Hosmane v. Seley-Radtke, 689, Sept. Term, 2014.

• Decision Date: 24 February 2016
• Docket Number: No. 689, Sept. Term, 2014.,689, Sept. Term, 2014.
• Citation: 132 A.3d 348,227 Md.App. 11
• Parties: Ramachandra S. HOSMANE v. Katherine SELEY–RADTKE, et al.
• Court: Court of Special Appeals of Maryland

227 Md.App. 11

132 A.3d 348

Ramachandra S. HOSMANE

v.Katherine SELEY–RADTKE, et al.

No. 689, Sept. Term, 2014.

Court of Special Appeals of Maryland.

Feb. 24, 2016.

Neil R. Lebowitz, Columbia, MD, for appellant.

Erik J. Delfosse (Tomeka G. Church, Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for appellee.

Panel: WOODWARD, REED, IRMA S. RAKER (Retired, Specially Assigned), JJ.

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.

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

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

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 another person by means of the statement."

As noted above, the jury found in favor of appellee Dr. Seley–Radtke on the defamation and false light invasion of privacy claims, and appellant noted this timely appeal.

II.

Because we shall hold that the appropriate burden of persuasion to overcome the conditional privilege is a preponderance of the evidence, and the court erred in instructing the jury that the standard was clear and convincing evidence, we will not here set out the parties' lengthy arguments on the other questions presented.

We address first the burden of persuasion issue. Appellant argues that the burden of persuasion for showing abuse of a conditional privilege is by the common law burden of proof "preponderance of the evidence" and not by "clear and convincing evidence." He contends that even though the clear and convincing evidence burden of persuasion is applied to certain elements of defamation cases—such as where the defamatory statement was about a public figure or with respect to the recovery of presumed damages or punitive damages—it does not apply in this case because this defamation claim is against a private individual.

Appellees argue that the trial court was correct in instructing the jury that appellant Dr. Hosmane must prove by "clear and convincing evidence" that Dr. Seley–Radtke's allegedly defamatory statements were made with actual knowledge that the statements were false, coupled with an intent to deceive another person by means of the statements. Appellee Seley–Radtke's argument is based upon her reading of Piscatelli v. Van Smith, 424 Md. 294, 35 A.3d 1140 (2012)

, and Le Marc's Management Corp. v. Valentin, 349 Md. 645, 709 A.2d 1222 (1998). Essentially, she is arguing that in Piscatelli, the Court of Appeals, in a defamation case, adopted the same standard for proving malice for punitive damages (the malice standard announced in Ellerin v. Fairfax Sav. F.S.B., 337 Md. 216, 652 A.2d 1117 (1995) ), and malice for proving abuse of defamation privileges. She reasons that because the two substantive standards are the same, and that the standard for proving punitive damages entitlement is clear and convincing evidence, so too is the burden for overcoming a conditional privilege in common law defamation actions.

III.

We address which burden of persuasion is required to prove abuse of a conditional privilege, a defense to a defamation claim, where the complainant is a private person—a preponderance of the evidence or clear and convincing evidence.² We hold that a plaintiff, who is a private individual claiming common law defamation, and not First Amendment defamation, must prove that the defendant/publisher abused a conditional privilege by a preponderance of the evidence. Because the trial court erred in misstating the burden of persuasion for proving abuse of a conditional privilege to defamation, appellant was prejudiced and we shall reverse and remand for a new trial.

To establish a prima facie case of the common law tort of defamation in Maryland, a plaintiff must establish four elements: (1) that the defendant made a defamatory statement to a third...