Kahn v. Arizona Cvs
1 CA-CV 16-0333
| Ariz. Ct. App. | Feb 14, 2017Background
- Dr. Shakeel A. Kahn prescribed controlled substances; two patients were refused fills at CVS pharmacies after employees made statements about Kahn.
- Pharmacist Carol San Vicente told a patient she had heard Kahn’s DEA number was suspended and that the problem was the doctor; a technician (Penny York) told another patient the doctor wrote so many controls that the DEA was involved.
- Kahn sued CVS and San Vicente for defamation, slander per se, and false light; the superior court granted summary judgment for defendants, finding the statements substantially true.
- On appeal Kahn challenged only the slander per se summary judgment ruling asserting the statements were false because the DEA never investigated or suspended his DEA number at the time.
- The Court of Appeals reviewed substantial-truth as a matter of law where facts are undisputed and considered whether the statements’ “sting” matched the truth to an average listener.
- The court concluded statements that a governmental agency was investigating Kahn were substantially true (the Arizona Medical Board had open investigations), but the specific claim that his DEA number was suspended was not shown to be true and could be significant to listeners.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether statements that Kahn was under investigation were substantially true | Kahn: statements were false because DEA never investigated him | CVS/San Vicente: substantial truth because a governmental licensing agency (Arizona Medical Board) was investigating | Held: Statements that a governmental agency was investigating were substantially true; gist matched reality |
| Whether statement that Kahn's DEA number was suspended was substantially true | Kahn: false — DEA did not suspend his DEA number | CVS/San Vicente: characterization justified by ongoing investigations (implying serious regulatory involvement) | Held: Not substantially true as a matter of law; suspension did not occur and difference could matter to an average listener; summary judgment reversed on this point |
Key Cases Cited
- Read v. Phoenix Newspapers, Inc., 169 Ariz. 353 (1991) (slight inaccuracies do not defeat substantial truth if gist/sting is justified)
- Desert Palm Surgical Group, P.L.C. v. Petta, 236 Ariz. 568 (2015) (view of the average reader/listener determines whether differences are insignificant)
- Fendler v. Phoenix Newspapers, Inc., 130 Ariz. 475 (1981) (truth/substantial truth is an absolute defense; court may decide as matter of law when facts undisputed)
- Modla v. Parker, 17 Ariz. App. 54 (1971) (slander per se includes statements tending to injure person in profession)