In Vivos Therapeutics. v. Ortho-Tain, No. 24-1061 (10th Cir. July 8, 2025), the panel suggests in dicta that “orders denying absolute immunity under the litigation privilege” may not be subject to interlocutory appeal under the collateral order doctrine, though it ultimately dismisses the appeal on other grounds.
Colorado state law recognizes an absolute litigation privilege for pre-litigation communications made in “good faith contemplation of litigation.” In this case, the plaintiff brought tort (defamation and interference with contract) claims based in substantial part on correspondence by the defendant’s attorney (named Neff) threatening litigation. The district court denied a motion to dismiss on grounds of privilege. In a prior unpublished opinion of the Tenth Circuit, Vivos Therapeutics, Inc. v. Ortho-Tain, Inc., No. 21-1309, 2022 WL 2223141, at *1–2 (10th Cir. June 21, 2022) (Vivos I), the panel denied interlocutory review in part and remanded in part for further factual analysis. On remand, the district court again denied a motion to dismiss.
The Tenth Circuit dismisses the appeal for lack of appellate jurisdiction. “As we stated in the opening paragraph of this opinion, the outcome of this appeal is determined by the law-of-the-case doctrine.” The panel observes that in Vivos I, the Tenth Circuit held that “the collateral order doctrine permits immediate appellate review of an interlocutory order denying a motion to dismiss based on a claim of absolute immunity under the litigation privilege” (citing, 2022 WL 2223141 at *2). Noting that district court had carried out the factual analysis that Vivos I mandated, the panel concludes that defendant “provide[s] no argument that would distinguish the present appeal from the prior appeal on this issue.”
Nevertheless, in a footnote that runs over several pages, the panel invites reconsideration of whether the collateral order doctrine may ever be used to review a decision on absolute litigation privilege on an interlocutory basis. The panel notes that while Robinson v. Volkswagenwerk AG, 940 F.2d 1369 (10th Cir. 1991), at one time recognized jurisdiction under the collateral order doctrine to review a denial of the litigation privilege by a district court, “we caution that the holding in our published opinion in Robinson may no longer be good law.”
The panel analyzes a succession of Supreme Court cases over the past four decades which it notes has successively narrowed the ambit of the collateral-order doctrine. “Most striking perhaps is the definitive decision in Mohawk Industries, Inc. v. Carpenter, which rejected the proposition that orders denying a claim of attorney-client privilege should be immediately appealable despite the Court’s recognition of ‘the importance of the attorney-client privilege’ and that it ‘serves broader public interests in the observance of law and administration of justice.’ 558 U.S. 100, 108 (2009) (internal quotation marks omitted).”
The panel notes that in the wake of these Supreme Court decisions, the Sixth Circuit reversed itself and held that there can be no collateral-order review of an interlocutory order denying absolute legislative privilege. (It also notes, though, that the Eleventh Circuit continues to apply the collateral-order doctrine to such orders.)
Though the panel suggests that there may be no “broader public interest” served by allowing the immediate appeal of such orders, “[e]ven assuming that Robinson allows some orders denying absolute immunity under the litigation privilege to be appealed immediately, we must reject jurisdiction on other grounds,” i.e., law-of-the case.
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