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Salo v. Tyler

Supreme Court of Utah

February 22, 2018

David Salo, Appellant,
v.
Linda Tyler, Kavish Choudhary, and John Vu, Appellees.

         On Direct Appeal Third District, Salt Lake The Honorable Richard D. McKelvie No. 120905443

          Sean N. Egan, Salt Lake City, for appellant

          Sean D. Reyes, Att'y Gen., Joshua D. Davidson, Asst. Att'y Gen., Salt Lake City, for appellees

          Associate Chief Justice Lee authored the opinion of the Court, in which Chief Justice Durrant, Justice Himonas, Judge Brown, and Judge Hyde joined.

          Having recused himself, Justice Pearce does not participate herein; District Court Judge Jennifer A. Brown sat.

          Due to her retirement, Justice Durham did not participate herein; District Court Judge Noel S. Hyde sat.

          Justice Petersen became a member of the Court on November 17, 2017, after oral argument in this matter, and accordingly did not participate.

          OPINION

          LEE ASSOCIATE CHIEF JUSTICE.

         ¶ 1 In 2011 David Salo was fired from Amgen, Inc., where he worked as a pharmaceutical representative. Salo later filed claims for defamation and interference with economic relations, asserting that three administrators at the University of Utah Hospital pharmacy- Linda Tyler, Kavish Choudhary, and John Vu-defamed him and caused him to lose his job. The district court dismissed these claims on summary judgment. We affirm.

         ¶ 2 In so doing we first clarify the operative summary judgment standard under rule 56 of the Utah Rules of Civil Procedure. Despite some confusing dicta to the contrary in Orvis v. Johnson, 2008 UT 2, 177 P.3d 600, we hold that the Utah summary judgment standard is in line with the federal standard as set forth in Celotex Corp. v. Catrett, 477 U.S. 317 (1986). In recent cases we have sought to clarify the standard as stated in Orvis and to reconcile it with the Celotex formulation. See, e.g., Jones v. Trevor Mktg., Inc. v. Lowry, 2012 UT 39, ¶ 30 n.9, 284 P.3d 630. But confusion has continued-as evidenced by arguments in this case. And we now disavow any suggestion in Orvis that our Utah standard is distinct from the federal standard stated in Celotex. As in Celotex, we hold that the moving party always bears the burden of establishing the lack of a genuine issue of material fact, but the burden of production of evidence may fall on the nonmoving party (if that party will bear the burden of production at trial). And where the burden of production falls on the nonmoving party, we clarify that the moving party may carry its burden of persuasion without putting on any evidence of its own-by showing that the nonmoving party has no evidence to support an essential element of a claim.

         ¶ 3 We affirm summary judgment under this standard. We hold that the defendants were entitled to summary judgment under the Utah Governmental Immunity Act, Utah Code sections 63G-7-101 through 63G-7-904. That statute protects the governmental employees here from liability for acts within the scope of their employment unless their acts are shown to be willful. See id. § 63G-7-202(3). Here it is evident that the defendants acted within the scope of employment because they were clearly engaged in the general type of work they were employed to perform. And Salo produced no evidence that their actions were willful. We affirm on those grounds.

         ¶ 4 We also affirm the district court's decision to refuse to strike an affidavit submitted by Linda Tyler in support of the motion for summary judgment filed by Choudhary and Vu. Tyler was not listed as a potential witness at the time of the summary judgment motion, as required by rule 26(a) of the Utah Rules of Civil Procedure. But Tyler was identified in the defendants' rule 26(a) disclosures at every stage of the litigation until shortly before summary judgment, as was the subject of Tyler's testimony. For that reason we conclude that Salo was in no way prejudiced by the defendants' failure to identify Tyler as a witness. And we conclude that the district court acted within its discretion in denying the motion to strike.

         I

         ¶ 5 In 2011 David Salo was working as a pharmaceutical representative for Amgen, Inc. His largest account was with the University of Utah Hospital system. He worked particularly closely with the Huntsman Cancer Hospital. Salo was also a member of the Medical Service Representatives Committee (MSR) at the hospital. In that volunteer capacity he helped coordinate the relationship between pharmaceutical companies such as Amgen, their drug representatives, and hospital administrators and staff.

         ¶ 6 On April 27, 2011, a nurse at the university hospital contacted Salo about a patient who suffered from bony-metastatic disease and giant cell tumor (GCT). The nurse reached out to Salo on behalf of Dr. Lance Gouw, a physician in the University of Utah hospital system. Dr. Gouw had developed a plan to treat the patient's GCT, a plan that included the use of denosumab, a drug manufactured by Amgen. Since the U.S. Food and Drug Administration (FDA) had not approved denosumab for treatment of GCT, Dr. Gouw's nurse inquired whether Salo had any information on treating GCT with the drug. Salo had never heard of GCT before and told the nurse he would get back to her. He also directed her to Amgen Medical Information for more information. Later Dr. Gouw's physician assistant Grace Noda followed up with Salo. Salo gave Noda the contact information of a doctor from MD Anderson Cancer Center who had experience using denosumab for GCT.

         ¶ 7 At the same meeting, Noda asked Salo about Amgen's patient assistance programs administered through the Amgen Foundation. The patient in question did not have commercial health insurance and thus was not eligible for the First Step Program. But Salo did provide information about Amgen's other program, the Safety Net Program, designed for patients without insurance. Dr. Gouw later applied to the program on behalf of his patient.

         ¶ 8 Following his conversation with Noda, Salo called the hospital's pharmacy director to relate his conversations with Dr. Gouw's nurse and physician assistant, but the call dropped. Salo then called Vu and reported that he was aware that Dr. Gouw intended to use denosumab off-label but that he "had nothing to do with Dr. Gouw wanting to use [the drug] off-label." Salo also reported that he had given Noda the name of a physician who had experience using denosumab for GCT. Vu "took exception" to this news, remarking that "we're going to have to look into this."

         ¶ 9 Vu reported this conversation to Choudhary, writing about "perceived" off-label promotion of denosumab by Salo. Vu relayed that the "action of giving out the MD Anderson physician info would likely be considered off-label promotion." Choudhary also heard from the hospital's pharmacy director, who reported that certain hospital staff were under the impression that Salo had given Dr. Gouw Amgen's financial assistance debit cards for use for an off-label treatment. Choudhary forwarded this information to Tyler.

         ¶ 10 Tyler assigned Choudhary to lead the pharmacy's investigation into the matter, and Vu, as Salo's MSR liaison, was assigned to assist Choudhary. Choudhary and Vu delegated some fact-finding responsibilities to the clinical supervisor, Dan Sageser. Soon after Choudhary began his investigation, he instructed Sageser to file a complaint against Salo with the FDA.

         ¶ 11 Salo reported his interactions with Dr. Gouw's staff to Amgen compliance on April 28, 2011. The company later opened its own internal investigation into Salo's actions. In the course of this investigation, Amgen contacted Choudhary to set up a meeting, and he and Vu met with Amgen compliance officers on June 1, 2011, and June 6, 2011. In these meetings Choudhary and Vu repeated the accusations against Salo-that he had improperly promoted an off-label treatment by passing on the information of a physician who had experience using denosumab off-label and that he had improperly given Noda information about Amgen's patient assistance programs to pay for these off-label treatments.

         ¶ 12 Amgen terminated Salo following its internal investigation. The company made the decision on July 29, 2011. It alerted Salo on August 18, 2011. The company cited four grounds for termination: Salo contacted Amgen Medical Affairs on behalf of the hospital rather than referring hospital staff directly to Amgen; Salo referred Noda to a third-party physician who had experience with off-label use of denosumab; Salo provided patient financial assistance information to hospital staff in the same meeting where discussing an off-label treatment; and Salo did not document four related events with a formal Amgen Business Reply Card.

         ¶ 13 Shortly before Salo found out about his termination, he contacted Senator Mike Lee's office. In response to an inquiry from Senator Lee's office, Tyler wrote an email on August 8, 2011, to eleven administrators at the university-administrators directly involved in the investigation or high-level officials who would benefit from knowledge of the situation as they might need to field questions from Senator Lee's office.

         ¶ 14 Ray Lynch, executive director of the hospital, responded to Tyler's email. Tyler replied on August 10, 2011, copying two other administrators. Her email to Lynch described FDA regulations "that state that a company can't market a drug for off-label use." She also noted that using patient assistance programs for off-label use "is not in the best interest of our patients or the organization."

         ¶ 15 Salo filed claims against Choudhary and Vu for defaming him during their two June meetings with Amgen compliance officials and for interfering with his employment with Amgen. He also filed against Tyler for defamation and interference with economic relations relating to her two emails to university administrators.

         ¶ 16 After discovery Tyler-and later Choudhary and Vu-filed motions for summary judgment. Salo opposed these motions. He also moved to strike an affidavit that Choudhary and Vu submitted in support of their motion-the affidavit of Linda Tyler. In Salo's view this affidavit was improper because Tyler ...


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