Hosmane v. Seley-Radtke

RAKER, J. In this defamation case of a private person and not a public figure, the primary question we address is the burden of proof a plaintiff must meet in order to overcome a qualified or conditional privilege. Appellant maintains the appropriate burden of proof is the preponderance of evidence standard; appellee maintains that standard is clear and convincing evidence. . ¹⁶ Appellant Ramachandra S. Hosmane, Ph.D., appeals from the jury verdict in the Circuit Court for Baltimore County in favor of appellee Katherine Seley-Radtke, Ph.D., on one count of defamation and one count of invasion of privacy, false light. Appellant raises four questions for our review, which we have rephrased and reordered as follows: 1. Did the trial court err in instructing the jury that in order to recover, the plaintiff must prove by clear and convincing evidence the defendant made the statements at issue with actual knowledge that the statement was false, coupled with the intent to deceive another person by means of the statement? 2.

Did the trial court abuse its discretion in allowing appellees’ witness, Dr. Brahmi Shukla, to appear as the first witness in the trial? 8. Did the trial court abuse its discretion in allowing testimony regarding a settlement agreement between appellant and Dr. Brahmi Shukla? 4. Did the trial court err by abusing its discretion in denying appellant’s requests to redact portions of two February 23, 2010 emails written by appellee Dr. Seley-Radtke that contained language that was very damaging to appellant? We shall hold that the trial court erred in instructing the jury that the burden of proof in overcoming the conditional privilege was clear and convincing evidence rather than by a preponderance of evidence and shall reverse.

Because we answer appellant’s first question in the affirmative, we -will remand the case for a new trial. For the guidance of the trial court on retrial, we shall address appellant’s third and fourth questions. 1 ¹⁷ I. In the Circuit Court for Baltimore County, appellant Dr. Hosmane filed a two-count complaint sounding in defamation and invasion of privacy, false light, against appellee Dr. Seley-Radtke. In an amended complaint, Dr. Hosmane added as additional defendants the University of Maryland, Baltimore County (UMBC) and the State of Maryland. The court granted summary judgment in favor of UMBC and the State of Maryland based on sovereign immunity.

The case against appellee was consolidated for trial with Hosmane v. UMBC, (UMBC suit), a suit filed by Dr. Hosmane in December 2010, for claims arising primarily out of his involuntary retirement from UMBC. This matter proceeded to trial before a jury on April 30, 2014. The jury found in favor of appellee on the defamation and false light invasion of privacy claims. Appellant’s complaint alleged the following: “a.

In 2009, Defendant Seley-Radtke told the chemistry department chair, at least one co-worker, general counsel for UMBC, and others, that Plaintiff [Dr. Hosmane] had keys to many offices in the chemistry department, that he had stolen private documents regarding Defendant Seley-Radtke out of said offices, and that he had even sold some of the documents for money. None of these assertions are true. b. In February 2010, after Plaintiffs employment with UMBC had come to an end, Defendant Seley-Radtke wrote an email to the chemistry department chair and general counsel for UMBC in which she stated, among several defamatory statements, that Plaintiff ‘is an unbalanced individual who has done some crazy and bizarre things, not to mention he’s prone to sudden outbursts, and given the shootings in Alabama, I worry for my safety and for that of anyone around me____’ c. The same day she wrote the email referenced above, Defendant Seley-Radtke wrote another email to these same people and referred to Plaintiff ‘stealing documents’ and implied that Plaintiff had falsely accused one of his students ¹⁸ of trying to kill him.

In this second email, Defendant Seley-Radtke also called Plaintiff a ‘nutcase,’ and said that ‘it is not far-fetched that he could do something crazy at this point....’ These assertions are all demonstrably untrue. d. Defendant Seley-Radtke has additionally claimed in communicating with others that Plaintiff was banned from campus following the end of his employment at UMBC and that he was also not allowed to meet with his former students. This is not true. e. Defendant Seley-Radtke has also claimed that Plaintiff, in speaking with his students, would make comments to them about Defendant Seley-Radtke’s body parts, particularly her breasts and buttocks.

This is totally false. f. Moreover, Defendant Seley-Radtke has claimed that Plaintiff tried to convince one of Defendant Seley-Radtke’s former post-doctorate students to file a formal complaint against Defendant Seley-Radtke, even going so far as to offer the student a job if he would file the complaint. Again, this is entirely untrue.” In her answer to the amended complaint, inter alia, Dr. Seley-Radtke raised the affirmative defense of privilege, averring that any statements she may have made were privileged and confidential communications. At the close of all of the evidence, the court discussed with counsel the proposed verdict sheet and jury instructions.

The trial court found, as a matter of law, that appellee was entitled to a qualified or conditional privilege for the allegedly defamatory statements, noting that no party disagreed with that ruling. The discussion centered around the appropriate burden of proof necessary to overcome the privilege. Appellant requested the court instruct the jury from MPJI-Cv 12:12 (4th ed. 2013), which states as follows: “In order to recover, the plaintiff must prove by a preponderance of the evidence that the defendant made the statement with actual knowledge that the statement was false, coupled with the intent to deceive another person by means of the statement.” ¹⁹ Appellee asked the court to modify the pattern instruction to change the burden of persuasion — for appellant to prove that appellee abused the conditional privilege — from the “preponderance of evidence” to “clear and convincing evidence.” Appellant objected. The court agreed with appellee and instructed the jury, in relevant part, as follows: “In order to recover, the plaintiff must prove by clear and convincing evidence that the defendant made the statements with actual knowledge that the statement was false, coupled with the intent to deceive another person by means of the statement.” As noted above, the jury found in favor of appellee Dr. Seley-Radtke on the defamation and false light invasion of privacy claims, and appellant noted this timely appeal.

II

Because we shall hold that the appropriate burden of persuasion to overcome the conditional privilege is a preponderance of the evidence, and the court erred in instructing the jury that the standard was clear and convincing evidence, we will not here set out the parties’ lengthy arguments on the other questions presented. We address first the burden of persuasion issue. Appellant argues that the burden of persuasion for showing abuse of a conditional privilege is by the common law burden of proof “preponderance of the evidence” and not by “clear and convincing evidence.” He contends that even though the clear and convincing evidence burden of persuasion is applied to certain elements of defamation cases — such as where the defamatory statement was about a public figure or with respect to the recovery of presumed damages or punitive damages — it does not apply in this case because this defamation claim is against a private individual. Appellees argue that the trial court was correct in instructing the jury that appellant Dr. Hosmane must prove by “clear and convincing evidence” that Dr. Seley-Radtke’s allegedly defamatory statements were made with actual knowledge that the statements were false, coupled with an intent to deceive ²⁰ another person by means of the statements.

Appellee Seley-Radtke’s argument is based upon her reading of Piscatelli v. Van Smith, 424 Md. 294 , 35 A.3d 1140 (2012), and Le Marc’s Management Corp. v. Valentin, 349 Md. 645 , 709 A.2d 1222 (1998). Essentially, she is arguing that in Piscatelli , the Court of Appeals, in a defamation case, adopted the same standard for proving malice for punitive damages (the malice standard announced in Ellerin v. Fairfax Sav. F.S.B., 337 Md. 216 , 652 A.2d 1117 (1995)), and malice for proving abuse of defamation privileges. She reasons that because the two substantive standards are the same, and that the standard for proving punitive damages entitlement is clear and convincing evidence, so too is the burden for overcoming a conditional privilege in common law defamation actions.

III

We address which burden of persuasion is required to prove abuse of a conditional privilege, a defense to a defamation claim, where the complainant is a private person — a preponderance of the evidence or clear and convincing evidence. 2 We hold that a plaintiff, who is a private individual claiming common law defamation, and not First Amendment defamation, must prove that the defendant/publisher abused a conditional privilege by a preponderance of the evidence. Because the trial court erred in misstating the burden of persuasion for proving abuse of a conditional privilege to defamation, appellant was prejudiced and we shall reverse and remand for a new trial. To establish a prima facie case of the common law tort of defamation in Maryland, a plaintiff must establish four elements: (1) that the defendant made a defamatory statement to a third person, (2) that the statement was false, (3) that the defendant was legally at fault in making the state ²¹ ment, and (4) that the plaintiff suffered harm. Offen v. Brenner, 402 Md. 191, 198 , 935 A.2d 719, 723-24 (2007).

A defamatory statement is one “which tends to expose a person to public scorn, hatred, contempt or ridicule, thereby discouraging others in the community from having a good opinion of, or from associating or dealing with, that person.” Batson v. Shiflett, 325 Md. 684, 722-23 , 602 A.2d 1191, 1210 (1992). A false statement is one that is not substantially correct. Id. at 726 , 602 A.2d at 1212 . The plaintiff has the burden of proving falsity.

Id. Whether a publication is defamatory is a question of law for the court. A little historical background of the law of defamation will be helpful. 3 In the landmark Supreme Court case of New York Times Co. v. Sullivan, 376 U.S. 254 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964), the Court entered the field of state libel law, particularly as it bears on First Amendment rights. 4 The Court held that a public official suing for defamatory statements relating to official conduct could not recover unless he or she proved, by clear and convincing evidence, that “the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id. at 279-80 , 84 S.Ct. 710 . Ten years later, in Gertz v. Robert Welch, Inc., 418 U.S. 323 , 94 S.Ct. 2997 , 41 L.Ed.2d 789 (1974), the Court addressed the standard of liability when a private citizen is defamed by a libelous publication.

The Court extended to public figures the ²² Sullivan doctrine that a publisher is liable “only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth.” Id. at 342 , 94 S.Ct. 2997 . Balancing the states’ strong and legitimate interest in compensating private individuals for injury against First Amendment concerns, the Court held that so long as a state does not impose liability without fault, or strict liability, it may define for itself the appropriate standard of liability for a publisher or broadcaster of defamatory falsehoods injurious to a private individual. Id. at 347 , 94 S.Ct. 2997 . In the case of private individuals, therefore, a less demanding standard was adopted by the Court, and the states were free to apply a negligence standard.

What one takes away from the Supreme Court cases is that the standards differ for public officials/public figures as opposed to private individuals, and particularly as those claims are impacted by the First Amendment. In order to trigger First Amendment implications, a defendant must show that the alleged defamatory statement related to a public official or a public figure, or is a matter of public concern. New York Times Co., 376 U.S. at 281-82 , 84 S.Ct. 710 . Defamation actions not implicating the First Amendment, that is, those concerning private individuals only, are based upon Maryland common law.

The Supreme Court of Maine, in Lester v. Powers, 596 A.2d 65, 69-70 (Me.1991), cogently explained the difference between the two actions, stating as follows: “Discussion of public officials and public figures on matters of public concern, the U.S. Supreme Court has declared, deserves special favor in a democratic society, and thus such discussion is subject to a conditional privilege — the First Amendment privilege — that can be overcome only by dear and convincing evidence of knowledge or disregard of falsity. We do not require clear and convincing evidence, however, to overcome a conditional privilege that arises at common law and not from the First Amendment.” Id. (Emphasis added). Following Gertz , the Maryland Court of Appeals considered the extent to which the First Amendment to the Federal ²³ Constitution affected actions for defamation by private individuals against defendants who are not public officials or public figures, and more particularly, whether Maryland law should be changed in light of Gertz.

See Jacron Sales Co. v. Sindorf, 276 Md. 580 , 350 A.2d 688 (1976). The trial court ruled that Jacron, Sindorf s former employer, was protected by a common law conditional privilege that had not been overcome because although Sindorf had established a case of slander per se, Sindorf had not shown actual malice. This Court reasoned that the Gertz rules applied only when a private person was defamed concerning a matter of public or general interest, and finding that there was sufficient evidence of common law malice to defeat the conditional privilege protecting the defendant, reversed and remanded for a new trial. Id. at 588-89, 350 A.2d at 693-94 .

The Court of Appeals reversed this Court, holding that Gertz applied to actions brought by private persons regardless of whether the subject matter of the defamation is one of public or general interest — Gertz also applies where a private individual is defamed as to private matters. Id. at 590, 350 A.2d at 694 . The Court of Appeals then went on to adopt a standard of negligence for cases of purely private defamation and enunciated clearly that the quantum of proof by which the plaintiff must establish the fault of the defendant is by a preponderance of the evidence, “the quantum of proof ordinarily required in other types of actions for negligence” — seeking to “dispel any possible notion that the plaintiff must prove negligence by ‘clear and convincing’ evidence.” Id. at 596-97 , 350 A.2d at 697-98 . The significance of Jacron is that while the Court of Appeals applied the Gertz holding to both public and private defendants to satisfy “the compelling need for consistency and simplicity in the law of defamation,” id. at 593, 350 A.2d at 696 , the Court specified that burdens of proof by which a plaintiff must establish fault in a purely private defamation action and those implicating the First Amendment, were not similarly made consistent.

The “clear and convincing” evidence test is reserved for showing “actual malice” in a First Amendment defamation-type action as articulated in New ²⁴ York Times Co. (and to establish punitive damages). Id. at 597 , 350 A.2d at 698 . To prove negligence in a purely private defamation case requires a showing by a “preponderance of the evidence.” Id. We apply the same reasoning to the case sub judice.

In Maryland, as in most jurisdictions, if not abused, privilege is a defense to a defamation action. Piscatelli v. Van Smith, 424 Md. 294, 306-07 , 35 A.3d 1140, 1147 (2012). The defense of privilege rests upon the value that sometimes, as a matter of public policy, to foster the free communication of views in certain defined instances, a person is justified in publishing information to others without incurring liability. Miner v. Novotny, 304 Md. 164, 167 , 498 A.2d 269, 270 (1985).

Privileged communications fall into two categories: absolute and conditional privilege (or qualified privilege). Gohari v. Darvish, 363 Md. 42 , 55 n. 13, 767 A.2d 321, 327 (2001). An example of an absolute privilege would be statements by judges or lawyers in judicial proceedings or legislators in legislative proceedings. Adams v. Peck, 288 Md. 1, 3 , 415 A.2d 292, 293 (1980).

A conditional or qualified privilege arises, for example, where a person is seeking to further an interest that society regards as sufficiently important to justify some latitude for making a mistake so that publication of the defamatory statement is deemed to be conditionally or qualifiedly privileged. Gohari, 363 Md. at 55 , 767 A.2d at 328 (quoting Woodruff v. Trepel, 125 Md.App. 381, 391 , 725 A.2d 612, 617 (1999)). An absolute privilege provides immunity regardless of the purpose or motive of the defendant or the reasonableness of the conduct; a conditional privilege is conditioned upon the absence of malice and is forfeited if it is abused. Piscatelli, 424 Md. at 307 , 35 A.3d at 1147 .

Once the plaintiff demonstrates that a statement was defamatory, which is a matter of law for the court, then the defendant has the burden of proving that the defamatory statement was privileged. Gohari, 363 Md. at 73-74 , 767 A.2d at 338 . If the privilege is recognized, the plaintiff nonetheless may attempt to show that the privilege was abused, a question ²⁵ for the jury, and if successful, thus rendering the defendant liable for defamation.