Offen v. Brenner

RAKER, J. Pursuant to the Maryland Uniform Certification of Questions of Law Act, Md.Code (1974, 2006 Repl.Vol.), §§ 12-601 to 12-609 of the Courts and Judicial Proceedings Article, the United States Court of Appeals for the Fourth Circuit has certified the following question of Maryland law: “[I]n deciding whether a statement that led to an administrative proceeding against a public employee is protected by absolute privilege, should the duties and authority of the employee against whom the statement was made be considered in determining ‘the nature of the public function of the proceeding’?” Our answer to the Fourth Circuit’s question shall be a qualified yes; the duties and authority of the employee are a useful factor, but should not be determinative, in considering the nature of the public function of the administrative proceeding. I. We recite the facts as set out in the Certification Order. “The plaintiff (and appellant in this certification procedure), M. Louis Offen, M.D., is an employee with the U.S. Department of Health and Human Services (DHHS), working in the Division of Vaccine Injury Compensation (DVTC). Offen is a neurologist who reviews claims filed against the DHHS by persons seeking compensation for alleged vaccine-related injury. Offen evaluates the merits of a claim and transmits his conclusions to the Department of Justice ¹⁹⁵ (DOJ) lawyer assigned to represent the DHHS on the claim.

The DOJ has the authority to determine how to proceed with a claim. Offen has no authority in that regard. “In 2004 Offen reviewed a Hepatitis B vaccine injury claim and reported his conclusions to the assigned DOJ lawyer. The DOJ lawyer then contacted Offen’s supervisor, Vito Caserta, M.D., for further assistance in evaluating the claim. Caserta, in turn, discussed the claim with two other physicians, the defendant, Alan I. Brenner, M.D., a rheumatologist who is an outside consultant for DVIC, and Arnold Gale, M.D. In May 2004 Offen forwarded certain materials related to the claim to Brenner for his review.

Later, on July 30, 2004, Brenner sent a letter to Offen’s supervisor, Caserta, which contained the following passages: “In the past several months I have had a number of telephone calls and E mail communications from Dr. Offen, each requesting my private opinion on DVIC cases not officially assigned to me for consultation.... “The first of this latter type of call was regarding the makeup of our Civilian Expert Immunization Committee (CEIC). The substance of that call was to question me about the process of selection of committee members. I felt that the tone of the questions was accusatory and, in my opinion, defamatory and degrading to DVIC.... “You will recall that, several months ago, you arranged a telephone conference in which you, Dr. Arnold Gale and I participated. The purpose of that conference was to discuss [the Hepatitis B claim].... “About 2 months ago Dr. Offen called me, stating that the case had not been presented in its entirety and that you had misrepresented the facts to induce Dr. Gale and me....

My recollection of the call was that Dr. Offen accused you of twisting the facts and of leaving out pertinent information to suit some personal purpose and that he wanted to send me the case record suggesting that my review of the documents would prove that our conclusion was in error. ¹⁹⁶ “I have been very disturbed by the tone of Dr. Offen’s accusations and the way in which he has seemed to try to enlist my support in some sort of personal vendetta against DYIC in general and several members of the office in particular. Indeed I believe that Dr. Offen has had something derogatory to say about each and every medical officer involved. Dr. Offen has also made it quite clear that he has no respect for the leadership of DVIC. He positively gloated over Thom Balbier’s transfer, telling me that Thom had been removed for incompetence and stating that you would be the next to go.

J.A. 6-7. “This letter prompted Caserta to initiate formal DHHS disciplinary proceedings against Offen, who was suspended for five days without pay and stripped of some of his responsibilities. The administrative proceedings against Of-fen were conducted according to the procedures set forth in the agency’s regulations, and he does not contend that the procedural safeguards were inadequate.” II. Dr. Offen filed a complaint, in the United States District Court for the District of Maryland, alleging defamation. Dr. Brenner filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, failure to state a claim upon which relief may be granted.

Following a hearing, the district court dismissed the complaint in favor of the defendant based on absolute immunity. Dr. Offen appealed to the United States Court of Appeals for the Fourth Circuit. He contends that the district court erred in refusing to consider his limited duties and authority when the court analyzed the nature of the public function of the proceeding. The Court of Appeals for the Fourth Circuit certified the question of law to this Court.

The question before us arises from the application of factors set forth by this Court in Gersh v. Ambrose, 291 Md. 188 , 434 A.2d 547 (1981). In that case, a staff member of the Baltimore City Community Relations Commission filed a defama ¹⁹⁷ tion suit for statements made by an assistant state’s attorney at a quasi-legislative public hearing. This Court found the defense of absolute immunity did not apply, but noted as follows: “[W]e have decided that whether absolute witness immunity will be extended to any administrative proceeding will have to be decided on a case-by-case basis and will in large part turn on two factors: (1) the nature of the public function of the proceeding and (2) the adequacy of procedural safeguards.” Id. at 197 , 434 A.2d at 551-52 . Although we have ruled on the interpretation of the second factor of the Gersh test—the adequacy of procedural safeguards—in several cases, we have not yet had cause to examine the first factor in such detail, that of the nature of the public function of the proceeding.

III

Before this Court, Dr. Offen argues, first, that no significant public interest is implicated to justify the application of absolute immunity under the first prong of the Gersh test. He contends the district court erred when it relied on an overly generalized public interest. The district court said “the important public function of administrative disciplinary procedures is to have an orderly system of personnel, dedicated and competent employees, and that’s especially important in the area of health.” Dr. Offen argues his behavior would not be of significant public concern and that the district court’s identification of an orderly system of personnel is not a socially important concern that rises to the level of a vital public interest. 1 Second, Dr. Offen maintains that the district court erred when it failed to consider the defamed employee’s duties and authorities in its analysis under the first Gersh factor. Ac ¹⁹⁸ cording to Dr. Offen, the application of “the nature of the public function of the proceeding” depends upon a factual inquiry into the employee’s duties and powers.

He relies on Miner v. Novotny, 304 Md. 164 , 498 A.2d 269 (1985), Imperial v. Drapeau, 351 Md. 38 , 716 A.2d 244 (1998), and Reichardt v. Flynn, 374 Md. 361 , 823 A.2d 566 (2003), to support his conclusion, contending that when statements precede the initiation of an administrative proceeding, each of those cases make necessary an evaluation of the essential public interest of a particular category of employee. Failing to consider the duties and authority of an employee, according to Dr. Offen, creates a per se application of absolute privilege, allowing generalized public interests to sufficiently support the first Gersh factor. Dr. Brenner counters that the duties, responsibilities and authority of an employee should not be dispositive as to whether a privilege applies. He rejects the contention that the justification for extending absolute immunity changes depending on whether an administrative hearing is pending at the time of the defamation or whether instead the statement serves to initiate a subsequent proceeding.

He contends that the first Gersh factor has been applied the same way regardless of this temporal difference, with the purpose of ensuring that the nature of the proceeding factors into the public policy reason for extending the privilege. Dr. Brenner argues that adopting an approach where the first prong turns on an inquiry into the rank of the defamed employee would deter legitimate complaints against low-level employees for fear of retaliation.

IV

Under Maryland law, to present a prima facie case of defamation, 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 statement, and (4) that the plaintiff thereby suffered harm. Smith v. Danielczyk, 400 Md. 98, 115 , 928 A.2d 795, 805 (2007). A defamatory state ¹⁹⁹ ment 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 associating with, that person.” Gohari v. Darvish, 363 Md. 42, 55 , 767 A.2d 321, 327 (2001) (quoting Rosenberg v. Helinski, 328 Md. 664, 675 , 616 A.2d 866, 871 (1992)). Depending upon the circumstances, a defendant in a defamation suit may assert a conditional or an absolute privilege. 2 Danielczyk, 400 Md. at 116-17 , 928 A.2d at 806 .

See generally Dan B. Dobbs, The Law of Touts, §§ 413-414 (2000). An absolute privilege provides complete immunity from suit. The grant of absolute privilege was first applied in Maryland to witnesses in judicial proceedings in Hunckel v. Voneiff, 69 Md. 179 , 14 A. 500 (1888). We have articulated the longstanding public policy behind the privilege as follows: “[I]t is of the greatest importance to the administration of justice that witnesses should go upon the stand with their minds absolutely free from apprehension that they may subject themselves to an action of slander for what they may say while giving their testimony.... ‘The witness speaks ... under the control of the court; is compelled to speak, with no right to decide what is immaterial; and he should not be subject to the possibility of an action for his words.’ ” Id. at 187-88 , 14 A. at 501 (internal citation omitted).

Based on this justification, we provided absolute privilege for statements made by a witness in the course of judicial proceedings. Reichardt v. Flynn, 374 Md. at 366-67 , 823 A.2d at 569 ²⁰⁰ (quoting Hunckel, 69 Md. at 193 , 14 A. at 504 ); Bartlett v. Christhilf, 69 Md. 219, 223-27 , 14 A. 518, 519-20 (1888). The privilege applies even when the witness publishing the defamatory statement does so maliciously, despite known falsity, or under otherwise unreasonable conduct. Reichardt, 374 Md. at 367 , 823 A.2d at 569 ; Schaub v. O’Ferrall, 116 Md. 131, 138 , 81 A. 789, 792 (1911).

Maryland follows the minority English rule, where the privilege applies irrespective of the statement’s relevance to the proceeding. Reichardt, 374 Md. at 367 , 823 A.2d at 569 ; Korb v. Kowaleviocz, 285 Md. 699, 703-04 , 402 A.2d 897, 898-99 (1979); Schaub, 116 Md. at 138-39 , 81 A. at 792 . We have upheld the application of absolute privilege for statements by witnesses in the courtroom during the course of a trial. Korb, 285 Md. at 704 , 402 A.2d at 899 ; Maulsby v. Reifsnider, 69 Md. 143, 164 , 14 A. 505, 511 (1888).

Absolute privilege applies also to statements “contained in pleadings, affidavits or other documents directly related to the case.” Keys v. Chrysler Credit Corp., 303 Md. 397, 403-04 , 494 A.2d 200, 203 (1985) (applying absolute immunity to the issuance of a 'writ garnishing wages post-judgment); Di Blasio v. Kolodner, 233 Md. 512 , 197 A.2d 245 (1964) (finding stricken allegations are protected by the privilege); Bartlett, 69 Md. at 227 , 14 A. at 520 (holding privileged a petition alleging contempt of court in an ongoing proceeding). The privilege extends also to statements that serve to initiate a judicial proceeding. See, e.g., Kerpelman v. Bricker, 23 Md. App. 628, 630 , 329 A.2d 423, 425 (1974). In 1980, this Court extended the privilege to statements prepared for possible use in an action, but not actually introduced as part of the proceeding.

Adams v. Peck, 288 Md. 1 , 415 A.2d 292 (1980). One year later, the Court addressed whether absolute privilege could apply in administrative proceedings in Gersh v. Ambrose, 291 Md. 188 , 434 A.2d 547 (1981). In Gersh , an assistant state’s attorney made allegedly defamatory remarks about a member of the city’s community relations commission at a public hearing before that commission. While declining to apply the privilege in the particular ²⁰¹ case because of the lack of formal procedure attendant to the open hearing and an insufficiently compelling public interest, we nevertheless recognized that the absolute privilege afforded judicial proceedings could extend to adjudicatory hearings before administrative bodies.

Id. at 193 , 434 A.2d at 549-50 . We noted that when administrative proceedings’ framework and protections are functionally comparable to judicial processes, immunity could be safely extended to cover such proceedings. Id. at 192-93 , 434 A.2d at 549-50 . Importantly, the Court chose not to limit the test for whether to apply the privilege to only the existence of adequate procedural safeguards.

Instead, we provided that the analysis should examine such procedural safeguards in conjunction with the nature of the public function of the proceeding: “[W]e have decided that whether absolute witness immunity will be extended to any administrative proceeding will have to be decided on a case-by-case basis and will in large part turn on two factors: (1) the nature of the public function of the proceeding and (2) the adequacy of procedural safeguards which will minimize the occurrence of defamatory statements.” Id. at 197 , 434 A.2d at 551-52 . The Court declined to apply the doctrine of privilege because the safeguards were insufficient and because the public interest was not sufficient to outweigh potential harm to the individual, reasoning as follows: “In the instant case the public interest sought to be advanced is far less compelling.... Moreover, we find nothing in the record before us to indicate the presence of conditioning devices or safeguards ... which are present in judicial proceedings.... The public benefit to be derived from testimony at Commission hearings of this type is not sufficiently compelling to outweigh the possible damage to individual reputations to warrant absolute witness immunity.” Id. at 196 , 434 A.2d at 551 (emphasis added).

The test, since its establishment in Gersh , has been applied by this Court in five cases. ²⁰² In Miner v. Novotny, 304 Md. 164 , 498 A.2d 269 (1985), this Court applied absolute immunity to citizen complaints of police brutality that led to an administrative hearing. After determining there were sufficient procedural safeguards under the second factor of Gersh , we noted as follows: “Our society vests its law-enforcement officers with formidable power, the abuse of which is often extremely detrimental to the public interest. Citizen complaints of such abuses, and the administrative disciplinary procedure which has been developed to investigate these complaints, serve a public function of vital importance by providing a mechanism through which abuses may be reported to the proper authorities, and the abusers held accountable. “The viability of a democratic government requires that the channels of communication between citizens and their public officials remain open and unimpeded. Were complaints such as Novotny’s not absolutely privileged, the possibility of incurring the costs and inconvenience associated with defending a defamation suit might well deter a citizen with a legitimate grievance from filing a complaint.

We therefore conclude that the possible harm a false brutality complaint may cause to a law-enforcement officer’s reputation, despite the procedural safeguards provided by the LEOBR, is outweighed by the public’s interest in encouraging the filing and investigation of valid complaints.” Id. at 176, 498 A.2d at 274-75 . The “inhibition of citizens’ criticisms of those entrusted with their protection” was a “far worse evil” than the harm that “a false accusation of brutality may have on a law-enforcement officer.” Id. at 177 , 498 A.2d at 275 . Next, in McDermott v. Hughley, 317 Md. 12 , 561 A.2d 1038 (1989), we reaffirmed the basis for extending absolute immunity, to prevent unduly hindering important speech, and to ensure that “otherwise actionable conduct thus is protected where the accused acts in furtherance of a recognized socially important interest.” Id. at 23 , 561 A.2d at 1044 . We noted that McDermott “assert[ed] the importance to the public of having mental health care professionals render unfettered ²⁰³ diagnoses particularly where a police officer is involved.” Id. at 25 , 561 A.2d at 1045 .

Nevertheless, we declined to extend the privilege to a psychologist who issued a requested report evaluating the fitness of an officer in the police department’s horse-mounted patrol unit because of the absence of procedural safeguards in the proceeding. 3 In Odyniec v. Schneider, 322 Md. 520 , 588 A.2d 786 (1991), a patient underwent a required physical examination during the investigation of her pending medical malpractice claim before the Health Claims Arbitration Office. The examining doctor, who was expected to later present his expert testimony before the arbitration panel, told the patient during his assessment that her previous doctor had performed unnecessary medical procedures on her. The treating doctor filed a complaint alleging defamation, and this Court held that absolute immunity barred suit. Where the statement was made by a witness in connection with a legislatively-mandated arbitration process, we found that both prongs of the Gersh test had been met.

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