Offen v. Brenner

• Decision Date: 16 May 2008
• Docket Number: Civil Case No. RWT 05-1606.
• Citation: 553 F.Supp.2d 565
• Parties: M. Louis OFFEN, M.D., Plaintiff, v. Alan I. BRENNER, M.D., Defendant.
• Court: U.S. District Court — District of Maryland

553 F.Supp.2d 565

M. Louis OFFEN, M.D., Plaintiff, v. Alan I. BRENNER, M.D., Defendant.

Civil Case No. RWT 05-1606.

United States District Court, D. Maryland.

May 16, 2008.

Edward M. Buxbaum, Emily A. Daneker, Whiteford Taylor and Preston LLP, Baltimore, MD, Erik David Bolog, Barry H. Helfand P.A., Rockville, MD, for Plaintiff.

Neil R. White, Tarra Deshields Minnis, Office of the United States Attorney, Baltimore, MD, for Defendant.

MEMORANDUM OPINION

ROGER W. TITUS, District Judge.

The publication in 1894 of G.F. Northall's Folk Phrases of Four Counties gave wide circulation to the famous children's taunt that boldly asserts "sticks and stones will break my bones, but names will never hurt me." G.F. Northall, Folk Phrases of Four Counties 23 (1894). The well-developed law of defamation belies that assertion, at least in terms of pecuniary, as opposed to physical, harm. However, as the law of defamation has evolved, certain privileges have been recognized based on the notion that the potential harm of a defamatory communication may be outweighed by more important public policy considerations.

One of those privileges is applicable to the testimony by a witness in a judicial proceeding. An absolute privilege applies in order to allow witnesses to be free from the apprehension of being annoyed by civil actions resulting from their testimony. Maryland has extended that privilege to administrative proceedings under certain, but not all, circumstances. Gersh v. Ambrose, 291 Md. 188, 434 A.2d 547 (1981). This case presents the question of whether, under Maryland law, the Defendant in this case is entitled to the benefit of the `absolute privilege. As explained below, the Court concludes that he is, and accordingly his Motion to Dismiss will be granted.

FACTUAL BACKGROUND

Plaintiff is a physician employed by the United States Department of Health and Human Services (DHHS). Specializing in the field of neurology, he is a medical officer assigned to the Division of Vaccine Injury Compensation (DVIC), where he reviews claims for vaccine-related injuries. His professional activities include regular contact with other members of DHHS, DVIC, the DHHS Office of General Counsel, and the Department of Justice (DOJ). (Compl. ¶ 6.)

After reviewing a claim, Plaintiff transmits his conclusions to the DOJ lawyer assigned to the case. (Compl. ¶ 10.) The DOJ lawyer then determines how to proceed. Plaintiff allegedly has no authority to make substantive or strategic decisions regarding the DOJ's treatment of the claims he reviews.

In 2004, Plaintiff reported his conclusions about a vaccine-related claim to a DOJ lawyer. The lawyer contacted Plaintiffs supervisor, Vito Caserta, for further assistance. Caserta discussed the claim with two other physicians. Defendant, who is a rheumatologist, was one of the physicians Caserta consulted. In May of 2004, Plaintiff allegedly sent materials related to the claim to Defendant for review. In July of 2004, Defendant allegedly sent the following letter to Plaintiff's supervisor:

In the past several months I have had a number of telephone calls and E-mail communications from Dr. Offen, each requesting my private opinion on DVIC cases not officially assigned to me for consultation.... The first of the latter type of call was regarding the makeup of our Civilian Expert Immunization Committee (CEIC). The substance of that call was to question me about the process of selection of committee members. I felt that the tone of the questions was accusatory and, in my opinion, defamatory and degrading to DVIC.... You will recall that, several months ago, you arranged a telephone conference in which you, Dr. Arnold Gale and I participated. The purpose of that conference was to discuss [the claim].... About 2 months ago Dr. Offen called me, stating that the case had not been presented in its entirety and that you had misrepresented the facts to induce Dr. Gale and me.... My recollection of the call was that Dr. Offen accused you of twisting the facts and of leaving out pertinent information to suit some personal purpose and that he wanted to send me the case record suggesting that my review of the documents would prove that our conclusion was in error.... I have been very disturbed by the tone of Dr. Offen's accusations and the way in which he has seemed to try to enlist my support in some sort of personal vendetta against DVIC in general and several members of the office in particular. Indeed I believe that Dr. Offen has had something derogatory to say about each and every medical officer involved. Dr. Offen has also made it quite clear that he has no respect for the leadership of DVIC. He positively gloated over Thorn Balbier's transfer, telling me that Thorn had been removed for incompetence and stating that you would be the next to go.

(Compl. ¶ 13) (Emphasis added).

Caserta subsequently, initiated formal DHHS disciplinary proceedings against Plaintiff. As a result of the proceedings, Plaintiff was suspended for five days without pay and was stripped of certain professional responsibilities.

PROCEDURAL HISTORY

Plaintiff filed his complaint on June 13, 2005. On July 25, 2005, Defendant filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Following a hearing, this Court, dismissed Plaintiff's Complaint on the basis of absolute testimonial privilege. Plaintiff then appealed to the United States Court of Appeals for the Fourth Circuit. Pursuant to the Maryland Uniform Certification of Questions of Law Act, MD.CODE ANN., CTS. & JUD. PROC. § 12-601 (1974), the Fourth Circuit certified the following question to the Court of Appeals of Maryland:

[I]n deciding whether a statement that led to an administrative proceeding against a public employee is protected by absolute privilege, should the duties and authority of the employee against whom the statement was made be considered in determining `the nature of the public function of the proceeding?'

The Court of Appeals of Maryland issued a published opinion answering the certified question with "a qualified yes." Offen v. Brenner, 402 Md. 191, 935 A.2d 719, 721 (2007). The court stated that "the duties and authority of the employee are a useful factor, but shall not be determinative, in considering the nature of the public function of the administrative proceeding." Id. Accordingly, the Fourth Circuit vacated this Court's dismissal of Plaintiff's Complaint and remanded the case for further consideration in light of the opinion by the Court of Appeals of Maryland.

STANDARD OF REVIEW

A motion to dismiss should only be granted if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The Court must consider all well-pled allegations in a complaint as true and must construe all factual allegations in the light most favorable to the plaintiff. See Albright v. Oliver, 510 U.S. 266, 268, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994); Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.1999). However, the Court need not accept unsupported legal conclusions or legal conclusions couched as factual allegations. Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986); District 28, United Mine Workers of America, Inc. v. Wellmore Coal Corp., 609 F.2d 1083, 1085 (4th Cir.1979). When ruling on a motion to dismiss, if "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56." Fed.R.Civ.P. 12(b).

ANALYSIS

Under Maryland law, to state a claim for defamation a plaintiff must allege that "(1) the defendant made a defamatory statement to a third person; (2) the statement was false; (3) the defendant was legally at fault in making the statement; and (4) the plaintiff thereby suffered harm." Smith v. Danielczyk, 400 Md. 98, 928 A.2d 795, 805 (2007). 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 v. Darvish, 363 Md. 42, 767 A.2d 321 (2001) (quoting Rosenberg v. Helinski, 328 Md. 664, 616 A.2d 866, 871 (1992)).

In this case, Plaintiff alleges that Defendant made false statements to a third party which resulted in damage to his reputation and business relationships. For the purposes of this Motion, the Court will assume without deciding that these allegations make out a claim for defamation under Maryland law.

However, this does not end the analysis. As noted at the outset of this opinion, Maryland courts have adopted a public policy which mandates 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 testimony." Offen, 935 A.2d at 724 (quoting Hunckel v. Voneiff, 69 Md. 179, 14 A. 500 (1888)). Therefore, witnesses in Maryland courts have historically been granted an absolute privilege for statements made in the course of judicial proceedings. Reichardt v. Flynn, 374 Md. 361, 823 A.2d 566, 569 (2003) (quoting Hunckel, 14 A. at 504). The privilege "extends also to statements that serve to initiate a judicial proceeding." Offen, 935 A.2d at 725 (citing Kerpelman v. Bricker, 23 Md.App. 628, 329 A.2d 423, 425 (Md. 1974)). Moreover, this absolute privilege "extend[s] beyond the confines of purely judicial proceedings" and may also be applied to statements made in administrative proceedings. Odyniec v. Schneider, 322 Md. 520, 588 A.2d 786, 793 (1991) (privilege applied to statements made by doctor when examining patient while preparing to serve as witness in arbitration of medical malpractice claim); see also Reichardt, 823 A.2d at 566 (privilege...