NOTICE: NOT FOR OFFICIAL PUBLICATION.

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

PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

SHAKEEL AZIZ KAHN MD, Plaintiff/Appellant,

v.

ARIZONA CVS STORES LLC, et al., Defendants/Appellees.

No. 1 CA-CV 16-0333

Appeal from the Superior Court in Mohave County

No. B8015CV201304009

The Honorable Rick A. Williams, Judge

AFFIRMED IN PART; REVERSED IN PART AND REMANDED

COUNSEL

Law Office of Thomas E. Price P.C., Kingman

By Thomas E. Price

Counsel for Plaintiff/Appellant

Renaud Cook Drury Mesaros PA, Phoenix

By Margaret T. McCarthy, Denise J. Wachholz

Counsel for Defendants/Appellees
KAHN v. ARIZONA CVS, et al.

Decision of the Court

2

MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which 

Presiding Judge Diane M. Johnsen and Judge Margaret H. Downie joined.

B E E NE, Judge:

¶1 Plaintiff/Appellant Shakeel A. Kahn appeals the superior 

court’s summary judgment for Defendants/Appellees Arizona CVS Stores, 

LLC and Carol San Vicente on his slander per se claim. For the following 

reasons, we affirm in part, reverse in part, and remand for further 

proceedings.

FACTS AND PROCEDURAL HISTORY1

¶2 In December 2012, Kahn, a physician, prescribed 

phentermine, a Class IV controlled substance, for his patient, A.M. A.M.

attempted to obtain the medication at the CVS pharmacy in Kingman, but 

San Vicente, the pharmacist on duty, refused to fill the prescription, stating: 

“It’s not the amount that I have a problem with. It’s the doctor.” According 

to Kahn, San Vicente further explained that she had heard that Kahn’s DEA 

number2 was suspended and under investigation.

¶3 Several days later, Kahn’s patient, S.D., attempted to fill a 

Suboxone prescription from Kahn at a CVS pharmacy in Bullhead City. The 

pharmacy technician, Penny York, reportedly refused to fill the 

 

1 We view the facts in the light most favorable to Kahn. First Am. Title Ins. 

Co. v. Johnson Bank, 239 Ariz. 348, 350, ¶ 8, 372 P.3d 292, 294 (2016) (noting 

that when reviewing the superior court’s grant of summary judgment, 

appellate court views the facts in the light most favorable to party against 

whom judgment was entered).

2 A DEA number is a number assigned to a health care provider by the 

United States Drug Enforcement Administration that allows the provider 

to write prescriptions for controlled substances. See United States v. 

Barsoum, 763 F.3d 1321, 1326 n.1 (11th Cir. 2014).
KAHN v. ARIZONA CVS, et al.

Decision of the Court

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prescription, stating: “We’re having problems with this doctor . . . He 

writes too many controls to where the DEA is involved . . .”

¶4 Kahn filed this action against CVS and San Vicente, alleging 

claims for defamation, slander per se, and false light invasion of privacy

arising out of San Vicente and York’s statements to A.M. and S.D. The 

superior court granted summary judgment for CVS on all three claims, 

ruling, as relevant, that San Vicente and York’s statements were 

substantially true.

¶5 Kahn timely appealed. We have jurisdiction pursuant to 

Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(1).3

¶6 Kahn argues the superior court erred in granting summary 

judgment for CVS and San Vicente on his claim for slander per se because 

the relevant statements were not substantially true.4

DISCUSSION

¶7 We review the entry of summary judgment de novo. Andrews 

v. Blake, 205 Ariz. 236, 240, ¶ 12, 69 P.3d 7, 11 (2003). Summary judgment 

is appropriate when “there is no genuine dispute as to any material fact and 

the moving party is entitled to judgment as a matter of law.” Ariz. R. Civ. 

P.56(a); see also Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 

(1990) (explaining that summary judgment is proper “if the facts produced 

in support of the claim . . . have so little probative value, given the quantum 

of evidence required, that reasonable people could not agree with the 

conclusion advanced by the proponent of the claim or defense.”).

¶8 A statement is considered slander per se, and is actionable 

without the need to prove special damages, when its publication “tends to 

injure a person in his profession, trade or business . . . .” Modla v. Parker, 17 

Ariz. App. 54, 56 n.1, 495 P.2d 494, 496 n.1 (1972); see also Restatement 

 

3 We cite the current version of applicable statutes unless revisions material 

to this decision have occurred since the relevant events.

4 Kahn does not challenge the superior court’s summary judgment for CVS 

and San Vicente on his defamation and false light claims. Robert 

Schalkenbach Found. v. Lincoln Found., 208 Ariz. 176, 180, ¶ 17, 91 P.3d 1019, 

1023 (App. 2004), as amended (July 9, 2004) (stating appellate court generally 

considers issues not raised in the opening brief to be abandoned or 

conceded).
KAHN v. ARIZONA CVS, et al.

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(Second) of Torts §§ 570 & 573 (1977). Because slander is a type of 

defamation, Boswell v. Phx. Newspapers, Inc., 152 Ariz. 1, 6 n.4, 730 P.2d 178, 

183 n.4 (App. 1985), truth—or substantial truth—is an absolute defense to 

the action. Fendler v. Phx. Newspapers, Inc., 130 Ariz. 475, 479, 636 P.2d 1257, 

1261 (App. 1981). When the underlying facts are not disputed, the court 

may determine the question of substantial truth as a matter of law. Id. at

480, 636 P.2d at 1262.5

¶9 When evaluating whether a statement is true or substantially 

true, “[s]light inaccuracies will not prevent a statement from being true in 

substance, as long as the ‘gist’ or ‘sting’ of the publication is justified.” Read 

v. Phx. Newspapers, Inc., 169 Ariz. 353, 355, 819 P.2d 939, 941 (1991) (citation

omitted). Similarly, “a technically false statement may nonetheless be 

considered substantially true if, viewed ‘through the eyes of the average 

reader,’ the statement differs from the truth ‘only in insignificant details.’” 

Desert Palm Surgical Grp., P.L.C. v. Petta, 236 Ariz. 568, 579, ¶ 27, 343 P.3d 

438, 449 (App. 2015) (citation omitted).

¶10 Kahn alleges San Vicente’s statement that his DEA number

was suspended and under investigation, and York’s statement that Kahn 

wrote too many prescriptions for controlled substances “to where the DEA 

is involved,” were false because the DEA never conducted an investigation 

into his prescription-writing practices and never suspended his authority 

to prescribe controlled substances.

6

 

5 We reject CVS and San Vicente’s argument that the Arizona Medical 

Board’s subsequent suspension of Kahn’s license renders this appeal moot. 

See Restatement (Second) of Torts § 581A, cmt. g (“The truth of a 

defamatory imputation of fact must be determined as of the time of the 

defamatory publication. Facts alleged to exist by the defamer may 

subsequently occur, but his foresight or luck in anticipating them will not 

protect him from liability for stating their pre-existence.”).

6 Kahn also complains that San Vicente and York falsely asserted that they 

had heard the allegedly defamatory information. San Vicente and York’s 

statements regarding how they learned the allegedly defamatory 

information do not impugn Kahn’s reputation in his profession and are,

therefore, not material to his claim for slander per se. Modla, 17 Ariz. App.

at 56 n.1, 495 P.2d at 496 n.1. Similarly, San Vicente’s statement that she had 

a problem with Kahn was an expression of opinion and not, therefore, 
KAHN v. ARIZONA CVS, et al.

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¶11 Insofar as these statements assert that a governmental 

licensing agency was investigating Kahn for improper prescribing, they 

were substantially true. Kahn does not dispute that when the statements 

were made, the Arizona Medical Board (the “Board”) had four open 

investigations against him that concerned allegations of inappropriate 

prescribing, including over-prescribing opioid medications. The fact that 

the Board, and not the DEA, was the investigating agency is immaterial, as 

any damage to Kahn’s reputation stems from the fact that a governmental 

licensing agency was investigating him for possible improper prescribing 

practices, not the identity of the particular agency.

7 Accordingly, “the sting 

of the two versions is not substantially different,” and the statements gave 

a substantially true account of the ongoing investigation concerning Kahn. 

Read, 169 Ariz. at 355-56, 819 P.2d at 941-42 (internal quotations omitted).

¶12 However, as to San Vicente’s alleged statement that Kahn’s 

DEA number was “suspended,” there is no evidence that the DEA—or any 

other agency—had suspended Kahn’s authority to write prescriptions. 

Accordingly, we cannot conclude as a matter of law that the average listener 

would view the difference between the statement and the truth as nothing 

more than an “insignificant detail.” See Desert Palm Surgical Grp., 236 Ariz. 

at 579, ¶ 27, 343 P.3d at 449. A reasonable listener could have understood 

a statement that Kahn’s DEA number had been suspended to mean that 

Kahn lacked the authority to prescribe controlled substances, but, in fact, at 

the time of the statement, he retained that authority. Accordingly, the 

superior court erred in ruling as a matter of law that San Vicente’s 

purported statement to A.M. that Kahn’s DEA number was suspended was 

substantially true.

CONCLUSION

¶13 For the foregoing reasons, we affirm the summary judgment 

regarding the statements that Kahn was under investigation for improper 

prescribing. We reverse the summary judgment regarding the statement 

that Kahn’s DEA number was suspended and remand for further 

 

defamatory. Burns v. Davis, 196 Ariz. 155, 165, ¶ 39, 993 P.2d 1119, 1129 

(App. 1999).

7 The test is whether the average listener would find the difference 

significant. Desert Palm Surgical Grp., 236 Ariz. at 579, ¶ 27, 343 P.3d at 449.
KAHN v. ARIZONA CVS, et al.

Decision of the Court

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proceedings consistent with this decision. Because both parties partially 

prevailed on appeal, no costs will be awarded.

8

 

8 On February 1, 2017, Appellees filed a motion to dismiss appeal as moot, 

or, in the alternative, to consider the filing a supplement to the answering 

brief. On February 7, 2017, Appellant filed a response to Appellee’s motion 

to dismiss appeal and request for sanctions. We deny Appellee’s motion to 

dismiss the appeal and request to consider the filing a supplement to the 

answering brief, as well as Appellant’s request for sanctions.