Rosenberg v. Helinski

• Decision Date: 01 September 1992
• Docket Number: No. 25,25
• Citation: 328 Md. 664,616 A.2d 866
• Parties: , 20 Media L. Rep. 2233 Leon A. ROSENBERG v. Ronald R. HELINSKI. ,
• Court: Maryland Court of Appeals

Page 664

328 Md. 664

616 A.2d 866, 20 Media L. Rep. 2233

Leon A. ROSENBERG v. Ronald R. HELINSKI.

No. 25, Sept. Term, 1992.

Court of Appeals of Maryland.

Dec. 14, 1992.

Motion for Reconsideration Denied Jan. 20, 1993.

William F. Ryan, Jr. and Howard R. Feldman (A. Thomas Pedroni, Jr., Whiteford, Taylor & Preston, on brief), Baltimore, for petitioner.

Herbert Burgunder, Jr. (Horn and Bennett, P.A., on brief), Baltimore, for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.

MURPHY, Chief Judge.

We granted certiorari in this defamation action to consider whether a psychologist, whose expert in-court testimony in a child custody matter supported the wife's accusation that her husband had sexually abused their child, is privileged to reiterate the substance of his testimony to journalists waiting for him outside on the courthouse steps.

I

This case implicates the volatile mix of a father's personal reputation, the specter of child sexual abuse, the ubiquitous eye of television, the limits of free speech, and the privileged status accorded to reports of events in court. The dispute in question arose seven years ago in the midst of rancorous divorce and child-custody proceedings involving the Respondent, Ronald Helinski; his wife, Jacqueline Garner Helinski; and their infant daughter, Jackie.

A. The underlying domestic litigation

The Helinskis sought to end their marriage of some five years. At a hearing held on July 26, 1985, before the Circuit Court for Baltimore County (Jacobson, J.), Mrs. Helinski opposed her husband's request for unsupervised visitation with the child, who was then two years old. She alleged that Mr. Helinski had previously sexually abused their daughter. The mother offered as part of her evidence the opinion of expert witness Dr. Charles Shubin, a pediatrician at Baltimore's Mercy Hospital, who testified that his examination of Jackie had revealed a well-healed scar within the child's genitalia. Shubin asserted that the scar was characteristic of, and diagnostic of, a sexual injury.

The trial court granted the parties a divorce, and permitted Mr. Helinski rights of unsupervised visitation with his daughter. It said:

"I do not believe Mr. Helinski has demonstrated in any way he is the kind of man that is going to do these terrible things to his own child. I don't know what is behind all of this, but I do not believe that he is guilty of ... any child abuse of his two year old child; and I will not deprive him of the opportunity to visit with that child."

The trial court stated that while it could not explain the origin of the scarring described by Dr. Shubin, it found no connection between the injury and Mr. Helinski's conduct.

Mrs. Helinski immediately filed a motion to amend the visitation provisions of the divorce decree. She also denied her ex-husband access to the child, which prompted him to petition the trial court to hold the mother in contempt for violating the visitation order. Thereafter, on August 20, 1985, the Helinskis appeared once more before the Circuit Court for Baltimore County where Mrs. Helinski repeated her suspicions of child abuse as justification for defying the court order. She proffered the testimony of Petitioner Leon Rosenberg, Ph.D., child psychologist and associate professor of medical psychology and pediatrics at Baltimore's Johns Hopkins University School of Medicine, whom Mrs. Helinski had consulted in the interim between the two hearings. The trial court then, in effect, reopened the hearing of July 26 in order to reconsider the question of visitation, and thereby addressed for a second time the allegations of sexual abuse along with the new issue of contempt.

Rosenberg testified that the diagnosing physician, Dr. Shubin, had referred Mrs. Helinski and Jackie to him. He stated that he had evaluated Jackie three times in all, first alone with Jackie, and twice more in the company of the mother. During the first interview, Rosenberg said, he engaged the child in conversation, observed her gestures towards her private parts, and the two together made drawings on paper to allow the child an additional way to refer to the parts of her body. He testified that by these methods he elicited from Jackie that she feared her father because he had hurt her in the genital area, and that she was afraid to see her father out of anxiety that he might hurt her there again. Rosenberg opined that the youngster's presentation had been honest and spontaneous, without coaching by the mother or another adult. Calling the contents of the interview "extremely clear," the psychologist concluded that the child had undergone a painful and frightening experience involving sexual abuse by her father.

Rosenberg said that his evaluation included a family history taken from Mrs. Helinski, the mother's accounts of Jackie's behavior arousing suspicion of abuse, the medical report of Dr. Shubin, a telephone conversation with Shubin regarding that report, and a telephone conversation with a Child Protective Services social worker, Martin Piepoli, who had earlier interviewed the child using anatomically correct dolls, with reference to which Jackie had indicated that her father had hurt her in the genital region. Rosenberg acknowledged that he never spoke with Mr. Helinski before reaching his conclusions. He conceded, too, that he had known from the outset that the trial court at the July 26 hearing had found no evidence of abuse by the father.

Testifying that unsupervised visits posed a danger to the child, Rosenberg recommended that they be suspended until Mr. Helinski received psychological examination and counseling, which might then lead to supervised visits. Stating that it was not convinced that the father had caused the child's sexual injury, but that some danger existed, the trial court ordered psychiatric evaluations of both Mr. and Mrs. Helinski, with a ruling on visitation to await the results; the court further granted Mr. Helinski's request that Jackie be examined by a child psychologist of his own choosing. The rest of the August 20 hearing dealt with procedural matters and with Mrs. Helinski's alleged contempt of court. ¹

B. The instant litigation

Newspaper reporters attended the August 20 hearing, as did a television artist who made sketches of the parties, the presiding judge, and Dr. Rosenberg in anticipation of their later use for media purposes. When the hearing ended, Rosenberg left the courthouse. He was met at the courthouse steps by a television camera crew and a T.V. newswoman, Ann Kellan, representing the Baltimore A.B.C. affiliate station WJZ, who undertook to ask him questions about the case. ²

The record does not preserve their conversation in its entirety. It does, however, contain three short passages, or T.V. film "sound-bites," that were extracted from that conversation and made part of WJZ's news stories about the hearing. The more comprehensive story ran during that evening's six o'clock newscast. Some 2 minutes and 15 seconds in length, the story identified the Helinskis by name, incorporated the artist's sketches, recapitulated the mother's allegations and Dr. Rosenberg's confirmation of them, and summarized the court's rulings. ³ Interspersed throughout the story were the three passages showing Rosenberg as he spoke to the television camera, which we now set forth verbatim:

"The child talked very directly about being hurt by her father and she talked about being hurt by her father in the genital area.

"And when she finally talked about being hurt, she expressed real fear, real anxiety, and two-and-a-half year old child[ren] cannot playact that well. It's beyond them.

"Whatever did occur was frightening, but it looked like it was time-limited and I think we have a very good chance of, ah, overcoming any negative effects."

These remarks to the camera on the courthouse steps essentially corresponded to the substance of Rosenberg's testimony during the hearing. A shorter version of the story, running 40 seconds in length and featuring only the first of Rosenberg's statements, ran during that evening's 11 o'clock newscast on WJZ.

Mr. Helinski sued Dr. Rosenberg in the Circuit Court for Baltimore City on August 15, 1986, for defamation. He pleaded that Rosenberg's statements were false, defamatory on their face in imputing to the father the crime of child sexual abuse, and made either negligently or maliciously. Rosenberg answered with a general denial of liability, and interposed the affirmative defense that the statements enjoyed either an absolute or a qualified privilege that would defeat the complaint. Prior to trial, Rosenberg filed a motion for summary judgment pursuant to Maryland Rule 2-501.

The court (Byrnes, John Carroll, J.), after a hearing, granted Rosenberg's summary judgment motion on December 13, 1990. Judge Byrnes first determined that Rosenberg's comments were protected by the privilege given to those who recount in-court testimony. He said:

"[Rosenberg] was not providing an opinion to the reporter, since that was not requested; but rather a restatement of opinion testimony. Nor was he presenting an 'idea' of his, something in the intellectual firmament for the public to chew on and pass around in the marketplace of ideas; but merely recounting what he had already said in a public, and privileged, forum. What he recounted was not false. It was true history even though it included, by implication ... his opinion or belief that what the child said was acceptable to him clinically as true.

* * * * * *

"... Here what persuades the Court in the final analysis is that you have a professional called into Court to speak about a matter. He does so truthfully, to his best professional judgment, a judgment which the Court in part accepted. He then is merely asked by a reporter in effect 'What did you say' and he responds with what he said and believed...