Arroyo v. Rosen

WILNER, Chief Judge. On July 16, 1991, appellee, Gerald M. Rosen, Ph.D., filed suit in the Circuit Court for Baltimore County against appellant, Carmen M. Arroyo, Ph.D., and against Dr. Arroyo’s husband, The Baltimore Sun, and Patricia Meisol, a reporter for the Sun. At trial, Dr. Rosen dismissed the claims relating to Meisol and The Baltimore Sun. Nine claims of defamation, one of invasion of privacy, and one of conversion against Dr. Arroyo, as well as three claims of civil conspiracy against Dr. Arroyo’s husband (conspiracy with Dr. Arroyo to defame, to convert, and to invade privacy) were submitted to the jury.

The jury returned a verdict in favor of Dr. Rosen on all but the civil conspiracy claims. The jury awarded a total of $75,001 damages: $20,000 for defamation, $30,000 for invasion ¹⁰⁴ of privacy, one dollar for conversion, 1 and $25,000 in punitive damages. Dr. Arroyo filed this appeal, in which she presents the following questions: “1. Did the court err when it refused to recognize the appellant’s absolute privilege to bring her allegations of scientific misconduct before the investigative cómmittees of the University of Maryland and Veterans’ Administration? 2.

Did the court err by not instructing the jury on the existence of the appellant’s conditional privilege? 3. Was there sufficient evidence of constitutional malice to overcome the appellant’s conditional privilege? 4. Did the mailing of a committee’s report to a colleague, upon request, constitute an invasion of appellee’s privacy?” We find no error and shall affirm the decision of the circuit court. Much of the factual background of this case is in dispute.

Because the jury returned a verdict in favor of Dr. Rosen, we review disputed facts in the light most favorable to him. See Greenbelt Cooperative Publishing Ass’n v. Bressler, 253 Md. 324, 328 , 252 A.2d 755 (1969), rev’d on other grounds, 398 U.S. 6 , 90 S.Ct. 1537 , 26 L.Ed.2d 6 (1970). Dr. Rosen, Chairman of the Department of Pharmacology and Toxicology at the School of Pharmacy of the University of Maryland at Baltimore, hired Dr. Arroyo as a post-doctoral fellow in February, 1989. She was later appointed to the position of Research Associate.

The primary research interest of both Dr. Rosen and Dr. Arroyo was the role of free radicals in biological systems. 2 ¹⁰⁵ In September, 1989, Dr. Arroyo submitted to a scientific journal a paper on the “spin trapping” of the free radical of nitric oxide. Dr. Arroyo was listed as principal author, with Dr. Rosen and another colleague listed as co-authors. In November, 1989, Dr. Arroyo told Dr. Rosen that the referees for the journal had made suggestions for further work. Dr. Rosen asked to see the referees’ comments.

Without showing Dr. Rosen the comments, and without his approval, Dr. Arroyo submitted a revised version of the article to the journal. She showed Dr. Rosen the revised version in February, 1990, informing him then that it had been accepted for publication. Dr. Rosen told her that he did not believe that her data supported her conclusions and advised her to withdraw the paper. Dr. Arroyo appealed the matter to the dean of the School of Pharmacy.

The dean referred the paper to the university for outside review; based on the reviewer’s critique, the university agreed with Dr. Rosen that the paper should be withdrawn. This apparently led to some ill feeling between Drs. Arroyo and Rosen. In March, 1990, the dean transferred Dr. Arroyo to the supervision of the Head of the Division of Pulmonary Medicine.

On November 7, 1990, citing “offensive personal interactions,” the dean directed Dr. Arroyo to quit her work space in Pharmacy Hall, while allowing her to continue the use of the laboratory in that building. In June, 1990, Dr. Arroyo filed a complaint with the Office of Scientific Integrity of the U.S. Department of Health and Human Services, alleging scientific misconduct on the part of Dr. Rosen. Either later that month or sometime the following month, she sent a letter to forty-three colleagues, who constituted a substantial proportion of the scientists in the United States specializing in Dr. Rosen’s and Dr. Arroyo’s field. In the letter, she accused Dr. Rosen, among other things, of using plagiarized material, poor management, carelessness, bad judgment, and “improper distribution of credit.” ¹⁰⁶ During 1989 and the first part of 1990, Dr. Arroyo had been attempting to reproduce one of Dr. Rosen’s experiments.

Because she was unable to produce results consistent with his data, she became suspicious that he had not performed the experiment and was improperly reusing data from earlier experiments. In July, 1990, she received an anonymous letter. The author of the letter was later identified as Dr. Ronald Mason of the National Institutes of Health, one of the forty-three recipients of her letter. In the letter, Dr. Mason voiced suspicions that Dr. Rosen had fabricated data and suggested that Dr. Arroyo look through his published papers for duplicated data.

Dr. Arroyo did so and found several instances of what appeared to her to be data taken from earlier experiments and improperly described as new data. When the university administration learned of her complaint to the Office of Scientific Integrity and her subsequent letter, Dr. Arroyo was advised to pursue the matter through university grievance procedures. She did so, and the university established a Committee of Inquiry on the matter. Qn September 4, 1990, she submitted a memo to the Committee repeating her earlier charges and also charging duplication of data.

On September 12, 1990, she wrote to the Committee, repeating and elaborating on most of the charges and adding charges that Dr. Rosen “claims to be expert in areas that he has had neither real training nor has that [sic] facilities to do the work; claims that he was going to acquire facilities but never did.” The committee found that most of Dr. Arroyo’s charges were without support. It did, however, conclude that her charges of misconduct with reference to the duplication of figures in four pairs of published articles were substantiated. The committee recommended a formal investigation of Dr. Rosen’s handling of data in those papers. A Committee of Investigation conducted such an investigation.

Dr. Arroyo repeated her charges in testimony before the committee. The committee’s report cleared Dr. Rosen. An investigation by the Veterans’ Administration, which had funded Dr. Arroyo’s position, also exonerated Dr. Rosen of all of Dr. Arroyo’s charges, although it found two instances where Dr. Rosen had ¹⁰⁷ taken insufficient care in presenting his data, and suggested that he be more careful in the future. At a scientific meeting on May 14, 1991, the day after the University Committee of Investigation issued its report exonerating Dr. Rosen, Dr. Arroyo told Dr. Gregory B. Bulkley of the Johns Hopkins Hospital about her suspicions of Dr. Rosen.

Dr. Bulkley asked to see some evidence, and Dr. Arroyo then faxed him the first page of the report of the University Committee of Inquiry, which included the committee’s finding that “[t]he charge against Dr. Rosen of fabrication and deceptive selection of data in peer-reviewed and invited publications was substantiated by the Committee’s review”. The Baltimore Sun published articles about the dispute written by Patricia Meisol on July 25, 1991 and on February 24, 1992. Dr. Arroyo’s employment with the University of Maryland was eventually terminated. DISCUSSION Absolute privilege Dr. Arroyo argues first that the statements she made about Dr. Rosen’s scientific practices to the investigatory committees of the University of Maryland and Veterans’ Administration were absolutely privileged—that they have equivalent status with statements made in the course of judicial proceedings.

Accordingly, she contends that “the person publishing the defamatory statement [should be protected] from liability even if his purpose or motive was malicious, he knew that the statement was false, or his conduct was otherwise unreasonable.” Odyniec v. Schneider, 322 Md. 520, 527 , 588 A.2d 786 (1991) (quoting Adams v. Peck, 288 Md. 1, 3 , 415 A.2d 292 (1980)). The Court of Appeals has explained the underlying rationale for according such a privilege to participants in judicial proceedings as follows: “[S]uch a privilege is necessary to the proper administration of justice. The ultimate purpose of the judicial process is to determine the truth. The investigation, evaluation, presentation, and determination of facts are inherent and essential ¹⁰⁸ parts of this process.

If this process is to function effectively, those who participate must be able to do so without being hampered by the fear of private suits for defamation.” Adams v. Peck, 288 Md. at 5 , 415 A.2d 292 . The Court of Appeals has twice extended that absolute privilege to testimony and complaints before administrative bodies. In Miner v. Novotny, 304 Md. 164, 498 A.2d 269 (1985), the Court held “that a citizen’s brutality complaint filed against a law-enforcement officer is protected by the same absolute privilege as are statements made by witnesses in judicial proceedings, and that such complaints cannot, therefore, serve as a basis for a defamation suit.” Id. at 177 , 498 A.2d 269 . In Odyniec v. Schneider, supra, the Court held that “the absolute privilege may safely be extended to statements of potential witnesses made during the pendency of [Health Claims Arbitration Office] proceedings.” 322 Md. at 534 , 588 A.2d 786 .

Dr. Arroyo argues that an extension of the absolute privilege to testimony before bodies investigating allegations of scientific misconduct is supported by strong policy reasons, including the interest of society in the soundness of research that forms the basis of the formulation of medicine, treatment procedures, and recognition of diseases. It is worth noting that, despite the societal interest in safe medical practice, the Legislature has seen fit to extend to persons giving information to medical review committees only the equivalent of a qualified privilege. (See Md.Code, Cts. & Jud.Proc. art. § 5-393: “A person who acts in good faith and within the scope of the jurisdiction of a medical review committee is not civilly liable ... for giving information to ... the medical review committee” (emphasis added); see also Md. Code Health Occ. art. § 14-501(b).) Even if we were to assume that “the same policy considerations which underlie the application of the privilege in the judicial sphere,” Odyniec, 322 Md. at 531 , 588 A.2d 786 , are present here, policy considerations alone are not enough to support an extension of the privilege. The other factor considered by the Court of Appeals in both Miner and Odyniec , as well as in cases where extension of the privilege was rejected, was whether “the ¹⁰⁹ forum offers ‘sufficient judicial safeguards so as to minimize the likelihood of harm to potentially defamed ... individuals.’ ” Odyniec, 322 Md. at 528 , 588 A.2d 786 (quoting Gersh v. Ambrose, 291 Md. 188, 192 , 434 A.2d 547 (1981)).

See also Miner v. Novotny, supra, 304 Md. at 174 , 498 A.2d 269 ; McDermott v. Hughley, 317 Md. 12, 26 , 561 A.2d 1038 (1989). The forum in Odyniec was a proceeding before the Health Claims Arbitration Office governed by Md.Code, Cts. & Jud. Proc. art. § 3-2A-04. The Odyniec Court described the safeguards mandated there as follows: “The parties may be represented by counsel.

The proceedings ... are public____ Witnesses are subject to subpoena, sworn, and subject to cross-examination.... Prehearing discovery is available. Each party may present a case by oral or documentary evidence, and the arbitration panel must make its determination in writing.” Odyniec, 322 Md. at 533 , 588 A.2d 786 . The forum in Miner v. Novotny, supra, was an administrative proceeding under the “Law-Enforcement Officers’ Bill of Rights,” Md.Code art. 27 §§ 727-734D.

The Miner court outlined the safeguards in force there: “[N]o brutality complaint may be investigated ... unless the complaint is duly sworn to---- A person who knowingly makes a false complaint is subject to criminal liability.... [A] complete record of the investigation must be kept, and must be made available to the officer upon request at the completion of the investigation, and at least ten days before any hearing.... The hearing phase of the proceeding is adversarial in nature. Each party may request that the hearing board issue summonses compelling the attendance and testimony of witnesses, and the production of documents.... The hearing board’s summons may be enforced, in the proper circum ¹¹⁰ stances, by an order of the circuit court....

Witnesses must testify under oath____ Each party has the right to cross-examine witnesses, and to submit rebuttal evidence.” Miner, 304 Md. at 174-75 , 498 A.2d 269 (citations omitted). Administrative hearings in contested cases in State agencies generally are governed by subtitle 2 of the Administrative Procedure Act, Md.Code State Gov’t art. §§ 10-201 to 10-226. In such proceedings, each party is entitled to call witnesses, § 10-208(e)(l) and cross-examine witnesses of other parties, § 10-208(e)(3); the agency is' to provide a record that includes, among other things, all motions and pleadings, and all documentary evidence that the agency receives, § 10-210; a transcript is to be prepared, § 10-211; and ex parte