Judge v. Saltz Plastic Surgery

2014 UT App 144
_________________________________________________________
THE U TAH COURT OF A PPEALS
C ONILYN J UDGE ,
Plaintiff and Appellant,
v.
S ALTZ P LASTIC SURGERY , PC AND R ENATO SALTZ ,
Defendants and Appellees.
Opinion
No. 20120646‐CA
Filed June 26, 2014
Third District Court, Salt Lake Department
The Honorable L.A. Dever
No. 090900609
Roger H. Hoole and Gregory N. Hoole, Attorneys
for Appellant
Robert G. Wright, Mark L. McCarty, Brandon B.
Hobbs, and Zachary E. Peterson, Attorneys
for Appellees
J UDGE J OHN A. P EARCE authored this Opinion, in which J UDGES
J AMES Z. D AVIS and J. FREDERIC VOROS J R . concurred.
PEARCE, Judge:
¶1 	Conilyn Judge sued her cosmetic surgeon, Dr. Renato Saltz,
and his office, Saltz Plastic Surgery, PC, (collectively, Saltz) after
they provided photographs of five patients, including Judge, to a
television news reporter. The reporter included two photographs
depicting Judge before and after her surgery in a news story
broadcast on television and posted on the internet. The district
court granted summary judgment to Saltz after concluding that
Judge could not prevail as a matter of law on her claims of false
light, publication of private facts, intrusion upon seclusion, breach
of fiduciary duty, and negligent employment and supervision.
Judge appeals those summary judgment orders, as well as the

Judge v. Saltz Plastic Surgery
denial of her motion to compel discovery. We reverse the summary
judgment rulings and remand for further proceedings. We affirm
the denial of the motion to compel, except to the extent it sought
financial information to support a claim for punitive damages,
which we vacate and remand for additional inquiry.
BACKGROUND
¶2 	In 2006, Dr. Saltz performed cosmetic surgery on Judge’s
breasts and torso. Before undergoing the procedure, Judge signed
a consent form that provided:
I consent to be photographed or televised before,
during, and after the operation(s) or procedure(s) to
be performed, including appropriate portions of my
body, for medical, scientific or educational purposes,
provided my identity is not revealed by the pictures.1
¶3 	In 2008, a television news reporter contacted Dr. Saltz about
participating in a story focused on both the dangers of cosmetic
surgery and the importance of properly selecting a cosmetic
surgeon. The reporter had already identified a patient (not one of
Saltz’s) whose surgery had gone poorly. In pursuit of a fair and
balanced story, the reporter wanted to interview a patient who had
experienced a positive outcome. Because Judge was pleased with
her surgery and because she works in public relations, Dr. Saltz
asked her if she would be interviewed for the story. Judge agreed.
1. This consent form pertained to Judge’s mastopexy surgery. On
the same day, Judge signed a consent form for abdominoplasty
surgery with functionally identical language: “I consent to the
photographing or televising of the operation(s) or procedure(s) to
be performed, including appropriate portions of my body, for
medical, scientific or educational purposes, provided my identity
is not revealed by the pictures.” The parties make no distinction
between the language used in each form.
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¶4 	The interview was filmed in Dr. Saltz’s office. On the day of
the interview, the reporter asked Dr. Saltz to perform a mock
physical examination of Judge for the camera. Judge understood
this to be “B roll” footage that would be shown as background
during the news story. Judge wore a patient gown for this segment
but requested that she be filmed at certain angles to help ensure the
footage would be appropriate and tasteful.
¶5 	After interviewing Judge and Dr. Saltz, the reporter met
with Dr. Saltz’s office manager to request “before and after”
photographs of Judge and other patients. Later that day, the office
manager sent photographs of Judge and four other patients to the
reporter. Judge’s photographs were taken from the neck down and
did not show her face, but revealed her naked body in profile from
neck to upper thigh.
¶6 	The office manager specifically indicated which photo‐
graphs were of Judge, writing to the reporter, “Here are Coni’s
before pictures” and “here are Coni’s after pictures.” The news
organization used Judge’s photographs in television broadcasts
and in an online story. The organization redacted portions of the
photographs for broadcast by superimposing black bars over a
portion of Judge’s bust and pelvis. During the story, as the “before”
image morphed into the “after” image; the reporter identified
Judge, stating, “this is Coni before; this is Coni after.” When Judge
learned that her photographs had been broadcast, she complained,
and the news organization excised her pictures from the online
version of the story.
¶7 	Judge filed suit, initially naming Dr. Saltz, his office, and the
news organization as defendants. 2 Her causes of action against the
Saltz defendants were false light, publicity of private facts,
intrusion upon seclusion, breach of fiduciary duty, and negligent
2. Judge eventually settled with the news organization and
dismissed her claims against it.
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Judge v. Saltz Plastic Surgery
employment and supervision. During discovery, Judge sought
evidence from Saltz regarding consent forms signed by other
patients whose photographs were given to the reporter, Saltz’s
annual advertising budget and related documents for each year
from 2003 to 2008, and Saltz’s “balance sheets and tax returns for
the past five years.” The district court ruled that these items were
irrelevant to Judge’s claims and denied her motion to compel their
production.
¶8 	The district court dismissed all of Judge’s claims in a series
of rulings. Saltz first moved for summary judgment on Judge’s
false light claim, asserting that Judge had not adequately pleaded
special damages. The district court agreed and granted summary
judgment to Saltz on that cause of action.
¶9 	Saltz next moved for summary judgment on Judge’s
publicity of private facts and intrusion upon seclusion claims. The
district court ruled that Judge had not established a prima facie
case for publication of private facts. It concluded that Saltz had not
publicized a fact, because there was “no evidence to establish that
the release of photographs to [the reporter] would necessarily
mean that the photographs were substantially certain to be made
public through a communication to the public at large.” The court
also determined that Saltz had not disclosed a private fact about
Judge. The court reasoned that Judge had at times worn a bikini in
public and thus could not “claim that parts of her body that she
ha[d] left open to the public eye are now private facts.” The court
further found that Judge had “voluntarily placed these facts before
the public and gave the public a legitimate interest in viewing the
photographs by appearing on television to inform the public about
choosing a good plastic surgeon and by making representations
about her surgical results.”
¶10 	The district court also ruled that Judge could not present a
prima facie case for intrusion upon seclusion. It concluded that
Judge had “consented to the use of her photographs for an
educational purpose,” that Judge had admitted that the news story
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Judge v. Saltz Plastic Surgery
had an educational purpose, and that there was “no notation on
any [photograph] that would identify” Judge. The district court
therefore granted summary judgment to Saltz on the publicity of
private facts and intrusion upon seclusion causes of action.
¶11 	Saltz then moved for summary judgment on Judge’s
remaining claims—breach of fiduciary duty and negligent employ‐
ment and supervision. The district court’s order did not directly
discuss the elements of these causes of action; rather, the court
restated its earlier conclusions that the undisputed evidence
showed that Judge had consented to the release of her photographs
for educational purposes, that the news story had an educational
purpose, that Judge had disclosed her identity by introducing
herself to the reporter, and that the photographs showed no more
of Judge’s body than she had previously “displayed in public while
wearing a bikini.”
¶12 	Judge appeals the summary judgments on her five causes of
action and the denial of her motion to compel discovery.
ISSUES AND STANDARDS OF REVIEW
¶13 	Judge contends that the district court erred in granting
Saltz’s summary judgment motions. On appeal from a district
court’s summary judgment ruling, we view “the facts and all
reasonable inferences drawn therefrom in the light most favorable
to the nonmoving party” and review the court’s “legal conclusions
and ultimate grant or denial of summary judgment for correct‐
ness.” Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 (citation and
internal quotation marks omitted).
¶14 	Judge also contends that the district court erred in denying
her motion to compel discovery. “We review the grant or denial of
a motion to compel discovery under an abuse of discretion
standard.” Aurora Credit Servs., Inc. v. Liberty West Dev., Inc., 2006
UT App 48, ¶ 3, 129 P.3d 287.
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Judge v. Saltz Plastic Surgery
ANALYSIS
I. Genuine Issues of Material Fact Preclude Summary Judgment.
¶15 	Judge contends that the district court erred in granting
summary judgment to Saltz on each of her five causes of action.
“[A] district court should grant summary judgment only when,
viewing all facts and reasonable inferences therefrom in the light
most favorable to the nonmoving party, there is no genuine issue
as to any material fact and . . . the moving party is entitled to a
judgment as a matter of law.” Suarez v. Grand County, 2012 UT 72,
¶ 18, 296 P.3d 688 (omission in original) (citation and internal
quotation marks omitted). While a plaintiff facing summary
judgment “is entitled to all favorable inferences, [the plaintiff] is
not entitled to build a case on the gossamer threads of whimsy,
speculation and conjecture.” Ladd v. Bowers Trucking, Inc., 2011 UT
App 355, ¶ 7, 264 P.3d 752 (citation and internal quotation marks
omitted). However, “it only takes one sworn statement . . . to
dispute the averments on the other side of the controversy and
create an issue of fact.” Draper City v. Estate of Bernardo, 888 P.2d
1097, 1101 (Utah 1995); see Anderson Dev. Co. v. Tobias, 2005 UT 36,
¶ 32, 116 P.3d 323. For ease of analysis, we discuss each cause of
action separately.
A. 	False Light
¶16 	Judge contends that summary judgment on her false light
cause of action was inappropriate because the district court erred
in ruling that she had “failed to adequately plead special dam‐
ages.” The district court noted that Judge’s opposition to the
motion for summary judgment did not respond to this issue and
instead cited to deposition testimony that she claimed raised issues
of fact. Accordingly, the district court declined to “address whether
[Judge’s] claimed deposition testimony rises to the level of a
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Judge v. Saltz Plastic Surgery
material fact because [Judge] failed to plead special damages in her
claim of False Light.”3
3. Judge has not challenged the district court’s determination that
a plaintiff alleging the tort of false light needs to plead and prove
special damages. Our supreme court has noted that false light is
“closely allied” with a defamation action and that “the same
considerations apply” to both claims. Jacob v. Bezzant 2009 UT 37,
¶ 21, 212 P.3d 535 (citation and internal quotation marks omitted).
However, the supreme court has not explicitly addressed whether
a requirement to plead special damages is one of the “same
considerations” in a defamation claim that applies to false light.
Looking to other jurisdictions, we find that some states
appear to require special damages to be pleaded as an element of
a false light claim, while others do not. Compare, e.g., Fellows v.
National Enquirer, Inc., 721 P.2d 97, 105–09 (Cal. 1986) (in bank)
(holding that a false light claim requires pleading and proof of
special damages), and Schaffer v. Zekman, 554 N.E.2d 988, 994 (Ill.
App. Ct. 1990) (holding that “a claim for false‐light invasion of
privacy . . . requires the pleading of special damages”); with West
v. Media Gen. Convergence, Inc., 53 S.W.3d 640, 648 (Tenn. 2001)
(while “plaintiffs seeking to recover on false light claims must
specifically plead and prove damages allegedly suffered,” they
“need not prove special damages, [because] evidence of injury to
standing in the community, humiliation, or emotional distress is
sufficient”), and Cabaniss v. Hipsley, 151 S.E.2d 496, 504 (Ga. Ct.
App. 1966) (noting that “general damages are recoverable without
proof of special damages” in false light claims). See also Russell G.
Donaldson, Annotation, False Light Invasion of Privacy—Defenses and
Remedies, 57 A.L.R. 4th 244, § 27[a], [b] (1987) (collecting cases and
suggesting that Utah is among those states that do not require the
pleading of special damages). In light of the foregoing, and due to
the lack of briefing on the issue, we will assume without deciding
that the district court correctly concluded that the tort of false light
requires that special damages be pleaded and proved.
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Judge v. Saltz Plastic Surgery
¶17 	“Special damages are a particular type of damages which
are a natural consequence of the injury caused but are not the type
of damages that necessarily flow from the harmful act.” Hodges v.
Gibson Prods. Co., 811 P.2d 151, 162 (Utah 1991). Rule 9(g) of the
Utah Rules of Civil Procedure requires that “when items of special
damage are claimed, they shall be specifically stated.” Special
damages must be pleaded with enough specificity “that the
opposing party has an adequate opportunity to defend against the
plaintiff’s claims.” Hodges, 811 P.2d at 162. However, the plaintiff
need not plead a specific dollar amount, and our supreme court has
held that a complaint seeking “damages for lost wages . . . and
severe emotional distress” has sufficiently pleaded special dam‐
ages. Id.
¶18 	Judge’s complaint alleged that she had sustained damages
in the form of lost wages and emotional distress:
As a further direct and proximate result of the
conduct of Saltz and [the news organization], Ms.
Judge has suffered, and will continue to suffer,
economic losses, including, but not limited to, (1) the
loss of income, consulting fees, employment and
future earning capacity caused by the harm to her
reputation, . . . , and (2) [losses] caused by mental
anguish, 	shock, 	horror, 	grief, 	physical 	sickness,
shame or anger that may inhibit her ability to work,
all to her special damage in a reasonable sum.
Even assuming, without deciding, that Utah law requires the
pleading of special damages in a false light claim, we cannot agree
that Judge failed to do so.
¶19 	On appeal, Saltz asserts that summary judgment is neverthe‐
less appropriate because, with Saltz’s emphasis, “[Judge] cannot
produce any evidence to show that she lost any profits.” Saltz relies
on the depositions of three executives employed by two companies
for which Judge had worked as a consultant. Those executives
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Judge v. Saltz Plastic Surgery
testified that they had not reduced the amount of work assigned to
Judge’s consulting business as a result of the broadcast. They also
stated that any reduction that did occur was due to budgetary
constraints. In effect, Saltz argues that the sworn depositions of
these executives foreclose any factual dispute as to their reasons for
reducing Judge’s workload.
¶20 	We disagree. In those same depositions, the executives also
testified that Judge’s professionalism and good judgment were cast
into doubt as a result of the broadcast, that those qualities were
important for consultants working for their companies, and that
other workers had expressed “uncertainty and unease” at the
prospect of continuing to work with Judge after her photographs
had been broadcast. 4 One deponent admitted that Judge’s loss of
work was “unfortunate but not unexpected” after the broadcast. A
director of marketing testified that she was “shocked and dismayed
to see [her] hired communications consultant” portrayed that way
on television.
¶21 	Judge presented evidence that employees of these compa‐
nies had watched the online version of the story in two different
staff meetings. An executive also testified that the reaction to the
story was “shock and awe” and that her company was less inclined
to hire Judge. In her own sworn deposition, Judge testified that she
was considered for fewer projects after the broadcast and that “it
felt to me like there was a significant change in the level of work
that I did for them” despite the companies appearing to “spend[]
money as they have in the past.”
¶22 	On this record, reasonable minds could reach different
conclusions as to why Judge received less work after her photo‐
graphs were broadcast. Because a factual question exists with
4. At least one of the executives testified that it was the publication
of the photographs, and not Judge’s willingness to be interviewed
for the story, that concerned him.
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Judge v. Saltz Plastic Surgery
respect to the existence of special damages, we reverse the grant of
summary judgment in favor of Saltz on Judge’s false light cause of
action.
B. 	Publication of Private Facts
¶23 	Judge next contends that the district court erred in granting
summary judgment on her publication of private facts cause of
action. To prevail on that cause of action, Judge needs to establish
that Saltz (1) publicly disclosed (2) a private fact (3) “that would be
highly offensive and objectionable to a reasonable person.” Stien v.
Marriott Ownership Resorts, Inc., 944 P.2d 374, 380 (Utah Ct. App.
1997) (citation and internal quotation marks omitted). Section 652D
of the Restatement (Second) of Torts adds an additional consider‐
ation: that the public had no legitimate interest in having the
information made available. 5 The district court determined that
Judge had not pointed to evidence demonstrating that Saltz
publicly disclosed the photographs or that the photographs
disclosed a private fact. It also determined that the public had a
legitimate interest in viewing the photographs in their redacted
form.
¶24 	The district court correctly ruled that the tort of public
disclosure of a private fact requires a plaintiff to prove that the
private fact has been disclosed publicly. Generally, “it is not an
5. The Utah Supreme Court has yet to decide whether Utah law has
incorporated this concept. See Shattuck‐Owen v. Snowbird Corp., 2000
UT 94, ¶ 11 n.1, 16 P.3d 555 (“In light of our holding, we need not
decide whether to adopt this requirement as an element of the
invasion of privacy tort we address today.”). Nevertheless, because
the district court’s ruling focused in part on this element in
reaching its decision, we will assume without deciding that to
survive summary judgment Judge had to identify a genuine issue
of material fact as to whether the public had a legitimate interest in
having the information published.
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Judge v. Saltz Plastic Surgery
invasion of the right to privacy . . . to communicate a fact concern‐
ing the plaintiff’s private life to a single person or even to a small
group of persons.” Restatement (Second) of Torts § 652D cmt. a
(1977). However, the number of people to whom the disclosure is
made is not determinative; “[p]ublic disclosure means that the
matter is made public, by communicating it to the public at large,
or to so many persons that the matter must be substantially certain
to become one of public knowledge.” Shattuck‐Owen v. Snowbird
Corp., 2000 UT 94, ¶ 12, 16 P.3d 555 (emphasis added) (citation and
internal quotation marks omitted). The key question here is thus
whether the communication was made in such a way that it was
substantially certain the fact would become public.
¶25 	The district court’s ruling stated, “There is no evidence to
establish that the release of photographs to [the reporter], who was
preparing an educational program on plastic surgery, would
necessarily mean that the photographs were substantially certain
to be made public through a communication to the public at large.”
However, this is inherently a question of fact. A factfinder could
very reasonably and sensibly conclude that giving photographs to
a reporter, at the request of that reporter, knowing that the reporter
was preparing a story on the topic, made it “substantially certain”
that the photographs would be published. See Shattuck‐Owen, 2000
UT 94, ¶ 12; see also Uintah Basin Med. Ctr. v. Hardy, 2008 UT 15,
¶ 19, 179 P.3d 786 (“A district court is precluded from granting
summary judgment if the facts . . . support more than one plausible
but conflicting inference on a pivotal issue in the case . . . .”
(citation and internal quotation marks omitted)); cf. Virgil v. Time,
Inc., 527 F.2d 1122, 1127 (9th Cir. 1975) (noting, in another context,
that “[t]alking freely to a member of the press . . . can be said to
anticipate that what is said will be made public since making
public is the function of the press”); Doe v. Young, No. 4:08CV197,
2009 WL 3680988, at *9 (E.D. Mo. Oct. 30, 2009) (finding “Defen‐
dants should have been on notice that producing the disc contain‐
ing Plaintiff’s [medical] photographs to a reporter without an
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Judge v. Saltz Plastic Surgery
agreement governing the use of the photographs could and in fact
did lead to communication to the general public and caused the
photographs to be publicly disclosed to the general public”).
¶26 	The district court also ruled that the photographs did not
disclose a private fact. It reasoned that “[t]he redacted photos
showed portions of [Judge’s] body that she revealed when wearing
a bikini in public” and concluded that Judge “cannot claim that
parts of her body that she has left open to the public eye are now
private facts.”6 The district court’s language derives from the
Second Restatement of Torts:
Similarly, there is no liability for giving further
publicity to what the plaintiff himself leaves open to
the public eye. Thus he normally cannot complain
when his photograph is taken while he is walking
down the public street and is published in the defen‐
dant’s newspaper. . . . On the other hand, when a
photograph is taken without the plaintiff’s consent in
a private place, or one already made is stolen from
his home, the plaintiff’s appearance that is made
public when the picture appears in a newspaper is
still a private matter, and his privacy is invaded.
Restatement (Second) of Torts § 652D cmt. b (1977).
¶27 	Cases applying this section of the Restatement often involve
the publication of a photograph taken of a person in or from a
public place. For example, the United States District Court for the
6. On summary judgment, Saltz asserted, based on Judge’s ex‐
husband’s testimony, that Judge had previously worn a bikini in
public and that the redacted photographs used in the news story
had revealed “portions of skin” that would be revealed by a bikini.
Judge did not contest this assertion, which appears factually
suspect unless Judge had publicly worn a censor bar shaped bikini.
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Judge v. Saltz Plastic Surgery
Southern District of Florida dismissed a publication of private facts
claim asserted on behalf of the minor granddaughter of talk show
host Johnny Carson. See Heath v. Playboy Enterprises, Inc., 732 F.
Supp. 1145, 1149 (S.D. Fla. 1990). That court granted summary
judgment, noting that the photograph at issue had been taken in
front of the Broward County Courthouse. Id. Citing the Restate‐
ment, the court concluded that because the photograph had been
taken in a public place, it did not reveal a private fact as a matter of
law. Id.; accord Savely v. MTV Music Television, No. 11‐1021, 2011
WL 2923691, at *1, *4 (D.N.J. July 18, 2011) (dismissing a publica‐
tion of private facts action predicated on the broadcast of a video
showing plaintiff drumming in a New York subway station). These
cases have recognized that, under the Restatement, a person who
appears in public should reasonably anticipate that publicity of her
appearance or actions could result.
¶28 	Here, the district court extended the Restatement’s reach
beyond the holdings of those cases. Saltz did not disclose a
photograph of Judge that had been taken in a public place. Judge’s
photograph had been taken in a private location, her doctor’s
office. The district court determined, however, that because those
private photographs revealed no more than Judge had previously
disclosed publicly, that, like someone whose picture is snapped
while in front of a courthouse or in a public subway station, she
had no cause of action. We believe that this stretches the Restate‐
ment too far for two reasons.
¶29 	First, the Restatement itself recognizes that the context of the
disclosure 	matters. 	The 	Restatement 	distinguishes 	between
someone whose picture is taken “while he is walking down the
public street” (who “normally cannot complain”) and someone
whose photograph “is taken without . . . consent in a private place”
(whose “privacy has been invaded”). The district court’s applica‐
tion of the Restatement eliminated the significant distinction
between someone who reveals a fact in a location and manner
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Judge v. Saltz Plastic Surgery
where it could be reasonably anticipated to be made public and
someone who maintains some reasonable expectation of privacy.
The former can be said to have left their private facts “open to the
public eye,” while the latter may not have.
¶30 	Second, when the fact at issue is someone’s appearance, it
bears noting that appearances are not static. Appearances can
change. A college student may decide to play on the “skins” side
of a “shirts versus skins” basketball game in a public park. By
doing so, he may have made a public fact of what his torso looked
like on that day in that park such that publication of a picture taken
while he was playing would not be actionable. But by doffing his
shirt, he would not lose the ability to argue that a future picture of
his torso exposes a private fact. Our shirtless basketball player may
be willing to make a public fact of his exercise‐honed torso in his
twenties but swim with his shirt on thirty years later to avoid
revealing extra pounds, medical scars, or now‐regretted tattoos.
The district court’s analysis would regard the torso at various
points in time as the same “fact” when in reality they are lamenta‐
bly different.
¶31 	Similarly, Judge may have been willing to make a public fact
of what she looked like in a certain bikini on a certain day in a
certain context. By so doing, she did not lose her ability to argue
that whatever parts of her body that bikini revealed were private
facts on different days in different contexts. Genuine issues of
material fact remain and the district court erred in deciding that
Judge’s redacted photographs revealed no private fact as a matter
of law.
¶32 	The district court further ruled that “[t]he public had a
legitimate interest in [Judge’s] redacted photographs” because
Judge “voluntarily placed these facts before the public . . . by
appearing on television to inform the public about choosing a good
[cosmetic] surgeon and by making representations about her
surgical results.” The question of whether a private person creates
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Judge v. Saltz Plastic Surgery
a legitimate public interest in the private details of her life when
she publicly addresses an issue of public concern appears to be a
matter of first impression in Utah.
¶33 	The Ninth Circuit Court of Appeals addressed a somewhat
similar situation in Virgil v. Time, Inc., 527 F.2d 1122 (9th Cir. 1975).
There, a body surfer consented to be interviewed by a reporter
writing an article about prominent surfers, but the surfer “‘revoked
all consent’ upon learning that the article was not confined solely
to testimonials to his undoubted physical prowess.” Id. at 1124. The
article discussed his apparent illiteracy and included stories about
his antics at parties, as well as apparent admissions to public
intoxication, assault, and unemployment‐compensation fraud. Id.
at 1124 n.1. The publisher moved for summary judgment, but the
district court denied that motion. Id. at 1123. On appeal, the Virgil
court recognized that, with regard to people whose activities have
become matters of legitimate public interest, “[t]o hold as [a]
matter of law that private facts [about such people] are also within
the area of legitimate public interest could indirectly expose
everyone’s private life to public view.” Id. at 1131; see also Gilbert v.
Medical Econ. Co., 665 F.2d 305, 308 (10th Cir. 1981) (“Even where
certain matters are clearly within the protected sphere of legitimate
public interest, some private facts about an individual may lie
outside that sphere. . . . Because each member of our society at
some time engages in an activity that fairly could be characterized
as a matter of legitimate public concern, to permit that activity to
open the door to the exposure of any truthful secret about that
person would render meaningless the tort of public disclosure of
private facts.”); Doe v. Gangland Prods., Inc., 730 F.3d 946, 959 (9th
Cir. 2013) (“The newsworthiness inquiry focuses on the particular
fact at issue that was disclosed, not on the general topic of the
publication.”); Toffoloni v. LFP Publ’g Grp., LLC, 572 F.3d 1201, 1212
(11th Cir. 2009) (holding that “every private fact disclosed in an
otherwise truthful, newsworthy publication must have some
substantial relevance to a matter of legitimate public interest”
(emphasis omitted)).
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Judge v. Saltz Plastic Surgery
¶34 	The Virgil court ultimately concluded that the determination
of whether the private facts were sufficiently related to a matter of
public interest to have themselves become matters of public
interest necessarily implicated “factual questions . . . respecting the
state of community mores.” 527 F.2d at 1131; see also Winstead v.
Sweeney, 517 N.W.2d 874, 877–78 (Mich. Ct. App. 1994) (collecting
cases and concluding that the trial court should have determined
“whether reasonable minds could differ concerning whether the
information published about [the] plaintiff was of legitimate public
interest”). The Virgil court held that the district court’s summary
judgment ruling had not sufficiently explained why no factual
questions existed as to (1) the extent to which private facts regard‐
ing the surfer were matters of legitimate public interest and (2)
whether the identity of the surfer “as the one to whom such facts
apply” was also a matter of legitimate public interest. 527 F.2d at
1131.
¶35 	Like the Ninth Circuit Court of Appeals, we hold that when
presented with a motion for summary judgment predicated on a
claim of legitimate public interest, a district court must determine
if reasonable minds could differ as to whether the private facts
have become matters of legitimate public interest. 7 Here, the
district court confined its analysis to a single line: “Plaintiff
voluntarily placed these facts before the public and gave the public
a legitimate interest in viewing the photographs by appearing on
television to inform the public about choosing a good plastic
surgeon and by making representations about her surgical results.”
On the record before us, we conclude that reasonable minds could
differ on whether appearing on television to discuss cosmetic
surgery gives rise to a legitimate public interest in viewing explicit
7. This is not to suggest that a district court could never determine
that a legitimate public interest exists as a matter of law. There may
well be cases where reasonable minds could not differ on whether
the public had a legitimate interest in having certain private
information made available.
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Judge v. Saltz Plastic Surgery
photographic documentation of the results of the interviewee’s
surgery.
¶36 	For these reasons, we reverse the district court’s summary
judgment in favor of Saltz on Judge’s publicity of private facts
cause of action.
C. 	Intrusion Upon Seclusion
¶37 	Judge contends that the district court erred in granting
summary judgment to Saltz on her intrusion upon seclusion cause
of action. A cause of action for intrusion upon seclusion requires
the plaintiff to demonstrate (1) an intentional substantial intrusion,
physical or otherwise, upon the plaintiff’s solitude (2) that would
be highly offensive to the reasonable person. Stien v. Marriott
Ownership Resorts, Inc., 944 P.2d 374, 378 (Utah Ct. App. 1997).
¶38 	The district court ruled that Saltz did not intentionally
intrude upon Judge’s solitude or seclusion because Judge con‐
sented to the use of her photographs for educational purposes and
Judge admitted the news story was created for an educational
purpose. The court also concluded that “[t]here is no notation on
any photo that would identify [Judge].”
¶39 	These findings turn on the interpretation of the consent form
Judge signed. The pertinent portion of the form provides:
I consent to be photographed or televised before,
during, and after the operation(s) or procedure(s) to
be performed, including appropriate portions of my
body, for medical, scientific or educational purposes,
provided my identity is not revealed by the pictures.
Although Judge consented to having her pictures taken, the
consent form never explicitly mentions the release of any of the
photographs to third parties. Whether the parties intended the
consent to implicitly allow the disclosure of the photographs under
these circumstances is an ambiguity in the agreement and therefore
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Judge v. Saltz Plastic Surgery
presents an issue of fact. See Plateau Mining Co. v. Utah Div. of State
Lands & Forestry, 802 P.2d 720, 725 (Utah 1990) (“When ambiguity
does exist [in a contract,] the intent of the parties is a question of
fact to be determined by the jury.”).
¶40 	Furthermore, questions of fact exist concerning what the
parties intended the term “educational purposes” to mean. The
district court dealt with this issue by concluding that Judge had
admitted that the news story served an educational purpose and
that therefore the photographs had been released for an educa‐
tional purpose. Although Judge’s counsel admitted that the news
story “was created for an educational purpose,” he also stated
“[w]hat we argue is that the pictures were not.” Thus, Judge never
conceded that the photographs advanced an educational purpose
within the meaning of the consent form. Issues of fact remain as to
what the parties intended the consent’s language to mean. In
addition, the relevant inquiry is not whether the underlying news
story served an educational purpose but whether the release of
Judge’s photographs to the reporter promoted an educational
purpose within the meaning of the consent form.
¶41 	Accordingly, questions of fact exist as to whether Judge’s
written consent extended to the release of photographs to third
parties under these circumstances and whether the release of the
photographs served an “educational purpose” as the parties
intended that term.
¶42 	A further question of fact exists as to whether Saltz’s
disclosure improperly revealed Judge’s identity pursuant to the
terms of her consent. The consent form contains the limiting clause
“provided my identity is not revealed by the pictures.” The
reporter requested Judge’s before and after photographs, and Saltz
released the photographs to the reporter in two emails that
included the phrases “Here are Coni’s before pictures” and “[H]ere
are Coni’s after pictures.” While the photographs themselves did
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Judge v. Saltz Plastic Surgery
not necessarily reveal Judge’s identity, Saltz’s additional notations
did, and it is undisputed that the news organization understood
the photographs to be of Judge and identified them as such during
its story. Thus, the question before the district court was the
interplay between any implied authorization in the consent form
to release Judge’s photographs and the language “provided my
identity is not revealed by the pictures.” While the language of the
consent form may reasonably be interpreted to be a prohibition on
depicting Judge’s face, it could also be read as forbidding Saltz
from providing identifying information with the photographs.
Accordingly, a question of fact exists as to what the consent form
proscribes.
¶43 	Because questions of fact exist as to the meaning of the
consent form and the resulting scope of Judge’s consent, summary
judgment in favor of Saltz on Judge’s intrusion upon seclusion
claim—predicated on a determination that Judge consented to
Saltz’s 	release 	of 	her 	photographs—was 	inappropriate. 	We
therefore reverse the district court’s summary judgment on this
issue.
D. 	Breach of Fiduciary Duty and Negligent Employment and
Supervision
¶44 	Judge next contends that the district court erred in granting
summary judgment on her two remaining claims. The district
court’s ruling relies upon its determinations that Judge consented
to having photographs taken before and after surgery for educa‐
tional purposes, that the news story was an educational program,
and that the news story “showed no more of [Judge’s] body than
she admitted that she displayed in public while wearing a bikini.”
We have already determined that unresolved factual questions
should have precluded these determinations. For the reasons
discussed above, these factual disputes should have prevented the
grant of summary judgment on these causes of action as well.
Consequently, we reverse the district court’s grant of summary
judgment on these claims.
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Judge v. Saltz Plastic Surgery
II. The District Court Did Not Abuse Its Discretion in Denying
Judge’s Motion to Compel Two Categories of Discovery but
Failed to Conduct the Statutory Inquiry Required for Discovery
Relating to Punitive Damages.
¶45 	Judge further contends that the district court erred in
denying her motion to compel discovery. She identifies three
categories of information that she argues she was entitled to
discover. First, she sought contact information for other patients
whose photographs were released to the news organization. She
argues that deposing these patients would allow her to establish
that the consent form did not authorize the release of Judge’s
photographs. Second, Judge sought information about Saltz’s
advertising expenditures for the previous six years, along with
“each and every document related to . . . promotion or advertise‐
ment” in the same time period. She argues that this information is
relevant to establish the benefit of the news story to Saltz. Third,
Judge sought Saltz’s balance sheets and tax returns for the previous
five years. She argues that she is entitled to discover this informa‐
tion because she has established a prima facie case for punitive
damages discovery.
¶46 	The district court denied Judge’s motion to compel these
discovery responses, ruling that Saltz’s “tax records, advertising,
and patient records do not make [Judge’s] claims more probable
than without it.” Cf. Utah R. Evid. 401 (evidence is relevant if it has
any tendency to make a fact of consequence “more or less probable
than it would be without the evidence”).
¶47 	District courts have broad discretion in discovery matters.
Green v. Louder, 2001 UT 62, ¶ 37, 29 P.3d 638. But see Road Comm’n
ex rel. State v. Petty, 412 P.2d 914, 918 (Utah 1966) (“The use of
discovery . . . should be confined within the proper limits of
enabling the parties to find out essential facts for [their] legitimate
objective[s] . . . .”). The district court’s rulings as to Judge’s requests
for the names of other patients whose photographs were disclosed
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Judge v. Saltz Plastic Surgery
and information concerning Saltz’s advertising budget fell within
the court’s range of discretion. 8
¶48 	In ruling on the discovery aimed at unearthing Saltz’s
financial condition, the district court neglected to undertake a
necessary inquiry. The Utah Code provides that “[d]iscovery
concerning a party’s wealth or financial condition may only be
allowed after the party seeking punitive damages has established
a prima facie case . . . that an award of punitive damages is
reasonably likely.” Utah Code Ann. § 78B‐8‐201(2)(a) (LexisNexis
2012). If this is disputed, the district court must also be “satisfied
that the discovery is not sought for the purpose of harassment.” Id.
¶49 	Judge’s initial complaint sought punitive damages, appar‐
ently in connection with her cause of action for breach of fiduciary
duty. Cf. Holladay v. Storey, 2013 UT App 158, ¶ 45, 307 P.3d 584
(noting that a claim for breach of fiduciary duty can serve as a basis
for punitive damages). However, the district court’s minute entry
denying discovery of Saltz’s tax returns—evidence of wealth or
financial condition—revealed that the court considered only
whether that information was relevant to prove Judge’s underlying
causes of action. Accordingly, we vacate that decision and remand
so the district court may consider whether the balance sheets and
tax returns are discoverable pursuant to Utah Code section 78B‐8‐
201(2)(a).
8. We note, however, that the district court “has the discretionary
power to reconsider or decline to reconsider its decisions within a
case before entering final judgment.” Ferguson v. Williams & Hunt,
Inc., 2009 UT 49, ¶ 40, 221 P.3d 205. Here, we have determined that
factual questions exist on all five of Judge’s causes of action and,
accordingly, we have reversed the summary judgments in favor of
Saltz. Because there is no longer any final order in this matter, the
district court retains the discretion to “reconsider or decline to
reconsider” its discovery rulings. See id.
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Judge v. Saltz Plastic Surgery
CONCLUSION
¶50 	We hold that factual questions exist with respect to Judge’s
causes of action against Saltz for false light, publicity of private
facts, intrusion upon seclusion, breach of fiduciary duty, and
negligent employment and supervision. We therefore reverse all
five summary judgment rulings and remand for further proceed‐
ings. We affirm the denial of the motion to compel, except with
respect to the request for financial information aimed at establish‐
ing punitive damages, which we vacate and remand for the district
court to consider whether such information is discoverable under
Utah Code section 78B‐8‐201(2)(a).
¶51 	Affirmed in part, reversed in part, vacated in part, and
remanded for further proceedings consistent with this opinion.
20120646‐CA 	2014 UT App 144	22