Salo v. Tyler
417 P.3d 581
Utah2018Background
- In 2011 David Salo, an Amgen pharmaceutical representative and MSR volunteer at University of Utah Hospital, was accused of indirectly promoting off‑label use of denosumab and of providing patient‑assistance information to hospital staff.
- Hospital administrators (Tyler, Choudhary, Vu) investigated; Choudhary and Vu reported alleged off‑label promotion to Amgen compliance and instructed an FDA complaint be filed; Amgen later terminated Salo.
- Salo sued the three administrators for defamation and tortious interference with economic relations; defendants moved for summary judgment asserting governmental immunity under the Utah Governmental Immunity Act and submitted Tyler’s affidavit.
- The district court granted summary judgment for the defendants (finding actions within scope of employment and no evidence of willful misconduct) and denied Salo’s motion to strike Tyler’s affidavit for an alleged Rule 26(a) disclosure violation.
- On appeal the Utah Supreme Court affirmed: it (1) clarified that Utah’s summary judgment standard aligns with the federal Celotex rule, (2) held defendants’ investigatory actions were within scope of employment, (3) held Salo failed to produce evidence of “willful misconduct,” and (4) upheld the denial of the motion to strike due to lack of prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper summary‑judgment burden standard | Orvis requires movant to produce affirmative evidence; court erred by shifting burden to Salo | Celotex allows a movant to show nonmoving party lacks evidence of essential element without producing affirmative evidence | Court adopts Celotex formulation: moving party may show nonmoving party has no evidence of essential element and prevail without adducing its own evidence |
| Scope of employment for investigatory acts | Investigations into off‑label promotion were not regular duties; scope is fact‑bound, so summary judgment improper | Investigations were of the general kind employees were hired to perform and were directed by supervisors | Actions were within scope of employment as they were generally the type of work assigned and motivated in part to serve employer’s interest; no genuine factual dispute |
| Willful misconduct under Utah Code §63G‑7‑202(3)(c) | Defendants acted with ill will and knowledge; willfulness is a state‑of‑mind question for jury | Plaintiff produced no evidence defendants knew statements were false; mere intent to harm is insufficient | No evidence that defendants knew statements were false; plaintiff failed to raise a genuine issue of material fact on willfulness |
| Motion to strike Tyler’s affidavit for Rule 26(a) omission | Tyler was not disclosed in final Rule 26(a) list; affidavit should be struck | Tyler had been disclosed earlier, discovery was complete, Salo deposed Tyler, and no prejudice resulted | District court did not abuse discretion denying motion; omission caused no prejudice and discovery opportunities existed |
Key Cases Cited
- Orvis v. Johnson, 177 P.3d 600 (Utah 2008) (discussed prior Utah summary‑judgment language and dicta)
- Celotex Corp. v. Catrett, 477 U.S. 317 (U.S. 1986) (moving party may show absence of genuine issue by demonstrating nonmovant lacks evidence)
- Jones v. Trevor Mktg., Inc. v. Lowry, 284 P.3d 630 (Utah 2012) (prior Utah cases attempting to reconcile Orvis and Celotex)
- Birkner v. Salt Lake County, 771 P.2d 1053 (Utah 1989) (scope of employment standard)
- M.J. v. Wisan, 371 P.3d 21 (Utah 2016) (modifying scope‑of‑employment analysis)
- Eldridge v. Johndrow, 345 P.3d 553 (Utah 2015) (wrongful interference requires wrongful act such as defamation)
- Scott v. Universal Sales, Inc., 356 P.3d 1172 (Utah 2015) (governmental immunity is an affirmative defense)