Helinski v. Rosenberg

¹⁶¹ ALPERT, Judge. This defamation case stems from an earlier child custody proceeding in the Circuit Court for Baltimore County. At issue was whether Ronald Helinski sexually molested his daughter; Judge Leonard S. Jacobson initially concluded that he did not. One month later on August 20, 1985, the proceedings were reopened to permit the child’s mother to introduce additional evidence.

This evidence included the testimony of Dr. Leon Rosenberg, the defendant in this case. Rosenberg is an expert child psychologist whose testimony recounted the child’s statement that her father hurt her in the genital area. The new evidence did not seem to persuade Judge Jacobson to change his initial conclusion that Helinski did not molest his daughter. The news media was interested in the child custody case, and were on hand immediately after the August 20 proceeding.

A local television station interviewed Rosenberg as he came out of the courthouse. During the interview, Rosenberg repeated what he had testified to in court: The child talked very directly about being hurt by her father and she talked about being hurt by her father in the genital area. When she finally talked about being hurt, she expressed real fear, real anxiety, and 2V2 year old child cannot playact that well. It’s beyond them.

Whatever did occur was frightening, but it looked like it was time limited and I think we have a very good chance of overcoming any negative effects. That station’s six o’clock news program broadcast Rosenberg’s statements, and the eleven o’clock program repeated the segment containing his comment referring to the child’s statement about being hurt in the genital area. The present litigation ensued, with Helinski alleging that Rosenberg defamed him by uttering these statements. Before trial, Rosenberg filed a Motion for Summary Judgment.

Judge John Carroll Byrnes of the Circuit Court for Baltimore City conducted a motions hearing, subsequent to ¹⁶² which he filed an Opinion and Order Granting Defendant’s [Rosenberg’s] Motion for Summary Judgment. Judge Byrnes’s Opinion characterized Rosenberg’s press statements as follows: He was not providing an opinion to the reporter since this was not requested. Nor was he presenting an ‘idea’ of his, something in the intellectual firmament for the public to chew on and pass around in the market place of ideas; but merely recounting what he had already said in a public, and privileged, forum. What he recounted was not false.

It was true history even though it included, by implication ... his belief that what the child said was acceptable to him clinically as true. Judge Byrnes found nothing in the evidence to suggest that Rosenberg acted with malice or had reason to know that his statements were false. Furthermore, according to Judge Byrnes, the trial court’s conclusion that Helinski had not molested his child was insufficient to make Rosenberg’s comments false. Addressing section 580B of the Restatement Second of Torts, 1 concerning defamation of private persons, Judge Byrnes concluded that Rosenberg could not be said to have spoken with reckless disregard for the truth. “The truth in this context is what he was told by his patient; and more to the point, what he recounted to the judge a few moments before in an open courtroom.” Judge Byrnes also rejected the argument that Rosenberg was negligent in failing to ascertain the truth. “It is virtually stipulated in the case that what he said he said, he did ¹⁶³ say.” 2 Helinski also argued that Rosenberg’s techniques and methodology were negligent, thereby causing him to reach an erroneous conclusion which he otherwise would not have reached and to which he would not have testified.

Judge Byrnes concluded that Dr. Shapiro, Helinski’s expert witness on this matter and a forensic psychologist, lacked the expertise in child sexual abuse necessary to address Rosenberg’s possible negligence. He noted that a “contrary standard of care opinion would best come from someone who practiced in that particular specialty.” He added that Dr. Shapiro really never said that Rosenberg was negligent in making the defamatory statements, and that any challenge to Rosenberg’s professional capacity to testify should have been made during the proceeding before Judge Jacobson. Helinski now appeals, arguing that Judge Byrnes erred by granting summary judgment in the face of a genuine dispute of material fact, and by ignoring evidence of Rosenberg’s negligence. As a preliminary matter, we note the standard for review of a trial court’s grant of summary judgment: Our cases make indelibly clear that at a hearing on a motion for summary judgment, the trial judge’s role is not to decide the merits of the case but rather to determine whether any material facts are in dispute.

Summary judgment should be granted only when the pre-trial documents demonstrate that no such dispute exists and that the moving party is entitled to judgment as a matter of law. In reviewing a motion for summary judgment, an appellate court primarily should consider whether or not a ¹⁶⁴ factual issue exists, and in so doing should resolve all inferences against the party making the motion. McDermott v. Hughley, 317 Md. 12, 22 , 561 A.2d 1038 (1989); see id. (collecting cases).

DEFAMATION Maryland cases have stated clearly the elements of a prima facie case of defamation, and we need not repeat them here at any great length. [T]o establish a case of defamation, the plaintiff must show (1) that the defendant made a defamatory communication — i.e., that he communicated a statement tending to expose the plaintiff to public scorn, hatred, contempt, or ridicule to a third person who reasonably recognized the statement as being defamatory; (2) that the statement was false; (3) that the defendant was at fault in communicating the statement; and (4) that the plaintiff suffers harm. Kairys v. Douglas Stereo, 83 Md.App. 667, 678 , 577 A.2d 386 (1990) (citations omitted). 1. Rosenberg’s statements, both in and out of court, were of the type that might damage Helinski’s reputation. Considering the background upon which the words were uttered, it is reasonable to infer that Helinski was being accused of sexual child abuse.

It matters not that Rosenberg was repeating both in and out of court the words of the alleged child abuse victim. “The common law of libel has long held that one who republishes a defamatory statement ‘adopts’ it as his own, and is liable in equal measure to the original defamer.” Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287, 1298 (D.C.Cir.1988) (citations omitted). See also Dameron v. Washington Magazine, Inc., 779 F.2d 736 (D.C.Cir.1985), cert. denied, 476 U.S. 1141 , 106 S.Ct. 2247 , 90 L.Ed.2d 693 (1986), in which the court opined that “[t]he conditional immunity that applies to the publication of fair and accurate reports of official proceedings is an exception ¹⁶⁵ to the common law rule that one who repeats or republishes a defamation uttered by another ‘adopts’ it as his own.” Id. at 739 (magazine article reporting on safety at National Airport fell outside privilege’s scope because it did not relate directly to governmental reports or proceedings). Accord White v. Fraternal Order of Police, 909 F.2d 512, 527 (D.C.Cir.1990) (common law rule is that republisher is deemed to have adopted the underlying defamation as its own); Reuber v. Food Chem. News, Inc., 925 F.2d 703 (4th Cir.1991).

As a threshold matter, a trial court may determine whether the words spoken are reasonably susceptible of a defamatory meaning. Having so decided, the jury must decide whether they were actually defamatory. See Embrey v. Holly, 48 Md.App. 571 , 429 A.2d 251 (1981), rev’d in part, aff'd in part, 293 Md. 128 , 442 A.2d 966 (1982). If the words convey defamatory meaning, a publication is slander or libel per se and presumed to injure a person’s reputation.

See id. 48 Md.App. at 579 , 429 A.2d 251 . At common law, statements imputing heinous crimes, inter alia, were slanderous per se. Id. at 579 n. 9, 429 A.2d 251 . The sexual abuse of a small child meets the criteria for slander per se: it is the kind of allegation that would expose the person about whom it was spoken to widespread scorn, hatred, and contempt.

Moreover, sexual child abuse is a crime. See Md.Ann.Code art. 27, § 35A (1957 & Supp. 1991). 2. In order to be actionable, the allegedly defamatory statement must have been false. Helinski bears the burden of proving that Rosenberg’s statements were false.

Jacron Sales Co. v. Sindorf 276 Md. 580, 597 , 350 A.2d 688 (1976). For the purpose of ruling on the motion for summary judgment, the trial judge should consider the fact that Judge Jacobson at one point in the custody proceeding clearly indicated that he believed that Helinski did not ¹⁶⁶ molest his young daughter. Therefore, by way of inference, the daughter’s statement was “false.” Dr. Rosenberg repeated the false statement in court, and on the courthouse steps repeated that testimony and added a conclusion of his own. 3. In Jacron Sales Co. v. Sindorf 276 Md. 580, 596 , 350 A.2d 688 (1976), the Court of Appeals held that “a standard of negligence, as set forth in Restatement (Second) of Torts § 580B (Tent.

Draft No. 21, 1975), which we here adopt, must be applied in cases of purely private defamation.” See also 50 Am.Jur.2d Libel and Slander § 184 (1970) (“it is no defense that a defamatory imputation resulted from mistake [or] negligence”). If the custody case was a “purely private matter,” then the negligence standard applies. See Restatement (Second) of Torts § 580B cmt. a (1977). The motions judge rejected Dr. Shapiro’s testimony, which, if accepted, would have established on a prima facie basis Rosenberg’s negligence in repeating the defamatory remarks.

Without that evidence, Helinski could not defeat Rosenberg’s motion for summary judgment. Helinski argues vociferously that Judge Byrnes applied the wrong standard of law in excluding Dr. Shapiro’s expert testimony on the issue of Rosenberg’s negligence. It appears that he is contending that the motions judge does not have the authority to decide the qualifications of an expert. We note that in order to pass muster at a summary judgment proceeding, the opponent must produce evidence that would be admissible at trial.

See Gooch v. Maryland Mechanical Sys., Inc., 81 Md.App. 376, 396 , 567 A.2d 954 (1990) (“facts proffered in opposition to the granting of a motion for summary judgment must be admissible in evidence”). Thus, the standard for determining an expert’s qualifications would be the same at a motions hearing as that at a trial. ¹⁶⁷ The motions judge opined that Dr. Shapiro, who admittedly had no experience in the area of sexual child abuse, was not qualified to render an opinion on whether Dr. Rosenberg had adequately investigated the alleged child abuse. Dr. Shapiro is a psychologist licensed to practice in Maryland and in the District of Columbia. He has an advanced certificate in forensic psychology, for which he did five years of supervised post-doctoral work.

His subspecialties include competency evaluations in criminal, professional liability and malpractice trials. Whether an expert is qualified to render an opinion is a matter to be determined by the court in its discretion and may only be disturbed on appeal where there is a clear showing of abuse of that discretion. See Mondawmin Corp. v. Kres, 258 Md. 307, 320 , 266 A.2d 8 (1970) (judge has wide latitude in determining expert witness’s qualifications); Spence v. Wiles, 255 Md. 98 , 257 A.2d 164 (1969) (trial court’s determination not reversible on appeal unless clearly erroneous or clear abuse of discretion). Although the trial court’s decision usually stands undisturbed on appeal, we must examine Dr. Shapiro’s testimony to determine whether the trial court erred as a matter of law, or abused its broad discretion.

Here we follow the analysis outlined by the Court of Appeals in Radman v. Harold, 279 Md. 167 , 367 A.2d 472 (1977), a medical malpractice case in which the trial judge applied an erroneous legal standard in excluding a witness’s testimony Id. at 168 , 367 A.2d 472 (internal medicine specialist’s lack of direct experience in gynecological surgery should not have prevented him, as a matter of law, from testifying as to the standard of care required of a surgeon performing gynecological surgery). In Radman , the Court of Appeals reviewed the standards controlling the trial court’s exercise of discretion in determining whether a witness qualifies as an expert, and noted that “a witness may be competent to express an expert opinion if he is reasonably familiar with the subject under investigation, regardless of whether this special knowledge ¹⁶⁸ is based upon professional training, observation, actual experience, or any combination of these factors.” Id. at 169 , 367 A.2d 472 . The court added that it “perceive[d] no reason why a person who has acquired sufficient knowledge in an area should be disqualified as a medical expert merely because he is not a specialist or merely because he has never personally performed a particular procedure.” Id. at 171 , 367 A.2d 472 ; accord, id. at 172 , 367 A.2d 472 (collecting cases in other jurisdictions). See also Ungar v. Handelsman, 325 Md. 135, 146 , 599 A.2d 1159 (1992).

Our reading of the record leads us to conclude that the ruling excluding Dr. Shapiro’s testimony was premised on an error of law. Although Dr. Shapiro is not an expert in child abuse, he is a well-respected forensic psychologist. 3 Nevertheless, the court in its opinion ruled that Dr. Shapiro lacks the expertise in this context to permit the jury to conclude that Dr. Rosenberg was negligent. Now this is not to say that a forensic psychologist might, in certain circumstances, not testify in a similar proceeding. He might have testified, for example, in the very proceeding before Judge Jacobson as a possible expert witness on the custody/visitation issue before Judge Jacobson.

But for the purpose of opining as to Dr. Rosenberg's negligence, I have reservations about Dr. Shapiro’s lack of direct involvement as a specialist, by his own admission, in the area of child sexual abuse. I say this because I think it acceptable and conceded by all that this is a highly sensitive and specialized, field of medicine; and that those who practice this field practice in the field for the purpose not of litigating issues, but of helping patients. The frame of reference is quite different; and the evaluation presented by Dr. Rosenberg to the Court, based upon the recounting of the child’s experi ¹⁶⁹ ence was of such a peculiar nature, given the