Appeal from Superior Court of Whatcom County. Docket No: 93-2-02207-3. Date filed: 05/05/95. Judge signing: Hon. Steven J. Mura.
Petition for Review Denied July 8, 1997,
Authored by H. Joseph Coleman. Concurring: Susan R. Agid, Ann L. Ellington.
The opinion of the court was delivered by: Coleman
COLEMAN, J. -- The court below dismissed Dr. Anthony S. Karuza's claims against Michael Thorpe, M.D. for defamation, tortious interference, intentional and negligent infliction of emotional distress, and unfair business practices under the Consumer Protection Act. Karuza claims that the three tort claims were erroneously dismissed because he raised a factual dispute as to whether Thorpe abused a qualified privilege. Karuza also appeals the dismissal of his CPA claim, assigning error to the court's finding of no public interest impact. Finally, Karuza claims that the court erred in awarding attorney fees under CR 11. We affirm the dismissal of Karuza's CPA claim because it involves only a private dispute. But because competent evidence would support a permissible inference that Thorpe abused a qualified privilege, we reverse the grant of summary judgment on Karuza's tort claims and remand them for trial. We also vacate the CR 11 sanctions.
We set forth the evidence in the light most favorable to Karuza, the nonmoving party on summary judgment. Matter of Estates of Hibbard, 118 Wash. 2d 737, 744, 826 P.2d 690 (1992). In 1990, Thorpe, an orthopedic surgeon, examined several patients who had previously undergone foot surgery by Karuza, a podiatrist. Thorpe told the patients that Karuza had performed inadequately or billed the patients wrongfully. As a result, some of the patients filed complaints against Karuza with the Washington State Podiatric Medical Board (WSPMB) and some sued Karuza for medical negligence.
In 1989, Karuza had treated Marguerite Kiehle for foot ailments. Dr. Dana Stiner, a member of a medical referral service, later referred Kiehle to Thorpe. After discovering that Karuza had performed foot surgery on Kiehle, Thorpe told her that she was "in the poorest condition of the four or five patients of Dr. Karuza's that he had to 'patch up' recently." Thorpe also told her that Karuza had never performed certain procedures on her feet for which Karuza had billed her. Thorpe made these statements without obtaining Kiehle's file or X-rays from Karuza's office. He did, however, independently examine Kiehle and X-ray her feet. Thorpe told Kiehle that Karuza "should be sued and put out of business before he kills someone."
Thorpe sent a letter to Stiner, expressing his concern that although Karuza had performed numerous surgical procedures on Kiehle, her foot was still in pain. The letter stated that "a couple of the listed procedures are [a] sham or unproven[,]" and that a plug that Karuza inserted in Kiehle's foot needed to be removed.
Thorpe filed numerous complaints against Karuza with the WSPMB. Thorpe's statements encouraged a number of patients to file negligence claims against Karuza. Thorpe testified against Karuza as an expert witness in some of those cases. None of the medical malpractice plaintiffs prevailed at trial. Karuza also claimed that Thorpe made unfounded allegations against other practicing doctors.
Between 1989 and 1993, Karuza's practice suffered dramatically while Thorpe's flourished. Karuza sued Thorpe for abuse of process, defamation, tortious interference with a business expectancy, intentional infliction of emotional distress, and unfair business practices. Karuza voluntarily withdrew the abuse of process claim before the court made any rulings in the case.
Karuza's remaining claims were dismissed. The court dismissed Karuza's CPA claim based on a lack of public interest impact. The court also struck paragraphs of Karuza's second declaration that recounted statements Thorpe allegedly made to a number of patients. It reasoned that Karuza had no personal knowledge that the statements were made. The court also denied Karuza's request for a protective order that would have allowed him to introduce Thorpe's deposition testimony in another case because it was subject to private confidentiality agreements. The court then ruled that most of Thorpe's statements were qualifiedly privileged, and that Karuza had failed to present sufficient evidence suggesting that Thorpe abused that privilege. Because the statements Thorpe allegedly made to Kiehle were supported by Kiehle's declarations, the court dismissed all claims except those relating to Kiehle. After additional briefing, the court dismissed all remaining claims, ruling that Karuza had presented no competent evidence that Thorpe had abused the qualified privilege. The court granted Thorpe's CR 11 motion and awarded $25,000 in sanctions on the ground that Karuza's claims were not supported by law or fact.
We first address whether the trial court erroneously struck Karuza's declarations, which claimed that Thorpe made statements to various patients. Trial court rulings on the admissibility of evidence are reviewed for abuse of discretion. Havens v. C & D Plastics, Inc., 124 Wash. 2d 158, 168, 876 P.2d 435 (1994). A non-moving party in a summary judgment must set forth specific facts and may not rely on argumentative assertions or have its affidavit considered at face value. Thompson v. Everett Clinic, 71 Wash. App. 548, 556, 860 P.2d 1054 (1993), rev. denied, 123 Wash. 2d 1027, 877 P.2d 694 (1994); CR 56(e). Here, the stricken declarations are not based on Karuza's personal knowledge because they all pertain to statements Thorpe allegedly made to patients when Karuza was not present. They are therefore inadmissible. We affirm the lower court's order to strike portions of Karuza's second declaration.
We next turn to Karuza's claim that the lower court erred in refusing to grant his motion for a protective order that would have allowed him to introduce prior confidential testimony by Thorpe. CR 26(c) gives the trial court broad discretion to issue protective orders for "good cause shown." See Doe v. Puget Sound Blood Center, 117 Wash. 2d 772, 796, 819 P.2d 370 (1991).
Karuza voluntarily agreed to the confidentiality agreements with his former adversaries. A plaintiff's attorney in one of the cases filed an affidavit objecting to Karuza's attempt to violate the terms of the confidentiality agreement without giving any notice. Because Thorpe's deposition transcripts were subject to private confidentiality agreements, we affirm the court's refusal to grant the protective order. It's decision was not "manifestly unreasonable or based upon untenable grounds." See Havens, 124 Wash. 2d at 168.
We next address the central issue in this case: Did Karuza present sufficient evidence to create a genuine issue of material fact as to whether Thorpe abused a qualified privilege? Karuza concedes that a qualified privilege would be a valid defense to his three tort claims, but he disputes the trial court's Conclusion that the privilege was not abused as a matter of law. We agree with Karuza ...