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Privacy Claim Against Plastic Surgeon Advances

(CN) - An appeals panel properly revived claims against a plastic surgeon who shared a woman's before-and-after photos with Fox News, Utah's highest court ruled.

When Dr. Renato Saltz performed breast augmentation and abdominoplasty on her in 2006, Conilyn Judge signed a consent form that allowed her to be "photographed or televised," provided her identity was not revealed.

Saltz contacted Judge a year later when Fox News approached him for examples of successful surgeries.

Though Judge agreed to share her story, telling Fox News she was "really pleased" with the results, she filed suit when Fox News included before-and-after pictures of her in its evening news broadcast and on its website.

The photos did not show Judge's face but showed her nude body from neck to upper thigh, with black bars across Judge's chest and pelvis.

Saltz claimed that Judge gave the reporter permission to use her before-and-after photos, but Judge and the reporter said she had not.

Fox, which reached a settlement with Judge, has removed the before-and-after photos of Judge from its online story, "Nip, Tuck and Nightmare," a re-edited version of which still exists on the network's website.

Though the trial court in Salt Lake ruled for Saltz on each of Judge's five claims against him, including breach of fiduciary duty and negligent supervision, an appeals court revived all five counts in 2014.

That ruling scoffed at the trial judge's reliance on testimony from Judge's ex-husband that the woman had in her lifetime worn a bikini in public.

Though the trial judge said such attire prevented Judge from now claiming "that parts of her body that she had left open to the public eye are now private facts," the appeals panel said Judge "did not lose her ability to argue that whatever parts of her body that bikini revealed were private facts on different days in different contexts."

The ruling cited a hypothetical scenario of a man taking his shirt off to play basketball when he was in his 20s, but swimming with a shirt on in his 50s "to avoid revealing extra pounds, medical scars and now-regretted tattoos."

The Utah Supreme Court looked only at one of the newly revived claims - publication of private facts - and agreed earlier this month that it presents issues of fact the lower court must consider on remand.

To prevail on such a claim, a plaintiff must show that the publicized issue is "not of legitimate concern to the public," the ruling states.

"The dispute as to whether there was legitimate public interest in the photographs based on Ms. Judge's participation in the broadcast or whether the inclusion of those photographs was gratuitous or overly intrusive made summary judgment inappropriate in this case," Justice Deno Himonas wrote for the mostly unanimous court.

Similarly, Saltz was not entitled to summary judgment for intrusion on seclusion based on content of the pre-surgery consent forms that Judge signed.

"The language of the consent forms is ambiguous and disputed issues of fact clearly remain regarding the meaning of the pre-surgery consent forms in the context of the Limited Consent Form," Himonas wrote, "as well as regarding the scope and meaning of the phrases 'educational purposes' and 'my identity is not revealed by the pictures,' as used in the forms."

The chief justice and one associate justice joined the lead opinion, but Justice Christine Durham said she concurred only in the result.

"There was no valid extrinsic evidence relevant to the interpretation of the consent form for the district court to consider during the summary judgment proceeding," she wrote. "For this reason, I disagree with the majority's conclusion that 'disputed issues of material fact clearly remain regarding the meaning of the pre-surgery consent forms.'"

Justice John Pearce did not participate in the ruling because his Dec. 17, 2015, appointment to the court came after oral argument.

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