Mark K. Patton, M.D., a Single Man v. Lynn Jacob Cox, Wife, and as Independent of the Last Will of Michael D. Cox

276 F.3d 493 (9th Cir. 2002) MARK K. PATTON, M.D., A SINGLE MAN, PLAINTIFF-APPELLANT, v. LYNN JACOB COX, WIFE, AND AS INDEPENDENT EXECUTRIX OF THE LAST WILL OF MICHAEL D. COX, DEFENDANT-APPELLEE. No. 00-15537 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted August 15, 2001 Filed January 7, 2002 Counsel Charles E. Buri (argued), Friedl, Richter & Buri, P.A., for the appellant. Foster Robberson (argued), Susan M. Freeman, W. Todd Coleman, Lewis & Roca, Llp, for the appellee. Appeal from the United States District Court for the District of Arizona Stephen M. McNamee, Chief District Judge, Presiding D.C. No. CV-99-00471-SMM Before: Harlington Wood, Jr., * Alex Kozinski, and Diarmuid F. O'Scannlain, Circuit Judges. 1 Opinion by Judge O'Scannlain; Dissent by Judge Wood, Jr. O'SCANNLAIN, Circuit Judge 2 In this diversity action, we must decide whether a witness in a state quasi-judicial proceeding is immune from a breach of contract action arising out of his testimony. I. 3 Dr. Mark K. Patton practices medicine in Arizona. He and his former wife, Shellie Trembath, divorced in 1994 and are embroiled in a bitter and protracted child-custody battle, which is…

dissenting:

The majority opinion is thoughtful and well written. I view this as a close case, but I believe the Arizona district court was correct and would affirm. Involved is a question of Arizona law relating to the immunity of a witness, Dr. Cox, now deceased, with his estate substituted as defendant. Dr. Cox testified in 1998 at a disciplinary hearing of the Arizona Board of Medical Examiners (“BOMEX”) involving plaintiff, Dr. Patton, who practices pediatric medicine.

The background facts are set out in the majority opinion which interprets existing Arizona law to preclude immunity to Dr. Cox. However, if the Arizona Supreme *501 Court were to consider the circumstances in this case, some of which I will explain, I am not reluctant to predict that it would grant immunity to Dr. Cox.

Dr. Patton does not dispute either the accuracy or truth of Dr. Cox’s testimony before BOMEX, and concedes that witnesses ordinarily have absolute immunity in respect to their testimony, including at quasi-judicial proceedings.

There is no need to pursue the factual background, but there are some details which I believe need to be emphasized. Dr. Patton was not a patient of Dr. Cox which would…

Opinion by Judge O’SCANNLAIN; Dissent by Judge HARLINGTON WOOD, JR.

In this diversity action, we must decide whether a witness in a state quasi-judicial proceeding is immune from a breach of contract action arising out of his testimony.

I

Dr. Mark K. Patton practices medicine in Arizona. He and his former wife, Shel-lie Trembath, divorced in 1994 and are embroiled in a bitter and protracted child-custody battle, which is taking place in a Utah state court. In December of 1996, Trembath asked the Utah court to order Dr. Patton to submit to a psychological evaluation by Dr. Cox, who practices psychology in Texas. The Utah court granted her request and issued the order. Dr. Cox evaluated Dr. Patton in Texas in January of 1997. Before the evaluation began, Dr. Patton asked Dr. Cox to keep the results of the evaluation confidential; the parties dispute whether Dr. Cox agreed to Dr. Patton’s request. It also appears that before evaluating Dr. Patton, Dr. Cox had a therapeutic relationship with Trembath, her 166 new husband, and Trembath’s sister — Dr. Patton’s former sister-in-law, the latter of whom alleged that Dr. Patton had engaged in improper sexual conduct with her. As a…