Sodergren v. JOHNS HOPKINS

Decision Date01 June 2001
Docket NumberNo. 1407,1407
Citation138 Md. App. 686,773 A.2d 592
PartiesPhilip R. SODERGREN, v. The JOHNS HOPKINS UNIVERSITY APPLIED PHYSICS LABORATORY, et al.
CourtCourt of Special Appeals of Maryland

Paul F. Newhouse, Towson, for appellant.

Jeffrey P. Ayres (Robin B. Bowerfind and Venable, Baetjer and Howard, LLP, and Valerie Floyd Portner, Laurel, on the brief), for appellees.

Argued before MURPHY, C.J., KENNEY and RAYMOND G. THIEME (Ret'd, specially assigned), JJ.

KENNEY, Judge.

Appellant, Philip R. Sodergren, appeals a decision by the Circuit Court for Howard County granting appellees' motion for summary judgment. He presents one question:

Whether the trial court erred in holding that a privilege to defame arising in the context of the litigation process protects appellees in this action, who published defamatory letters concerning appellant as part of the settlement of a prior action.
FACTUAL BACKGROUND

This case involves claims of defamation and invasion of privacy arising out of two letters written by appellee Dr. Gary L. Smith on behalf of appellee The Johns Hopkins University Applied Physics Laboratory ("APL")1 as part of a settlement agreement in a federal lawsuit filed by Patricia Herchenroeder. Sodergren and APL were both defendants in Herchenroeder's lawsuit, which eventually settled out of court. Pursuant to the terms of the settlement, neither APL nor Sodergren admitted liability, and Herchenroeder dismissed all claims against Sodergren and APL with prejudice.

As part of the agreement, APL issued written apologies to Herchenroeder and, also, to Warren Boord, who was not a party to the federal lawsuit.2 Sodergren did not sign the settlement agreement or the letters and was, in fact, vehemently opposed to both. Moreover, the agreement was not subject to approval by the federal court.

The settlement agreement contained the following language pertinent to the letters of apology:

2. Letters

Dr. Gary L. Smith, Director of APL, shall execute originals of the letters attached hereto as Exhibits A-1 through A-6,3 and APL shall deliver these letters to Thomas L. McCally, Esquire, within 5 business days after the execution by all parties of this Settlement Agreement and General Releases and of the Covenants Not to Sue attached to and incorporated in this Agreement. APL acknowledges that Mr. Sodergren objects to Ms. Herchenroeder and Mr. Boord being provided with Exhibits A-3 and A-4 by APL. Notwithstanding any other provisions in this Agreement, including but not limited to the Confidentiality Clause, Paragraph 5 below, Ms. Herchenroeder is free to disseminate Exhibits A-1 through A-6 as she sees fit.
* * *

9. Agreement Not Admissible In Future Proceedings. This Agreement is intended to be inadmissible, in evidence or otherwise, in any future judicial or administrative proceedings, except that:

* * *
(b) this Agreement and the exhibits thereto labeled A-3 and A-4 may be referred to, and nothing in this Agreement shall make them inadmissible, in any action brought by Mr. Sodergren based upon the providing to Ms. Herchenroeder and/or Mr. Boord, or the subsequent use of publication, of Exhibits A-3 and A-4.
* * *

19. Suit Regarding Exhibits A-3 and A-4.

Nothing in this Agreement shall be construed to prevent or limit Mr. Sodergren from bringing an action against Dr. Gary Smith and/or APL, based upon Exhibits A-3 or A-4, and nothing in this Agreement shall be construed to prevent or limit Dr. Gary Smith and/or APL from bringing an action against Mr. Sodergren with respect to the subject matter of Exhibits A-3 and A-4.

The letters of apology to Herchenroeder and Boord, signed by Dr. Gary L. Smith, were identical and read as follows:

On behalf of APL I sincerely apologize for the totally inappropriate and unfounded charges of plagiarism that Phil Sodergren lodged against you. Despite the findings of the Screening Panel completely vindicating your actions and expressing concern that Phil Sodergren was motivated by strong emotion and clouded judgment, he pursued these charges with The Johns Hopkins University, possibly jeopardizing your reputations outside the Laboratory. His action in appealing the Screening Panel's findings was consistent with our policy, but did not exhibit good judgment. Although the University affirmed the Screening Panel's findings that you did not plagiarize, I know how upsetting the plagiarism charges must have been to you. I regret the pain and suffering that these totally inappropriate and unfounded charges have caused you and your families.

Although Sodergren objected to the letters, he signed a "General Release and Covenant Not to Sue" that was attached to the agreement as Exhibit D-2. This document released Herchenroeder from liability "arising out of Ms. Herchenroeder's employment with APL or SEG,4 or the termination of her employment with APL, and any other claims, actions or causes of action,5 which arose at any time prior to the date of this Agreement." Sodergren's General Release and Covenant Not to Sue, attached to the agreement as Exhibit D-2, contains the following language: "[T]his paragraph does not release APL, The Johns Hopkins University, or their agents or employees. Moreover, this Release (and Covenant Not to Sue) shall not apply to acts of the Releasees which occur after the date of the execution of this Agreement by Mr. Sodergren."

As indicated, the letters concerned plagiarism charges made by Sodergren against Herchenroeder and Boord. In 1994, Sodergren alleged that they had used his and others' research without attribution. When he received no satisfaction from Herchenroeder's and Boord's superiors, he filed a formal complaint with the APL Screening Panel.

The Screening Panel reviewed the matter and found that Sodergren had brought the allegations "in some semblance of good faith" but that there was no plagiarism:

The Panel concludes that the allegations made by Mr. Sodergren of plagiarism on the part of Mr. Boord and Ms. Herchenroeder are without merit. The Panel further concludes that the allegations were brought by Mr. Sodergren (a) in some semblance of good faith but with his judgment clouded by emotionalism; (b) partially due to a lack of understanding occasioned by his emotional frame of mind; (c) partially without due care; and (d) following a pattern of interactions whose cumulative effect is inappropriate. The Panel believes that Mr. Sodergren's allegations can not be reviewed simply as manifestations of good faith misunderstandings. The Panel believes that Mr. Sodergren's allegations of plagiarism represent actions that are inappropriate, inspired by strong emotionalism and clouded judgment.

Sodergren did not agree with the definition of plagiarism used by the Screening Panel and appealed the decision to the Johns Hopkins University ("JHU") Provost, Dr. Joseph Cooper. Dr. Cooper reviewed the matter and issued written findings upholding the Screening Panel's decision. In light of these decisions, Sodergren was subsequently disciplined by APL by reprimand and a three week suspension.

On July 2, 1998, Sodergren filed a complaint against Smith and APL claiming defamation, false light invasion of privacy, and unreasonable publicity to private life of a person invasion of privacy. These claims were based on the publication of the apology letters pursuant to the settlement proceedings. APL and Smith filed their answer to Sodergren's complaint on November 10, 1998, and on May 14, 1999, they filed a motion for summary judgment. The motion for summary judgment set forth several grounds in support:

1) an absolute privilege protects the Defendants from liability as to all counts because the letters were published during the course of a judicial proceeding; 2) the letters are statements of opinion not recognizable to a third party as defamatory, and thus are not actionable; 3) the Plaintiff has not put forth evidence of any harm suffered as a result of the alleged defamatory statement; 4) Count II (false light invasion of privacy) fails because the Plaintiff has not put forth evidence of the necessary "publicity"; 5) that Count III (unreasonable publicity of private facts) fails because the Plaintiff cannot show that the letters contained private information, and cannot show that the letters were subject to excessive publicity; and 6) lastly, punitive damages are not available to the Plaintiff because there is no evidence that Dr. Smith knew the statements in the letters were false at the time they were written.

The circuit court held a hearing on the motion on November 24, 1999, and took the matter under advisement. The court issued an extensive opinion on July 24, 2000, granting the motion for summary judgment on the grounds that the letters were subject to the absolute privilege accorded "statements made by judges, attorneys, parties and witnesses during the course of a judicial proceeding." This appeal followed.

DISCUSSION
Standard of Review

A summary judgment motion is not a substitute for trial. Rather it is used to dispose of cases when there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. The standard for appellate review of a trial court's grant of summary judgment is whether the trial judge was legally correct in his or her rulings. In granting a motion for summary judgment, the trial judge may not resolve factual disputes, but instead is limited to ruling on matters of law.... If any inferences may be drawn from the well-plead facts, the trial court must construe those inferences in the light most favorable to the non-moving party. The existence of a dispute as to some non-material fact will not defeat an otherwise properly supported motion for summary judgment, but if there is evidence upon which the jury could reasonably find for the non-moving party or material facts in dispute, the grant of summary judgment is improper.

Okwa v. Harper, 360 Md. 161, 178, 757 A.2d 118 (2...

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