Offen v. Brenner

• Decision Date: 14 November 2007
• Docket Number: Misc. No. 1, Sept. Term, 2007.
• Citation: 402 Md. 191,935 A.2d 719
• Parties: M. Louis OFFEN v. Alan I. BRENNER.
• Court: Court of Special Appeals of Maryland

935 A.2d 719

402 Md. 191

M. Louis OFFEN v. Alan I. BRENNER.

Misc. No. 1, Sept. Term, 2007.

Court of Appeals of Maryland.

November 14, 2007.

Edward M. Buxbaum (Emily A Daneker, Whiteford, Taylor & Preston, L.L.P., Baltimore, on brief), for appellant.

Tarra DeShields-Minnis, Asst. U.S. Atty. (Rod. J. Rosenstein, U.S. Atty., on brief), for appellee.

Argued before BELL, C.J., RAKER, HARRELL, BATTAGLIA, GREENE, ALAN M. WILNER (Retired, specially assigned) and DALE R. CATHELL (Retired, specially assigned), JJ.

RAKER, J.

Pursuant to the Maryland Uniform Certification of Questions of Law Act, Md. Code (1974, 2006 Repl.Vol.), §§ 12-601 to 12-609 of the Courts and Judicial Proceedings Article, the United States Court of Appeals for the Fourth Circuit has certified the following question of Maryland law:

"[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'?"

Our answer to the Fourth Circuit's question shall be a qualified yes; the duties and authority of the employee are a useful factor, but should not be determinative, in considering the nature of the public function of the administrative proceeding.

I.

We recite the facts as set out in the Certification Order.

"The plaintiff (and appellant in this certification procedure), M. Louis Offen, M.D., is an employee with the U.S. Department of Health and Human Services (DHHS), working in the Division of Vaccine Injury Compensation (DVIC). Offen is a neurologist who reviews claims filed against the DHHS by persons seeking compensation for alleged vaccine-related injury. Offen evaluates the merits of a claim and transmits his conclusions to the Department of Justice (DOJ) lawyer assigned to represent the DHHS on the claim. The DOJ has the authority to determine how to proceed with a claim. Offen has no authority in that regard.

"In 2004 Offen reviewed a Hepatitis B vaccine injury claim and reported his conclusions to the assigned DOJ lawyer. The DOJ lawyer then contacted Offen's supervisor, Vito Caserta, M.D., for further assistance in evaluating the claim. Caserta, in turn, discussed the claim with two other physicians, the defendant, Alan I. Brenner, M.D., a rheumatologist who is an outside consultant for DVIC, and Arnold Gale, M.D. In May 2004 Offen forwarded certain materials related to the claim to Brenner for his review. Later, on July 30, 2004, Brenner sent a letter to Offen's supervisor, Caserta, which contained the following passages:

"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 this 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 Hepatitis B 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 Thom Balbier's transfer, telling me that Thom had been removed for incompetence and stating that you would be the next to go. J.A. 6-7.

"This letter prompted Caserta to initiate formal DHHS disciplinary proceedings against Offen, who was suspended for five days without pay and stripped of some of his responsibilities. The administrative proceedings against Offen were conducted according to the procedures set forth in the agency's regulations, and he does not contend that the procedural safeguards were inadequate."

II.

Dr. Offen filed a complaint, in the United States District Court for the District of Maryland, alleging defamation. Dr. Brenner filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, failure to state a claim upon which relief may be granted. Following a hearing, the district court dismissed the complaint in favor of the defendant based on absolute immunity. Dr. Offen appealed to the United States Court of Appeals for the Fourth Circuit. He contends that the district court erred in refusing to consider his limited duties and authority when the court analyzed the nature of the public function of the proceeding. The Court of Appeals for the Fourth Circuit certified the question of law to this Court.

The question before us arises from the application of factors set forth by this Court in Gersh v. Ambrose, 291 Md. 188, 434 A.2d 547 (1981). In that case, a staff member of the Baltimore City Community Relations Commission filed a defamation suit for statements made by an assistant state's attorney at a quasi-legislative public hearing. This Court found the defense of absolute immunity did not apply, but noted as follows: "[W]e have decided that whether absolute witness immunity will be extended to any administrative proceeding will have to be decided on a case-by-case basis and will in large part turn on two factors: (1) the nature of the public function of the proceeding and (2) the adequacy of procedural safeguards." Id. at 197 434 A.2d at 551-52. Although we have ruled on the interpretation of the second factor of the Gersh test — the adequacy of procedural safeguards — in several cases, we have not yet had cause to examine the first factor in such detail, that of the nature of the public function of the proceeding.

III.

Before this Court, Dr. Offen argues, first, that no significant public interest is implicated to justify the application of absolute immunity under the first prong of the Gersh test. He contends the district court erred when it relied on an overly generalized public interest. The district court said "the important public function of administrative disciplinary procedures is to have an orderly system of personnel, dedicated and competent employees, and that's especially important in the area of health." Dr. Offen argues his behavior would not be of significant public concern and that the district court's identification of an orderly system of personnel is not a socially important concern that rises to the level of a vital public interest.¹

Second, Dr. Offen maintains that the district court erred when it failed to consider the defamed employee's duties and authorities in its analysis under the first Gersh factor. According to Dr. Offen, the application of "the nature of the public function of the proceeding" depends upon a factual inquiry into the employee's duties and powers. He relies on Miner v. Novotny, 304 Md. 164, 498 A.2d 269 (1985), Imperial v. Drapeau, 351 Md. 38, 716 A.2d 244 (1998), and Reichardt v. Flynn, 374 Md. 361, 823 A.2d 566 (2003), to support his conclusion, contending that when statements precede the initiation of an administrative proceeding, each of those cases make necessary an evaluation of the essential public interest of a particular category of employee. Failing to consider the duties and authority of an employee, according to Dr. Offen, creates a per se application of absolute privilege, allowing generalized public interests to sufficiently support the first Gersh factor.

Dr. Brenner counters that the duties, responsibilities and authority of an employee should not be dispositive as to whether a privilege applies. He rejects the contention that the justification for extending absolute immunity changes depending on whether an administrative hearing is pending at the time of the defamation or whether instead the statement serves to initiate a subsequent proceeding. He contends that the first Gersh factor has been applied the same way regardless of this temporal difference, with the purpose of ensuring that the nature of the proceeding factors into the public policy reason for extending the privilege. Dr. Brenner argues that adopting an approach where the first prong turns on an inquiry into the rank of the defamed employee would deter legitimate complaints against low-level employees for fear of retaliation.

IV.

Under Maryland law, to present a prima facie case of defamation, a plaintiff must establish four elements: (1) that the defendant made a defamatory statement to a third person, (2) that the statement was false, (3) that the defendant was legally at fault in making the statement, and (4) that the plaintiff thereby suffered harm. Smith v. Danielczyk, 400 Md. 98, 115, 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, 55, 767 A.2d 321, 327 (2001) (quoting Rosenberg v. Helinski, 328 Md. 664, 675, ...