Takieh M.D. v. O'Meara M.D. ( 2021 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
SEYED MOSHEN SHARIFI TAKIEH M.D., Plaintiff/Appellant,
v.
MICHAEL O’MEARA M.D., et al., Defendants/Appellees.
No. 1 CA-CV 20-0290
FILED 8-10-2021
Appeal from the Superior Court in Maricopa County
No. CV 2018-001473
The Honorable Christopher T. Whitten, Judge
AFFIRMED
COUNSEL
William A. Miller PLLC, Scottsdale
By William A. Miller, Stephen D. Smith
Counsel for Plaintiff/Appellant
Papetti Samuels Weiss LLP, Scottsdale
By Jared L. Sutton, Randall S. Papetti
Counsel for Defendants/Appellees, Michael O’Meara M.D., James Del Giorno
M.D., Tri-City Cardiology
Coppersmith Brockelman PLC, Phoenix
By Andrew S. Gordon, Katherine L. Hyde, Karen C. Owens
Counsel for Defendants/Appellees Janice Dinner, Michael O’Connor M.D.
TAKIEH M.D. v. O’MEARA M.D., et al.
Opinion of the Court
OPINION
Judge Jennifer B. Campbell delivered the opinion of the Court, in which
Presiding Judge D. Steven Williams and Judge James B. Morse Jr. joined.
C A M P B E L L, Judge:
¶1 Dr. Seyed Mohsen Sharifi Takieh (“Sharifi”) appeals the
superior court’s entry of summary judgment in favor of Dr. James Del
Giorno and Janice Dinner on his defamation claims. He also challenges two
of the court’s discovery rulings and its award of attorneys’ fees against him.
We conclude the court properly entered summary judgment and, because
statements derived from a peer-review process are privileged, the superior
court properly precluded Sharifi’s discovery requests under A.R.S. § 36-
445.01. We also affirm the court’s attorneys’ fees award.
BACKGROUND
¶2 For more than a decade, Sharifi, a cardiologist, maintained
active medical staff membership and clinical privileges at Banner Baywood
Medical Center (“Baywood”) in Mesa. His good standing and affiliation
with Baywood ended, however, when Baywood’s Medical Executive
Committee (“MEC”), a peer-review body, voted to restrict his practice and
the Banner Health Board of Directors voted to revoke his clinical privileges.
¶3 Amidst these adverse actions, Sharifi filed a complaint
alleging various claims against several individuals involved in the peer-
review process. The defendants moved to dismiss the complaint, primarily
arguing they were immune from liability for any claims arising out of peer-
review proceedings. See A.R.S. § 36-445.02 (A), (B) (immunizing from
“liability for civil damages or legal action” any participant in a medical
peer-review proceeding who “makes a decision or recommendation” or
“furnishes any records, information, or assistance” to “medical staff or
review committee or related organization”).
¶4 The superior court granted the motions to dismiss “in large
part,” reasoning that the defendants were immune from liability under
A.R.S. § 36-445.02 for actions taken and statements made during peer-
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Opinion of the Court
review proceedings.1 With respect to the remaining claims, the court
allowed Sharifi to file an amended complaint. In the amended complaint,
Sharifi alleged claims against Del Giorno and Dinner for defamation,
injurious falsehood, intentional interference with contract, and conspiracy.
Sharifi premised each claim on the same two assertions: (1) Del Giorno,
Baywood’s chair of cardiology, made damaging false statements when he
told another cardiologist that Sharifi “is an idiot” who administered blood
thinner “to an obvious case of intracerebral hemorrhage,” and (2) Dinner,
Banner Health’s senior associate general counsel, composed “letters and
various other documents and communications” containing “defamatory
material . . . designed to destroy his reputation in the medical community.”
¶5 In their answers, neither defendant denied making the
alleged statements. Del Giorno, however, asserted that to the extent he
made any assertions of fact, they were true, and that otherwise, his
statements were merely opinion, and therefore not actionable. Dinner, in
turn, maintained that she was immune from liability because her actions
“were done as part of and within” protected peer-review proceedings. See
A.R.S. § 36-445.02 (A), (B).
¶6 As the litigation progressed, Sharifi moved to compel Dinner
to disclose, among other things: (1) Baywood’s investigation of sexual-
harassment allegations made against him, (2) his personnel/credentialing
file, and (3) correspondence Dinner sent or received concerning him. After
oral argument, the court ruled that documents in Sharifi’s file pertaining to
his credentials and the sexual-harassment allegations were protected from
disclosure by the peer-review privilege and Dinner was not required to
create a privilege log listing them. With respect to the request for any
documents/communications Dinner authored or received concerning
Sharifi, the court ordered Dinner to produce the documents or a privilege
log identifying “any that are claimed to be privileged.”
¶7 After the close of discovery, Dinner and Del Giorno moved
for summary judgment. In response, Sharifi moved for the appointment of
a special discovery master to review the documents Dinner had withheld,
asserting that Dinner had failed to comply with the disclosure order. As
detailed by Sharifi, Dinner withheld all the documents he had sought and
had failed to produce a log, saying only that she had reviewed her emails
and determined that all the requested correspondence constituted
protected peer-review materials. Attached to his motion, Sharifi disclosed,
1 On appeal, Sharifi does not challenge the superior court’s dismissal
order.
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Opinion of the Court
for the first time, the affidavits of two former Baywood employees: Leslie
Wilson, a cardiac sonographer, and Dr. Ava Rose, an internist. Wilson
avowed that she witnessed Dinner speaking on a cell phone and overheard
her make several disparaging remarks about Sharifi, including that he is a
terrible doctor, a danger to his patients, and an idiot. Rose, in turn, avowed
that she overheard three physicians discussing their testimony against
Sharifi in the peer-review proceedings and recounted that they said Dinner
had encouraged them to make false statements and assured them that they
would have immunity for their participation. In response, Dinner moved to
strike both affidavits as untimely.
¶8 The superior court denied Sharifi’s motion for appointment
of a special discovery master, finding no evidence to suggest that any of the
correspondence at issue “originated outside the peer review process.” The
court also struck the Rose and Wilson affidavits as untimely.
¶9 After full briefing, the superior court entered summary
judgment in favor of Del Giorno and Dinner. The court explained that even
assuming Del Giorno made the alleged statements to his fellow
cardiologist, there was no dispute that Sharifi had, in fact, administered
blood thinner to a patient who had an intracerebral hemorrhage. Further,
concluding that the “characteriz[ation]” of Sharifi’s conduct “as idiotic”
was “nothing more” than a “subjective impression,” the court found Del
Giorno’s alleged “assessment” was not an actionable statement of fact.
Turning to the allegations against Dinner, the court found that Sharifi had
failed to produce any admissible evidence showing that Dinner “made any
comments about him, defamatory or otherwise, outside the context of
[protected] peer review activities.”
¶10 Having prevailed on summary judgment, Dinner requested
an award of attorneys’ fees under A.R.S. § 12-349, asserting that Sharifi
brought the defamation claim against her without substantial justification
and primarily for harassment. The court agreed and awarded Dinner
$128,878.00 in attorneys’ fees and $1,444.92 in taxable costs, finding no
evidence to suggest that when Sharifi filed his amended complaint, he “had
a good faith belief” that Dinner had made any defamatory statements about
him that were not protected by the peer-review privilege. The court
reduced its rulings to a final judgment, and Sharifi timely appealed.
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Opinion of the Court
DISCUSSION
I. Summary Judgment Rulings
¶11 “The court shall grant 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.” Ariz. R. Civ. P.
56(a). In reviewing a grant of summary judgment, we view the facts and the
reasonable inferences to be drawn from those facts in the light most
favorable to the non-moving party and will affirm “if the evidence
produced in support of the defense or claim has so little probative value
that no reasonable person could find for its proponent.” State Comp. Fund v.
Yellow Cab Co. of Phoenix, 197 Ariz. 120, 122, ¶ 5 (App. 1999). “We review de
novo the [superior] court’s application of the law and its determination
whether genuine issues of material fact preclude summary judgment.” Id.A. Defamation Claim Against Del Giorno
¶12 Sharifi argues the court erred in dismissing his defamation
claim against Del Giorno because Del Giorno’s statements about him
conveyed assertions of fact that were both false and damaging.
¶13 The right to free speech, enshrined in the First Amendment,
is not absolute ―“[s]ociety has a pervasive and strong interest in preventing
and redressing” defamatory speech. Milkovich v. Lorain Journal Co., 497 U.S.
1, 22 (1990) (citation and internal quotation omitted). Nonetheless, because
“the expense of defending a meritless defamation case” can have “a chilling
effect on First Amendment rights,” Read v. Phoenix Newspapers, Inc., 169
Ariz. 353, 357 (1991), “the superior court must act as gatekeeper protecting
the right to free speech” from encroachment. Sign Here Petitions LLC v.
Chavez, 243 Ariz. 99, 102, ¶ 1 (App. 2017); see also Yetman v. English, 168 Ariz.
71, 79 (1991) (“Given the rigorous scrutiny required by the first
amendment,” the court must “carefully examine every alleged defamatory
statement . . . to ensure that first amendment concerns are protected.”).
¶14 To support a claim for defamation, a statement about a
private figure on a matter of private concern “must be false” and must bring
the subject of the statement “into disrepute, contempt, or ridicule” or
impeach the subject’s “honesty, integrity, virtue, or reputation.” Turner v.
Devlin, 174 Ariz. 201, 203–04 (1993) (quoting Godbehere v. Phoenix
Newspapers, Inc., 162 Ariz. 335, 341 (1989)). While any disparaging statement
can cause reputational harm, a true statement cannot support a claim for
defamation. Read, 169 Ariz. at 355.
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Opinion of the Court
¶15 In fulfilling its gatekeeping role, the superior court first must
determine “whether, under all the circumstances, a statement is capable of
bearing a defamatory meaning.” Yetman, 168 Ariz. at 79 (citing Restatement
(Second) of Torts § 614 (1977)). As a matter of law, a statement is not
actionable if it is comprised of “loose, figurative, or hyperbolic language”
that cannot reasonably be interpreted as stating or implying facts
“susceptible of being proved true or false.” Milkovich, 497 U.S. at 21. In a
case such as this, “[t]he key inquiry is whether the challenged expression,
however labeled by defendant, would reasonably appear to state or imply
assertions of objective fact.” Yetman, 168 Ariz. at 76 (citation and internal
quotation omitted). In this determination, the court should “‘consider the
impression created by the words used as well as the general tenor of the expression,
from the point of view of a reasonable person’ at the time the statement was
uttered and under the circumstances it was made.” Sign Here Petitions, 243
Ariz. at 105, ¶ 21 (quoting Yetman, 168 Ariz. at 76).
¶16 While statements cast as subjective beliefs are generally
insulated from defamation liability, “statements of opinion are actionable
when they imply a false assertion of fact.” Turner, 174 Ariz. at 208 (internal
quotation omitted and emphasis added). In other words, if a statement of
opinion may be proven false, “it is actionable as defamatory,” Dube v. Likins,
216 Ariz. 406, 419, ¶ 46 (App. 2007), but a statement is not actionable if it
does not present “the kind of empirical question a fact-finder can resolve,”
Yetman, 168 Ariz. at 81. Finally, “[t]o defeat a defendant’s motion for
summary judgment in a defamation case, the plaintiff must present
evidence ‘sufficient to establish a prima facie case with convincing clarity.’”
Sign Here Petitions, 243 Ariz. at 104, ¶ 14 (citation omitted).
¶17 With these principles in mind, we consider Del Giorno’s
alleged statements. To prove his defamation claim against Del Giorno,
Sharifi relied primarily on the declaration of Dr. Suzanne Sorof, a
cardiologist. As detailed in her brief statement, Sorof saw and heard Del
Giorno talking to another cardiologist through a partially open door. She
recounted that Del Giorno stated: “Sharifi is an idiot. We finished his
venous career here and won’t let it continue anywhere at Banner. He gave
tPA to an obvious case of intracerebral hemorrhage.” From Del Giorno’s
tone and demeanor, Sorof concluded that he was “angry.”
¶18 Addressing the alleged falsity of Del Giorno’s statements,
Sharifi neither denied that he administered blood thinner to the patient nor
that she had an intracerebral hemorrhage. He argued instead that he was
not an “idiot” and that the patient’s hemorrhage was not obvious at the
time. In support, he asserted that he had an expert who would testify that
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Opinion of the Court
a CT scan of the patient “complete[ly] negated” the “possibility” of a
hemorrhage and that “no physician could interpret [the patient’s] chart – at
the time [] Sharifi administered tPA – in such a manner as to indicate that
[the patient’s] condition was ‘obvious.’”
¶19 Viewed in context, Del Giorno’s “angry” statement to a fellow
physician that Sharifi is “an idiot” clearly did not suggest that Sharifi, a
board-certified specialist in cardiovascular medicine, suffers from an
extreme intellectual disability, as the term “idiot” was historically used in
both medical and educational settings. See Idiot, Merriam-Webster,
https://www.merriam-webster.com/dictionary/idiot (last visited August
4, 2021). Instead, consistent with the modern understanding of the word
and common usage, Del Giorno was expressing his belief that Sharifi acted
foolishly. See id. (defining “idiot” as “a foolish or stupid person”). Because
assessments like these of foolishness or stupidity are subjective
determinations, there is no means to establish their truth or falsity. In other
words, a statement that someone is an idiot is inherently a statement of
opinion, not objective fact. See Steinhausen v. HomeServices of Nebraska, Inc.,
857 N.W.2d 816, 828 (Neb. 2015) (concluding that the term “idiot” is a
“subjective impression[]” that “cannot be defamatory”). Therefore, we
agree with the superior court that Del Giorno’s “idiot” statement is not
actionable as a matter of law because it does not present “the kind of
empirical question a fact-finder can resolve.” Yetman, 168 Ariz. at 81.
¶20 Turning to Del Giorno’s description of the patient’s
hemorrhage as “obvious,” we apply a similar analysis. Whether something
is easily perceived or understood is a matter of opinion.
See Obvious, Merriam-Webster, https://www.merriam-
webster.com/dictionary/obvious (last visited August, 2021) (defining
“obvious” as “easily discovered, seen, or understood”). Had Del Giorno
told his colleague that the patient’s hemorrhage was diagnosed,
documented, or otherwise confirmed, he would have been stating a matter
of objective fact, provable as true or false. Instead, he expressed his belief
that the hemorrhage should have been readily apparent. To refute Del
Giorno’s assertion, Sharifi asserted his expert would testify that a
reasonable doctor would not have detected the patient’s hemorrhage before
administering a blood-thinner medication. The nature of the opinion
evidence Sharifi asserted he could offer to prove defamation belies one of the
tort’s requisite elements—the utterance of a statement of fact. Moreover, as
Del Giorno points out, the overall impression of his words, including his
alleged angry tone and use of the term “idiot,” would not lead a reasonable
listener to believe that he was making a statement of verifiable, medical fact.
Because the record on summary judgment lacked clear and convincing
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Opinion of the Court
evidence that a reasonable listener could have understood Del Giorno’s
“obvious” statement as conveying an objective fact, the superior court
properly entered summary judgment dismissing Sharifi’s defamation claim
against him.
B. Defamation Claim Against Dinner
¶21 Sharifi also challenges the dismissal of his defamation claim
against Dinner, contending that he failed to carry his burden to establish a
prima facie case only because the superior court erroneously (1) relieved
Dinner of her obligation to disclose email communications concerning him,
and (2) struck the Wilson and Rose declarations.
1. Disclosure Ruling Regarding Emails
¶22 After the superior court made its initial disclosure order,
Dinner responded that she had reviewed her email correspondence and
found 738 emails concerning Sharifi. Although Dinner determined most of
the emails were privileged attorney-client communications, she did not
create a privilege log because she concluded all the emails were prepared
in connection with peer-review proceedings that she contended were
protected from discovery by A.R.S. § 36-445.01(A). Finding no evidence to
“suggest that any of the 738 documents at issue originated outside the peer
review process,” the court denied Sharifi’s request for the appointment of a
special discovery master to review each of the emails in camera.
¶23 On appeal, Sharifi asserts that the superior court’s approach
“allow[ed] Dinner to unilaterally determine that the peer review protection
applied to large categories of unidentified documents (including her own
personal emails).” In other words, without a privilege log or in camera
review of the documents, Sharifi argues he had no “means to challenge”
Dinner’s contention that the emails were, in fact, prepared or received in
connection with peer-review proceedings.
¶24 Although superior courts have broad discretion in resolving
discovery disputes, Am. Family Mut. Ins. v. Grant, 222 Ariz. 507, 511, ¶ 11
(App. 2009), whether a disclosure obligation exists or a privilege applies is
a question of law that we review de novo. Solimeno v. Yonan, 224 Ariz. 74,
77, ¶ 9 (App. 2010); Ledvina v. Cerasani, 213 Ariz. 569, 571, ¶ 3 (App. 2006).
Under Arizona Rule of Civil Procedure 26(b)(1), “[p]arties may obtain
discovery regarding any nonprivileged matter that is relevant to any
party’s claim or defense and proportional to the needs of the case.”
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Opinion of the Court
¶25 State law requires peer review of physicians in Arizona
hospitals. To “reduc[e] morbidity and mortality” and improve “the care of
patients,” each Arizona hospital or surgical center “shall require that
physicians admitted to practice in the hospital or center organize into
committees . . . to review the professional practices within the hospital or
center,” including “the preventability of complications and deaths.” A.R.S.
§ 36-445. By statute, the participants in these mandated peer-review
committees are immune from liability “to any person who is denied the
privilege to practice in a hospital or center or whose privileges are
suspended, limited or revoked.” A.R.S. § 36-445.02(B). As further
protection, “[a]ll . . . materials prepared in connection with” peer-review
proceedings are privileged and confidential and therefore “not subject to
discovery.” A.R.S. § 36-445.01(A).
¶26 “Arizona courts have recognized that the confidentiality of
peer review committee proceedings is essential to achieve complete
investigation and review of medical care.” Humana Hosp. Desert Valley v.
Superior Ct., 154 Ariz. 396, 400 (App. 1987). Because peer-review
deliberations would be substantially compromised “if they were subject to
the discovery process,” the peer-review privilege must remain inviolate. Id.;
Goodman v. Samaritan Health Sys., 195 Ariz. 502, 509, ¶ 27 (App. 1999) (“If
effective peer review is to be achieved, and the statutory goal [of reducing
morbidity and mortality and improving patient care] realized, peer
reviewers and their hospitals must have some protection against money
damage claims.”).
¶27 While materials created outside the peer-review process that
“do not contain references” to peer-review proceedings are discoverable,
“the internal workings and deliberative process” of peer-review
committees are “immune from discovery.” Humana, 154 Ariz. at 403.
Accordingly, “a plaintiff is not entitled to engage in a fishing expedition to
ascertain what information was considered by the peer review committee
where such information might reveal the deliberative process of the
participants.” Yuma Reg’l Med. Ctr. v. Superior Ct., 175 Ariz. 72, 77 (App.
1993).
¶28 We find Yuma Regional particularly instructive here. In that
case, the plaintiffs sought information concerning the hospital’s peer-
review proceedings, including lists identifying each participant and each
document submitted. Id. at 74. After the superior court ordered the hospital
to furnish the plaintiffs with a redacted copy of the requested information
and “to provide the court with a redacted copy and an original of the same”
for in camera review, the hospital petitioned this court for relief. Id. at 74,
9TAKIEH M.D. v. O’MEARA M.D., et al.
Opinion of the Court
77. On special action review, we concluded the court’s order that the
hospital disclose the names of the peer-review participants “violate[d] the
peer review privilege.” Id. at 75–76. We further found that “requiring
submission” of the requested information to the court, “in any form,” also
violated the privilege. Id. at 77.
¶29 Sharifi argues that, at a minimum, Dinner should have been
required to produce a log identifying the sender and recipient of each email
or other document she withheld on peer-review grounds. As Banner’s
general counsel, Dinner provided legal advice concerning the peer-review
proceedings to both potential witnesses and the MEC members. To
illustrate this point, the Rose declaration that Sharifi offered, though
ultimately stricken, reflects that multiple physicians spoke with Dinner and
received her legal advice regarding any potential liability for participating
as witnesses in the peer-review proceedings. Because the “element of
confidentiality is essential” to ensure a candid peer review, Humana, 154
Ariz. at 401, and given the overriding public interest in peer-review
proceedings, we conclude that the superior court did not err by finding the
peer-review privilege exempted Dinner from having to submit a log that
would identify with whom she exchanged correspondence related to the
peer-review process.2 Sun Health Corp. v. Myers, 205 Ariz. 315, 319, ¶ 13
(App. 2003) (“[T]he identity of the participants in a peer review proceeding
is not discoverable.”).
¶30 Sharifi further contends that the superior court erred by
denying his request to appoint a special discovery master to review the
documents Dinner withheld to confirm that, as she asserted, each of the
communications was made in connection with peer-review proceedings. As
noted, in Yuma Regional, this court vacated a ruling mandating in camera
review by the superior court of documents purportedly privileged by peer
2 Sharifi also contends that Dinner waived the peer-review privilege
with respect to all peer-review documents by submitting five documents
related to the peer-review process in support of her motion for summary
judgment. We review de novo whether a party has waived a privilege. See
Twin City Fire Ins. Co. v. Burke, 204 Ariz. 251, 253–54, ¶ 10 (2003). The
documents at issue are three letters addressed to Sharifi from a Baywood
medical officer and two letters from Sharifi’s attorney to Dinner. While
these documents were unquestionably prepared in connection with the
peer-review process, they were already in Sharifi’s possession, and his
contention that their “disclosure” waived the peer-review privilege in its
entirety is wholly without merit.
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Opinion of the Court
review. Sharifi offers no argument why that principle would not likewise
bar in camera review by a discovery master. Without good cause for
appointment of a special master, the court did not abuse its discretion by
denying Sharifi’s request. See Ariz. R. Civ. P. 53(a)(1).3
2. Disclosure Ruling Regarding the Wilson and Rose
Declarations
¶31 Unable to rely on any documents protected by the peer-
review process, Sharifi’s claim against Dinner was based solely on
assertions recounted in the declarations of Wilson and Rose, which he
offered in response to Dinner’s motion for summary judgment. The
superior court struck both declarations as untimely, and Sharifi argues on
appeal it erred in doing so.
¶32 The superior court’s scheduling order required the parties to
disclose their non-expert witnesses by March 1, 2019 and provide any
supplemental disclosure by June 28, 2019. In his initial disclosure statement,
Sharifi identified Wilson as a person possessing information relevant to the
case. Specifically, Sharifi disclosed that Wilson, a “former echo lab
technician” at Baywood, “overheard disparaging remarks.” This brief and
vague description neither identified the individual who made the
comments Wilson purportedly overheard nor revealed the substance of the
statements, as the rules require. See Ariz. R. Civ. P. 26.1(a)(3) & (4).
¶33 As the litigation progressed, Sharifi failed to provide any
supplemental disclosure regarding Wilson, or any disclosure regarding
3 Although Sharifi makes a fleeting reference to unspecified
documents purportedly located in his credentialing file, asserting they are
not necessarily privileged, he fails to develop that argument and does not
address whether his credentialing file was used in a peer-
review/credentialing process, as the superior court found. See Humana, 154
Ariz. at 402 (“[B]ecause the statutes expressly refer to the confidentiality of
peer review of applications for staff privileges and because of the public
interest in such confidentiality, we hold that the peer review privilege
protects the credentialing process.”). Having failed to present a reviewable
argument, Sharifi has waived any issue regarding the disclosure of his
credentialing file. See ARCAP 13(a)(7).
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Rose,4 until he filed his request for the appointment of a special discovery
master, approximately two months after the disclosure deadline. In
reviewing Dinner’s motion to strike the Wilson and Rose declarations, the
superior court found the declarations went “well beyond any previous
disclosure[s],” and in the absence of a showing of good cause, the court
struck them as untimely.
¶34 Rule 26.1(a)(3) requires a party to identify each witness it may
use at trial. The party also must provide “a description of the substance—
and not merely the subject matter—of the testimony sufficient to fairly
inform the other parties of each witness’ expected testimony.” Ariz. R. Civ.
P. 26.1(a)(3). When a party has failed to timely disclose the required
information, it “may not use the information, witness, or document as
evidence at trial” unless “the court specifically finds that such failure
caused no prejudice or orders otherwise for good cause.” Ariz. R. Civ. P.
37(c)(1). Because the superior court is in a better position to determine
whether “a disclosure violation has occurred in the context of a given case”
and, if so, its “practical effect,” we uphold its disclosure rulings absent a
clear abuse of discretion. Solimeno, 224 Ariz. at 77, ¶ 9.
¶35 As detailed in his complaint, Sharifi broadly alleged that
Dinner sent or received communications that included defamatory
statements about him. Although Sharifi had disclosed that Wilson had
some information about alleged defamatory statements, he failed to
disclose the substance of the statements or who made them. Given the
framing of Sharifi’s defamation claim against Dinner, his disclosures failed
to provide her with notice that any witness directly overheard her making
defamatory statements or what those statements were. Moreover, Sharifi
did not seek leave of the court to use the untimely disclosed declarations by
submitting an affidavit demonstrating that he disclosed the information “as
soon as practicable after its discovery.” See Ariz. R. Civ. P. 37(c)(4)(B). On
this record, the superior court did not abuse its discretion by finding the
Wilson and Rose declarations untimely and striking them from the record.
Accordingly, because Sharifi failed to present any admissible evidence to
substantiate his allegations against Dinner, much less any clear and
convincing evidence, the superior court properly entered summary
judgment in favor of Dinner on his defamation claim.
4 Sharifi contends he timely disclosed Rose as a witness but referred
to her as Dr. Rosenblum in prior disclosures. The record reflects that Sharifi
timely disclosed a 2018 affidavit from a Dr. Rosenblum, but that affidavit
did not contain any of the allegations made in the Rose affidavit.
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II. Award of Attorneys’ Fees
¶36 Finally, Sharifi challenges the superior court’s award of
attorneys’ fees to Dinner under A.R.S. § 12-349, arguing his defamation
claim against her was neither groundless nor brought in bad faith.
¶37 Under A.R.S. § 12-349(A), the court “shall” assess reasonable
attorneys’ fees against an attorney or party who, among other things, brings
a claim without substantial justification. As defined within the statute, a
claim lacks substantial justification when it is both “groundless” and “not
made in good faith.” A.R.S. § 12-349(F). While groundlessness is
determined objectively, bad faith is a subjective determination. Rogone v.
Correia, 236 Ariz. 43, 50, ¶ 22 (App. 2014). A claim is groundless “if the
proponent can present no rational argument based upon the evidence or
law in support of that claim.” Id. (citation and internal quotation omitted).
¶38 In awarding attorneys’ fees under A.R.S. § 12-349, the
superior court must “set forth the specific reasons for the award.” A.R.S.
§ 12-350. Because the “purpose of this requirement is to assist the appellate
court on review[,] . . . the findings need only be specific enough to allow an
appellate court to test the validity of the judgment.” Bennett v. Baxter Group,
223 Ariz. 414, 421, ¶ 28 (App. 2010) (internal quotations and citations
omitted).
¶39 We review a superior court’s application of A.R.S. § 12-349 de
novo, but we view “the evidence in a manner most favorable to sustaining
the award” and will affirm unless the superior court’s findings are “clearly
erroneous.”5 Phoenix Newspapers, Inc. v. Dep’t of Corr., 188 Ariz. 237, 243, 244
(App. 1997). We may affirm the superior court’s ruling “if it is correct for
any reason apparent in the record.” Forszt v. Rodriguez, 212 Ariz. 263, 265,
¶ 9 (App. 2006).
5 Without citing any authority, Sharifi argues that we should review
the superior court’s findings de novo because he requested an evidentiary
hearing and “was denied the opportunity to make a factual record.” This
contention mischaracterizes the record and is without merit. At oral
argument on Dinner’s request for attorneys’ fees, the superior court
expressly invited Sharifi to supplement the record by presenting witness
testimony or written declarations, and Sharifi responded by saying he
would submit supplemental affidavits. His failure to do so does not,
somehow, mean he was denied the opportunity to make a factual record.
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TAKIEH M.D. v. O’MEARA M.D., et al.
Opinion of the Court
¶40 Sharifi first asserts that he brought his defamation claim
against Dinner in good faith because he believed that the anti-abrogation
provision in the Arizona Constitution bars peer-review participants from
invoking statutory immunity under A.R.S. § 36-445.02 when sued for
defamation. See Ariz. Const. art. XVIII, § 6 (“The right of action to recover
damages for injuries shall never be abrogated.”). While Sharifi correctly
notes that prior cases upholding A.R.S. § 36-445.02 against anti-abrogation
challenges did not consider the statute’s application in defamation actions,
Goodman, 195 Ariz. at 509, ¶ 29 n.9 (limiting the analysis upholding A.R.S.
§ 36-445.02 against an anti-abrogation challenge to the claims raised,
explaining that “[a] different analysis might be required if a defamation
claim were made against an individual peer reviewer”); see also Humana,
154 Ariz. at 399–400, the superior court ruled early in this litigation (before
Sharifi filed his amended complaint) that no statement made during the
peer-review process could be used to prosecute a defamation claim.
Nonetheless, after receiving that ruling, Sharifi filed an amended complaint
that alleged defamation against Dinner based primarily on
communications made during the peer-review process. The superior court
found that, at that point, Sharifi could not have had a good faith belief that
any statements she made during the peer-review process could support a
defamation claim against her.
¶41 The superior court found that, in the end, Sharifi offered no
admissible evidence that Dinner made defamatory statements about him,
made no “effort to determine whether [] Dinner actually made admissible
defamatory statements about him” before filing his amended complaint,
and failed “to withdraw his claim” when confronted with his lack of
evidence.
¶42 During oral argument on Dinner’s request for attorneys’ fees,
the superior court ordered Sharifi to file a signed affidavit setting forth the
evidentiary basis for his amended complaint. In response, Sharifi submitted
a declaration avowing that before he filed his amended complaint, several
physicians privately told him that Dinner had made defamatory statements
against him. According to Sharifi, these witnesses refused to execute
declarations directly attributing the defamatory statements to Dinner
because they feared “retaliation.” Nonetheless, based on these
conversations, Sharifi avowed he “firmly believed” both that his
defamation claim against Dinner was “supported by the facts” and that he
“could gather enough evidence to prove” it when he filed his amended
complaint. To substantiate his avowals, Sharifi also submitted unsigned
declarations attributed to three Baywood physicians. Although the
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TAKIEH M.D. v. O’MEARA M.D., et al.
Opinion of the Court
declarants each claimed to have heard disparaging remarks about Sharifi,
none avowed to have heard such remarks directly from Dinner.
¶43 Having reviewed the record in its entirety, we conclude the
superior court’s findings are not clearly erroneous. Nothing in the record
suggests that Sharifi had any admissible evidence to support his
defamation claim against Dinner at the time he filed his amended
complaint. Although Sharifi asserts there were “circumstantial reasons for
believing” that Dinner had made defamatory statements against him, he
admits that only Wilson avowed that she directly overhead such remarks.
According to his affidavit, Sharifi relied heavily on Wilson’s account, but
Wilson did not allegedly overhear Dinner making disparaging remarks
until months after Sharifi filed his amended complaint, so her account could
not serve as the factual predicate for that complaint. Moreover, consistent
with the superior court’s findings, the record does not reflect that Sharifi
made any attempt to depose any of the individuals he asserts witnessed
Dinner utter defamatory statements. In asserting that “[t]he only missing
element was someone who heard Dinner make the statements,” Sharifi fails
to recognize that such evidence was the necessary factual predicate for his
defamation claim. In other words, unable to offer evidence that someone
witnessed Dinner making defamatory statements, Sharifi based his entire
defamation claim on supposition and speculation. Therefore, on this record,
the superior court did not err in finding Sharifi’s claim was groundless and
he pursued it in bad faith, and awarding Dinner her attorneys’ fees under
A.R.S. § 12-349.
CONCLUSION
¶44 For the foregoing reasons, we affirm. Dinner requests an
award of her attorneys’ fees under A.R.S. § 12-349. Because Sharifi’s
defamation claim was groundless and pursued in bad faith, we grant
Dinner’s request, conditioned upon compliance with ARCAP 21.
AMY M. WOOD • Clerk of the Court
FILED: AA
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