Tune v. Donor Network

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

FRANK TUNE, et al., Plaintiffs/Appellants,

v.

DONOR NETWORK OF ARIZONA, Defendant/Appellee.

No. 1 CA-CV 19-0336
FILED 9-22-2020

Appeal from the Superior Court in Maricopa County
No. CV2017-052835
The Honorable Theodore Campagnolo, Judge

AFFIRMED

COUNSEL

Sloma Law Group, Phoenix
By Melinda M. Sloma
Co-Counsel for Plaintiffs/Appellants

Amar Esq. PLLC, Scottsdale
By Ariel D. Amar
Co-Counsel for Plaintiffs/Appellants

Lewis Roca Rothgerber Christie LLP, Phoenix
By Foster Robberson, Justin Henderson, Laura Pasqualone
Counsel for Defendant/Appellee
 TUNE, et al. v. DONOR NETWORK
Decision of the Court

MEMORANDUM DECISION

Judge D. Steven Williams delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Jennifer M. Perkins joined.

W I L L I A M S, Judge:

¶1 Frank and Diane Tune (the “Tunes”)1 appeal the superior
court’s grant of summary judgment and dismissal in favor of Donor
Network of Arizona (“DNA”). For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 On July 20, 2016, Christopher Tune (“Christopher”), an adult,
was involved in a motorcycle accident. He was transported to the Maricopa
Medical Center (“hospital”), where he died shortly thereafter. Although
Christopher never consented to organ donation, his name was on the
DonateLifeAZ Registry list of registered organ donors.

¶3 Shortly after Christopher’s death, Kenneth King (“Nurse
King”), a registered nurse from the hospital, contacted DNA—the federally
designated organ procurement organization (“OPO”)—for Arizona, and
also an eye and tissue recovery organization. DNA searched for and located
Christopher in the DonateLifeAZ Registry, a registry DNA was required to
establish and one they regularly relied upon. After locating Christopher in
the registry, DNA called Christopher’s family to determine if Christopher
had any medical conditions that would complicate organ donation. During
this and subsequent phone calls, DNA spoke to members of Christopher’s
family who expressed doubt about Christopher’s donor status. Shortly after
midnight on July 21, approximately 15 hours after Christopher died, DNA
procured Christopher’s corneas (corneal tissue must generally be recovered
within 24 hours of the donor’s demise or the tissue cannot be transplanted).
Later that morning, DNA reached out to the Arizona Motor Vehicle
Division (“MVD”) to confirm Christopher’s donor status. MVD responded

1 Because Appellants have the same last name as their son, to avoid
confusion, respectfully, we refer to Appellants by their last name and
decedent by his first name.

2
 TUNE, et al. v. DONOR NETWORK
Decision of the Court

and informed DNA that Christopher was not an organ donor. DNA
returned Christopher’s corneas in time for him to be cremated with them.

¶4 In March 2017, the Tunes—Christopher’s parents—filed a
complaint against DNA alleging eight claims related to the removal of
Christopher’s corneas. The following month, DNA filed a motion to dismiss
seven of the eight counts. In May 2017, the Tunes amended their complaint,
abandoning three previously pled claims and adding one additional claim.
The amended complaint alleged: negligence (“Count One”), negligence per
se (“Count Two”), intentional infliction of emotional distress (“Count
Three”), negligent infliction of emotional distress (“Count Four”), tortious
interference with a dead body (“Count Five”), and violation of A.R.S.
§ 32-1364 (“Count Six”). DNA filed a second motion to dismiss the newly
pled Count Six.

¶5 Following oral argument in August 2017, the superior court
granted DNA’s first motion to dismiss (Counts One, Two, Four, and Five),
as well as DNA’s second motion to dismiss (Count Six). As a result, only
Count Three, intentional infliction of emotional distress, remained. In April
2018, DNA filed a motion for summary judgment on the remaining count.
Following oral argument in November 2018, the court granted DNA’s
motion, eliminating the Tunes’ last viable claim. The court then entered
final judgment in DNA’s favor. After the court denied their motion for new
trial, the Tunes timely appealed. We have jurisdiction pursuant to Article 6,
Section 9, of the Arizona Constitution and A.R.S.
§ 12-2101(A).

DISCUSSION

¶6 The Arizona Revised Uniform Anatomical Gift Act, A.R.S.
§§ 36-841 through 36-864 (“RUAGA”), which governs OPOs in Arizona,
contains a presumption of good faith immunity in § 36-856(A):

A person is not subject to civil liability, criminal prosecution
or administrative proceedings for good faith acts or omissions
related to procurement of parts in compliance with this
article. All acts and omissions are presumed to be in good
faith unless the acts or omissions are done with intent to
maliciously cause injury.

¶7 The interpretation and application of RUAGA, and
specifically § 36-856(A), form the basis for the Tunes’ claims.

3
 TUNE, et al. v. DONOR NETWORK
Decision of the Court

I. Motion to Dismiss

¶8 The Tunes contend the superior court improperly granted
DNA’s motion to dismiss Counts One, Two, Four, and Five.2 We review the
dismissal of a complaint under Arizona Rule of Civil Procedure 12(b)(6) de
novo. See Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7 (2012). When
considering a motion to dismiss we “look only to the pleading itself and
consider the well-pled factual allegations contained therein.” Cullen v. Auto-
Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7 (2008). We “assume the truth of the
well-pled factual allegations and indulge all reasonable inferences
therefrom.” Id. However, “mere conclusory statements are insufficient to
state a claim upon which relief can be granted,” and “a complaint that states
only legal conclusions, without any supporting factual allegations, does not
satisfy Arizona’s notice pleading standard.” Id.

A. Negligence Counts

¶9 The superior court relied upon Ramirez v. Health Partners of S.
Ariz., 193 Ariz. 325 (App. 1998) in dismissing the Tunes’ claims of
negligence, negligence per se, and negligent infliction of emotional distress
(Counts One, Two, and Four).

¶10 In Ramirez, an employee of a donor referral agency
approached the plaintiffs, the donor’s parents, about consenting to
procurement of their deceased daughter’s organs. Id. at 327, ¶ 2. The parents
consented to procurement of limited organs and tissues. Id. The employee
miscommunicated the scope of consent to the procurement organization,
causing the procurement to go beyond the parents’ consent. Id. at 329, ¶ 12.
The parents alleged several causes of action, including two negligence
claims: gross medical negligence and negligent infliction of emotional
distress. Id. at 328, ¶ 5.

¶11 This court explained that allegations of negligence alone are
insufficient to overcome the presumption of good faith set forth in the
RUAGA. See id. at 330, ¶ 19. This court further noted that § 36-856(A) makes
clear the presumption of good faith applies “unless the acts or omissions
are done with intent to maliciously cause injury.” Id. at 330, ¶ 15. Thus,
although a miscommunication led to procurement beyond the scope of
consent, the plaintiffs offered no evidence rebutting the statutory
presumption of good faith, and so this court concluded the defendants were
entitled to summary judgment on the negligence claims. Id. at 330, ¶ 19.

2 The Tunes do not appeal the superior court’s dismissal of Count Six.

4
 TUNE, et al. v. DONOR NETWORK
Decision of the Court

¶12 The Tunes argue Ramirez is inapplicable because “Ramirez
addresses and resolves issues relating to when an OPO acts in compliance
with the RUAGA [and is therefore] entitled to good faith immunity,” while
the present case “addresses the consequences of when an OPO ignores the
mandatory provisions of the RUAGA and whether it should still be entitled
to good faith immunity.” The Tunes further argue that, in Ramirez, the
defendant “acted in compliance with the mandated provisions of the
RUAGA.” However, this argument misstates Ramirez. Although the Tunes
are correct that the OPO in Ramirez complied with the RUAGA, the OPO
was not the defendant. See id. at 327, ¶ 5. Rather, the defendant that
allegedly failed to comply with RUAGA was the donor referral agency. See
id. at 326, ¶ 1. And, although the precise roles of the organizations differ,
both Ramirez and the present case address acts by organizations that
allegedly violated the RUAGA.3 See id. at 329, ¶ 12.

¶13 In Ramirez, this court noted:

Most claims alleging unauthorized harvesting of body parts
for which no valid consent had been given necessarily will
arise from acts or omissions that deviate from the Act’s terms
in some respect. To accept plaintiffs’ contention that statutory
immunity is automatically unavailable in such cases would
completely dilute, if not altogether eliminate, the good faith
defense. Such a result appears contrary to the clear legislative
intent and, therefore, we reject it.

Id. at 329, ¶ 13 (citing Perry v. St. Francis Hosp. & Medical Center, 886 F. Supp.
1551, 1557 (D. Kan. 1995)). The Tunes rely upon Perry, in which the plaintiffs
alleged hospital staff knowingly or recklessly misled family members of a
donor to obtain the family’s permission for donation. See Perry, 866 F. Supp.
1551. But even Perry, which interprets a Kansas good faith immunity
provision, concluded that more than noncompliance is required to defeat
the statutory immunity. See Perry, 886 F. Supp. at 1557 (requiring that “the
challenged actions violate or exceed the terms of [the Uniform Anatomical
Gift Act] and are taken without a good faith effort to comply with [the
Uniform Anatomical Gift Act]” to invalidate statutory immunity)
(emphasis added). Notably, the Kansas statute does not include a
presumption of good faith. Id. As noted, supra ¶ 11, absent evidence that
“the acts or omissions [were] done with intent to maliciously cause injury,”

3Ramirez interpreted the 1987 version of RUAGA, which contained a nearly
identical presumption of good faith immunity.

5
 TUNE, et al. v. DONOR NETWORK
Decision of the Court

in Arizona there remains a presumption that DNA acted in good faith.
Ramirez, 193 Ariz. at 330, ¶ 15.

¶14 Although the Tunes contend that DNA acted maliciously,
they have failed to plead facts sufficient to overcome the presumption of
good faith. See § 36-856(A). The Tunes made conclusory statements in their
first amended complaint alleging DNA failed to act in good faith, but these
were merely legal conclusions not supported with well-pled facts and
insufficient to satisfy Arizona’s notice pleading standard. See Cullen, 218
Ariz. at 419, ¶ 7; see also Jeter v. Mayo Clinic Ariz., 211 Ariz. 386, 389, ¶ 4
(App. 2005) (“[W]e do not accept as true allegations consisting of
conclusions of law, inferences or deductions that are not necessarily
implied by well-pleaded facts, unreasonable inferences or unsupported
conclusions from such facts, or legal conclusions alleged as facts.”).
Likewise, the Tunes inclusion of the words “willfully” and “recklessly” in
their complaint, without well-pled facts to support them, are insufficient to
defeat a motion to dismiss. See Cullen, 218 Ariz. at 419, ¶ 7. On this record,
the superior court appropriately dismissed the Tunes’ claims of negligence,
negligence per se, and negligent infliction of emotional distress.

B. Constitutionality of RUAGA

¶15 The Tunes also contend, for the first time on appeal, that if
Ramirez applies we should find that its holding requires an interpretation
of RUAGA that violates the anti-abrogation clause of the Arizona
Constitution. See Ariz. Const. art. 18, § 6. Issues argued for the first time on
appeal are generally waived. See Barrio v. San Manuel Div. Hosp. for Magma
Copper Co., 143 Ariz. 101, 104 (1984). Regardless, this court previously
examined RUAGA through the lens of the anti-abrogation clause, noting
that “Arizona courts have not recognized a common law action for
negligence in the organ donation context,” and concluding, “because
[RUAGA] does not abrogate any viable ‘right of action to recover damages,’
it does not violate article 18, § 6.” Ramirez, 193 at 334-35, ¶ 32. The Tunes’
argument fails.

C. Tortious Interference with a Dead Body

¶16 The Tunes also rely upon the Restatement (Second) of Torts
§ 868 (1979) (Count Five) and argue the court erred by dismissing their
claim for tortious interference with a dead body.

¶17 As this court previously explained, “although Arizona courts
usually follow the Restatement of the Law ‘if there is no statute or case law
on a particular subject,’” Ramirez, 193 Ariz. at 332, ¶ 26 (quoting Martinez v.

6
 TUNE, et al. v. DONOR NETWORK
Decision of the Court

Woodmar IV Condominiums Homeowners Ass’n, 189 Ariz. 206, 208 (1997)),
“[o]ur supreme court has cautioned against [] following the Restatement in
lock step fashion ‘when to do so would result in the recognition of a new
cause of action in this jurisdiction,’” id. (quoting Reed v. Real Detective Pub.
Co., 63 Ariz. 294, 303 (1945)). Because our legislature “has seen fit to
immunize those persons who participate in the organ procurement process
from liability for good faith acts or omissions,” id., and because it does not
appear any Arizona court has recognized a claim under § 868 in the organ
donor context, the superior court properly dismissed the Tunes’ claim of
tortious interference with a dead body.

II. Motion for Summary Judgment

¶18 The Tunes contend the court erred in granting summary
judgment on their final existing claim of intentional infliction of emotional
distress (Count Three), arguing questions of fact remained. They do not
assert that sufficient evidence exists to succeed on their claim of intentional
infliction of emotional distress. Instead, they maintain that DNA is not
entitled to good faith immunity because material issues of fact exist which
establish DNA’s failure to comply with RUAGA and demonstrate
malicious intent. We address only those issues specifically raised by the
Tunes. See Boswell v. Fintelmann, 242 Ariz. 52, 54, ¶ 7 n.3 (App. 2017) (failure
to develop and support conclusory arguments waives appellate review).

¶19 We review the court’s grant of summary judgment de novo,
“viewing the evidence and reasonable inferences in the light most favorable
to the party opposing the motion.” Ochser v. Funk, 228 Ariz. 365, 369, ¶ 11
(2011). Summary judgment is appropriate when “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). The moving party bears the
burden of showing no genuine issue of fact exists. Schwab v. Ames Const., 207 Ariz. 56, 60, ¶ 15 (App. 2004). The non-moving party “may not rely
merely on allegations or denials of its own pleading,” but rather must “set
forth specific facts showing a genuine issue for trial.” Ariz. R. Civ. P. 56(e).

¶20 In its grant of summary judgment, the superior court
indicated the Tunes failed to provide evidence of any material fact refuting
the presumption of good faith in § 36-856(A), and therefore could not
prevail on their intentional infliction of emotional distress claim. And,
although good faith is generally a question of fact, the good faith immunity
defense is often applied as a matter of law. See, e.g., Ramirez, 193 at 329,
¶ 15 (citing Lyon v. United States, 843 F. Supp. 531 (D. Minn. 1994); Kelly-
Nevils v. Detroit Receiving Hosp., 207 Mich. App. 410 (1994); Nicoletta v.

7
 TUNE, et al. v. DONOR NETWORK
Decision of the Court

Rochester Eye & Human Part Bank, 519 N.Y.S.2d 928 (Sup. Ct. 1987); Brown v.
Del. Valley Transplant Program, 420 Pa. Super. 84 (1992)).

¶21 Nevertheless, the Tunes maintain that material issues of fact
exist regarding whether Christopher was in the DonateLifeAZ Registry,
and whether DNA intentionally failed to comply with RUAGA, which the
Tunes argue would establish lack of good faith and malicious intent. But
the undisputed evidence supports the superior court’s finding that
Christopher’s name was, in fact, in the registry. An employee of the
company that maintains the DonateLifeAZ Registry on DNA’s behalf
testified at deposition that Christopher’s name was in the registry before
his death. DNA employee Christina Nopar also indicated in a hospital note
and at her deposition that she located Christopher in the registry.

¶22 The Tunes contend a hospital note entered by Nurse King,
which indicates that DNA told him Christopher was not a donor, creates an
issue of material fact as to whether Christopher was in the registry.
However, at the time Nurse King recorded the note, the hospital staff did
not know Christopher’s identity and would have had no way of confirming
with DNA whether Christopher was a donor or on a donor list. And,
although Nurse King confirmed the validity of the note in an initial
affidavit, he retracted his statement in a subsequent affidavit and at his
deposition. Specifically, Nurse King explained at his deposition that he
“ha[d] no reason to believe” Christopher was not in the registry, and
indicated his note entry was quite possibly a mistake. An affidavit
conflicting with subsequent deposition testimony is insufficient to establish
an issue of material fact. Orme Sch. v. Reeves, 166 Ariz. 301, 309 (1990). That
is because when a witness’ deposition testimony contradicts his prior
affidavit, the deposition testimony is generally deemed to be more
trustworthy. See Ariz. Real Estate Dep’t v. Ariz. Land Title & Tr. Co., 14 Ariz.
App. 509, 511 (1971). Consequently, Nurse King’s hospital note, which he
effectively retracted in his deposition testimony, does not create a material
issue of fact.

¶23 The court also did not, as the Tunes claim, engage in improper
weighing of the evidence regarding Christopher’s inclusion in the registry.
The Tunes point to two statements in the superior court’s summary
judgment order indicating the evidence “likely” pointed to a mistake by
MVD in uploading Christopher’s name to the registry. Although it is true
the court was required to view “[all] reasonable inferences” in the Tunes’
favor when deciding the summary judgment motion, Ochser, 228 Ariz. at
369, ¶ 11, “the trial judge must evaluate the evidence to some extent in
ruling on a motion for summary judgment.” Orme Sch., 166 Ariz. at 309.

8
 TUNE, et al. v. DONOR NETWORK
Decision of the Court

Here, the only reasonable inference to be made based upon the evidence
presented was that MVD mistakenly included Christopher in the registry.
In making this finding, the court did no more than make a permissible
evaluation of the evidence. Indeed, the court later made a definite
statement, resolving any doubt, indicating “[d]efendant, through its expert,
presented reliable and undisputed evidence that MVD had uploaded
Christopher’s name to the [r]egistry as an organ donor.” (Emphasis added.)
And, although the Tunes contend that DNA engaged in “deliberate
ignorance” and should have investigated further once the family relayed
their belief that Christopher was not an organ donor (and mistakenly
placed on the registry), they fail to identify material evidence in dispute or
legal precedent persuasive to their plight.

¶24 Finally, the Tunes contend that whether DNA acted with
malicious intent is a question of fact for the jury. We generally agree with
this sentiment. However, when no reasonable jury could find intent based
upon the evidence, summary judgment is proper. See Wells Fargo Bank v.
Ariz. Laborers, Teamsters & Cement Masons Local No. 395 Pension Tr. Fund, 201
Ariz. 474, 499 (2002) (as amended). As discussed, supra ¶¶ 13-14,
noncompliance with the RUAGA alone is insufficient to establish lack of
good faith. See Ramirez, 193 Ariz. at 329, ¶ 13. Alleged RUAGA violations,
without more, do not create an issue of material fact sufficient to rebut the
presumption of good faith.

¶25 The Tunes contend the superior court ignored evidence of
DNA’s malicious intent and motivation by highlighting that DNA
sometimes profits from sending harvested corneas overseas to
organizations in other countries. How this fact establishes malicious intent,
however, is not clear. Despite the Tunes’ assertion to the contrary, this does
not create a material issue of fact regarding intent. See Shaw v. Petersen, 169
Ariz. 559, 560–61 (App. 1991) (“Motions for summary judgment should not
be denied ‘simply on the speculation that some slight doubt . . . , some
scintilla of evidence, or some dispute over irrelevant or immaterial facts
might blossom into a real controversy in the midst of trial.’”) (quoting Orme
Sch., 166 Ariz. at 311).

¶26 Because no issue of material fact exists, and because the Tunes
have failed to offer any evidence demonstrating DNA acted with
“malicious intent,” the court did not err in granting summary judgment in
favor of DNA.

9
 TUNE, et al. v. DONOR NETWORK
Decision of the Court

CONCLUSION

¶27 For the foregoing reasons, we affirm. We deny the Tunes’
request for attorneys’ fees under § 12-341.01. As the successful party on
appeal, DNA is entitled to costs upon compliance with Arizona Rule of
Civil Appellate Procedure 21.

AMY M. WOOD • Clerk of the Court
FILED: AA

10