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Hosmane v. Seley-Radtke

Court of Special Appeals of Maryland

February 24, 2016

RAMACHANDRA S. HOSMANE
v.
KATHERINE SELEY-RADTKE, ET AL

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[Copyrighted Material Omitted]

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         Appeal from the Circuit Court for Baltimore County. Mickey Norman, JUDGE

         ARGUED BY: Neil R. Lebowitz of Columbia, MD FOR APPELLANT

         ARGUED BY: Erik J. Delfosse (Tomeka G. Church, Brian E. Frosh, Attorney General on the brief) all of Baltimore, MD. FOR APPELLEE

         ARGUED BEFORE Woodward, Reed, Raker, Irma S. (Retired, specially assigned), JJ.

          OPINION

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         [227 Md.App. 15] 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.

          [227 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 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?
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?

         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]

         [227 Md.App. 17] I.

         In the 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

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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 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."

         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

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the intent to deceive another person by means of the statement."

          [227 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 ...

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