Desert Palm Surgical Group v. Petta, 704 Ariz. Adv. Rep. 9 (App. Div. I, January 15, 2015) (J. Winthrop)

DEFAMATION AND FALSE LIGHT INVASION OF PRIVACY DAMAGE AWARD OF $12 MILLION REQUIRES SUPPORTING EVIDENCE BEYOND PLAINTIFFS' VAGUE, CONCLUSIONARY TESTIMONY

Petta had numerous cosmetic surgeries performed on her face by plaintiffs. She didn't like the results. She complained vociferously and profanely to the plaintiff dentist/doctors and their staff. Additional procedures were performed in an attempt to improve Petta's appearance with mixed results at least in Petta's eyes. She began posting complaints about plaintiffs on internet consumer rating sites, with the various medical and dental boards and started her own website complaining about her allegedly botched surgeries. Plaintiffs sued for defamation and false light invasion of privacy and obtained a 12 million dollar verdict which included one million in punitive damages.  Defendants appealed and the Arizona Court of Appeals affirmed in part, reversed in part, vactated and remanded.

The court found that evidence existed upon which a reasonable jury could conclude  established a defamation and false light invasion of privacy.  While many of Petta's statements were clearly true (an absolute defense) and opinion rather than statements of fact, enough of her statements were not supported.

However, the court also found the trial court erred in not remitting the verdict.  “The evidence on damages was noticeably thin, entirely subjective, and based solely on Plaintiffs' non-specific, vague, and conclusory testimony. Accordingly, the record plainly does not objectively support the compensatory damages awarded. Plaintiffs offered no evidence of any net loss to their income related to Petta's statements. They called no independent witnesses to support their contention that their respective professional reputations had been damaged; no physician testified that he or she declined to refer surgical candidates to Plaintiffs or that members of the public otherwise declined to seek Plaintiffs' services as a result of seeing Petta's web posts or learning of any professional board complaints. . . . Plaintiffs' testimony about special damages was unsupported by any documentary evidence, including any business operations analysis, tax returns or similar exhibits, or expert testimony, and Plaintiffs' own conclusory statements provided little quantifiable evidence of their claimed damages, leaving the jury to speculate regarding special damages.” The court also considered statistics found in the Arizona Attorney periodical noting that the verdict “approximately equivalent to the largest civil jury verdict in Arizona in 2013, and is the thirtieth largest civil verdict in Arizona in the past ten years.

In conclusions the court while preferring to rely upon the axiom that “Each case involving a request for remittitur must stand or fall on its own peculiar facts, and the ultimate test will always be justice”  ultimately held that this verdict “not only shocks the conscience of this court, but was so extreme ‘as to manifestly indicate passion, prejudice, mistake or a complete disregard of the evidence.'" Because liability and damages are so intertwined, the court remanded the matter for a retrial on both.

As to punitive damages the court found the evidence to be hotly contested and while many statements of Petta were likely true or opinion there was adequate evidence upon which a reasonable jury could find she engaged in reprehensible conduct intended to injure plaintiffs' business and professional reputations and was motivated by an ‘evil mind' and the result of intentional malice.”

Finally, upon retrial the court of appeals ruled that Petta's counterclaim for battery would be resurrected. The trial court improperly granted defendants summary judgment. While assault and battery claims are no longer permitted in medical malpractice cases, a battery claim based upon lack of consent or exceeding a limited consent may be maintained. Here there were facts to support Petta's claim that in one of the surgical procedures the plaintiffs went beyond what she had been informed would happen and consented to.