Rosenberg v. Helinski

MURPHY, Chief Judge. We granted certiorari in this defamation action to consider whether a psychologist, whose expert in-court testimony in a child custody matter supported the wife’s accusation that her husband had sexually abused their child, is privileged to reiterate the substance of his testimony to journalists waiting for him outside on the courthouse steps. I This case implicates the volatile mix of a father’s personal reputation, the specter of child sexual abuse, the ubiquitous eye of television, the limits of free speech, and the privileged status accorded to reports of events in court. The dispute in question arose seven years ago in the midst of rancorous divorce and child-custody proceedings involving ⁶⁶⁸ the Respondent, Ronald Helinski; his wife, Jacqueline Garner Helinski; and their infant daughter, Jackie.

A. The underlying domestic litigation The Helinskis sought to end their marriage of some five years. At a hearing held on July 26, 1985, before the Circuit Court for Baltimore County (Jacobson, J.), Mrs. Helinski opposed her husband’s request for unsupervised visitation with the child, who was then two years old. She alleged that Mr. Helinski had previously sexually abused their daughter. The mother offered as part of her evidence the opinion of expert witness Dr. Charles Shubin, a pediatrician at Baltimore’s Mercy Hospital, who testified that his examination of Jackie had revealed a well-healed scar within the child’s genitalia.

Shubin asserted that the scar was characteristic of, and diagnostic of, a sexual injury. The trial court granted the parties a divorce, and permitted Mr. Helinski rights of unsupervised visitation with his daughter. It said: “I do not believe Mr. Helinski has demonstrated in any way he is the kind of man that is going to do these terrible things to his own child. I don’t know what is behind all of this, but I do not believe that he is guilty of ... any child abuse of his two year old child; and I will not deprive him of the opportunity to visit with that child.” The trial court stated that while it could not explain the origin of the scarring described by Dr. Shubin, it found no connection between the injury and Mr. Helinski’s conduct.

Mrs. Helinski immediately filed a motion to amend the visitation provisions of the divorce decree. She also denied her ex-husband access to the child, which prompted him to petition the trial court to hold the mother in contempt for violating the visitation order. Thereafter, on August 20, 1985, the Helinskis appeared once more before the Circuit Court for Baltimore County where Mrs. Helinski repeated her suspicions of child abuse as justification for defying the court order. She proffered the testimony of Petitioner ⁶⁶⁹ Leon Rosenberg, Ph.D., child psychologist and associate professor of medical psychology and pediatrics at Baltimore’s Johns Hopkins University School of Medicine, whom Mrs. Helinski had consulted in the interim between the two hearings.

The trial court then, in effect, reopened the hearing of July 26 in order to reconsider the question of visitation, and thereby addressed for a second time the allegations of sexual abuse along with the new issue of contempt. Rosenberg testified that the diagnosing physician, Dr. Shubin, had referred Mrs. Helinski and Jackie to him. He stated that he had evaluated Jackie three times in all, first alone with Jackie, and twice more in the company of the mother. During the first interview, Rosenberg said, he engaged the child in conversation, observed her gestures towards her private parts, and the two together made drawings on paper to allow the child an additional way to refer to the parts of her body.

He testified that by these methods he elicited from Jackie that she feared her father because he had hurt her in the genital area, and that she was afraid to see her father out of anxiety that he might hurt her there again. Rosenberg opined that the youngster’s presentation had been honest and spontaneous, without coaching by the mother or another adult. Calling the contents of the interview “extremely clear,” the psychologist concluded that the child had undergone a painful and frightening experience involving sexual abuse by her father. Rosenberg said that his evaluation included a family history taken from Mrs. Helinski, the mother’s accounts of Jackie’s behavior arousing suspicion of abuse, the medical report of Dr. Shubin, a telephone conversation with Shubin regarding that report, and a telephone conversation with a Child Protective Services social worker, Martin Piepoli, who had earlier interviewed the child using anatomically correct dolls, with reference to which Jackie had indicated that her father had hurt her in the genital region.

Rosenberg acknowledged that he never spoke with Mr. Helinski before ⁶⁷⁰ reaching his conclusions. He conceded, too, that he had known from the outset that the trial court at the July 26 hearing had found no evidence of abuse by the father. Testifying that unsupervised visits posed a danger to the child, Rosenberg recommended that they be suspended until Mr. Helinski received psychological examination and counseling, which might then lead to supervised visits. Stating that it was not convinced that the father had caused the child’s sexual injury, but that some danger existed, the trial court ordered psychiatric evaluations of both Mr. and Mrs. Helinski, with a ruling on visitation to await the results; the court further granted Mr. Helinski’s request that Jackie be examined by a child psychologist of his own choosing.

The rest of the August 20 hearing dealt with procedural matters and with Mrs. Helinski’s alleged contempt of court. 1 B. The instant litigation Newspaper reporters attended the August 20 hearing, as did a television artist who made sketches of the parties, the presiding judge, and Dr. Rosenberg in anticipation of their later use for media purposes. When the hearing ended, Rosenberg left the courthouse. He was met at the courthouse steps by a television camera crew and a T.V. newswoman, Ann Kellan, representing the Baltimore A.B.C. affiliate station WJZ, who undertook to ask him questions about the case. 2 The record does not preserve their conversation in its entirety. It does, however, contain three short passages, or T.V. film “sound-bites,” that were extracted from that conversation and made part of WJZ’s news stories about ⁶⁷¹ the hearing.

The more comprehensive story ran during that evening’s six o’clock newscast. Some 2 minutes and 15 seconds in length, the story identified the Helinskis by name, incorporated the artist’s sketches, recapitulated the mother’s allegations and Dr. Rosenberg’s confirmation of them, and summarized the court’s rulings. 3 Interspersed throughout the story were the three passages showing Rosenberg as he spoke to the television camera, which we now set forth verbatim: “The child talked very directly about being hurt by her father and she talked about being hurt by her father in the genital area. “And when she finally talked about being hurt, she expressed real fear, real anxiety, and two-and-a-half year old child[ren] 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, ah, overcoming any negative effects.” These remarks to the camera on the courthouse steps essentially corresponded to the substance of Rosenberg’s testimony during the hearing. A shorter version of the story, running 40 seconds in length and featuring only the first of Rosenberg’s statements, ran during that evening’s 11 o’clock newscast on WJZ.

Mr. Helinski sued Dr. Rosenberg in the Circuit Court for Baltimore City on August 15, 1986, for defamation. He pleaded that Rosenberg’s statements were false, defamatory on their face in imputing to the father the crime of child ⁶⁷² sexual abuse, and made either negligently or maliciously. Rosenberg answered with a general denial of liability, and interposed the affirmative defense that the statements enjoyed either an absolute or a qualified privilege that would defeat the complaint. Prior to trial, Rosenberg filed a motion for summary judgment pursuant to Maryland Rule 2-501.

The court (Byrnes, John Carroll, J.), after a hearing, granted Rosenberg’s summary judgment motion on December 13, 1990. Judge Byrnes first determined that Rosenberg’s comments were protected by the privilege given to those who recount in-court testimony. He said: “[Rosenberg] was not providing an opinion to the reporter, since that was not requested; but rather a restatement of opinion testimony. Nor was he presenting an ‘idea’ of his, something in the intellectual firmament for the public to chew on and pass around in the marketplace 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 opinion or belief that what the child said was acceptable to him clinically as true. ****** "... Here what persuades the Court in the final analysis is that you have a professional called into Court to speak about a matter. He does so truthfully, to his best professional judgment, a judgment which the Court in part accepted.

He then is merely asked by a reporter in effect ‘What did you say’ and he responds with what he said and believed based upon, not accusations of another person, but upon his own evaluation, an evaluation which could not be made false, merely because Judge Jacobson was not convinced in a judicial tribunal, that Mr. Helinski did not do what he was accused of doing.” Judge Byrnes next concluded that there was no evidence that Rosenberg acted with malice, or had reason to know that his statements were false, or spoke with reckless disregard for the truth concerning the child’s statements to ⁶⁷³ him and his own testimony. Finally, the trial court found no evidence of negligence on Rosenberg’s part. Judge Byrnes observed that the psychologist’s remarks at the T.V. interview matched his testimony at the hearing. He said: “It is virtually stipulated in the case that what he [Rosenberg] said he said, he did say.” Judge Byrnes held, too, that as a matter of law Rosenberg could not be found negligent in evaluating Jackie and reaching his diagnosis of abuse by the father.

In this regard, the trial court refused to admit the proffered evidence of Mr. Helinski’s expert witness, forensic psychologist Dr. David Shapiro, who challenged the thoroughness of Rosenberg’s evaluation. The court found that Shapiro, by his own admission, had no expertise in the field of child sexual abuse examinations. The Court of Special Appeals reversed the summary judgment and remanded the case to the circuit court for further proceedings. Helinski v. Rosenberg, 90 Md.App. 158 , 600 A.2d 882 (1992).

It first held that Judge Byrnes erred in ruling, as a matter of law, that the forensic psychologist, Dr. Shapiro, was unqualified to testify as to the invalidity of Dr. Rosenberg’s technique in evaluating Jackie. Id. at 170 , 600 A.2d 882 . It turned next to the question of privileged statements. Referring to the Restatement (Second) of Torts § 611 (1977), which treats reports of official proceedings or public meetings, the intermediate appellate court observed that while a privilege to defame exists for accurate reports of in-court testimony, it is not settled whether the privilege extends to “self-reported” remarks; that is, it is uncertain to what extent, if any, one can make defamatory statements in a privileged forum and then repeat them to others beyond that forum.

Id. at 172-73, 600 A.2d 882 . The court further held that a self-report privilege would apply unless the person repeating his own defamatory statements acts with the intention of causing harm to another. Id. at 174-75 , 600 A.2d 882 . The Court of Special Appeals thus implicitly directed the circuit court, upon remand, to examine more closely the question ⁶⁷⁴ of whether Dr. Rosenberg acted with such a harmful intention when he spoke to the television news reporter.

We granted Rosenberg’s certiorari petition. He asks that we reverse the judgment of the intermediate appellate court and reinstate the judgment of the Circuit Court for Baltimore City. He argues, inter alia, that the Court of Special Appeals permitted the question of negligence, by way of the disputed expert testimony, to intrude into a sphere of common and constitutional law that requires the presence of malice before it will recognize an actionable wrong, and that no malice is present here. He offers three independent theories triggering a malice standard: 1) that his statements were subject to the so-called fair report privilege; 2) that his statements addressed a matter of public concern, child abuse; or 3) that his statements discussed a person, Mr. Helinski, so steeped in controversy as to be a public figure.

There is no need to reach the second and third of these points. Believing that Dr. Rosenberg’s comments on the courthouse steps were legally privileged, we shall reverse. II A trial court may grant summary judgment when pretrial documents show that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Maryland Rule 2-501(e).

In reviewing a disposition by summary judgment, an appellate court will consider primarily whether a factual dispute exists, and in so doing resolve all inferences against the party making the motion. McDermott v. Hughley, 317 Md. 12, 22 , 561 A.2d 1038 (1989); Beard v. American Agency, 314 Md. 235, 246 , 550 A.2d 677 (1988). The standard for appellate review of a trial court’s grant of summary judgment is whether the trial court was legally correct, since a trial court decides issues of law, not fact, when granting summary judgment. Heat & Power v. Air Products, 320 Md. 584, 591-92 , 578 A.2d 1202 (1990); Lynx, Inc. v. Ordnance Products, 273 Md. 1, 8 , 327 A.2d 502 (1974). ⁶⁷⁵ To recover for defamation, a plaintiff must ordinarily establish that the defendant made a defamatory statement to a third person; that the statement was false; that the defendant was legally at fault in making the statement; and that the plaintiff thereby suffered harm.

Hearst Corporation v. Hughes, 297 Md. 112, 120-125 , 466 A.2d 486 (1983); see Jacron Sales Co. v. Sindorf, 276 Md. 580 , 350 A.2d 688 (1976). It is unnecessary to draw nice distinctions in deciding whether Rosenberg’s oral comments made to a television news camera and recorded on film for broadcast constituted libel or slander; the tort at hand is the tort of defamation. See Hearst, supra, 297 Md. at 118 , 466 A.2d 486 ; Laurence H. Eldredge, The Law of Defamation § 13 (1978) (adopting the term “defamacast”). 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 associating with, that person.

Batson v. Shiflett, 325 Md. 684, 722-23 , 602 A.2d 1191 (1992). Rosenberg’s three statements to the television reporter, taken in the aggregate, were defamatory in nature. Even though his comments to some extent reconveyed the daughter’s own remarks, the psychologist, in effect, labeled Mr. Helinski a child sex abuser; he repeated the child’s allegations and then declared that the child’s fear and anxiety of further abuse were genuine. Rosenberg thus branded Helinski as a man who committed an act reviled by society, which also constitutes a felony.

See Maryland Code (1957, 1992 Repl.Vol.) Art. 27, § 35A. For the purpose of our analysis, we accept the well-pleaded allegations of Helinski’s complaint as true, as well as Judge Jacobson’s original finding that no evidence at the first hearing linked Jackie’s genital scarring to any conduct by her father. Moreover, we shall assume, without deciding, that Rosenberg acted negligently in evaluating Jackie and in communicating the results of his examination. We accept Helinski’s position that accusations of child abuse, by ⁶⁷⁶ their very nature, inflict grave harm to one’s reputation.

Nevertheless, the statements in question here are not actionable. Given the circumstances in which he spoke, Rosenberg enjoyed a legal privilege to defame. Ill A. Absolute privilege It is well settled in Maryland that statements made by a witness during the course of judicial proceedings are absolutely privileged, and therefore cannot serve as the basis for an action in defamation. Odyniec v. Schneider, 322 Md. 520, 526 , 588 A.2d 786 (1991); Miner v. Novotny, 304 Md. 164, 170 , 498 A.2d 269 (1985); Adams v. Peck, 288 Md. 1, 3 , 415 A.2d 292 (1980); Korb v. Kowaleviocz, 285 Md. 699, 704 , 402 A.2d 897 (1979).

This absolute privilege protects the witness from liability even if his motive was malicious, he knew the statement was false, or his conduct was otherwise unreasonable. Odyniec, supra, 322 Md. at 527 , 588 A.2d 786 ; Adams, supra, 288 Md. at 3 , 415 A.2d 292 ; Maulsby v. Reifsnider, 69 Md. 143, 164 , 14 A. 505 (1888). The privilege remains absolute whether the defamatory statements be relevant or irrelevant to the subject matter of the proceedings. Odyniec, supra, 322 Md. at 527 , 588 A.2d 786 ; Korb, supra, 285 Md. at 704 , 402 A.2d 897 .

The rationale for such an absolute privilege has long been recognized. More than a century ago, we acknowledged “the great importance to the administration of justice that witnesses should testify with minds absolutely free from the apprehension of being annoyed by civil actions for any thing they may say as witnesses.” Hunckel v. Voneiff, 69 Md. 179, 198 , 14 A. 500 (1888). Public policy, i.e. the public interest in free disclosure of evidence leading to a determination of truth, requires that those who participate in the judicial process must be able to do so without being hampered by the fear of private suits for defamation. Adams, supra, 288 Md. at 5 , 415 A.2d 292 .

See 2 Fowler V. Harper ⁶⁷⁷ et al., The Law of Torts § 5.22 (2d ed. 1986). Because of the need for witnesses to speak freely in court, without intimidation by the possibility of civil liability, an individual’s right to redress for defamation is necessarily curtailed. Odyniec, supra, 322 Md. at 528 , 588 A.2d 786 ; McDermott, supra, 317 Md. at 23-24 , 561 A.2d 1038 ; W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 114 (5th ed. 1984). In light of the foregoing authorities, all of Rosenberg’s testimony at the hearing of August 20, 1985, in which he articulated his investigatory methods and his conclusion that Mr. Helinski had sexually abused Jackie, was privileged.

His statements in court are immune from suit. B. Qualified or special privilege to report judicial proceedings Operating in tandem with the absolute privilege accorded participants in court proceedings is a lesser privilege, alternatively described as qualified, conditional, or special, given to persons who report to others defamatory statements uttered during the course of judicial proceedings. Again, the applicable Maryland law has long been settled. Reports of in-court proceedings containing defamatory material are privileged if they are fair and substantially correct or substantially accurate accounts of what took place.

McBee v. Fulton, 47 Md. 403, 417, 426 (1878); Evening News Co. v. Bowie, 154 Md. 604, 610-11 , 141 A. 416 (1928); Brush-Moore Newsp. v. Pollitt, 220 Md. 132, 138 , 151 A.2d 530 (1959); Piracci v. Hearst Corporation, 263 F.Supp. 511, 513 (D.Md.1966), aff'd, 371 F.2d 1016 (4th Cir.1967); Yerkie v. Post-Newsweek Stations, Michigan, 470 F.Supp. 91, 93 (D.Md.1979); Batson, supra, 325 Md. at 727 , 602 A.2d 1191 . Generally speaking, qualified or conditional privileges in defamation cases are forfeited only upon a showing of actual malice; that is, a defendant who makes state ⁶⁷⁸ ments with knowledge of their falsity or with reckless disregard for the truth is not protected. Batson, supra, 325 Md. at 733 , 602 A.2d 1191 ; Marchesi v. Franchino, 283 Md. 131, 139 , 387 A.2d 1129 (1978). Since enunciating in Marchesi the actual malice standard as it applies to the conditional privileges invoked in other settings, typically employment decisions and credit references, this Court has not been presented with a case involving privileged reports of judicial