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Yeung v. Maric - 6/8/2010

Arizona Court of Appeals Division One Holds That Statements Made by a Witness in Private Arbitration Are Protected by the Absolute Privilege Afforded to Participants in Judicial Proceedings.


In April 2002, Plaintiff, a spinal surgeon, performed surgery on L.L.  In May 2002, L.L. was involved in a motor vehicle accident.  Plaintiff performed further surgery on L.L.  In 2005, Defendant, another physician, conducted an independent medical examination (“IME”) of L.L. to determine whether her pain was related to the May 2002 accident.  In his IME report, Defendant criticized Plaintiff’s treatment of L.L.  Plaintiff filed a complaint alleging defamation and false light invasion of privacy based on statements made in Defendant’s IME report.  Defendant moved for summary judgment, arguing that his statements were absolutely privileged.  The lower court granted Defendant’s motion and Plaintiff timely appealed.

The ArizonaAppeals Court affirmed.  In Arizona, witnesses in judicial proceedings are protected by an absolute privilege for any allegedly defamatory statements made during depositions and trial, as well as in their reports, consultations, and advice relevant to the litigation and prepared as preliminary steps in the institution or defense of a case.  The Court held that the privilege applies to statements made by witnesses in private arbitrations because arbitrations are quasi-judicial proceedings.  The Court relied on Craviolini v. Scholer & Fuller Associated Architects, 89 Ariz. 24, 357 P.2d 611 (1961), which held that arbitrators are entitled to absolute immunity because they engage in quasi-judicial functions, as well as cases from other jurisdictions.  The Court also explained that extending the absolute privilege to private arbitrations served public policy by ensuring that witnesses testify voluntarily and candidly without fear of potential liability.

The Court rejected Defendant’s argument that the absolute privilege should apply to arbitration proceedings only when minimum judicial safeguards are in place, finding that there were sufficient judicial safeguards in the arbitration to make it sufficiently analogous to judicial litigation.  The Court also rejected Defendant’s argument that the privilege did not attach because litigation was not seriously contemplated at the time the IME was conducted, explaining that the IME was made in connection with litigation.

Presiding Judge Gemmill authored the opinion; Judges Thompson and Irvine concurred.

Posted By: Sharad H. Desai

Posted On: 6/22/2010