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Seley-Radtke v. Hosmane

Court of Appeals of Maryland

November 22, 2016

KATHERINE SELEY-RADTKE
v.
RAMACHANDRA S. HOSMANE

          Argued: October 11, 2016

         Circuit Court for Baltimore County Case No. 03-C-12-007007

          Barbera, C.J. Greene Adkins McDonald Watts Hotten Getty, JJ.

          OPINION

          WATTS, J.

         This case involves a matter of first impression requiring this Court to determine the standard of proof necessary to overcome a common law conditional privilege in a purely private defamation action.[1] Purely private defamation involves a defamation action that arises "when the reputation of a private individual is tarnished by a report of a private matter not of general or public concern[.]" Jacron Sales Co. v. Sindorf, 276 Md. 580, 588, 350 A.2d 688, 693 (1976). Although this Court and the Court of Special Appeals have addressed issues concerning the standard of proof of fault in defamation cases, we have not been specifically asked to decide the standard of proof necessary to overcome a common law conditional privilege in a purely private defamation action. In addressing this matter of first impression, we are confronted with two alternative standards: proof by a preponderance of the evidence or proof by clear and convincing evidence.

         Although defamation jurisprudence traces its origins to a number of seminal First Amendment cases of the United States Supreme Court, the resolution of defamation claims brought by private individuals has largely been left to the province of State courts. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 347-48 (1974). In cases of purely private defamation, this Court has held that proof of fault must meet the standard of the preponderance of the evidence, the quantum of proof ordinarily required in other types of actions for negligence. See Jacron, 276 Md. at 596-97, 350 A.2d at 697-98. Specifically, this Court has held that a "standard of negligence" as set forth in the Restatement (Second) of Torts § 580B (Am. Law Inst. 1977), [2] is to be applied in cases of purely private defamation. Jacron, 276 Md. at 596, 350 A.2d at 697. Under this standard, the burden of proving falsity falls upon the plaintiff, rather than the burden of proving the truth of the alleged defamatory statement falling upon the defendant. Id. at 597, 350 A.2d at 698. If the defendant asserts a common law conditional privilege, the plaintiff bears the additional burden of overcoming that privilege to prevail on the defamation claim.

         It is well established that, in a defamation action, a defendant may assert a qualified or conditional privilege. See Gohari v. Darvish, 363 Md. 42, 55, 767 A.2d 321, 327 (2001). A common law conditional privilege arises from the principle that a defendant may not be held liable for an otherwise provable defamatory statement if publication of the statement advances social interests that outweigh a plaintiff's reputational interest. See Marchesi v. Franchino, 283 Md. 131, 135, 387 A.2d 1129, 1131 (1978). A defendant may also assert what has been described in case law as a First Amendment conditional privilege. The Supreme Court has stated that statements pertaining to public officials and to public figures on matters of public concern merit special protection in our society; thus, such statements are subject to a conditional privilege-the First Amendment conditional privilege-that is overcome only by actual malice, i.e., "knowledge that [the statement] was false or with reckless disregard of whether it was false or not." New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964); Curtis Publ'g Co. v. Butts, 388 U.S. 130, 155 (1967); Gertz, 418 U.S. at 335.[3]

         The existence of both common law and First Amendment conditional privilege is a question of law, and the defendant has the burden of proof with respect to establishing the privilege. See Piscatelli v. Van Smith, 424 Md. 294, 307, 35 A.3d 1140, 1147 (2012). If a conditional privilege is established, a plaintiff seeking to rebut the privilege must do so by demonstrating that the defendant made the alleged statement with malice, defined as "a person's actual knowledge that his or her statement is false, coupled with his or her intent to deceive another by means of that statement." Id. at 307-08, 35 A.3d at 1148 (citations, brackets, and internal quotation marks omitted). The definition of malice-a person's actual knowledge that his or her statement is false, coupled with his or her intent to deceive another by means of the statement-does not cover the standard of proof necessary to overcome the conditional privilege. Case law demonstrates that the standard of proof that is required to overcome a First Amendment conditional privilege is clear and convincing evidence of knowledge of a statement's falsity or reckless disregard of whether the statement was false or not. See New York Times, 376 U.S. at 279-80. In this case, however, it is the standard of proof that an individual must satisfy to overcome a common law conditional privilege, i.e., to establish malice, in a purely private defamation action that is at issue. For the reasons stated below, we hold that, in a purely private defamation action, an individual asserting a defamation claim must overcome a common law conditional privilege by a preponderance of the evidence.

         BACKGROUND

         The facts giving rise to this purely private defamation action are as follows. Katherine Seley-Radtke ("Seley-Radtke"), Ph.D., Petitioner, and Ramachandra S. Hosmane, Ph.D. ("Hosmane"), Respondent, were colleagues in the Department of Chemistry at the University of Maryland, Baltimore County ("UMBC"). Hosmane was employed as a professor of chemistry at UMBC from 1982 until 2010, when he resigned following allegations of sexual assault of a graduate student. Based on allegations that Hosmane had sexually assaulted one of his graduate students, Brahmi Shukla ("Shukla"), [4]UMBC officials conducted an administrative investigation and determined that Hosmane had violated UMBC's sexual harassment policy. In addition to allegations of sexual assault, UMBC investigated whether an e-mail sent to Shukla regarding the sexual assault, which Shukla characterized as threatening, had been authored by Hosmane. The e-mail was sent from a person named "Nimmy Watson, " a person unknown to Shukla; Shukla testified at trial that the contents of the Watson e-mail "scared" her.

         According to Hosmane, on December 10, 2009, UMBC informed him of the results of the administrative investigation and provided him with three options: (1) submit to a two-year suspension without pay; (2) avail himself of the administrative appeal process; or (3) retire without the results of the investigation being made public. Hosmane selected the third option and resigned and retired, effective January 1, 2010. As a result, UMBC did not make public the findings of its investigation, nor was Hosmane sanctioned by UMBC.

         The Office of the State's Attorney for Baltimore County, however, opened a criminal case against Hosmane stemming from the alleged sexual assault, and charged him with fourth-degree sex offense and second-degree assault in the District Court of Maryland sitting for Baltimore County, but subsequently nolle prossed the charges. Hosmane and Shukla entered into a settlement agreement ("the settlement agreement") concerning the sexual assault matter, in which Hosmane was to pay Shukla $10, 000 and Shukla was to withdraw any civil and criminal claims against Hosmane related to the alleged sexual assault.

         On December 10, 2010, Hosmane filed in the Circuit Court for Baltimore County ("the circuit court") a complaint against UMBC and other defendants related to his resignation from UMBC ("the UMBC case"). While the UMBC case was pending, Hosmane submitted a Maryland Public Information Act ("public information") request seeking documents from UMBC. In August 2011, Hosmane received a number of documents from UMBC as a result of the public information request. As a result, on July 6, 2012, Hosmane filed in the circuit court a two-count complaint against Seley-Radtke seeking damages for defamation and false light invasion of privacy. In the complaint, Hosmane alleged "some of the numerous instances in which" Seley-Radtke had defamed him:

a. In 2009, [Seley-Radtke] told the chemistry department chair, at least one co-worker, general counsel for UMBC, and others, that [Hosmane] had keys to many offices in the chemistry department, that he had stolen private documents regarding [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 [Hosmane]'s employment with UMBC had come to an end, [Seley-Radtke] wrote an email to the chemistry department chair and general counsel for UMBC in which she stated, among several defamatory statements, that [Hosmane] "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 days she wrote the email referenced above, [Seley-Radtke] wrote another email to these same people and referred to [Hosmane] "stealing documents" and implied that [Hosmane] had falsely accused one of his students of trying to kill him. In this second email, [Seley-Radtke] also called [Hosmane] 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. [Seley-Radtke] has additionally claimed in communicating with others that [Hosmane] 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. [Seley-Radtke] has also claimed that [Hosmane], in speaking with his students, would make comments to them about [Seley-Radtke]'s body parts, particularly her breasts and buttocks. This is totally false.
f. Moreover, [Seley-Radtke] has claimed that [Hosmane] tried to convince one of [Seley-Radtke]'s former post-doctorate students to file a formal complaint against [Seley-Radtke], even going so far as to offer the student a job if he would file the complaint. Again, this is entirely untrue.

         (Ellipses in original).

         In her answer to the complaint, among other things, Seley-Radtke raised the affirmative defense of privilege, contending that "[a]ny statements made by [her] were privileged and confidential communications."

         On April 4, 2013, Hosmane filed an amended complaint naming UMBC and the State as additional defendants in the Seley-Radtke case. The circuit court subsequently consolidated the UMBC case and the Seley-Radtke case for the purpose of trial only. On April 29, 2014, the circuit court granted the State's and UMBC's motion for summary judgment as to Hosmane's claims for defamation and invasion of privacy in the Seley-Radtke case on the basis of sovereign immunity. The UMBC case and Hosmane's case against Seley-Radtke proceeded to a jury trial.

         Prior to trial, Hosmane filed a motion in limine concerning several evidentiary matters; a few days later, Hosmane filed a supplemental motion in limine. In relevant part, Hosmane sought to exclude documents and testimony concerning the settlement agreement between himself and Shukla, and to redact from two exhibits the following language from Seley-Radtke's e-mail: "Btw . . . I spoke to Det. John Taylor the other day and he mentioned that there are some potential new charges against [Hosmane], due to the harassing emails. Can't that keep him off campus?"[5] (Ellipsis in original). During trial, the circuit court denied the motion in limine as to those two matters. As such, during trial, Shukla was permitted to testify about the settlement agreement, and Seley-Radtke's un-redacted e-mails, containing the language that Hosmane sought to redact, were admitted into evidence.

         At trial, due to a scheduling issue, Shukla was permitted testify first. Shukla testified about the settlement agreement. Specifically, during Shukla's direct examination, the following exchange occurred:

[SELEY-RADTKE'S COUNSEL]: Now you also mentioned, a while back in your testimony, that there were criminal charges filed against [] Hosmane for the assault? What happened with that criminal case?
[HOSMANE'S COUNSEL]: Objection.
THE COURT: Overruled. You may answer the question.
[SHUKLA]: It was dismissed.
[SELEY-RADTKE'S COUNSEL]: And why was it dismissed to your knowledge?
[HOSMANE'S COUNSEL]: Objection.
THE COURT: Overruled. You may answer the question.
[SHUKLA]: Because there was a settlement of about $10, 000 made, and therefore it was dismissed.
[HOSMANE'S COUNSEL]: Objection. Move to strike.
THE COURT: Overruled.

         Before closing arguments, the circuit court reviewed proposed verdict sheets and jury instructions with the attorneys. Hosmane requested that the circuit court give a jury instruction on the republication or repetition of defamatory statements. The circuit court declined to give the instruction. The circuit court, however, gave an instruction concerning opinions as defamation.

         During review of the proposed verdict sheets and jury instructions, Seley-Radtke contended that her statements regarding Hosmane were protected by a common interest conditional privilege.[6] The circuit court ruled, as a matter of law, that Seley-Radtke was entitled to a conditional privilege for the allegedly defamatory statements; Hosmane did not argue otherwise.

         As to the standard for overcoming the conditional privilege, Hosmane requested that the circuit court give Maryland Civil Pattern Jury Instruction 12:12, which provides that, "[i]n 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." MPJI-Cv 12:12 (4th ed., 2013 Supp.). On the other hand, Seley-Radtke argued that the pattern jury instruction should be "modified" to use language that the standard of proof is clear and convincing evidence, not a preponderance of the evidence. The circuit court agreed with Seley-Radtke and determined that the applicable standard of proof to overcome the conditional privilege was clear and convincing evidence. The circuit court stated:

[T]he cases that have been cited so far, and I've reviewed them . . . I have yet to find in any of the cases that have been cited in this court this morning and handed to the court, plus other cases I've read where there's a suggestion that the privilege is defeated by a preponderance of the evidence. I just haven't seen it. . . . So, . . . the instruction is gonna be by clear and convincing evidence.

         The circuit court instructed the jury 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."

         On May 9, 2014, the jury found in favor of Seley-Radtke. Hosmane noted a timely appeal to the Court of Special Appeals. On February 24, 2016, in a reported opinion, the Court of Special Appeals reversed the circuit court's judgment and remanded the case for a new trial. See Hosmane v. Seley-Radtke, 227 Md.App. 11, 16, 132 A.3d 348, 351 (2016). The Court of Special Appeals held that the circuit court "erred in instructing the jury that the [standard] of proof in overcoming the conditional privilege was clear and convincing evidence rather than by a preponderance of the evidence[.]" Id. at 16, 123 A.3d at 351. The Court of Special Appeals explained:

Recognizing that malice means different things in different context, the Court [of Appeals has] adopted a "uniform standard" or definition of malice applicable to determining abuse of a conditional privilege and required the same to establish punitive damages. This did not change or elevate the burden of proof in common law defamation required to overcome the conditional privilege. No where [sic] did the Court of Appeals say that plaintiffs in a common law defamation action, involving private individuals, not implicating the First Amendment, were entitled to higher protection and hence the higher burden of proof. . . . We hold that in common law tort defamation involving only private individuals, the burden of persuasion a plaintiff must satisfy to overcome the conditional privilege is preponderance of the evidence, while in First Amendment cases it is clear and convincing evidence.

Id. at 27-28, 132 A.3d at 358 (citations omitted). Thus, the Court of Special Appeals remanded the case to the circuit court for a new trial. Id. at 16, 123 A.3d at 351.

         In its opinion, "[f]or the guidance of the [circuit] court on retrial, " the Court of Special Appeals addressed two evidentiary issues raised by Hosmane. Id. at 16, 29, 123 A.3d at 351, 359. Specifically, the Court of Special Appeals addressed the circuit court's decision not to redact part of an e-mail written by Seley-Radtke that was admitted into evidence that referenced "potential new charges" and "harassing emails, " and the circuit court's decision to admit Shukla's testimony concerning the settlement agreement. Id. at 29-31, 132 A.3d at 359-60. The Court of Special Appeals determined that the two sentences in Seley-Radtke's e-mail and Shukla's testimony about the settlement agreement were not relevant, were "highly prejudicial[, ]" and could have led the jury to believe that Hosmane "was a sex abuser who paid money to resolve such a claim, that he was the subject of unrelated charges and was sending harassing emails." Id. at 32, 132 A.3d at 361.

         Seley-Radtke filed a petition for a writ of certiorari, which this Court granted on May 20, 2016. Seley-Radtke v. Hosmane, 448 Md. 29, 136 A.3d 816 (2016).

         DISCUSSION

         I.

         Put simply, Seley-Radtke contends that clear and convincing evidence is the proper standard of proof to overcome a common law conditional privilege in a purely private defamation action. Specifically, Seley-Radtke argues that the malice required for overcoming a common law conditional privilege and the malice required for establishing punitive damages are, by definition, the same, and, therefore, the standard of proof necessary to prove both should be the same. Seley-Radtke asserts that adopting the clear and convincing evidence standard as the standard of proof necessary to overcome a common law conditional privilege promotes the State's policy of protecting free speech and furthers consistency in the law of defamation.

         Hosmane responds that the application of the preponderance of the evidence standard to overcome a common law conditional privilege is consistent with well-established Maryland case law. Hosmane contends that the statements in this case that are subject to a common law conditional privilege are already sufficiently protected by the definition of malice, which requires a plaintiff to prove "that the defendant made his or her statement with malice, defined as a person's actual knowledge that his or her statement is false, coupled with his or her intent to deceive another by means of the statement." (Citation, internal quotation marks, and emphasis omitted). Hosmane argues that this definition of malice sufficiently protects privileged communications and that the standard of proof need not be clear and convincing evidence. Hosmane asserts that applying the clear and convincing evidence standard of proof would significantly narrow the distinction between purely private defamation actions and those implicating the First Amendment, thereby providing fewer protections to private individuals who have been defamed. Additionally, Hosmane maintains that adopting the clear and convincing evidence standard would upend well-established case law and create confusion in Maryland defamation jurisprudence rather than provide clarity.

         This Court reviews a trial court's giving of a jury instruction for abuse of discretion. See Keller v. Serio, 437 Md. 277, 283, 85 A.3d 283, 286 (2014). "In determining abuse of discretion in this context, we look to the following factors: (1) whether the requested instruction was a correct statement of the law; (2) whether it was applicable under the facts of the case; and (3) whether it was fairly covered in the instructions actually given." Id. at 283, 85 A.3d at 286 (citation and internal quotation marks omitted). Whether a jury instruction was a correct statement of the law is a question of law, which we review without deference. See, e.g., Griffin v. Lindsey, 444 Md. 278, 285, 119 A.3d 753, 757 (2015) ("We review questions of law without deference." (Citation omitted)). As this Court has observed, though, even in areas where a trial court has discretion, "no discretion is afforded to trial [court]s to act upon an erroneous conclusion of law." John Hopkins Hosp. v. Pepper, 346 Md. 679, 700, 697 A.2d 1358, 1368 (1997). Accordingly, although we determine whether a trial court's decision as to whether to give a particular jury instruction was an abuse of discretion, we review without deference the issue of whether the jury instruction was a correct statement of the law.

         "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." Gohari, 363 Md. at 54, 767 A.2d at 327 (citation and internal quotation marks omitted). Whether a statement is defamatory is a question of law. Piscatelli, 424 Md. at 306, 35 A.3d at 1147.

         The United States Supreme Court ("the Supreme Court") and Maryland appellate courts have addressed a myriad of issues related to proof of defamation, First Amendment conditional privilege, and common law conditional privileges. In New York Times Co. v. Sullivan, 376 U.S. 254, 256, 279-80 (1964), the Supreme Court considered "the extent to which the constitutional protections for speech and press limit a State's power to award damages in a libel action brought by a public official[, in that case, an elected Commissioner of the City of Montgomery, Alabama, ] against critics of his official conduct[, ]" and held:

The constitutional guarantees [of the First and Fourteenth Amendments] require . . . a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'-that is, with knowledge ...

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