Jensen v. Sawyers

2005 UT 81
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Michael Jensen, M.D., 	No. 20011023
Plaintiff, Appellee,
and Cross-Appellant,
v.
Mary Sawyers and United
Television, Inc., aka KTVX, 	F I L E D
Defendants, Appellants,
and Cross-Appellees. 	November 15, 2005
---
Fourth District, Provo Dep’t
The Honorable Ray M. Harding, Jr.
No. 970400512
Attorneys: 	Dale F. Gardiner, Douglas J. Parry, Craig R.
Kleinman, Salt Lake City, for plaintiff
Robert M. Anderson, Jennifer Anderson Whitlock,
Bradley M. Strassberg, Salt Lake City, and Thomas B.
Kelley, Steven D. Zansberg, Denver, CO, for
defendants
---
NEHRING, Justice:
¶1 	Defendants Mary Sawyers and United Television appeal a
jury verdict that they defamed Dr. Michael Jensen, invaded his
privacy, and intentionally interfered with his economic
relations. 	Dr. Jensen cross-appeals the trial court’s reduction
of part of the damages award. 	He also cross-appeals the denial
of attorney fees and denial of necessary disbursements as costs.
We reverse in part and affirm in part.
FACTUAL AND PROCEDURAL HISTORY
¶2 	Geoff Goff, an executive producer for Channel 4, KTVX,
in Salt Lake City, Utah, met Dr. Michael Jensen at a 1995 Fourth
of July party given by a mutual friend, Ms. Johnson.
Ms. Johnson, a restaurant critic, remarked to her cousin,

No. 20011023 	2
Mr. Goff, and Dr. Jensen that she had to exercise all the time
because her job required her to eat out so frequently. 	In
response to her jocular comment, Dr. Jensen offered to prescribe
her diet drugs--amphetamines–-which he explained to Ms. Johnson
were an easy and effective way to lose weight. 	Ms. Johnson did
not express any interest in his offer. 	Dr. Jensen nevertheless
persisted and wrote a prescription, giving it to Ms. Johnson. 	He
did so without taking a medical history or making any appointment
with her for a physical examination. 	Ms. Johnson told Dr. Jensen
she was not interested in the prescription, but Dr. Jensen
advised her to hold on to it, in case she wanted to fill it
later. 	Mr. Goff testified that he found it “unusual” that a
doctor would be handing out a prescription for amphetamines at a
party with no knowledge of Ms. Johnson’s medical history or
background.
¶3 	Later that evening, after Dr. Jensen had left the
party, Mr. Goff and Ms. Johnson discussed the “unusual”
interaction with the physician. 	Both believed that Dr. Jensen
may have acted unethically in providing a prescription for
amphetamines to a patient he had not examined. 	Mr. Goff stated
that “[a]t that point I began to feel that we . . . had maybe a
news story here.” 	The following day, Mr. Goff met with KTVX news
director John Edwards and recounted Dr. Jensen’s statements made
at the party. 	Mr. Goff “wrote up the facts as [he] knew them
. . . to give to Mary Sawyers [the station’s medical issues
reporter] so she could begin looking into the story.”
¶4 	Ms. Sawyers called Dr. Jensen and explained that her
managing news editor at KTVX, Mr. Goff, had referred her to
Dr. Jensen as someone who could help her lose weight. 	During the
conversation, Ms. Sawyers explained that she was a reporter, but
implied that she was calling Dr. Jensen as a prospective patient
and not as a reporter. 	Ms. Sawyers told Dr. Jensen that she had
“been on this diet lately and [had not] been able to lose much
weight,” so she asked if he could prescribe diet pills for her.
He replied that “yeah, [he] probably could.” 	Dr. Jensen told her
that he would need to see her in person to prescribe diet pills.
He also relayed that “I’m the guy to talk about weight loss . . .
many physicians are reluctant to prescribe prescription diet
pills. 	I really am not.” 	Dr. Jensen told her that he prescribed
Fastin and Pondimin, but that “[t]raditionally what has been used
is Dexedrine. 	Dexedrine is technically illegal to . . . use as a
diet pill. 	Though I . . . sometimes find people have other
disorders that I . . . feel comfortable using Dexedrine with.”
¶5 	Ms. Sawyers found Dr. Jensen’s admission that he found
ways to prescribe Dexedrine as a diet drug “out of the ordinary”

3 	No. 20011023
and, based on her further research about state laws relating to
prescribing drugs, likely illegal. 	As a result, Ms. Sawyers
decided to further pursue the story, concluding that it was “an
issue of vital public interest.”
¶6 	Ms. Sawyers, Mr. Goff, and Mr. Edwards decided that
Ms. Sawyers would pose as a patient and visit Dr. Jensen. 	She
would record her visit with a hidden camera. 	The three believed
that this plan provided the best way to obtain candid information
from Dr. Jensen about his weight loss treatment practices.
¶7 	Ms. Sawyers scheduled a face-to-face appointment with
Dr. Jensen. 	Ms. Sawyers met with Dr. Jensen in an examination
room at the Columbia FirstMed Clinic in Orem, Utah. 	Ms. Sawyers
explained that she was there to obtain the “safest, easiest way
to lose weight.” 	Dr. Jensen explained that Fastin and Pondimin
were, at that time, the most commonly prescribed medications for
weight loss. 	He added that “[i]f Fastin didn’t work for you, I
would be willing to work with you . . . maybe using Dexedrine,”
but repeated his earlier comment that prescribing Dexedrine for
weight loss was illegal. 	Dr. Jensen advised Ms. Sawyers that if
she felt her Fastin was wearing off and needed something to pick
her up, she could “take a small amount of the capsule and bite
it” as a means of “breaking the time release form” of the drug,
although doing so is considered a misuse of that drug.
¶8 	During the appointment, Dr. Jensen did not obtain a
complete medical history of Ms. Sawyers. 	He did not conduct a
physical examination. 	He did not ask her if she was then taking
any medication. 	Dr. Jensen’s nurse took Ms. Sawyers’ vital signs
and asked if she was allergic to any medicines. 	Ms. Sawyers was
not overweight or obese, and she was not weighed by Dr. Jensen or
his staff.
¶9 	Approximately one month later, Ms. Sawyers met with
David Robinson, the director of Utah’s Division of Occupational
and Professional Licensing (“DOPL”). 	Ms. Sawyers showed
Mr. Robinson the video tape of her appointment with Dr. Jensen.
After viewing the tape, Mr. Robinson expressed his concerns about
Dr. Jensen’s interactions with Ms. Sawyers, stating that “I think
when you look at the intent of the physician, it’s clear that he
knows that he is violating the law and is offering excuses for
it. 	And I think he is doing so with potential jeopardy to his
patients. . . . I’m very concerned about it.”
¶10 	After meeting with Mr. Robinson, Ms. Sawyers arranged a
second meeting with Dr. Jensen. 	She told him that she wanted to
interview him and that she intended to present a very positive

1 For convenience, this report will be referred to as the
September 5 report or the first broadcast.
No. 20011023 	4
view of diet pills and that she was generally going to talk about
the positive effects of diet pills. 	Dr. Jensen consented to the
interview, and the two met at his office at Columbia FirstMed.
¶11 	Ms. Sawyers began the second meeting by confronting
Dr. Jensen with the statements about diet drugs he had made when
the two had met previously. 	In response to his earlier remarks
to Ms. Sawyers about Dexedrine, Dr. Jensen told Ms. Sawyers that
he had contacted a few pharmacists and DOPL to obtain the rules
and regulations for drug prescriptions. 	He told her that he was
no longer able to “work with” her to obtain Dexedrine for weight
loss.
The First Broadcast
¶12 	On September 5, 1995, Channel 4, KTVX, and Ms. Sawyers
aired the first report about Dr. Jensen. 1 	The report featured
what it labeled “miracle diet pills” and asked “are doctors
prescribing these pills too freely?” 	Ms. Sawyers told viewers
that Dr. Jensen prescribed weight loss medications to her without
examining her or asking if she had high blood pressure or
diabetes, conditions which could be aggravated by the drugs
Fastin and Pondimin. 	The broadcast also showed the hidden camera
footage of Dr. Jensen admitting to Ms. Sawyers that he would be
“willing to work” with her using Dexedrine, even though it was
“technically not legal for that reason.” 	The report concluded by
showing a portion of Ms. Sawyers’ interview with Mr. Robinson at
DOPL. 	Mr. Robinson was shown telling Ms. Sawyers that the
division was “very interested in” looking into Dr. Jensen’s
license. 	Ms. Sawyers told viewers that the “State Division of
Licensing and the Federal Drug Enforcement Agency [have] both
opened investigations into Dr. Jensen’s prescribing practices.”
¶13 	The next day, Columbia FirstMed terminated Dr. Jensen’s
employment and Mountain View Hospital in Utah County revoked
Dr. Jensen’s privileges to practice medicine there. 	In addition,
IHC Health Plans removed Dr. Jensen from its insurance panel due
to his “unprofessional” and “possibly illegal” conduct that it
believed had been disclosed in the September 5 KTVX broadcast.
The Second Broadcast
¶14 	Nine months later, DOPL filed a petition against
Dr. Jensen. 	The petition alleged that Dr. Jensen’s treatment of
Ms. Sawyers violated Utah Administrative Code rule

2 These rules address unprofessional conduct in prescribing,
dispensing, and administering controlled schedule III or IV drugs
for the purpose of weight reduction.
3 Section 58-1-501 defines unlawful and unprofessional
conduct. 	Sections 2(a) and 2(b) prohibit aiding or abetting any
other person to violate any law or professional/ethical standard,
such as explaining to Ms. Sawyers how to abuse Fastin. 	Section
2(g) relates to practicing a profession through gross
incompetence, gross negligence, or a pattern of incompetency or
negligence. 	Utah Code Ann. § 58-1-501(2)(a)-(b), (g) (1994).
5 	No. 20011023
156-37-11(14)(a) and (b), 2 and that Dr. Jensen had engaged in
unprofessional conduct in violation of Utah Code section
58-1-501(2)(a), (b), and (g). 3 	KTVX and Ms. Sawyers aired their
second report about Dr. Jensen that same day, July 17, 1996.
¶15 	The second news broadcast told viewers that DOPL had
filed a petition for unprofessional conduct against Dr. Jensen.
The second broadcast also reviewed the assertion made in the
first, specifically, that Dr. Jensen had offered to “work with”
Ms. Sawyers on illegally prescribing her Dexedrine.
¶16 	Later that year, Dr. Jensen settled the DOPL complaint.
He admitted that he had “failed to comply with some of the
requirements” of Utah’s Controlled Substance Rules. 	Dr. Jensen
agreed to a public reprimand, to meet quarterly with professional
licensing board members for one year, and to complete courses on
proper prescribing practices and medical ethics.
The Third Broadcast
¶17 	KTVX aired a third broadcast on November 6, 1996. 	This
broadcast highlighted problems with “questionable doctors” in
Utah and gave viewers instructions to find out which Utah doctors
had been disciplined or who had received complaints for
unprofessional conduct. 	The broadcast named three physicians who
had been censured, including one physician who stood accused of
sexually abusing a patient and another of performing illegal
abortions. 	Then Ms. Sawyers asked viewers, “And what about
Dr. Michael Jensen? 	In July 1995, we caught him on camera
promising me illegal drugs for weight loss.” 	She said that
action has now been taken against Dr. Michael
Jensen. 	He’s the one we caught on tape
promising me illegal drugs. 	The state will
allow Jensen to keep his license but he’ll
receive a public reprimand which requires him

No. 20011023 	6
to attend a workshop on proper prescribing
and a course on medical ethics.
Procedural History of the Lawsuit
¶18 	After the third broadcast, Dr. Jensen filed suit
against Ms. Sawyers and KTVX (“defendants”). 	He sought relief
under five causes of action: 	fraud and misrepresentation,
intentional interference with prospective economic relations,
negligent misrepresentation, defamation of character, and
negligence. 	Defendants moved for summary judgment to dismiss
Dr. Jensen’s claims of fraud and negligent misrepresentation.
They also sought summary judgment on Dr. Jensen’s defamation
claims relating to the first and second broadcasts, alleging they
were barred by the one-year statute of limitations. 	See Utah
Code Ann. § 78-12-29(4).
¶19 	Dr. Jensen responded to the statute of limitations
defenses by seeking to amend his complaint to add four additional
claims that would be immune to limitation challenges:
(1) invasion of privacy/intrusion upon seclusion; (2) violation
of state; (3) federal wiretapping laws; and (4) false light
invasion of privacy.
¶20 	The trial court granted defendants’ summary judgment
motion on the claims of fraud and negligent misrepresentation and
on the claim of defamation as to the first and second broadcasts,
but also permitted Dr. Jensen to amend his complaint.
¶21 	Defendants then brought a second round of motions
seeking dismissal of the amended claims. 	Of the many contentions
advanced in these motions only one is relevant to this appeal:
that the one-year statute of limitations for defamation should
apply to Dr. Jensen’s false light invasion of privacy claim. 	The
trial court denied that motion, and the case went to trial.
¶22 	The jury returned a verdict for Dr. Jensen for false
light invasion of privacy on the first and second broadcasts and
awarded him $520,000 in economic damages, $85,000 in general
damages, and $245,300 in punitive damages. 	Ruling separately on
the third broadcast, the jury also returned a verdict for
Dr. Jensen for false light invasion of privacy and defamation and
awarded Dr. Jensen $1 million for economic loss, $500,000 in
general damages, and $450,600 in punitive damages. 	The jury also
found for Dr. Jensen on his common law intrusion on seclusion and
violation of privacy claims and awarded him $90,000. 	Last, the
jury found for Dr. Jensen on his tortious interference claim and

7 	No. 20011023
awarded him $25,000 in general damages and $25,000 in punitive
damages.
¶23 	The trial court granted defendants’ motion to alter the
judgment, finding that the jury’s award of damages for common law
intrusion on seclusion duplicated the award for statutory
violations, and reduced the three awards by $180,000 to a single
award of $90,000.
¶24 	Ms. Sawyers and KTVX appealed. 	They attribute multiple
errors to the trial court. 	First, they assert that the one-year
statute of limitations that barred Dr. Jensen’s defamation claims
based on the first and second broadcasts should also bar his
false light invasion of privacy claims.
¶25 	Next, they challenge the jury’s false light invasion of
privacy verdict stemming from the third broadcast on the grounds
that all of the information disclosed in the third broadcast
concerned Dr. Jensen’s professional affairs and was, therefore,
not actionable as an invasion of privacy.
¶26 	For similar reasons, defendants take issue with the
verdict awarding Dr. Jensen damages for intrusion on seclusion
and violations of Utah privacy protection statutes, insisting
that Ms. Sawyers’ surreptitious taping of Dr. Jensen did not take
place under circumstances that amounted to an invasion of
Dr. Jensen’s privacy.
¶27 	Fourth, defendants challenge the defamation verdict for
Dr. Jensen on the third broadcast because its contents were
substantially true.
¶28 	Fifth, defendants challenge the sufficiency of the
evidence supporting the jury’s award of economic damages tied to
the third broadcast.
¶29 	Last, defendants claim that insufficient evidence
exists to sustain the jury’s punitive damages award.
¶30 	For his part, Dr. Jensen cross-appeals four issues. 	We
will address three of his claims: 	that the court was too
restrictive in awarding him attorney fees, that he should be
awarded all of his claimed costs because of rule 54(d)(2), and
that his costs were “necessary disbursements.” 	His fourth cross-
appeal on reduction of damages is absorbed in our section
focusing on the common law seclusion claim.
ANALYSIS

4 Utah Code section 78-12-29(4) states that “[a]n action may
be brought within one year . . . for libel, slander, [or]
assault.” 	Utah Code Ann. § 78-12-29(4) (2000).
5 The trial court made its affirmative ruling that
Dr. Jensen’s false light invasion of privacy claims were not
time-barred in the context of denying defendants’ motion for
summary judgment seeking dismissal of the claims on statute of
limitations grounds. 	Dr. Jensen contends that this issue was not
preserved for appeal because, presumably, defendants did not
reassert their statute of limitations claim at trial. 	To do so
would have been futile. 	The fashion in which the trial court
chose to deny defendants’ summary judgment motion left nothing
regarding the statute of limitations to be decided at trial. 	The
trial court ruling, which established the law of the case on the
question of the applicable statute of limitations, was therefore
preserved.
No. 20011023 	8
I. 	FALSE LIGHT INVASION OF PRIVACY AND DEFAMATION
SHARE THE SAME STATUTE OF LIMITATIONS
¶31 	We first take up defendants’ claim that Dr. Jensen’s
recovery for false light invasion of privacy based on the first
two broadcasts must be vacated because the one-year statute of
limitations for defamation 4 governs claims for false light
invasion of privacy, and Dr. Jensen filed his complaint more than
one year after the broadcasts aired. 	The trial court ruled as a
matter of law that the tort of defamation was sufficiently
different from false light invasion of privacy to place it beyond
the reach of defamation’s statute of limitations. 	The trial
court reasoned that since no statute of limitations expressly
applies to invasion of privacy torts, Dr. Jensen’s false light
invasion of privacy claim fell within the ambit of Utah’s four-
year “catch-all” statute of limitations “for relief not otherwise
provided for by law.” 	Utah Code Ann. § 78-12-25(3) (2000). 5
¶32 	We now assess anew the legal question of whether false
light invasion of privacy enjoys a degree of kinship with
defamation so close as to warrant a sharing of limitations
periods. 	This undertaking of legal taxonomy requires that we
examine the features of both torts to identify what
characteristics, if any, they have in common. 	We must assess the
relationship between the two claims in the context of the text
and purpose of section 78-12-25(3).
¶33 	We begin with an examination of the relevant statutory
provisions. 	The legislature has assigned a one-year limitations

6 Slander and libel are a subset of defamation. 	“Slander
consists of the publication of defamatory matter by spoken words,
transitory gestures or by any form of communication other than
[libel].” 	Restatement (Second) of Torts § 568(2) (1977). 	“Libel
consists of the publication of defamatory matter by written or
printed words . . . in physical form or by any other form of
communication that has the potentially harmful qualities
characteristic of written or printed words.” 	Id. § 568(1).
9 	No. 20011023
period to actions for libel and slander. 6 	Utah Code Ann.
§ 78-12-29(4). 	The United States District Court for Utah has
predicted that we could rule that this one-year limitations
period applies to defamation actions. 	Watkins v. Gen.
Refractories Co., 805 F. Supp. 911, 917 (D. Utah 1992). 	Today we
confirm the accuracy of this prediction. 	The second relevant
statute is Utah’s “catch-all” provision which establishes a four-
year limitations period “for relief not otherwise provided for by
law.” 	Utah Code Ann. § 78-12-25(3).
¶34 	In assessing which of these two statutory provisions
applies to Dr. Jensen’s false light invasion of privacy claims,
we pay little heed to the labels placed on a particular claim,
favoring instead an evaluation based on the essence and substance
of the claim. 	See Davidson Lumber Sales, Inc. v. Bonneville
Inv., Inc., 794 P.2d 11, 14 (Utah 1990) (noting that whether a
claim exists should be based on the “nature of the action and not
the pleading labels chosen”). 	Applying this approach to
Dr. Jensen’s claims, we hold that they are properly classified as
defamation claims and thus fall within the one-year limitation
imposed by section 78-12-29.
¶35 	Defamation is the act of harming the reputation of
another by making a false statement to a third person. 	See West
v. Thomson Newspapers, 872 P.2d 999, 1007 (Utah 1994) (“To state
a claim for defamation, [one] must show that defendants published
the statements concerning him, that the statements were false,
defamatory, and not subject to any privilege, that the statements
were published with the requisite degree of fault, and that their
publication resulted in damage.”). 	This is what Dr. Jensen said
defendants did to him in his initial complaint. 	When the trial
court dismissed his defamation claims on the first and second
broadcasts because they were filed too late, Dr. Jensen amended
his complaint to frame defendants’ alleged misdeeds as false
light invasion of privacy. 	The conduct Dr. Jensen complained of
under this theory was the same, only the legal grounds for his
grievances were different. 	We now turn to an examination of
Dr. Jensen’s alternative legal grounds for relief: 	false light
invasion of privacy.

No. 20011023 	10
¶36 	American jurisprudence has long recognized the tort of
invasion of privacy. 	Pavesich v. New England Life Ins. Co., 50
S.E. 68 (Ga. 1905); see also Ken Gormley, One Hundred Years of
Privacy, 1992 Wis. L. Rev. 1335, 1353 (1992) (listing the first
invasion of privacy cases: 	“Marks v. Jaffa, 26 N.Y. Sup. Ct. 908
(1893) (publishing of picture of an actor, without consent, in
newspaper popularity contest enjoined); Mackenzie v. Soden
Mineral Springs Co., 18 N.Y.S. 240 (Sup. Ct. 1891) (use of
physician’s name in advertising medicine, without consent);
Corliss v. F.W. Walker Co., 64 F. 280 (C.C.D. Mass. 1894)
(publishing biography and portrait of George H. Corliss, deceased
inventor, not an invasion of privacy because he was a public
figure; [the] opinion may be read to suggest, however, that right
to privacy exists)”). 	The genesis of the tort of invasion of
privacy in the United States is generally traced to an 1890 law
review article authored by law partners Samuel D. Warren and
Louis D. Brandeis in The Right to Privacy, 4 Harv. L. Rev. 193
(1890).
¶37 	The jury returned a verdict finding both KTVX and
Ms. Sawyers liable under multiple claims. 	Based on its findings
of liability, the jury awarded Dr. Jensen general damages,
damages for economic loss, and punitive damages. 	The trial court
entered a seven-page, thirty-paragraph judgment detailing the
various damages awards and their allocations. 	We will undertake
to summarize the damages awards in a condensed form that includes
only the damages awards subject to the challenges raised in this
appeal. 	We will not describe the allocations of the various
awards between Ms. Sawyers and KTVX as only the aggregate damages
awards are affected by our rulings.
¶38 	The jury was asked to consider separately Dr. Jensen’s
false light invasion of privacy claims arising from the combined
first and second broadcasts and those linked to the third
broadcast. 	This organizational scheme permitted the jury to
consider separately Dr. Jensen’s defamation claim tied to the
third broadcast, a claim that unlike his defamation claims
associated with the first and second broadcasts, had not been
extinguished by the statute of limitations.
¶39 	The jury awarded Dr. Jensen economic loss damages
totaling $600,000, general damages of $100,000, and punitive
damages of $245,300 based on defendants’ liability for false
light invasion of privacy on the first and second broadcasts.
¶40 	Defendants’ liability for defamation and false light
invasion of privacy arising from the third broadcast resulted in

11 	No. 20011023
an award of economic loss damages of $1 million, general damages
of $500,000, and punitive damages of $450,600.
¶41 	The jury awarded Dr. Jensen $50,000 in general damages
and $40,000 in punitive damages arising from defendants’
liability under common law intrusion upon seclusion. 	The jury
awarded a like $90,000 aggregate sum to Dr. Jensen on each of two
of the three state statutory claims.
¶42 	The trial court supplemented its judgment with an award
of costs to Dr. Jensen totaling $7,412.46, and attorney fees in
the amount of $75,058.50.
¶43 	In 1960, Dean Prosser surveyed the invasion of privacy
landscape and could not identify an internally consistent or
coherent formulation of privacy based torts. 	He summarized the
state of the privacy tort law this way:
What has emerged from the decisions is no
simple matter. 	It is not one tort, but a
complex of four. 	The law of privacy
comprises four distinct kinds of invasion of
four different interests of the plaintiff,
which are tied together by the common name,
but otherwise have almost nothing in common
except that each represents an interference
with the right of the plaintiff, in the
phrase coined by Judge Cooley, “to be let
alone.” 	Without any attempt to exact
definition, these four torts may be described
as follows:
1. 	Intrusion upon the plaintiff’s
seclusion or solitude, or into his
private affairs.
2. 	Public disclosure of
embarrassing private facts about the
plaintiff.
3. 	Publicity which places the
plaintiff in a false light in the public
eye.
4. 	Appropriation, for the
defendant’s advantage, of the
plaintiff’s name or likeness.

No. 20011023 	12
It should be obvious at once that these
four types of invasion may be subject, in
some respects at least, to different rules;
and that when what is said as to any one of
them is carried over to another, it may not
be at all applicable, and confusion may
follow.
Sullivan v. Pulitzer Broad. Co., 709 S.W.2d 475, 477 (Mo. 1986)
(quoting Prosser, Privacy, 48 Cal. L. Rev. 382, 389 (1960)).
¶44 	The second restatement of torts modified its approach
to invasion of privacy to accommodate Dean Prosser’s critique and
proposed reforms. 	We, in turn, have fashioned our invasion of
privacy jurisprudence around the second restatement. 	Russell v.
Thomson Newspapers, Inc., 842 P.2d 896, 906-07 (Utah 1992).
¶45 	False light invasion of privacy entered English common
law by an aggrieved Lord Byron. 	Protective of his reputation as
a poet--his reputation for his nonpoetic behavior was
controversial and, to many, beyond redemption--Byron successfully
appealed to the British courts to stay publication of a “spurious
and inferior poem attributed to him.” 	Prosser, supra ¶ 43, at
398 (citing Lord Byron v. Johnston, 2 Mer. 29, 35 Eng. Rep. 851
(1816)). 	Although Byron’s grievance sprang from his concern for
his literary reputation, false light invasion of privacy does not
necessarily provide redress for injury to a person’s reputation.
Instead, like each of the varieties of invasion of privacy, it
owes its existence to the value society places on the right to be
left alone. 	As we noted in Russell, it is because false light
invasion of privacy protects a different interest than defamation
that we have granted it status as an independent tort. 	842 P.2d
at 907. 	As we will discuss shortly, the difference in the
interests protected by the two torts is an insufficient reason,
particularly under the facts of this case, to justify the
application of a separate statute of limitations to defamation
and false light invasion of privacy.
¶46 	An actionable portrayal of a person in a false light
may or may not include the communication of defamatory
information about the victim. 	As the examples in the Restatement
illustrate, a person may conceivably be placed in a false light
through the dissemination of praiseworthy but untrue information
about that person, if a reasonable person would find the
information highly objectionable. 	Restatement (Second) of Torts
§ 652E, illus. 9 (1977); see also Gary T. Schwartz, Explaining
and Justifying a Limited Tort of False Light Invasion of Privacy,
41 Case W. Res. 885, 896 (1991) (reasoning that where

7 Doe v. Roe, 638 So. 2d 826 (Ala. 1994); Godbehere v.
Phoenix Newspapers, Inc., 783 P.2d 781 (Ariz. 1989); Dodrill v.
Ark. Democrat Co., 590 S.W.2d 840 (Ark. 1979), cert. denied sub
nom. Little Rock Newspapers, Inc. v. Dodrill, 444 U.S. 1076
(1980); Fellows v. Nat’l Enquirer, Inc., 721 P.2d 97 (Cal. 1986);
Goodrich v. Waterbury Republican-Am., Inc., 448 A.2d 1317 (Conn.
1982); Barbieri v. News-Journal Co., 189 A.2d 773 (Del. 1963);
Agency for Health Care Admin. v. Assoc. Indus. of Fla., Inc., 678
So. 2d 1239 (Fla. 1996); Cabaniss v. Hipsley, 151 S.E.2d 496 (Ga.
Ct. App. 1966); Hoskins v. Howard, 971 P.2d 1135 (Idaho 1998);
Lovgren v. Citizens First Nat’l Bank, 534 N.E.2d 987 (Ill. 1989);
Winegard v. Larsen, 260 N.W.2d 816 (Iowa 1977); Dotson v.
McLaughlin, 531 P.2d 1 (Kan. 1975); McCall v. Courier-Journal &
Louisville Times Co., 623 S.W.2d 882 (Ky. 1981), cert. denied,
456 U.S. 975 (1982); Perere v. Louisiana Tel. Broad. Corp., 721
So. 2d 1075 (La. Ct. App. 1998); Nelson v. Maine Times, 373 A.2d
1221, 1223 (Me. 1977); Harnish v. Herald-Mail Co., 286 A.2d 146
(Md. 1972); Deitz v. Wometco W. Mich. TV, 407 N.W.2d 649 (Mich.
Ct. App. 1987); Bd. of Dentistry v. Kandarian, 886 P.2d 954
(Mont. 1994); Turner v. Welliver, 411 N.W.2d 298 (Neb. 1987)
(citing false light invasion of privacy as codified in Neb. Rev.
Stat. § 20-204 (1983)); Romaine v. Kallinger, 537 A.2d 284 (N.J.
1988); Moore v. Sun Publ’g Corp., 881 P.2d 735, cert. denied, 882
P.2d 21 (N.M. 1994); McCormack v. Okla. Publ’g Co., 613 P.2d 737
(Okla. 1980); Dean v. Guard Publ’g Co., 699 P.2d 1158 (Or. Ct.
App. 1985); Larsen v. Philadelphia Newspapers, Inc., 543 A.2d
1181 (Pa. Super. Ct. 1988); Montgomery Ward v. Shope, 286 N.W.2d
806 (S.D. 1979); West v. Media Gen. Convergence, Inc., 53 S.W.3d
640 (Tenn. 2001); Russell v. Thomson Newspapers, Inc., 842 P.2d
896 (Utah 1992); Lemnah v. Am. Breeders Serv., Inc., 482 A.2d 700
(Vt. 1984); Eastwood v. Cascade Broad. Co., 722 P.2d 1295 (Wash.
1986); Crump v. Beckley Newspapers, Inc., 320 S.E.2d 70 (W. Va.
(continued...)
13 	No. 20011023
nondisparaging false statements are disseminated about a person,
“unless nondisparaging false statements actually rise to the
level of highly offensive, the harm they bring about may not be
substantial enough to justify all the costs involved in the
recognition and administration of a false light tort” and
advancing this contention, among others, to support his
conclusion that false light as a distinct tort claim should be
“significantly narrowed”).
¶47 	Whether false light invasion of privacy should maintain
its place within the invasion of privacy canon is a question that
has stimulated spirited debate among courts and commentators. 	As
of 2002, “thirty state courts acknowledge false light as a viable
claim in their jurisdictions.” 7 	Denver Publ’g Co. v. Bueno, 54

7 (...continued)
1983).
8 Brauer v. Globe Newspaper Corp., 217 N.E.2d 736 (Mass.
1966) (holding that publication to one person is sufficient to
maintain action for defamation). 	But see Russell, 842 P.2d at
907 (requiring that a false light invasion of privacy claim
center on “‘[o]ne who gives publicity to a matter concerning
another that places the other before the public [i.e., more than
one person] in a false light is subject to liability to the other
for invasion of his privacy’” (quoting Restatement (Second) of
Torts § 652E)).
No. 20011023 	14
P.3d 893, 897 (2002) (citing in part Bueno v. Denver Publ’g Co.,
32 P.3d 491, 495 (Colo. Ct. App. 2000)). 	Several states have
either rejected the cause of action entirely or have not reached
the issue because the facts of the case did not merit a review of
false light invasion of privacy. 	Id. 	Twelve states have
declined invitations to expressly welcome false light to join
their invasion of privacy jurisprudence. 	Id.; see also Cain v.
Hearst Corp., 878 S.W.2d 577, 586 (Tex. 1994). 	The Colorado
Supreme Court aptly characterized false light invasion of privacy
as “‘the least-recognized and most controversial aspect of
invasion of privacy.’” 	Denver Publ’g Co., 54 P.3d at 897
(quoting Cain, 878 S.W.2d at 579). 	In doing so, the Colorado
court also referenced various authorities’ contentions that false
light invasion of privacy’s position as a distinct tort claim is
tenuous at best. 	Id. at 898.
¶48 	Critics of false light invasion of privacy point to its
substantial areas of overlap with defamation as a sound reason
not to legitimize it. 	See, e.g., Schwartz, supra ¶ 46, at 887
(reasoning that a “false [light] statement disparages the
plaintiff’s conduct or character. 	If it is disparaging, however,
the plaintiff evidently has a defamation action against the
defendant”).
¶49 	Both defamation and false light invasion of privacy
provide legal redress for uninvited notoriety grounded in
falsehoods caused by the defendant. 	Despite certain
dissimilarities between defamation and false light invasion of
privacy, such as the requirement that false information be
publicized more widely to be actionable under false light
invasion of privacy than is necessary to sustain an action in
defamation, 8 and the possibility that highly offensive but
nondefamatory statements could provide adequate grounds for a
claim of false light invasion of privacy, false light invasion of
privacy and defamation have much in common. 	The differences

15 	No. 20011023
between the two claims are at their margins. 	It is important to
note, however, that Dr. Jensen’s claims do not occupy these
margins. 	The operative facts of his false light invasion of
privacy claims allege defamation. 	In fact, they are the same
facts he pleaded under his defamation causes of action that were
dismissed as untimely.
¶50 	Defamation claims always reside in the shadow of the
First Amendment. 	Because of its maturity within the common law,
defamation jurisprudence has, over time, largely found a way to
co-exist with the demands placed on it by the freedom of speech.
In reaching an accommodation consistent with freedom of speech,
defamation has accumulated a considerable assortment of defenses,
privileges, heightened burdens of proof, and particularized
standards of review.
¶51 	The concern that claims like false light invasion of
privacy with close ties to defamation might be prosecuted free of
the First Amendment safeguards present in defamation actions has
drawn the attention of both the drafters of the Restatements and
this court. 	This issue is taken up in a comment to section 652E
of the Restatement, which notes:
When the false publicity is also defamatory
so that either action can be maintained by
the plaintiff, it is arguable that
limitations of long standing that have been
found desirable for the action for defamation
should not be successfully evaded by
proceeding upon a different theory of later
origin, in the development of which the
attention of the courts has not been directed
to the limitations.
Restatement (Second) of Torts § 652E, cmt. e (1977).
¶52 	We responded to a similar concern when we held that
Utah’s statutory “fair report” privilege, nominally applicable to
allegations of defamation, extended to a claim of intentional
infliction of emotional distress tied to the same operative facts
that gave rise to defamation claims brought by a nurse against a
reporter and newspaper. 	Russell, 842 P.2d at 902-03. 	We
underscored our holding with citations to cases that applied
shorter statutes of limitation for defamation and libel to causes
of action for intentional infliction of emotional distress and
false light invasion of privacy that were tied to defamatory
statements. 	Id. at 906 n.37.

No. 20011023 	16
¶53 	We are persuaded that the statute of limitations cases
used in Russell to buttress the merits of applying the fair
report privilege to a cause of action closely allied to
defamation are equally persuasive for the actual propositions
they advance: 	that the statute of limitations for defamation
governs claims based on the same operative facts that would
support a defamation action. 	In recognition of the possibility
that a false light invasion of privacy claim may turn on
operative facts that do not include defamation, we further limit
our holding to the facts present here and extend the one-year
limit to false light invasion claims that flow from allegedly
defamatory statements.
¶54 	Several additional considerations contribute to our
conviction of the soundness of this holding. 	Because, as this
case clearly attests, virtually any defamation claim may be
recast as an action for false light invasion of privacy, were we
to assign “catch-all” status to false light invasion of privacy
we would effectively neuter the one-year defamation limitation.
An express one-year statutory limitations period for defamation
stands as the implied product of the legislature’s consideration
of the various policy considerations that inform the span of time
appropriate to bring an action.
¶55 	A shorter limitations period for defamation can be
explained and justified as an acknowledgment of importance of the
free speech interests with which defamation collides. 	A shorter
defamation period reflects the importance placed on freedom of
speech by restricting the time those making statements are
exposed to legal challenges, thereby reducing the chilling effect
on speech that may accompany the prospect of defending statements
well beyond their shelf lives. 	By encouraging persons aggrieved
by allegedly defamatory statements to bring claims promptly, a
shorter limitations period also increases the opportunities for
defendants to take prompt and meaningful remedial steps to
mitigate a plaintiff’s damages by, for example, publishing
retractions.
¶56 	The characterization of section 78-12-25(3) as a
“catch-all” carries with it the implication that none of the
claims captured by it will have enjoyed the benefit of an
individualized assessment of an appropriate statute of
limitations. 	Therefore in light of strong affinity between
defamation and Dr. Jensen’s false light invasion of privacy
claims based on defendants’ defamatory statements, the assignment
of those claims to the more fully reasoned statutory category is
superior to casting the claim into the “catch-all” classification

17 	No. 20011023
and disregarding all consequences of the substantial commonality
of the claims.
¶57 	We have not been asked to re-evaluate the status of
false light invasion of privacy in the tort law of our state.
Moreover, our discussion of the relationship between defamation
and false light invasion of privacy should not be interpreted as
an invitation to reconsider the viability of false light invasion
of privacy. 	We remain sufficiently persuaded that there is
certain unacceptable conduct that could be within the reach of
false light invasion of privacy, but not defamation. 	Rather, our
discussion bears on the narrow issue of whether the defamation
statute of limitations should apply to claims of false light
invasion of privacy.
¶58 	We are cautious about describing in any detail the
scope or contours of actions for false light invasion of privacy
that do not involve allegations of defamatory statements. 	These
are not relevant here. 	Dr. Jensen’s false light invasion of
privacy claims are tied to the same operative facts that grounded
his defamation claims. 	Accordingly, we vacate the verdicts
relating to false light invasion of privacy on the first and
second broadcasts.
II. 	THE TRIAL COURT DID NOT COMMIT PLAIN ERROR
BY SUBMITTING THE FALSE LIGHT INVASION OF PRIVACY
CLAIM ON THE THIRD BROADCAST TO THE JURY
¶59 	Dr. Jensen’s claim of false light invasion of privacy
linked to the third broadcast, which aired November 6, 1996, was
not vulnerable to a statute of limitations challenge. 	Defendants
nevertheless challenge this portion of the jury verdict,
asserting that the verdict was the product of the trial court’s
plain error.
¶60 	According to defendants, the jury was improperly
permitted to consider as actionable false light portrayals of
activities that related exclusively to Dr. Jensen’s professional
life. 	Defendants assert that because only matters of a personal
nature can form the basis for false light invasion of privacy,
the depiction of Dr. Jensen’s meeting with Ms. Sawyers could not
have formed the basis for recovery under a false light theory.
Defendants did not, however, offer a jury instruction on this
point.
¶61 	Utah Rule of Civil Procedure 51(d) bars appellate
consideration of unpreserved defects in jury instructions “except
to avoid manifest injustice.” 	Utah R. Civ. P. 51(d). 	We have

No. 20011023 	18
interpreted manifest injustice to be synonymous with plain error
and that the same analytical model applies to each. 	Crookston v.
Fire Ins. Exch., 817 P.2d 789, 799 (Utah 1991). 	The plain error
test has three parts: 	the demonstration of error; a qualitative
showing that the error was plain, manifest, or obvious to the
trial court; and evidence that the error affected the substantial
rights of a party. 	State v. Casey, 2003 UT 55, ¶¶ 42-50, 82 P.3d
1106.
¶62 	We are not persuaded that the trial court erred when it
did not include within the text of its instructions on the
elements of false light invasion of privacy a statement that the
disclosures made about Dr. Jensen in the broadcasts must have
concerned his private affairs, as distinguished from his personal
life. 	The instruction given by the trial court included a
verbatim recitation of the elements of false light invasion of
privacy as set out in section 652E of the Restatement.
Restatement (Second) of Torts § 652E (1977). 	Moreover, comment a
to this section states:
The form of invasion of privacy covered by
the rule stated in this Section does not
depend upon making public any facts
concerning the private life of the
individual. 	On the contrary, it is essential
to the rule stated in this Section that the
matter published concerning the plaintiff is
not true.
Id. at cmt. a.
¶63 	Inasmuch as we have endorsed the Restatement approach
to invasion of privacy torts, Russell v. Thomson Newspapers,
Inc., 842 P.2d 896, 907 (Utah 1992); Cox v. Hatch, 761 P.2d 556,
563 (Utah 1988), the trial court would have acted contrary to
this comment and likely committed error if it had instructed the
jury that to recover for false light invasion of privacy,
Dr. Jensen must show that the broadcast portrayed private
information about him. 	Accordingly, we reject this challenge to
the third broadcast.
III. 	DEFENDANTS HAVE NOT ESTABLISHED GROUNDS TO DISTURB THE
JURY’S VERDICT ON DR. JENSEN’S INTRUSION UPON SECLUSION CLAIM
¶64 	Defendants next claim that the jury’s verdict awarding
Dr. Jensen damages for the intrusion upon seclusion species of
invasion of privacy must be vacated. 	This common law claim is
closely allied with Utah’s statutory privacy protections that

9 Defendants argue in a footnote that it is impossible for
United Television to be liable under section 76-9-402(1)(a) if
Ms. Sawyers is not also liable. 	However, defendants fail to
preserve or brief this issue, and therefore, we will not address
it.
10 However, we agree that the trial court properly reduced
the compensatory and punitive damages on the gathering of
information claims. 	We therefore reject Dr. Jensen’s cross-
appeal seeking reinstatement of the damages.
19 	No. 20011023
safeguard citizens against eavesdropping and communication abuse.
Utah Code Ann. § 76-9-402 (2003). 	The jury found that defendants
had violated section 76-9-402(1)(a) to (c) and awarded Dr. Jensen
damages. 9 	Defendants claim that the jury’s verdict in favor of
Dr. Jensen for the statutory claims must, like the verdict on the
intrusion and seclusion claim, be reversed. 	We disagree. 10
¶65 	We begin our analysis of this portion of defendants’
appeal by addressing a recurring theme: 	standard of review. 	The
manner in which the parties have articulated the standard of
review concerning this component of their appeal provides a
useful framework to examine the standard of review issues
implicated here, even though defendants reach the wrong
conclusions about which standard should apply–-an error of
considerable consequence.
¶66 	In their brief, defendants assert that “the district
court erred when it denied summary judgment and submitted to the
jury, and did not set aside the verdict on, Dr. Jensen’s three
alternative claims asserting an invasion of his privacy.” 	By
framing the issue in this way, defendants invite us to consider
three separate occasions upon which the trial court had an
opportunity, and in defendants’ view the obligation, to dispose
of Dr. Jensen’s intrusion on seclusion tort claim and its
statutory companions. 	By treating these events collectively,
defendants imply that the same standard of review applies to
each. 	According to defendants, that standard of review is a
nondeferential de novo reconsideration of the record. 	Defendants
do not attempt to explain why de novo review is uniformly
applicable to a review of rulings on summary judgment, directed
verdict, and the jury’s verdict itself, nor do they cite any
authority in support of this proposition.
¶67 	It is beyond the scope of this appeal and not necessary
to its outcome to note that different standards of review apply
to appeals from rulings on motions for summary judgment, motions
for a directed verdict, and motions for judgment notwithstanding

No. 20011023 	20
the verdict. 	Nor need we do more than observe that appellate
review of trial court denials of these motions are treated
differently than review of motions granted. 	We likewise decline
to take up the unbriefed question of whether it is appropriate to
consider an appeal of a motion for a directed verdict that was
improperly denied, thereby allowing a matter of law to be
submitted to a jury. 	See, e.g., R.R. Dynamics, Inc. v. Ace
Stucki Co., 727 F.2d 1506, 1515 (Fed. Cir. 1984) (holding that it
is “neither error nor dangerous to justice to submit legal issues
to juries”); Tights, Inc. v. Acme-McCrary Corp., 541 F.2d 1047,
1060 (4th Cir. 1976) (holding that sending a matter of law to the
jury was not error because it ultimately “involves underlying
questions of fact” and because “the formulation of issues is a
matter resting in the sound discretion of the trial court”
(citations omitted)).
¶68 	Defendants insist that we conduct a free-ranging review
of the jury’s verdict on these common law and statutory privacy
claims because the jury was called upon to apply an objective
standard in evaluating whether Dr. Jensen had a sufficiently
cognizable privacy interest. 	Without a legitimate privacy
interest, Dr. Jensen could not have established the first element
of the tort of intrusion on seclusion, which requires that a
defendant “intrude[] into a private place, or otherwise invade[]
a private seclusion that the plaintiff has thrown about his
person or affairs.” 	Restatement (Second) of Torts § 652B, cmt. c
(1977). 	The absence of a legitimate privacy interest would also
be fatal to Dr. Jensen’s statutory claims. 	Utah’s privacy and
communication abuse statute conditions actionable conduct on an
invasion of a “private place” which is defined as “a place where
one may reasonably be safe from casual or hostile intrusion or
surveillance.” 	Utah Code Ann. § 76-9-401(1).
¶69 	Whether Dr. Jensen enjoyed an actionable privacy
interest was to be evaluated objectively, measured by the
expectation of a reasonable person. 	According to defendants, the
jury’s use of an objective standard to assess privacy exposes
this verdict to more rigorous appellate scrutiny. 	We disagree.
¶70 	The calculation of the proper measure of discretion to
parcel out to a jury has virtually nothing to do with the fact
that an objective standard is used to evaluate the presence or
absence of a plaintiff’s privacy interest. 	One need look no
further than the law of negligence to confirm this point. 	Like
the entitlement to privacy, the presence or absence of negligence
is gauged objectively, measured by society’s expectations for the
behavior of the mythical “reasonable person.” 	In our state, like
virtually every other jurisdiction in our country, the question

21 	No. 20011023
of whether a defendant’s conduct fell below a particular standard
of care is one to be decided by the jury. 	See, e.g., Anderson v.
Gribble, 513 P.2d 432, 434 (Utah 1973) (“The rights and duties of
drivers approaching intersections are questions dealing with the
standard of conduct to be expected of a reasonably prudent man
and are peculiarly a matter for the jury.”); Hone v. Mammoth
Mining Co., 75 P. 381, 384 (Utah 1904) (holding that questions of
“ordinary care” are subject to different interpretations and are
therefore appropriate matters for a jury).
¶71 	Despite the fact that the application of objective
legal standards has long been counted among the jury’s tasks,
defendants’ assertion that an objective standard and
nondeferential review are somehow connected is not farfetched.
Indeed, the two concepts are linked to one another in a manner
that becomes clear when they are viewed through the lens of the
law versus fact standard of review assessment model. 	This model,
which we explored in exacting detail in State v. Pena, 869 P.2d
932 (Utah 1994), is the source in our case law of the often
invoked “pasture fence” metaphor. 	See, e.g., State v. Brake,
2004 UT 95, ¶ 13, 103 P.3d 699; Alta Pac. Assocs. v. Utah State
Tax Comm’n, 931 P.2d 103, 109 (Utah 1997); State v. Vincent, 883
P.2d 278, 282 (Utah 1994).
¶72 	In the bipolar law versus fact world, objective
standards appear to display the attributes of legal constructs
that are subject to unconstrained appellate review. 	It is not
readily apparent, therefore, why a jury’s application of an
objective standard in its deliberations should mandate
deferential appellate review.
¶73 	Judge Learned Hand confronted this paradox when
attempting to explain why the objectively evaluated question of
negligence is submitted to the jury. 	He wrote: 	“[I]n cases
tried to a jury it is indeed treated [as a question of fact],
although obviously it is not a question of fact, for it measures
the duty and liability which the law imposes.” 	Sidney
Bloomenthal & Co. v. Atl. Coastline Rail Co., 139 F.2d 288, 290
(2d Cir. 1943), cert. denied, 321 U.S. 795 (1944). 	The
complicating truth at the heart of Judge Hand’s observation is
that even matters that would be traditionally understood as legal
issues will be treated as questions of fact when presented to a
jury.
¶74 	To the extent that Pena describes a two-dimensional
standard of review universe that can be navigated using the
coordinates of law and fact, the treatment of objective standards
in jury trials exposes its limitations. 	869 P.2d at 939.

No. 20011023 	22
Settling on a proper standard of review is about more than
discriminating fact from law. 	Such a two-dimensional
interpretation does not account for other important review
considerations which lend breadth and depth to the review
selection enterprise.
¶75 	A comparison of Pena with this case illustrates the
point. 	At issue in Pena was the proper standard by which to
review a trial court’s determination of whether a police stop was
supported by reasonable suspicion. 	869 P.2d at 934-35. 	The
issue presented a classic mixed question of law and fact. 	Id.
The circumstances surrounding Mr. Pena’s detention were factual.
Id. 	The concept of reasonable suspicion was legal. 	Id. 	The
application of the reasonable suspicion standard to the
circumstances of Mr. Pena’s detention intertwined both elements.
Id. at 936.
¶76 	The focus of our inquiry in Pena was where to place the
reasonable suspicion inquiry on the fact versus law continuum.
Id. at 939. 	Here, however, we are reviewing a jury verdict.
This enterprise does not lend itself to the task of measuring the
ratio of law to fact, positioning the result along a linear
scale, and applying the measure of discretion assigned to that
particular point. 	Instead, a jury verdict, even a special
verdict that incorporates a jury’s answers to detailed components
of a claim, will seldom lend itself to a Pena-like analysis
because the variety of options for the application of discretion
is not available when reviewing a jury verdict. 	Rather, once it
is determined that a matter has been properly submitted to the
jury, the question on review almost inevitably becomes the
factual one of whether there was substantial evidence to support
the outcome.
¶77 	Defendants’ argument is more accurately understood as a
challenge to the sufficiency of the evidence. 	In other words,
defendants contend that Dr. Jensen presented insufficient
evidence--evidence that fell short of the substantial evidence
standard necessary to support a jury verdict--to meet the proper
legal standard for an environment into which an intrusion would
be actionable. 	According to defendants, the uncontroverted facts
established that the clinic was open to the public and that
Dr. Jensen and Ms. Sawyers occupied the examination room in a
professional, rather than private, capacity.
¶78 	Defendants can certainly point to cases which have
attempted to set up identifiable landmarks to mark the boundaries
of a private environment which should be legally protected from
intrusion. 	For example, subject to certain limitations, the work

23 	No. 20011023
place enjoys lesser privacy protections than a dwelling. 	See,
e.g., Sanders v. Am. Broad. Co., 978 P.2d 67, 74 (Cal. 1999)
(holding that “an employee may, under some circumstances, have a
reasonable expectation of visual or aural privacy against
electronic intrusion by a stranger, despite the possibility that
the conversations and interactions at issue could be witnessed by
coworkers or the employer”); Dietemann v. Time, Inc., 284 F.
Supp. 925, 926-31 (C.D. Cal. 1968), aff’d, 449 F.2d 245 (9th Cir.
1971) (The plaintiff was engaged in practicing simple quackery
out of his home. 	Reporters from Life Magazine met with the
plaintiff at his home and obtained pictures under the guise that
they were referred to him by a friend. 	Instead the reporters
worked with the Los Angeles District Attorney’s office to get
information about the plaintiff’s practice and take pictures,
which led to his arrest. 	The reporters also used a hidden radio
transmitter to transmit the dialogue to a van. 	The pictures and
a story about the plaintiff were subsequently published in Life
Magazine. 	The Ninth Circuit held that this constituted an
invasion of the plaintiff’s privacy, writing, “It can hardly be
concluded that plaintiff’s activities in his house, whether in
the presence of one or several people, are activities in the
public view for the purpose of publication.”). 	At the same time,
as the Sanders court noted, the concept of privacy “is not a
binary all or nothing characteristic.” 	Sanders, 978 P.2d at 72.
¶79 	We agree with the Sanders court that whether a person
is entitled to solitude of seclusion is a relative and highly
fact-dependent matter. 	The plastic nature of privacy is not at
odds with the use of an objective standard to evaluate its
existence. 	Rather, it is a recognition that reasonable people
may find a legally protectable private environment in a multiple
and varied array of physical settings.
¶80 	We should be wary of using our appellate authority to
attempt on a case-by-case basis to define with precision the
boundaries of a reasonable sphere of protected privacy. 	Such an
undertaking carries with it the risk of creating more problems
than it would solve.
¶81 	Justice Zimmerman, in Pena, recounted an example of the
dangers of being overly eager to put too high a polish on fact-
dependent legal doctrines, citing our experience with the law of
waiver. 	869 P.2d at 938. 	As Justice Zimmerman explained:
In a series of earlier cases, we have ruled
that waiver was or was not present as a
matter of law on the specific facts of those
cases. 	This entailed fairly close scrutiny

No. 20011023 	24
of the application of the general stated
waiver principles to particular fact
situations. 	In the course of those
decisions, we attempted to incorporate into
the statement of the law of waiver those
facts that led us to decide each of those
cases as we did. 	Over time, we appear to
have developed hopelessly inconsistent
elaborations on the basic statement of waiver
principles.
Id. (citation omitted).
¶82 	Justice Zimmerman went on to note that this court
worked its way out of this difficulty when it
stripped the statement of the law back to its
most basic form and told the trial courts to
apply it. 	The net affect was to say that
waiver is a highly fact-dependent question,
one that we cannot properly review de novo in
every case because we cannot hope to work out
a coherent statement of the law through a
course of such decisions.
Id. (citation omitted).
¶83 	We conclude that there is much to be learned from our
experience with the law of waiver in approaching a legal
definition of privacy. 	The jury instruction concerning privacy,
to which defendants did not object, presented the jury with a
definition of privacy in a basic form. 	Hewing closely to a
general definition of privacy set out by our court of appeals in
Stein v. Marriott Ownership Resorts, Inc., 944 P.2d 374, 378
(Utah Ct. App. 1997), the instruction stated:
With respect to the first element, plaintiff
must prove an intentional and substantial
intrusion upon his solitude or seclusion.
. . . .
There are two forms of intrusion. 	The
first form is an intrusion upon a person’s
physical solitude or seclusion. 	The second
form does not require a physical intrusion,
but does require a prying or intrusion into
one’s private affairs, such as eavesdropping

25 	No. 20011023
on private conversations, peering into one’s
home through the windows, or opening and
reading personal mail.
Id.
¶84 	Defendants’ failure to object to this instruction is
reason enough to decline an extension or exploration of the
contours of tort privacy. 	We would be unlikely to do so anyway
in light of our belief that the facts to which a definition of
actionable privacy would be applied are so complex and varying
that no rule could be articulated that would anticipate all of
them. 	Pena, 869 P.2d at 939.
¶85 	Defendants have assumed a substantial risk by insisting
that the jury verdict on the intrusion upon seclusion and
statutory claims are subject to de novo review. 	That risk bears
on yet another recurring theme in this appeal--marshaling. 	We
have described this obligation as a defendant’s burden to “ferret
out a fatal flaw in the evidence” and become a “devil’s
advocate.” 	State v. Green, 2005 UT 9, ¶ 28, 108 P.3d 710
(citations omitted).
¶86 	Although we have not so expressly held, the rationale
for the duty to marshal evidence has substantially less force in
the context of de novo review. 	Where an appellate court is
obligated to review the entire record anew, little is to be
gained by requiring an appellant to play the role of devil’s
advocate and set up the opponent’s case in its best light.
Having unsuccessfully persuaded us to conduct a de novo review of
this portion of the jury’s adverse verdict, however, defendants
are not excused from their obligation to marshal evidence.
¶87 	Moreover, we decline to conduct a review based on a
traditional challenge to the sufficiency of the evidence. 	We do
so not only because defendants have failed to marshal the
evidence, but because they have failed to preserve, through a
challenge to jury instructions, the legal standard against which
the jury tested its facts. 	Stated simply, we decline to conclude
that it was unreasonable for the jury to determine that the
falsely represented presence of Ms. Sawyers in Dr. Jensen’s
examination room deprived that environment of the privacy status
it almost certainly held if Dr. Jensen were to have occupied the
room alone.
¶88 	We therefore affirm the jury’s verdict on this issue.
IV. 	DEFENDANTS FAILED TO MARSHAL THE EVIDENCE ON THEIR

No. 20011023 	26
CLAIM THAT THE THIRD BROADCAST WAS SUBSTANTIALLY TRUE
¶89 	Defendants challenge the jury verdict awarding
Dr. Jensen damages on his defamation and false light invasion of
privacy causes of action on the grounds that the content of the
third broadcast was “substantially true.” 	That statements which
may be infected with inaccuracy, innuendo, and outright falsity
and still not be actionable so long as their “gist” or “sting”
rings true is but one of countless ways the law defers to the
commanding presence of free expression among our liberties.
Defendants concede that certain statements made in the third
broadcast were not “literally” true. 	For example, Ms. Sawyers’
use of the word “promise” to describe Dr. Jensen’s commitment to
prescribe Dexedrine for her was not uttered when he said, “If
Fastin didn’t work for you, I’d be willing to work with you, uh,
maybe using Dexedrine. 	It’s technically not legal for that
reason.”
¶90 	Once again, the selection of the appropriate standard
of review is critical to the outcome of this issue. 	Citing
United States Supreme Court cases as authority, defendants urge
us to review the record de novo and to reach our independent
judgment whether the content of the third broadcast was
substantially true. 	We decline this invitation because it would
require us to apply the wrong standard of review.
¶91 	Appellate review of a jury verdict or bench ruling in
which freedom of expression is at issue stands as an exception to
traditional protection afforded jury verdicts from appellate
review. 	That a ruling is found to involve “constitutional facts”
and merit application of a “constitutional rule” is an indication
that much is at stake. 	This is certainly true in the case of
libel. 	A finding that a libelous statement was made with actual
malice sufficient to permit recovery under New York Times v.
Sullivan, 376 U.S. 254, 281-82 (1964), is not reviewed with the
same deference to the finder of that fact that would be extended
to a finding of mens rea in other settings. 	Instead, where the
First Amendment is implicated, the “actual malice” finding
acquires the status of a “constitutional fact” requiring an
appellate court to conduct an “independent examination of the
whole record” to test its worthiness. 	Bose Corp. v. Consumers
Union of United States, Inc., 466 U.S. 485, 499 (1984); Harte-
Hanks Communications Inc. v. Connaughton, 491 U.S. 657, 685-90
(1989) (extending the Bose ruling to jury trials).
¶92 	The Bose Court reasoned that the assessment of whether
a determination that a defamatory statement was animated by
actual malice was one that intermingled fact with law--and not

27 	No. 20011023
just any law, but one that implicates a “constitutional rule.”
466 U.S. at 509. 	A statement that earned the label of libelous
thereby joined obscenity, fighting words, incitement to riot, and
child pornography as a category of unprotected speech banished
from the protective embrace of the First Amendment. 	Because,
however, the risk that any particular statement might be
consigned to an unprotected category by a judge or jury
insufficiently attentive to the First Amendment’s broad
protection of even offensive, caustic, and inaccurate statements,
an appellate court is duty bound to act in its role as the
guardian of constitutional protections to undertake searching
appellate review of judgments affecting speech.
¶93 	Justice Harlan aptly made this point when he noted in
the context of obscenity:
The Court seems to assume that “obscenity” is
a peculiar genus of “speech and press,” which
is as distinct, recognizable, and
classifiable as poison ivy is among other
plants. 	On this basis the constitutional
question before us simply becomes, as the
Court says, whether “obscenity,” as an
abstraction, is protected by the First and
Fourteenth Amendments, and the question
whether a particular book may be suppressed
becomes a mere matter of classification, of
“fact,” to be entrusted to a factfinder and
insulated from independent constitutional
judgment. 	But surely the problem cannot be
solved in such a generalized fashion. 	Every
communication has an individuality and
“value” of its own. 	The suppression of a
particular writing or other tangible form of
expression is, therefore, an individual
matter, and in the nature of things every
such suppression raises an individual
constitutional problem, in which a reviewing
court must determine for itself whether the
attacked expression is [suppressible] within
constitutional standards. 	Since those
standards do not readily lend themselves to
generalized definitions, the constitutional
problem in the last analysis becomes one of
particularized judgments which appellate
courts must make for themselves.

11 Justice Stevens’ majority opinion in Bose took care to
note that the labor required to perform an independent
examination of the record was less taxing than that required of a
court conducting de novo review. 	466 U.S. at 492. 	The
independent examination contemplated by the Bose Court was
limited to the portions of the record relevant to the issue
subject to independent review. 	Such a review was, in the view of
the Bose majority, appreciably different from the review of the
entire judgment which is the typical scope of work for a
reviewing court conducting de novo review. 	Id. at 514 n.31. 	The
Bose dissenters were apparently unimpressed with this
distinction. 	They uniformly described the undertaking required
by the majority as de novo review. 	Id.
No. 20011023 	28
I do not think that reviewing courts can
escape this responsibility by saying that the
trier of facts, be it a jury or a judge, has
labeled the questioned matter as “obscene,”
for, if “obscenity” is to be suppressed, the
question whether a particular work is of that
character involves not really an issue of
fact but a question of constitutional
judgment of the most sensitive and delicate
kind.
Roth v. United States, 354 U.S. 476, 497-98 (1957) (emphasis in
original).
¶94 	In Bose, the United States Supreme Court reasoned that
although the determination of whether a defendant acted with the
malice necessary to sustain a libel action displayed the
hallmarks of a finding of fact, it nevertheless required the
independent appellate review advocated by Justice Harlan. 11 	466
U.S. at 507 n.25.
¶95 	Here, we are faced with the question of whether the
review of substantial truth shares sufficient features with the
review of actual malice so that it, too, must be treated as a
constitutional fact and given more rigorous appellate scrutiny.
We conclude that it does not.
¶96 	Unlike actual malice, obscenity, and other
“constitutional facts,” the act of assessing whether an allegedly
defamatory statement is substantially true does not require the
finder of fact to apply a constitutional standard to a particular

12 This is not to say that the defense of substantial truth
has no constitutional dimension. 	A definition of defamation that
would expose a person to liability for any statement that fell
short of absolute, literal truth would likely violate the First
Amendment. 	New York Times, 376 U.S. at 289; Masson v. New Yorker
Magazine, Inc., 501 U.S. 496, 508-11 (1991).
13 Defendants also claim that we should evaluate the issue
of substantial truth for correctness because they raised the
issues in motions for summary judgment and for judgment
notwithstanding the verdict. 	Defendants have not briefed these
novel contentions, and we decline, in the absence of analysis, to
consider them.
29 	No. 20011023
set of facts. 12 	The task of gauging the overall thrust of an
allegedly defamatory statement against the accuracy of its
component parts is not one that demands the exercise of
constitutional judgment. 	Instead, determining whether an
allegedly defamatory statement is substantially true calls upon
finders of fact to engage in the work for which they are best
suited, the discovery of truth through the application of their
judgment, life experience, and common sense. 	Therefore, we
review the issue of whether defendants’ statements were
substantially true as a traditional question of fact. 	We will
set aside the jury verdict, which was based in part on the
finding that defendants’ statements were not substantially true
only if there exists no substantial evidence to support it. 13
¶97 	As a consequence of our holding that the defense of
substantial truth presents a question of fact, defendants assume
the obligation to marshal evidence.
¶98 	Defendants have failed to satisfy their duty to
marshal. 	The approach taken by defendants on the issue of
substantial truth in their reply brief highlights this
shortcoming. 	The section of their brief addressing substantial
truth is titled “Dr. Jensen has failed to demonstrate that the
defendants’ published statements are not substantially true.”
Not only does this statement suggest incorrectly that the burden
to prove this defense fell to Dr. Jensen, but it also conveys the
erroneous notion that Dr. Jensen had the duty to present evidence
from the record sufficient to carry his burden on appeal.
Neither proposition is true. 	We conclude that in the absence of
any meaningful marshaling, defendants have forfeited a claim to
our substantial evidence review of the defense of substantial
truth.
V. 	ECONOMIC DAMAGES FLOWING FROM THE THIRD BROADCAST

No. 20011023 	30
¶99 	Defendants argue that the evidence is insufficient to
support the jury’s $1 million damages award to Dr. Jensen for
economic losses caused by the third broadcast. 	They insist that
the award was error because Dr. Jensen proffered no evidence that
he suffered any economic loss that could be linked to the third
broadcast. 	All evidence relating to any economic loss, most
significantly evidence that Dr. Jensen was stripped of his
medical privileges and suffered a reduction in work hours,
concerned events that took place more than a year before the
third broadcast. 	We again begin our assessment of this issue by
setting out the standard of review and proof needed to sustain a
jury verdict for damages.
¶100 We will disturb a jury verdict challenged for lack of
evidence only if we conclude that the quantity and quality of the
evidence fall short of “substantial.” 	Where evidence may be
susceptible to multiple interpretations, some tending to support
the verdict, others pointing to an ill-advised result, we will
indulge only those reasonable inferences favorable to the
verdict. 	Water Energy Sys. Tech., Inc. v. Keil, 2002 UT 32,
¶¶ 2, 15, 48 P.3d 888.
¶101 On this issue, defendants yet again display a less than
zealous commitment to the duty to marshal evidence. 	Defendants
attempt to justify sidestepping the marshaling requirement by
insisting that there is no evidence on the record to marshal.
This tactic of marshaling avoidance is fraught with peril. 	In
most instances, this ploy amounts to nothing more than an attempt
to shift the burden of satisfying the sufficiency test to the
appellee in a format that postpones any meaningful engagement of
the sufficiency issue to the appellees’ brief. 	This turns
marshaling on its head.
¶102 At the conclusion of every lawsuit that has survived
trial and post-trial motions, the winning party, the trial judge,
and the jury had reason to believe that there was some evidence
presented to validate the outcome. 	In bench trials, this
evidence is reflected in the court’s findings of fact. 	In jury
trials, it can be expected to be highlighted in closing arguments
and in arguments offered in opposition to directed verdicts and
post-trial motions. 	Usually advocates can be counted on to put
their best facts on display in these settings. 	They therefore
offer reliable resources to parties who face a marshaling burden
on appeal.
¶103 Our commitment to the marshaling requirement is
unyielding. 	Moreover, we disapprove of attempts to evade the
responsibility to marshal. 	These expressions of resolve

31 	No. 20011023
notwithstanding, we agree with defendants that the record
contains no discernible evidence linking economic loss to the
third broadcast.
¶104 This is not to say that the record is devoid of
evidence that any of the broadcasts had negative economic effects
for Dr. Jensen. 	It is not. 	But the jury was asked to separately
address economic loss traceable to the third broadcast, and it is
this evidence that cannot be accounted for. 	Indeed we are unable
to uncover, even in the likely locations identified above, any
credible assignment of economic loss to the third broadcast.
¶105 In reaching this conclusion, we paid particular
attention to the testimony of Dr. Jensen and Mr. Frank Stuart,
Dr. Jensen’s expert witness on economic damages. 	We canvassed
Dr. Jensen’s responses to defendants’ motions for directed
verdict, judgment notwithstanding the verdict, a new trial, and
to alter or amend the judgment. 	We examined the closing
arguments of all parties. 	We inspected Dr. Jensen’s exhibits
graphing his income trends. 	None of these quests yielded
evidence of economic loss tied to the third broadcast.
¶106 We will describe our review of the record more fully.
A. 	Plaintiff’s Responses to Defendants’ Motions
¶107 Dr. Jensen met defendants’ motions challenging the
adequacy of his economic loss evidence related to the third
broadcast by noting that “Dr. Jensen testified at length
regarding the patients who refused to see him, lost hospital
privileges, and the cut in his hours which resulted in his need
to leave the Art City Medical Clinic in search of work elsewhere,
namely nursing homes,” and “[t]hese damages occurred after the
November broadcast.” 	He argued that as a result of the third
broadcast, “now he works in nursing homes billing Medicare and
Medicaid, working longer hours, and being confronted with death
everyday.” 	However, the record does not support these
assertions. 	Instead, the testimony cited by Dr. Jensen’s counsel
fails to link these economic events to the third broadcast.
Moreover in his response to defendants’ motion for a judgment
notwithstanding the verdict, Dr. Jensen argues that “Media
Defendants misstate that Dr. Jensen’s entire damage theory was
based on his removal from IHC physicians’ panel.” 	Yet nowhere in
this motion does Dr. Jensen demonstrate any tie between the third
broadcast and economic damages.
¶108 Dr. Jensen also contends that economic losses were
limited to the third broadcast through the testimony of

No. 20011023 	32
Mr. Stuart that “because Dr. Jensen was forced into nursing home
practice, he is currently making less money than he would have
been making if he were still in private practice.” 	Yet
Dr. Jensen likened his move from private practice to nursing
homes to his loss of IHC privileges after the first broadcast.
It is true that Dr. Jensen left his position at the Art City
Clinic after the third broadcast. 	However, he was not terminated
from that position. 	Instead, when his hours were decreased at
the clinic--possibly as a result of the third broadcast--
Dr. Jensen voluntarily left the clinic and sought work in the
nursing home field.
B. 	Plaintiff’s Testimony and Exhibits
¶109 Dr. Jensen admitted that the greatest blow to his
income was caused by loss of IHC privileges a year before the
third story aired. 	On appeal, Dr. Jensen attempts to redirect
the source of his economic misfortune to the third broadcast.
Dr. Jensen argues that the third broadcast made inevitable his
termination from the Art City Clinic. 	Seeing his involuntary
separation from the clinic coming, Dr. Jensen resigned to take a
less desirable and lower paying nursing home practice.
¶110 However, the record does not support Dr. Jensen’s
perceived attempt to link his demotion to nursing home practice
to the third broadcast. 	The record shows that Dr. Jensen was
told after the third broadcast that if another story aired he
could be fired from the Art City Clinic.
¶111 Tellingly, Dr. Jensen’s exhibits do not reflect
economic damage from leaving Art City and moving to nursing home
work. 	According to his exhibits, Dr. Jensen made $127,606 in
1996, the year of the third broadcast. 	His income increased by
sixty-three dollars in 1997. 	His exhibits also graph a forty-
thousand dollar increase in revenue between 1996 and 1999.
¶112 Accordingly, plaintiff’s testimony and exhibits do not
offer substantial evidence to support the $1 million verdict for
economic loss related to the third broadcast.
C. 	Dr. Jensen’s Closing Argument
¶113 We next turn our attention to yet another resource
which could reasonably be counted on to provide clues about the
evidentiary basis for Dr. Jensen’s claim of economic loss, his
closing argument to the jury. 	Our review of the closing
arguments uncovered no reference to evidence that might support a
finding of damages for the third broadcast. 	Instead,

33 	No. 20011023
Dr. Jensen’s counsel argued that “as a result of the [first]
newscast Dr. Jensen was fired from FirstMed,” causing Dr. Jensen
damage. 	Counsel also told the jury that as a result of the first
broadcast Dr. Jensen no longer had IHC privileges. 	Counsel then
stated that his experts demonstrated a “substantial drop in gross
income during 1995” and that it takes more work to earn the same
amount of money in nursing homes, but he articulates no link
anywhere between the third broadcast and the damage. 	This is
because all the experts and damage figures relate to Dr. Jensen’s
removal from the IHC panel, which took place in 1995. 	No figures
were tied directly to the third broadcast, which is the only
broadcast we review. 	The record confirms this characterization
of the evidence.
D. 	Dr. Jensen’s Argument on Appeal
¶114 On appeal, Dr. Jensen mounts a three-pronged attack in
support of the jury’s economic damages attributed to the third
broadcast. 	He first argues that we cannot disturb the findings
of the jury because this court must defer to a jury’s findings.
He also insists that because the trial court denied motions for
new trial or reduction or vacation of the award, this represents
“further solidarity of the judgment.” 	We disagree. 	As explained
earlier, our jurisprudence gives appellate courts the right to
vacate a jury verdict for insufficient evidence if, upon review,
we are unable to identify substantial evidence in support of the
finding. 	As we have detailed, that is the case here.
¶115 Second, Dr. Jensen argues that defendants failed to
marshal the evidence and merely pay “lip service to this
obligation.” 	As we addressed above, we reject this attempt to
transfer the burden to defendants, which cannot be met because
there is, in fact, no discrete evidence to support an award of
damages on the third broadcast.
¶116 Finally, Dr. Jensen acknowledges that “in presenting
damage calculations at trial, [his] experts did not
compartmentalize the damages by broadcast.” 	He argues this was
not necessary because the jury heard the evidence and
apportioning the awards by broadcast was properly left to the
discretion of the jury. 	The structure of the jury verdict
undercuts this assertion. 	The jury was presented with a separate
verdict form concerning economic damages attributable to the
third broadcast. 	Its award must be supported by substantial
evidence that meets the requirements of the verdict. 	The record
does not contain that evidence. 	Therefore, we vacate the award.
VI. 	AN INDEPENDENT REVIEW OF THE RECORD DOES NOT

No. 20011023 	34
SUPPORT AN AWARD OF PUNITIVE DAMAGES FOR ACTUAL
MALICE IN THE THIRD BROADCAST
¶117 The last issue defendants ask us to review is their
contention that the jury erred in awarding Dr. Jensen punitive
damages on the defamation and false light claims relating to the
third broadcast. 	Defendants argue that there was not clear and
convincing evidence of actual malice and, therefore, punitive
damages were improperly awarded. 	In spite of our impression that
the third broadcast was likely the least defensible of the three,
we conclude that its content does not reveal actual malice and
therefore vacate the award of punitive damages.
¶118 In reaching this conclusion, we conduct a
nondeferential independent review of the record. 	Bose Corp. v.
Consumers Union, 466 U.S. 485 (1984). 	Although Bose did not
concern a challenge to punitive damages, this distinction does
not distort the suitability of its fit to this case. 	At the core
of both cases is the question of the proper standard of review to
be applied to outcomes based on findings of actual malice
concerning statements that enjoyed a colorable claim to First
Amendment protection. 	We therefore follow the prescription for
independent review of the record that the content of the third
broadcast was made by defendants with “actual malice.” 	Id. at
498-502.
¶119 Statements of actual malice are those made “with
knowledge that [they] were false or [made] with reckless
disregard of whether [they] were false or not.” 	Id.
A. 	The Third Broadcast
¶120 In the third broadcast, Ms. Sawyers targeted
“questionable doctors” such as those who were “passing out drugs
to addicts or worse yet, sexually abusing . . . patients.” 	She
told viewers they could find out which “questionable doctors”
were practicing medicine in Utah by reading a Washington watchdog
publication, “Questionable Doctors.” 	As part of this report, she
asked viewers, “And what about Dr. Michael Jensen? 	In July 1995
we caught him on camera promising me illegal drugs for weight
loss.” 	The report then showed Dr. Jensen telling Ms. Sawyers
that “[i]f Fastin didn’t work for you, I’d be willing to work
with you, uh, maybe using Dexedrine. 	It’s technically not legal
for that reason.” 	Ms. Sawyers then informed viewers that “[t]he
State filed an action against Jensen last June. 	But again, the
case is in the hands of lawyers and Dr. Jensen is still
practicing.” 	She provided a “postscript” to viewers, telling
them that

35 	No. 20011023
[y]esterday we got word that action has now
been taken against Dr. Michael Jensen. 	He’s
the one we caught on tape promising me
illegal drugs. 	The state will allow Jensen
to keep his license but he’ll receive a
public reprimand which requires him to attend
a workshop on proper prescribing and a course
on medical ethics.
B. 	Application of the Actual Malice
Standard to the Third Broadcast
¶121 The centerpiece of Dr. Jensen’s claim of actual malice
is Ms. Sawyers’ statement that he “promised” her illegal drugs.
There is no doubt that Dr. Jensen offered to “work with her” in
illegally prescribing Dexedrine to her, but this, as we have
stated earlier, may not constitute a promise. 	Defendants concede
the literal inaccuracy of the word “promise.” 	This misstatement
connotes a more unequivocal willingness by Dr. Jensen to flout
the law governing prescription medicine. 	It does not, however,
leave us with the clear and convincing impression that the
accusatory distinction between “promise” and “work with” is
sufficient to establish actual malice. 	It surely falls short of
indicating personal malice rising to the level of hatred or ill-
will on the part of defendants against Dr. Jensen.
¶122 Our independent review of the testimony by Ms. Sawyers
and station manager John Edwards persuades us that there is
insufficient evidence from which we could conclude they did not
hold an honest belief that Dr. Jensen had offered or promised her
Dexedrine, which is illegal for use in weight loss. 	The
interaction between Ms. Sawyers and Dr. Jensen does square with
the Black’s Law Dictionary definition of promise--“The
manifestation of an intention to act or refrain from acting in a
specified manner that another is justified in understanding that
a commitment has been made . . . .” 	Black’s Law Dictionary 1229
(7th ed. 1999). 	It is clear that Dr. Jensen manifested an intent
or willingness to act in a specific manner–-to prescribe
Dexedrine–-although it was not legal for weight loss purposes.
Ms. Sawyers testified that she believed the content of the third
broadcast accurate or truthful because Dr. Jensen had twice
offered her Dexedrine and she had confirmed with DOPL that
prescribing it was illegal. 	Mr. Edwards testified similarly.
Thus even her most egregious misstatement does not rise to the
level of actual malice.

No. 20011023 	36
¶123 We do find the general tenor of the third broadcast
troubling. 	By aggregating within a broadcast the alleged
misdeeds of several physicians, the third broadcast had the
presumably intended effect of shifting focus from the misconduct
and disciplinary fate of individual physicians to a more
sensational suggestion that Utah was home to a band of rogue
doctors imperiling the health of its citizens. 	This inference of
a potentially malicious motive for the third broadcast enjoys,
however, no greater claim to credibility than does Ms. Sawyers’
explanation that the purpose of the third broadcast was not to
compare physicians and their offenses, but to educate the viewers
on how to research physicians who might be under investigation.
¶124 The third broadcast focused on Utah physicians either
in the “Questionable Doctors” book or, as in the case of
Dr. Jensen, a physician whose conduct fell under the rubric of
questionable. 	Her focus in the third broadcast was to “let the
public know about how they could find out about pending actions
or actions that had already been taken against physicians in this
state.” 	Ms. Sawyers acknowledged that she did not believe that
Dr. Jensen’s conduct was as bad as the other physician she
identified in the story, nor was he, at that time in
“Questionable Doctors.” 	She explained that her reason for
including him in the broadcast was that “[Dr. Jensen] was an
example of a doctor who had been investigated by the Division of
Professional Licensing.” 	Investigations by DOPL into physician
conduct form the basis and content for editions of the book
“Questionable Doctors.” 	Ms. Sawyers added that even if she had
learned of the resolution of the DOPL charges against Dr. Jensen,
she still “would have said he is the one we caught on camera
offering me illegal drugs” because she believed this to be true.
She also testified that the process of editing and preparing the
third broadcast was a time-intensive and highly evaluative
process which, she insists supports her position that the content
of the broadcast and her conduct were not, nor would have been,
made with knowledge that the broadcast was untruthful.
¶125 While clearly an aberration from “fair and balanced”
journalism, the content of the third broadcast leaves us
unconvinced that it was the product of actual malice. 	We
therefore vacate the award of punitive damages on the third
broadcast.
VII. 	DR. JENSEN’S CROSS-APPEAL
¶126 Dr. Jensen cross-appeals on the issue of fees. 	He
argues that the trial court should have awarded him fees because
his work on the claims substantially overlapped, because he did

37 	No. 20011023
sufficiently allocate the fees between recoverable and
nonrecoverable fees, and because Ms. Sawyers did not comply with
rule 54(d)(2). 	He also appeals the trial court’s reduction of
damages because the awards were based on duplicative claims. 	We
affirm.
A. 	Standard of Review
¶127 Attorney fees are awarded only when authorized by
statute or by contract. 	The award of attorney fees is a matter
of law, which we review for correctness. 	Paul DeGroot Bldg.
Servs., L.L.C. v. Gallacher, 2005 UT 20, ¶ 18, 112 P.3d 490.
However, a trial court has “broad discretion in determining what
constitutes a reasonable fee, and we will consider that
determination against an abuse-of-discretion standard.” 	Dixie
State Bank v. Bracken, 764 P.2d 985, 991 (Utah 1988) (internal
quotation marks and citations omitted). 	“The standard of review
on appeal of [the amount of] a trial court’s award of attorney
fees is patent error or clear abuse of discretion.” 	Valcarce v.
Fitzgerald, 961 P.2d 305, 316 (Utah 1998) (internal quotation
marks and citations omitted).
B. 	Attorney Fees on Overlapping Claims
¶128 We first address whether the trial court erred by not
awarding attorney fees on the overlapping claims. 	In general, a
prevailing party may collect attorney fees on noncompensable
claims only if those claims substantially overlap with
compensable claims. 	Keith Jorgensen’s, Inc. v. Ogden City Mall
Co., 2001 UT App 128, ¶ 30, 26 P.3d 872.
¶129 The trial court properly concluded that Dr. Jensen was
not entitled to all attorney fees because
some of plaintiff’s claims are based on the
obtaining of information, and other claims
are based on the broadcast of information,
there is not a core of facts common to all
claims, and the legal theories are unrelated.
In this case, not only was some of the time
spent on unsuccessful issues, a large portion
of time was spent establishing the non-
compensable claims of defamation and false
light.
¶130 On appeal, Dr. Jensen’s counsel merely argues that
“[a]lthough Dr. Jensen’s claims can loosely be categorized as
gathering of information claims and broadcast claims, that does

No. 20011023 	38
not mean that the claims do not overlap.” 	Not only is this
argument conclusory, it fails to convince us, or provide us
sufficient evidence, to overcome the applicable standard of
review. 	Moreover, we agree with the trial court that the
invasion of privacy claims based on newsgathering are not
“inextricably linked” with, and require different proof than, the
defamation and false light claims based on the broadcasts. 	We
therefore defer to the trial court’s evaluation of the evidence
and documentation submitted on the overlapping claims, and
affirm.
C. 	Attorney Fees Due to Defective Allocation Documentation
¶131 The second issue on cross-appeal--the issue of attorney
fees for compensable and noncompensable claims–-was meticulously
addressed in two of the trial court’s rulings. 	In July 2001, the
court notified Dr. Jensen that his claims had failed to
adequately apportion between compensable (i.e., Title 76 and
common law intrusion upon seclusion claims), and noncompensable
claims. 	The court invited plaintiff’s counsel to supplement
their affidavits by separating out the work into three
categories: 	(1) work that pertains specifically to Utah Code
Ann. §§ 76-9-401 to -406; (2) work that specifically pertains to
common law intrusion upon seclusion; and (3) work on any other
claim. 	With regard to fees of mixed character, plaintiff was to
break out (1) what percentage of each billing entry went to
support common law intrusion upon seclusion claims, and (2) what
percentage went to support Title 76 claims. 	All other work was
deemed to have been done on noncompensable claims. 	The court
stated that failure to adequately separate noncompensable and
compensable claims may result in denial of any other fees for the
commingled entry.
¶132 In the trial court’s second ruling on this matter, it
correctly explained that for it to award attorney fees, it must
first review all the evidence and make specific findings of fact.
Further, the party requesting the attorney fees must
categorize the time and fees expended for
“(1) successful claims for which there may be
an entitlement to attorney fees,
(2) unsuccessful claims for which there may
be an entitlement to attorney fees had the
claims been successful, and (3) claims for
which there is no entitlement to attorney
fees.”

39 	No. 20011023
Foote v. Clark, 962 P.2d 52, 54 (Utah 1998) (quoting Cottonwood
Mall Co. v. Sine, 830 P.2d 266, 268 (Utah 1992)). 	Noncompliance
with these requirements makes it difficult, if not impossible,
for the trial court to award the moving party fees because there
is insufficient evidence to support the award.
¶133 The trial court noted the extensive work and research
conducted in preparation for this case. 	The court also
acknowledged that the attorneys’ affidavits did reflect the
amount of work necessary to mount the case. 	The court found that
Attorney Gardiner adequately, but not exactly, complied with the
attorney fees documenting his time spent on compensable claims.
However, Attorney Sine did not. 	Mr. Sine told the court it was
“impossible” for him to separate his time and merely separated
the time into two columns-–one compensable and the other
noncompensable. 	As a result, the trial court found it had
previously warned counsel in the July order of the importance of
adequate separation of the claims, yet again “Mr. Sine did not
give [the court] sufficient evidence to determine how much time
he spent on compensable claims and because the amount of time he
claimed to have spent on the compensable claims is unreasonable,
this [c]ourt cannot make an appropriate evaluation.”
¶134 Mr. Sine presents one sentence for our consideration of
his argument on appeal. 	He writes: 	“If the court closely
examines Attorney Sine’s submissions, it will see the criteria
for fees was met.” 	This is inadequate and does not provide
sufficient legal reason for us to override the discretion of the
trial court which had the ability to twice review the
documentation on this issue. 	Affirmed.
D. 	Dr. Jensen’s Application for Award of All Claimed Costs
1. 	Ms. Sawyers complied with rule 54(d)(2)
¶135 Dr. Jensen also argues that all of his claimed costs
should have been awarded because Ms. Sawyers failed to comply
with rule 54(d)(2) of the Utah Rules of Civil Procedure. 	Rule
54(d)(2) states:
The party who claims his costs must
within five days after the entry of the
judgment serve upon the adverse party against
whom costs are claimed, a copy of a
memorandum of the items of his costs and
necessary disbursements in the action, and
file with the court a like memorandum thereof
duly verified stating that to affiant’s

No. 20011023 	40
knowledge the items are correct, and that the
disbursements have been necessarily incurred
in the action or proceeding. 	A party
dissatisfied with the costs claimed may,
within seven days after service of the
memorandum of costs, file a motion to have
the bill of costs taxed by the court.
A memorandum of costs served and filed
after the verdict, or at the time of or
subsequent to the service and filing of the
finding of fact and conclusions of law, but
before the entry of judgment, shall
nevertheless be considered as served and
filed on the date judgment is entered.
Utah R. Civ. P. 54(d)(2).
¶136 The sum total of Dr. Jensen’s argument is that his
timely filed motion of dissatisfaction with the court seeking
costs in the amount of $122,952.66 should have been granted
because Ms. Sawyers filed an objection, rather than a motion,
opposing those costs. 	He cites no authority for support.
¶137 Ms. Sawyers contends that the words “motion” and
“objection” are interchangeable and therefore she properly
complied with rule 54(d)(2). 	For support, she cites two rule
54(d)(2) cases, Graco Fishing & Rental Tools v. Ironwood
Exploration, Inc., 766 P.2d 1074, 1080 (Utah 1988), and Suniland
Corp. v. Radcliffe, 576 P.2d 847, 849 (Utah 1978), which
specifically identify the filing of an “objection” rather than a
“motion” to convey the dissatisfaction with the proposed
distribution of cost awards.
¶138 We agree with Ms. Sawyers that motion and objection are
interchangeable in this case. 	Black’s Law Dictionary defines a
motion as a “written or oral application requesting a court to
make a specified ruling or order.” 	1031 (7th ed. 1999). 	An
objection is defined as a “formal statement opposing something
that has occurred, or is about to occur, in court.” 	Id. at 1101.
In this case, having reviewed Ms. Sawyers’ objection to the
memorandum of verified costs which follows the same framework as
a motion, we conclude that the distinction Dr. Jensen asks us to
make is too narrow and violates the intent and spirit of rule
54(d)(2). 	We affirm the trial court’s finding that Ms. Sawyers
complied sufficiently with rule 54(d)(2).
2. 	Dr. Jensen’s claimed costs were not “Necessary Disbursements”

14 In Young, we determined that a successful plaintiff
seeking costs must show “the deposition was so essential to the
case . . . that the information provided by the deposition could
not have been obtained through less expensive means of
discovery.” 	2000 UT 91, ¶ 11.
41 	No. 20011023
¶139 Dr. Jensen appeals the trial court’s denial of his
application for costs for “necessary disbursements” authorized
under rule 54(d)(2) and associated with his claim for transcript
costs, expert witness fees, court equipment expenses, and other
out-of-pocket costs. 	Dr. Jensen claims that the trial court
erred by too strictly applying the rule we set out in Frampton v.
Wilson, 605 P.2d 771, 774 (Utah 1980). 	The trial court supported
its position by writing that “the Utah Supreme Court has stated
that ‘there is a distinction to be understood’ between legitimate
and taxable costs and other expenses of litigation which may ever
be so necessary, but are not taxable as costs” (citing Frampton,
605 P.2d at 774). 	Dr. Jensen argues that we should reverse or
modify the Frampton rule because rule 54(d)(2) does not
distinguish between taxable costs and litigation expenses and
because the Frampton rule omits the “necessary disbursements”
language in rule 54(d)(2). 	We disagree.
¶140 We again reference the appropriate standard of review
for costs under rule 54(d)(2). 	“A trial court’s decision to
award the prevailing party its costs will be reviewed under an
abuse of discretion standard.” 	Young v. State, 2000 UT 91, ¶ 4,
16 P.3d 549. 	Moreover, in Frampton we instructed that the trial
court has a “duty to guard against excesses or abuses” in
awarding costs. 	605 P.2d at 773.
¶141 The trial court’s order on this issue carefully
reviewed this court’s body of law on necessary disbursements and
costs. 	The court makes clear that many of Dr. Jensen’s proposed
costs violate the Frampton rule against unnecessary costs.
Specifically, the court found that some of the deposition costs
were not essential or Dr. Jensen could not demonstrate that a
less expensive means of obtaining the transcripts would not have
been practical. 14 	The court reminded the parties that “[c]osts
were not recoverable at common law; and are therefore generally
allowable only in the amounts and in the manner provided by
statute.” 	Frampton, 605 P.2d at 773. 	As a result, a number of
items were held unrecoverable by statute-–those included a video
consultant and court equipment expenses.
¶142 Dr. Jensen tries to make a case for rejecting Frampton,
arguing that the question of necessary costs should not be left
entirely to the discretion of the legislature and because it may

No. 20011023 	42
violate the open courts clause in the Utah Constitution by
limiting “recoverable costs to those conservatively specified by
the legislature.” 	We disagree. 	For twenty-five years, Frampton
has remained our guiding principle for allocation of recoverable
costs. 	The trial court properly applied Frampton to the issue of
recoverable costs. 	Dr. Jensen has failed to persuade us with
sufficient authority or evidence that we should overrule Frampton
and reject the guidelines established by the legislature for
appropriate recoverable costs. 	We therefore affirm.
CONCLUSION
¶143 Having held that Dr. Jensen’s false light invasion of
privacy claims arising from the first and second broadcasts are
subject to the statute of limitations governing defamation and
therefore time-barred, we vacate the verdict and damages awards
based on that claim. 	Our holding that the jury improperly
awarded economic loss and punitive damages to Dr. Jensen on his
claims relating to the third broadcast results in the
modification of the damages award to $500,000 subject to
apportionment based on the jury’s allocation of fault.
¶144 Having affirmed the trial court on all other issues
raised on appeal, the remaining elements of the judgment are
undisturbed.
---
¶145 Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Parrish concur in Justice Nehring’s
opinion.