Adams v. Peck, 1350

• Decision Date: 13 July 1979
• Docket Number: No. 1350,1350
• Citation: 403 A.2d 840,43 Md.App. 168
• Parties: Peter R. ADAMS v. Alan H. PECK.
• Court: Court of Special Appeals of Maryland

Page 168

43 Md.App. 168

403 A.2d 840

Peter R. ADAMS v. Alan H. PECK.

No. 1350.

Court of Special Appeals of Maryland.

July 13, 1979.

Peter Parker, and Harold T. Flanagan, Jr., Baltimore, for appellant.

Charles E. Iliff, Jr., Baltimore, with whom were John H. Mudd and Semmes, Bowen & Semmes, Baltimore, on the brief, for appellee.

Argued before THOMPSON and WILNER, JJ., and JAMES S. GETTY, Specially Assigned Judge.

WILNER, Judge.

Peter R. Adams appeals from the summary judgment entered by the Superior Court of Baltimore City that terminated his libel action against Alan H. Peck. The question that we must decide is whether the privilege that attaches to testimony given by a witness in a judicial proceeding extends to pre-trial communications between a potential witness and counsel that relate to matters at issue in pending litigation.

It is unfortunate that the relevant facts surrounding this controversy are not set forth more directly and concisely in the record, especially as this comes to us from the granting of summary judgment. From the various pleadings, however, and particularly from the document containing the allegedly libelous statement, which was attached as an exhibit to appellant's Declaration, the facts appear to be these.

After a contentious and unhappy marriage, Dr. Adams and his wife separated on July 28, 1976; and on that day a bill and a cross-bill for divorce were filed in the Circuit Court for Baltimore County. The record does not reveal the grounds alleged in these pleadings or the extent to which collateral matters were in dispute. On August 9, 1976, they entered into a "formal" separation agreement under which Mrs. Adams was given custody of their two young children, subject to appellant's right of visitation for up to fifteen hours a week.

In early 1977, the two children young boys aged 21/2 and 4 began to relate to Mrs. Adams bizarre and obviously disturbing tales of sexual activity and molestation suffered at the hands of their father during their visits with him. Mrs. Adams consulted the attorney representing her in the divorce proceedings, Albert S. Barr, III, who referred her to the appellee, Dr. Peck, for a psychiatric evaluation of the children. On February 16, 1977, Dr. Peck interviewed Mrs. Adams and the older of the two boys. During this interview, the child described in considerable detail examples of sexual contact and activity occurring between the father and the children, at the father's insistence, that, if true, can only be described as deliberate, abusive, and grossly abnormal. From what he heard and observed, Dr. Peck concluded that the child was telling the truth; one episode in particular that the child described, Dr. Peck said, "strikes me as something which he could not make up, but probably did witness."

Accepting these stories as credible, Dr. Peck concluded:

"I would urge that he be kept away from his father on a definite basis for a considerable length of time if this story is true, and I have no reason not to believe this. His father is an ill man and in definite need of psychiatric treatment. I have advised Mrs. Adams to keep (the child) from the father and to keep a close eye on him. I will observe him closely over the next few weeks and if I feel this has done definite and permanent harm to him, then I would feel intensive psychiatric therapy with a competent therapist would be warranted. Again I urge that all visitations with the father stop, and the father not be allowed to be around the children."

This statement was the concluding paragraph in a three-page report that Dr. Peck sent to Mr. Barr. It does not appear that he sent the report to anyone else, although it is alleged that Mr. Barr circulated it to his client, to the child's pediatrician, to appellant's attorney, to a judge of the court in which the divorce proceedings were then pending, and possibly to other court personnel. ¹ Within a month after receipt of Dr. Peck's report, a petition was filed to modify appellant's visitation rights. ² The record in this case does not reveal whether that petition has been heard, if so whether Dr. Peck appeared as a witness or whether his report was offered into evidence, or what, if any, changes were made in appellant's visitation privileges. Neither does it reveal the status of the divorce proceedings.

This proceeding was commenced on January 30, 1978 (while the divorce proceeding was still pending), when appellant sued Dr. Peck for $1,500,000 in damages for "falsely and maliciously caus(ing) to be typed or printed, and circulated and published, a certain paper writing in the form of a so-called 'Psychiatric Evaluation', which paper writing falsely and maliciously defamed the plaintiff herein." Although the entire report was attached as an exhibit to the Declaration the part of it singled out for attention and quoted in the Declaration itself was the one sentence: "His father is an ill man and in definite need of psychiatric treatment." Summary judgment in favor of Dr. Peck was granted upon the sole basis that the report, even if defamatory, was absolutely privileged; and that, as noted, is the issue now before us.

The fountainhead of the Maryland law in this area is a trilogy of cases decided by the Court of Appeals on the same day June 13, 1888. The first of these cases, Maulsby v. Reifsnider, 69 Md. 143, 14 A. 505, involved the extent to which words spoken by an Attorney in the course of a judicial proceeding were privileged. There was no apparent dispute as to the existence of a privilege; the question was whether it was an absolute or a qualified one. Based upon the English precedent cited by the Court, the difference was this: if the privilege was absolute, as defined and applied in Munster v. Lamb, L.R. 11 Q.B.Div. 588 (1883), "no action will lie against counsel for slanderous words spoken with reference to and in the course of an inquiry before a judicial tribunal, although they were uttered maliciously, and without any justification, or even excuse, and from personal ill will towards the person slandered." See 69 Md. at 154, 14 A. at 507. In other words under an absolute privilege the test was merely whether the words sued on were spoken in the course of a judicial proceeding; if so, they were not actionable. Under a qualified privilege, there was a second criterion that also had to be met: not only must the words be spoken in the course of a judicial proceeding, they must, as well, have been relevant to that proceeding. See, for example, Mackay v. Ford, 5 Hurl. & Nor. 790, cited 69 Md. at 154, 14 A. 505.

After an extensive and learned review of these two approaches and the English cases from which they arose, a majority of the Court opted for the qualified privilege. "(W)e cannot accept", the Court said at p. 162, 14 A. at p. 510, "the absolute and unqualified privilege laid down in Munster v. Lamb." Thus, the Court went on to say, "if counsel in the trial of a cause maliciously slanders a party, or witness or any other person in regard to a matter that has no reference or relation to, or connection with, the case before the court, he is and ought to be answerable in an action by the party injured." ³

The second case, Hunckel v. Voneiff, 69 Md. 179, 14 A. 500, concerned the extent of the privilege possessed by a Witness ; and, in contrast to the view taken in Maulsby with respect to counsel, the Court concluded that an Absolute privilege existed. ⁴ At p. 187, 14 A. at p. 501, the Court stated quite succinctly the basis for this policy:

"The case now before us is not that of an advocate but of a witness, and in our opinion it 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."

In reaching this conclusion, the Court squarely aligned itself with the English courts, which also had adopted an absolute privilege for witnesses, notwithstanding that the weight of American authority "is in favor of a much greater restriction upon the privilege than is sanctioned by the English decisions." 69 Md. at 193, 14 A. at 504. But, continued the Court:

"(W)e are not controlled by any decision of our own courts, and are at liberty to settle the law for this state according to our best judgment. After a most careful consideration of the subject, we are convinced that the privilege of a witness should be as absolute as it has been decided to be by the English authorities we have cited, and we accordingly adopt the law on this subject as they have laid it down." Id. at 193, 14 A. at 504.

Because what the Court in effect did was to incorporate the English law by reference, without stating the underlying principles in its own terms, it becomes important to note that the English decisions relied upon all dealt with words spoken from the witness stand. The rationale expressed for the rule by the various English authorities was essentially that witnesses appear in court under compulsion in obedience to the authority of the law and in discharge of a public duty and that, in testifying, they are subject to the control of the court and to the penalty of perjury if they speak falsely. Indeed, in Seaman v. Netherclift, L.R. 2 C.P.D. 53, quoted at some length by the Maryland Court, Chief Judge Cockburn, speaking for the English Court of Appeal, observed as a caveat to the absolute privilege:

"But I agree that if in this case beyond being spoken maliciously the words had not been spoken in the character of a witness Or not while he was giving evidence in the case, the result might have been different. For I am very far from desiring to be considered as laying down as law that what a witness states altogether out of the character and sphere of a witness, or what he may say Dehors the matter in hand, is necessarily protected. I quite agree that...