, a summary of
the expected testimony.” UTAH R. CIV. P. 26(a)(1)(A)(ii). This rule is
designed “to give the other side basic information concerning the
subjects about which the witness is expected to testify at trial, so that
the other side may determine the witness’s relative importance in the
case.” Id. (Advisory Committee Notes).
¶ 56 Choudhary and Vu initially listed Tyler as a witness they
expected to call at trial. But they dropped her from their rule 26(a)
witness list after the district court granted her motion for summary
judgment. And the timing of this amended disclosure takes the wind
out of the sails of Salo’s motion. Because Tyler was included in
previous witness lists and discovery had been completed by the time
the revised list was submitted, the omission of Tyler had no effect on
Salo’s discovery or pretrial preparation.
¶ 57 Salo also deposed Tyler. In the deposition Salo had every
opportunity to inquire into all of the issues she testified to in her
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Opinion of the Court
affidavit. If Salo saw some prejudice in the failure to identify Tyler in
the last round of disclosures he could have sought a deferral or
additional time for discovery under rule 56(d) of our rules of civil
procedure. This he failed to do.
¶ 58 We affirm on this basis. We hold that the district court
acted well within its discretion in denying the motion to strike on the
basis of a lack of prejudice.
III
¶ 59 The district court applied the correct summary judgment
standard. It also properly determined that the defendants were
entitled to judgment as a matter of law and that the motion to strike
failed for a lack of prejudice.
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