VERMEDAH v. HEATH

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

MARY VERMEDAHL, et al.,
Plaintiffs/Appellants/Cross-Appellees,

v.

DANIEL HEATH, et al.,
Defendants/Appellees/Cross-Appellants.

No. 1 CA-CV 25-0281
No. 1 CA-CV 25-0593
(Consolidated)
FILED 06-25-2026

Appeal from the Superior Court in Maricopa County
No. CV2022-006448
The Honorable Timothy J. Ryan, Judge (Retired)

REVERSED AND REMANDED

COUNSEL

Burg Simpson Eldredge Hersh & Jardine PC, Phoenix
By David Kendell TeSelle, Rachel Nicole Denning, and Joshua
Abromovitz
Plaintiffs/Appellants/Cross-Appellees

Burg Simpson Eldredge Hersh & Jardine PC, Englewood
By David Dean Batchelder (Pro Hac Vice)
Plaintiffs/Appellants/Cross-Appellees
Quarles & Brady LLP, Phoenix
By Jimmie W. Pursell, Jr., Daniel J. F. Peabody, Christopher Thomas
Shanley
Defendants/Appellees/Cross-Appellants

MEMORANDUM DECISION

Presiding Judge Andrew M. Jacobs delivered the decision of the Court, in
which Judge Brian Y. Furuya and Judge James B. Morse Jr. joined.

J A C O B S, Judge:

¶1 Mary and Walter Vermedahl appeal the superior court’s entry
of summary judgment against them on their claim that Daniel and Toni
Heath sold them a lame horse (“Charlie”), and the court’s exclusion of the
Vermedahls’ experts, who opined about tests performed on Charlie shortly
after the Vermedahls bought him. The Heaths appeal the summary
judgment against them on their counterclaim that the Vermedahls defamed
Daniel.1 Because the court erred by excluding the Vermedahls’ experts, and
genuine issues of material fact remain as to all claims, we reverse the
summary judgments and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

A. The Vermedahls Buy Charlie on January 11, 2022, After Test
Rides on January 8 and 9, 2022, and a Prepurchase
Examination on the Day of Sale.

¶2 The Vermedahls are experienced ropers who wanted to buy a
horse suitable for competitive team roping. Daniel breeds and sells
Western performance horses. He advertised a horse on Facebook named
Legend De Lena, but more commonly known as Charlie, as a “Champion
Reined Cow Horse” and a “Roping Head Horse, or Heel Horse.” Mary
contacted Daniel after seeing his Facebook ad, and Daniel knew Mary
intended to use Charlie as a head roping horse.

1 Throughout this matter, Mary and Walter Vermedahl generally proceeded

jointly, as did Daniel and Toni Heath. Thus, even though some pleadings
and briefs were filed only by one spouse, other than setting out facts that
pertain to particular litigants, for ease of reference, we refer to the litigants
collectively as “the Vermedahls” and “the Heaths.”

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¶3 Before buying Charlie, Mary repeatedly evaluated him. On
January 8, 2022, she went to the Heaths’ property. After seeing Toni ride
Charlie there, Mary rode Charlie and roped a mechanical steer while she
did so. Daniel then brought Charlie to the Vermedahls’ property on both
January 8 and 9 so Mary could continue to rope cattle while mounted on
Charlie under live-cattle conditions. Daniel imposed no time limits or
restrictions on Mary’s test rides with Charlie. Mary testified Charlie did
not appear lame or feel “off” during these test rides. After one, Mary texted
Daniel that she and Walter “really like[d]” Charlie, and that Charlie was “a
real gem.”

¶4 Mary agreed to buy Charlie for $50,000, subject to Charlie
passing a prepurchase veterinarian examination (“PPE”). Dr. Brian
Buchanan performed the PPE the morning of January 11. Dr. Buchanan
observed Charlie jog in hand and in circles, performed flexion testing, and
took radiographs of Charlie’s legs. Dr. Buchanan concluded Charlie was
“sound baseline,” which means “the horse was not exhibiting shortness of
stride,” though he flexed “a little bit sore” in the front limbs. Mary was
present for this discussion and acknowledged Charlie’s soreness, stating it
seemed “par for the course” for an eight-year-old rope horse. Mary then
completed the purchase and took Charlie home, also on January 11.

B. Charlie’s Condition Arguably Changes After the Sale and
Veterinarians Examine Him One and Three Days Later.

¶5 The parties sharply dispute Charlie’s condition after the sale.
Mary testified that within hours of bringing Charlie home, “he was starting
to elevate on the front end” in a way she described as “extremely
dangerous” because if “a horse elevates too high, they can flip over
backwards, and you can get killed.” The next day, January 12, Mary
warmed Charlie up in her arena and observed behavior she believed
indicated pain, including uneven weight distribution, spasming in his front
legs and shoulders, reluctance to move comfortably, and lameness in his
left front leg when trotting on a loose rein.

¶6 Later that day, worried Charlie might be in pain, Mary took
him to her neighbor’s home where Dr. Scott Strosnider was treating the
neighbor’s horses. Dr. Strosnider conducted a lameness exam on Charlie
that day. Dr. Strosnider found Charlie capable of being ridden, roped from,
and worked. But Dr. Strosnider also observed lameness after flexion,
including a noticeable head bob, and identified left-front tendinitis. Dr.
Strosnider later explained a horse may appear sound and workable “until
you put it under an issue of stress or load” and “[s]o while he appears to be

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sound when you first look at him, until you do your flexions, you don’t
know if he has a lameness issue.”

¶7 That evening, Mary texted Daniel, asking to return Charlie for
a refund. Daniel responded that Charlie had always been perfectly healthy
and recommended that Mary have Dr. Buchanan examine Charlie again.
Daniel later offered to repurchase Charlie for $50,000, subject to a PPE “so
that [he] could determine what, if anything, had actually happened to
Charlie.” Mary declined that offer.

¶8 Mary also contacted Dr. Gary Kaufman, a veterinarian with
more than 50 years of experience in equine medicine and surgery, including
decades of experience diagnosing equine lameness and administering
lidocaine in clinical practice. Dr. Kaufman has administered lidocaine to
horses “nearly on a daily basis” during his decades-long equine practice,
has administered it “literally thousands of times,” and regularly uses it
during lameness examinations to isolate pain and determine whether “a
lame horse becomes sound.” He further explained that, if administered in
the proper amount, at the proper site, and within the proper time, lidocaine
can allow “a horse that is, in fact, unusably lame” to “gain a full, normal
stride and not appear lame.”

¶9 Dr. Kaufman examined Charlie on January 14. He observed
Charlie was lame and concluded he was not rideable. To evaluate whether
Charlie’s condition could be attributed to a post-sale injury, Dr. Kaufman
recommended both a drug screen through Center for Toxicology Services,
Inc. (“CTS”) and muscle enzyme testing through DVM Labs, and collected
the blood samples himself, also on January 14.

C. Blood Testing Three Days After the Sale Shows Lidocaine
and Its Metabolite in Charlie’s Body.

¶10 Dr. Kaufman submitted the samples to CTS, where Jeanne
Mahoney serves as President, Director, and Quality Control Coordinator.
Ms. Mahoney has worked in the testing of animal samples for performance-
based drugs, therapeutics, and medications since 1982 and has overseen
laboratory operations at CTS since 1991. Using an Enzyme Linked
Immunosorbant Assays (“ELISA”) screening followed by liquid
chromatography tandem mass spectrometry (“LC/MS/MS”) analysis, CTS
detected lidocaine and its metabolite in Charlie’s blood.

¶11 At Dr. Kaufman’s request, CTS performed a reanalysis to
confirm the results. Quantitative testing reported lidocaine at 9.05 μg/ml
and its metabolite, 3-Hydroxylidocaine, at 2.55 ng/ml. Neither lidocaine

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nor its metabolite occurs naturally in a horse’s blood, so the presence of the
metabolite indicates prior administration of lidocaine. The concentrations
of lidocaine in Charlie exceeded industry thresholds for therapeutic
medications, indicating the drug could have had a pharmacological effect
and thus masked his lameness.

¶12 DVM Labs administered muscle enzyme testing to evaluate
possible muscle cramping or injury. The testing measured two markers in
Charlie’s blood that would demonstrate, if out of range, muscle stress or
injury: his aspartate aminotransferase (“AST”) and creatine kinase (“CK”)
levels. The testing did not reveal muscle enzyme elevations indicative of
significant muscle injury or cramping. The results reflected AST levels of
343 and CK levels of 298. Although the results identified the upper end of
the normal CK range as 283, making Charlie’s CK levels slightly elevated,
Dr. Kaufman noted that the elevation was “essentially in the range usually
seen in horses being ridden/exercised,” whereas CK elevations between
1000 and 3000 would be expected if muscle cramping were present. The
results did not identify any abnormal AST findings. Given the absence of
muscle enzyme levels suggesting injury or cramping, but the presence of
lidocaine and its metabolite, Dr. Kaufman concluded Charlie’s lameness
was not caused by post-sale muscle injury and instead suggested that
lidocaine may have been present during the PPE.

D. The Vermedahls Sue Over the Sale of Charlie, and the
Heaths Counterclaim for Defamation.

¶13 The Vermedahls sued the Heaths for breach of contract,
breach of express and implied warranties, fraud, consumer fraud, unjust
enrichment, promissory estoppel, aiding and abetting, and community
liability. In sum, the Vermedahls claimed the Heaths represented Charlie
as sound and suitable for roping despite knowing he was lame or had been
treated with lidocaine.

¶14 The Heaths counterclaimed against the Vermedahls for
defamation per se. They also alleged tortious interference with business
expectancy, but later voluntarily withdrew that claim. The Heaths alleged
the Vermedahls told others in the western performance horse community
that Daniel had drugged Charlie with lidocaine to conceal lameness. The
Heaths alleged those statements harmed Daniel’s reputation as a horse
breeder and seller.

¶15 Mary admitted making statements about Charlie’s condition
and the presence of lidocaine in his system to several people, including

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Tyler Merrill and Amber Carroll, Mary’s daughter. She told Tyler that
Charlie was lame and had lidocaine in his blood and that the presence of
“drugs in his system” rendered the PPE invalid. These statements
circulated within the western performance horse community. For example,
at a trade show in Texas in February 2022, a participant approached Toni
and stated Amber told her that her mother (Mary) had bought a horse from
the Heaths, that the horse was lame, and that the horse had lidocaine in its
system. Amber admitted discussing within the community that Charlie
was lame and that there were drugs in his system at the time her mother
purchased him. These statements entered the community in part as a result
of Mary’s communications, including her statements to Amber and others
that Charlie was lame and had lidocaine in his system.

E. The Court Grants All Parties’ Motions for Summary
Judgment and the Heaths’ Motion to Exclude the
Vermedahls’ Experts, Leading to This Appeal.

¶16 The Heaths moved under Arizona Rule of Evidence 702
(“Rule”) to exclude the testimony of Dr. Kaufman and Ms. Mahoney
concerning the presence of lidocaine in Charlie. Soon thereafter, the Heaths
moved for summary judgment on the Vermedahls’ claims, arguing that the
evidence — particularly Dr. Buchanan’s PPE, which noted some soreness
but nevertheless found Charlie fit for his intended use — proved that any
lameness was not masked by lidocaine, so no genuine dispute of material
fact existed.

¶17 Opposing the Heaths’ motion, the Vermedahls argued their
experts’ opinions were supported by laboratory testing, and equine
medication detection guidance. They pointed to evidence that, after
examining Charlie on January 14, 2022, Dr. Kaufman ordered both a blood
drug screen and a muscle enzyme study because he found Charlie’s
condition unusual. Dr. Kaufman’s records stated the blood test revealed “a
significant amount of Lidocaine in the blood sample drawn from [Charlie]
on 01/14/22,” and that the “[l]idocaine presence in his system would make
passing the original prepurchase [v]eterinary exam invalid.”

¶18 The Vermedahls also relied on laboratory findings from Ms.
Mahoney’s expert report which showed that Charlie’s blood sample
contained 9.05 μg/ml of lidocaine and 2.55 ng/ml of 3-Hydroxylidocaine.
Ms. Mahoney’s report also stated that “[e]xceeding the allowable
[t]hresholds would mean that the drug has been determined to have a
pharmacological effect on the horse,” identified the Racing Medication and
Testing Consortium (“RMTC”) therapeutic threshold for lidocaine as “0.020

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ng/ml of total 3-Hydroxylidocaine in equine plasma or serum,” and
concluded that Charlie’s concentration exceeded that threshold.

¶19 The parties relied on competing equine medication detection
guidance materials concerning how long lidocaine and its metabolites may
remain detectable in a horse’s blood. The Vermedahls relied on guidance
suggesting detectability may extend up to seven days, while the Heaths
relied on studies and guidance reflecting detection or withdrawal periods
of approximately 48 to 72 hours. The Vermedahls relied on the United
States Equestrian Federation (USEF) 2022 Guidelines and Rules for Drugs
and Medications (“Guidelines”), which are published by the national
governing body for equestrian sport in the United States. The USEF
Guidelines state that lidocaine may remain detectable in a horse for up to
seven days depending on factors such as dosage, route of administration,
frequency of administration, and the horse’s individual condition. The
Vermedahls argued the Guidelines supported Dr. Kaufman’s opinion that
lidocaine could have remained in Charlie’s system at the time of the January
14 blood draw, which occurred three days after the January 11 PPE.

¶20 The Heaths, by contrast, relied on materials published by the
RMTC and the Fédération Équestre Internationale (“FEI”). RMTC is an
organization that develops medication-control and withdrawal guidance
for horse racing and competition industries. The Heaths relied on RMTC’s
Controlled Therapeutic Medications Monograph Series: Lidocaine
(“Study”), which summarized a controlled administration study involving
six exercise-conditioned thoroughbred horses that each received a single
200 mg subcutaneous dose of lidocaine. In the Study, concentrations of 3-
Hydroxylidocaine fell below the laboratory’s limit of quantification in all
six horses by 48 hours, though the RMTC guidance nevertheless
recommended using 72 hours as the detection or withdrawal period
because of the small sample size and potential variability among horses.
The RMTC Study further cautioned that increasing the dose, changing the
route of administration, combining medications, or differences in horse
physiology could alter detectability and render the guidance inapplicable.

¶21 The Heaths also relied on FEI’s “List of Detection Times.” FEI
is an international governing body for equestrian sports that publishes
medication-detection guidance for competition horses. The FEI materials
indicated lidocaine could be detected approximately 48 hours after
subcutaneous administration and noted that detectability varies based on
route of administration, dosage, metabolism, health, and other horse-
specific circumstances. The FEI materials and RMTC Study referenced by
the Heaths were based on single-dose studies involving relatively small

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groups of horses. Ms. Mahoney explained FEI is generally stricter because
it regulates international competitions and permits lower allowable
medication concentrations than the USEF. While the parties relied on
different guidance materials, both sets of materials recognized that
lidocaine detectability may vary depending on the circumstances of
administration and the individual horse.

¶22 The court found both Dr. Kaufman and Ms. Mahoney
“qualified in their respective fields” and their opinions “relevant,” but
concluded that portions of their opinions were speculative and not based
on sufficient facts or reliable methods. The court specifically determined
that neither expert could reliably opine on the timing, dosage, or number of
lidocaine administrations, or perform a retrograde analysis. For those
reasons, the court excluded their testimonies in full. It simultaneously
granted summary judgment against Mary on all of her claims and denied
the Heaths’ subsequent request for attorneys’ fees and costs as to those
claims. Mary moved the court for reconsideration, which the court denied.

¶23 The Vermedahls also moved for summary judgment on the
Heaths’ defamation per se counterclaim, which the superior court granted.
The court found that: “[n]o evidence exists” that the Vermedahls made
defamatory statements; allegations contained in a filed complaint cannot
constitute defamation; and there was “no evidence of damages.” The court
also disposed of other claims not at issue in this appeal.

¶24 The Vermedahls appeal the order precluding their’ expert
testimony, granting the Heaths summary judgment on their claims, and
denying their motion for reconsideration. The Heaths cross-appeal from
the summary judgment on their defamation per se counterclaim against the
Vermedahls, and the denial of his request for attorneys’ fees and costs as to
the Vermedahls’ claims. We have jurisdiction. Ariz. Const. art. 6, § 9; A.R.S.
§ 12-2101(A)(1).

DISCUSSION

I. The Superior Court Erred By Excluding Dr. Kaufman’s and Ms.
Mahoney’s Testimony Altogether Rather Than Limiting It.

A. The Superior Court Is the Gatekeeper of What Expert
Evidence Is Reliable, But Gatekeeping Does Not Replace
the Adversary System.

¶25 We review a ruling excluding expert testimony under
Arizona Rule of Evidence 702 for abuse of discretion. See State v. Bernstein,

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237 Ariz. 226, 228 ¶ 9 (2015). An error in the application of Rule 702 is
necessarily an abuse of discretion. Id. at 230 ¶ 19. Rule 702 makes expert
testimony admissible if the witness is qualified, their testimony will assist
the trier of fact, and the testimony is based on sufficient facts and reliable
principles and methods reliably applied to the case. Ariz. R. Evid. 702(a)-
(d). The superior court is a gatekeeper that excludes unreliable or
speculative opinions, but it cannot exclude wholesale otherwise admissible
testimony. See State v. Romero, 239 Ariz. 6, 9-10 ¶¶ 14-16 (2016) (reversing
exclusion of admissible testimony of experimental design expert who was
barred from testifying on firearms identification, an area in which the
expert was not offered). As the Comment to Rule 702 reminds us, “[t]he
trial court’s gatekeeping function is not intended to replace the adversary
system. Cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and appropriate
means of attacking shaky but admissible evidence.” Ariz. R. Evid. 702, cmt.
to 2012 Amendment.

B. The Court Excluded Relevant, Admissible Opinions That
Were Sufficiently Reliable to Reach the Trier of Fact.

¶26 We affirm the superior court’s initial finding that both Dr.
Kaufman and Ms. Mahoney are “qualified in their respective fields.” The
record supports their qualifications, and we see no abuse of discretion in
finding them qualified. We also affirm the superior court’s finding that
their opinions are “relevant.” Whether Charlie had a significant amount of
lidocaine in his system on January 14 is relevant. There is record evidence
lidocaine can stay in a horse’s system for seven days. If the jury believes
the Vermedahls, then Charlie may have had lidocaine in his system when
she bought him, which supports her claims. Or the jury may believe the
Heaths didn’t administer the lidocaine, thus suggesting the Vermedahls
did. Either way, laboratory testing about Charlie’s condition on January 14,
and the interpretation of it, is relevant.

¶27 It was thus error to strike the entirety of the experts’ opinions
on the ground that it would be “speculati[ve]” for them to opine on when
and how much lidocaine was administered to Charlie, including by
retrograde analysis. Why? Their opinions were far more nuanced than
that, making them admissible for at least four reasons.

¶28 First, Ms. Mahoney’s toxicology testimony wasn’t
speculative. She performed laboratory testing using ELISA “for a variety
of drugs, including lidocaine” and confirmed the results using LC/MS/MS
analysis, determining that Charlie’s blood contained lidocaine at 9.05

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μg/ml and its metabolite, 3-Hydroxylidocaine, at 2.55 ng/ml. Her
testimony explained how those tests work, what substances were detected,
and the measured concentrations — matters beyond the knowledge of a lay
jury. She offered testimony that these substances are not naturally
occurring, that their presence necessarily indicates administration of
lidocaine, and that the concentrations exceeded accepted thresholds in the
horse racing and show industries, meaning they could have had a
pharmacological effect. None of this relevant testimony depends on
speculation about timing or dosage. Excluding it was error.

¶29 Second, both experts helpfully explain the scientific and
medical significance of those results. Like Ms. Mahoney, Dr. Kaufman
testified that the levels of lidocaine and its metabolite were “abnormally
high” and not consistent with normal or incidental exposure. He further
explained that lidocaine is commonly used to numb areas of pain and can
mask lameness by reducing observable symptoms. This testimony bears
directly on the central issue of whether Charlie may have appeared sound
during the PPE because his symptoms were temporarily suppressed.

¶30 Third, Dr. Kaufman’s clinical observations were likewise
admissible. He examined Charlie shortly after the PPE and found him lame
and “not a rideable horse.” He also ordered muscle enzyme testing which
came back normal, ruling out post-sale injury or muscle cramping “that
would show up as a severe lameness.” These observations explain the need
for testing and its context and provide a factual basis to evaluate whether
Charlie’s condition reflected a preexisting issue rather than a new injury.

¶31 Fourth, the experts’ testimony would assist the jury in
contextualizing the PPE findings and subsequent examinations. The PPE
noted some degree of soreness on flexion, while later examinations revealed
lameness. Expert testimony could assist the jury in determining whether
that progression was medically consistent with a newly developed
condition or was instead indicative of a condition that existed but was not
fully observable at the time of sale.

¶32 These categories of testimony were grounded in laboratory
testing, veterinary examination, and established medical principles. They
were not the speculative opinions the superior court excluded about when
and how much lidocaine was administered to Charlie. Rule 702 does not
permit exclusion of an expert’s entire testimony simply because some
opinions are inadmissible. See Romero, 239 Ariz. at 10 ¶ 16 (explaining that
inquiry focuses on the scope of proffered testimony and whether it will
assist the jury). By failing to distinguish between speculative opinions and

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admissible, relevant, fact-based testimony that would assist the trier of fact,
the superior court exceeded its gatekeeping role. Accordingly, the court
erred by excluding the testimony of Dr. Kaufman and Ms. Mahoney
altogether. See Ariz. R. Evid. 702, cmt. to 2012 Amendment; Bernstein, 237
Ariz. at 228 ¶ 9.

II. The Superior Court Erred by Entering Summary Judgment on Both
Parties’ Claims Because Genuine Issues of Fact Remain.

¶33 We review summary judgments de novo, viewing the facts and
reasonable inferences in the light most favorable to the nonmoving party.
Takieh v. O’Meara, 252 Ariz. 51, 56 ¶ 11 (App. 2021). Summary judgment is
appropriate only if “there is no genuine dispute as to any material fact and
the moving party is entitled to judgment as a matter of law.” Ariz. R. Civ.
P. 56(a). If reasonable jurors could draw competing inferences from the
record, summary judgment is error. Orme Sch. v. Reeves, 166 Ariz. 301, 306
(1990). We agree with the Heaths that the Vermedahls’ claims are all
“premised on the assertion that Charlie was unsound at the time of the
purchase.” We thus treat the soundness of the summary judgment against
them as one proposition that stands or falls on whether there are material
issues of fact as to that critical premise.

A. We Decline to Reverse the Summary Judgment on the
Vermedahls’ Claims Because of the Brevity of the Superior
Court’s Order.

¶34 As a preliminary matter, we reject the Vermedahls’ argument
that we must reverse the superior court’s grant of summary judgment to
the Heaths on their claims because the court’s explanation was inadequate
and fell short of the bar set by Rule 56(a). See Ariz. R. Civ. P. 56(a) (court
“should state on the record the reasons for granting or denying the
motion”). We agree with the Vermedahls that the superior court’s single
paragraph of written analysis striking their experts followed by one
sentence granting summary judgment on all of their claims without further
analysis, standing alone, is inadequate. See id. We also note that the oral
argument transcript doesn’t contain a more fulsome explanation. We
likewise agree this matters, because the superior court’s careful analysis is
very helpful even in a de novo review of its decision, and also to the parties
in framing the issues for appellate courts. But as we explain next, we
reverse for the more important reason that there are genuine issues of
material fact as to whether Charlie was unsound on January 11, 2022. See
id.

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B. The Record Reflects Genuine Disputes of Material Fact as
to Charlie’s Condition.

¶35 The Heaths argue summary judgment on the Vermedahls’
claims was proper, claiming undisputed evidence shows Charlie was
sound when purchased. They rely on Dr. Buchanan’s PPE, which found
Charlie “sound” when jogging, though “a little sore” on flexion, and on the
Vermedahls’ acknowledgment that such soreness was “par for the course.”
They argue the presence of soreness during the PPE undermines any
inference that Charlie’s lameness was concealed, arguing that if lidocaine
had been administered to him, it would have masked such symptoms. The
Vermedahls argue the medical and observational evidence supports a
competing inference that Charlie was not sound at the time of sale. We
agree the evidence presents a genuine dispute of material fact.

¶36 The experts’ opinions, standing alone, are enough to send this
case to the jury. The jury will now hear Charlie’s January 14 blood draw
revealed lidocaine and its metabolite at levels Ms. Mahoney described as
more than 100 times the RMTC threshold concentration. The central
dispute is whether lidocaine administered before the January 11 PPE could
still have been detectable when Dr. Kaufman drew Charlie’s blood on
January 14. The Heaths rely heavily on RMTC and FEI materials to argue
that lidocaine is not detectable 48-72 hours after administration. But the
RMTC Study itself cautions that detectability may vary depending on the
“dose or doses administered, the frequency of administration, the route or
routes of administration,” horse physiology, and other circumstances.

¶37 The Vermedahls rely on USEF Guidelines stating that
lidocaine may remain detectable for up to seven days. At oral argument
the Heaths argued the USEF Guidelines were not scientific evidence
regarding lidocaine metabolism and instead merely established
competition rules. Despite that, the USEF Guidelines are clear. They are
headed “HOW LONG DRUGS REMAIN DETECTABLE,” and below that
capitalized heading, they ascribe to “local anesthetics other than procaine,
e.g., lidocaine” a period of “7 days” within which they remain detectable.
The Heaths are free to argue to a jury that this guideline isn’t reliable. But
the Heaths’ say-so that it isn’t scientific evidence doesn’t make the USEF
guideline fall below the bar of “shaky but admissible evidence” enshrined
in the comment to Rule 702. Ariz. R. Evid. 702, cmt. to 2012 Amendment.
The Heaths are free to pursue the traditional attacks on such evidence,
which are “[c]ross-examination, presentation of contrary evidence, and
[urging] careful instruction on the burden of proof.” See id. Choosing
between the Vermedahls’ and the Heaths’ theories as to lidocaine is for the

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jury, not for the superior court on summary judgment (or this court on
review of its ruling). See Orme Sch., 166 Ariz. at 310 (“[S]ummary judgment
should not be used as a substitute for jury trials simply because the trial
judge may believe the moving party will probably win the jury's verdict.”).

¶38 Other evidence about whether Charlie was lame is also
sufficiently in conflict to allow a jury to side with either the Vermedahls or
the Heaths. The Heaths argue Dr. Strosnider found Charlie capable of
being worked and in condition comparable to or better than the PPE. But
while Charlie appeared sound during test rides and the PPE, the
Vermedahls presented evidence he exhibited rapid and abnormal
deterioration within hours after purchase, including uneven weight
distribution, spasms, and lameness. They also note that Dr. Strosnider
observed lameness, including a higher flexion score and a noticeable head
bob when jogging. He also identified left front tendinitis, “a condition that
had not previously been disclosed to the Vermedahls,” and acknowledged
the possibility of a chronic or preexisting condition that “popped itself back
up after being ridden.” The Vermedahls argue these sudden changes
permit a reasonable inference that Charlie’s condition at the time of sale
was not as represented.

¶39 These many conflicts within the evidence, and the competing
inferences they might support, reinforce that this dispute requires a
determination of the Vermedahls’ claims by a trier of fact. See Orme Sch.,
166 Ariz. at 310. Because we reverse the dismissal of the Vermedahls’
claims in light of those conflicts, we do not reach the Heaths’ arguments
that the court erred by not also awarding them attorneys’ fees under A.R.S.
§ 12-341.01.

C. The Superior Court Erred by Granting Summary Judgment
on the Heaths’ Defamation Per Se Counterclaim.

¶40 The Heaths argue the court erred by granting the Vermedahls
summary judgment on their defamation per se counterclaim because the
record contains evidence that Mary published statements to multiple third
parties that Charlie was lame, had lidocaine or “drugs” in his system, and
that lidocaine was in Charlie’s system at the time of the PPE. The
Vermedahls respond that, even if the claim constitutes defamation per se,
the Heaths were still required to show injury. The Heaths are correct on
each disputed point.

¶41 A defamation claim requires a false and defamatory
statement concerning another, publication to a third party, and the requisite

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VERMEDAHL, et al. v. HEATH, et al.
Decision of the Court

fault. Dube v. Likins, 216 Ariz. 406, 417 ¶¶ 35-36 (App. 2007). A statement
is defamatory if it tends to bring a person into “disrepute, contempt, or
ridicule,” or impeaches the person’s “honesty, integrity, virtue, or
reputation.” Id. at 418 ¶ 43 (quotation omitted). A statement is defamatory
per se when it tends to injure a person in his trade, business, or profession.
Green Acres Tr. v. London, 142 Ariz. 12, 22 (App. 1983), aff’d in part, vacated in
part, 141 Ariz. 609 (1984). In such cases, damages are presumed and need
not be proven. Id. When the subject matter is defamatory per se, “the injury
to the appellant [is] presumed without proof of special damages,” and the
plaintiff need only present evidence that the matter was communicated to
a third party. McClinton v. Rice, 76 Ariz. 358, 365 (1953). The Vermedahls’
argument that the Heaths had to affirmatively prove injury conflicts with
settled law.

¶42 The superior court found “[n]o evidence” that the
Vermedahls made defamatory statements to third parties. The Heaths
argue that finding cannot be reconciled with the record, emphasizing that
Mary admitted in discovery and deposition that she communicated
statements about Charlie’s alleged lameness and drugging to Tyler, Amber,
and numerous others. Viewed in favor of the Heaths, that evidence is
sufficient to establish publication for purposes of surviving summary
judgment. Mary does not meaningfully dispute that she made statements
to Tyler and Amber, but argues those statements were limited to assertions
that Charlie was lame and had lidocaine in his system — facts she contends
were substantially true based on post-sale veterinary findings and
toxicology results. The Heaths respond that the import of these statements
went further than what Mary claims and suggested that: Charlie had
lidocaine in his system at the time of the PPE; the PPE was invalid; and
Daniel or someone acting for him administered drugs to conceal lameness.

¶43 The distinction that the Heaths draw is material. The record
supports that Mary told Tyler that Charlie was lame and had lidocaine in
his blood and that she sought Tyler’s involvement because there were
“drugs in [Charlie’s] system.” The Heaths also point to evidence that Mary
told Amber the blood test showed Charlie had been given lidocaine on
multiple occasions. A reasonable jury could interpret these statements as
implying the Heaths sold a drugged or misrepresented horse — an
assertion capable of harming Daniel in his trade as a breeder and seller. We
agree that this evidence creates a triable issue as to defamatory meaning
and publication.

¶44 The Vermedahls claim Mary’s statements were not
defamatory because they were conditionally privileged given that she

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VERMEDAHL, et al. v. HEATH, et al.
Decision of the Court

contacted Tyler in an effort to resolve the dispute. The Heaths respond that
any such privilege was lost because Mary repeated similar statements to
individuals, including Amber, who were not involved in resolving the
dispute, and the allegations are not based on the Vermedahls’ complaint.
Even if a conditional privilege initially applied, whether that privilege
ceased to exist is a fact-intensive question that can’t be resolved as a matter
of law on this record.

¶45 Nor does the absence of evidence of specific economic harm
support summary judgment. Because the alleged statements concern
Daniel’s trade, they are actionable as defamation per se if proven, and no
showing of special damages or independent proof of injury is required.
Green Acres, 142 Ariz. at 22; McClinton, 76 Ariz. at 365.

¶46 The Vermedahls’ arguments that Mary’s statements were
true, privileged, or not “of and concerning” the Heaths may ultimately
persuade a jury. But the record, viewed in the light most favorable to the
Heaths’ claims, contains evidence of publication to third parties who knew
the Heaths were the sellers and of statements capable of defamatory
meaning in their trade. The superior court thus erred by granting summary
judgment on the Heaths’ defamation per se counterclaim. Takieh, 252 Ariz.
at 56 ¶ 11.

CONCLUSION

¶47 We reverse the superior court’s entry of summary judgment
on both the Vermedahls’ claims and the Heaths’ claims. We also reverse
the superior court’s exclusion of Dr. Kaufman’s and Ms. Mahoney’s
testimony for the reasons stated and remand this case to the superior court
for further proceedings consistent with this decision. Given our decision,
we deny the Heaths’ request for attorneys’ fees and costs under A.R.S. §§
12-341 and 12-341.01, and ARCAP 21.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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