RAMACHANDRA S. HOSMANE
KATHERINE SELEY-RADTKE, ET AL
[Copyrighted Material Omitted]
from the Circuit Court for Baltimore County. Mickey Norman,
BY: Neil R. Lebowitz of Columbia, MD FOR APPELLANT
BY: Erik J. Delfosse (Tomeka G. Church, Brian E. Frosh,
Attorney General on the brief) all of Baltimore, MD. FOR
BEFORE Woodward, Reed, Raker, Irma S. (Retired, specially
Md.App. 15] Raker, J.
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
Md.App. 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
2. Did the trial court abuse its discretion in allowing
appellees' witness, Dr. Brahmi Shukla, to appear as the
first witness in the trial?
3. 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?
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.
Md.App. 17] I.
Circuit Court for Baltimore County, appellant Dr. Hosmane
filed a two-count complaint sounding in defamation and
invasion 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.
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 Plaintiff's 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 [227 Md.App. 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."
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.
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
Md.App. 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 ...