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Preponderance of the Evidence Standard Remains the Burden of Proof to Overcome a Conditional Privilege in a Defamation Case

Ramachandra S. Hosmane v. Katherine Seley-Radtke
(February 24, 2016) http://www.mdcourts.gov/opinions/cosa/2016/0689s14.pdf Court of Special Appeals of Maryland

by Matthew J. McCloskey, Associate
Semmes, Bowen & Semmes (www.semmes.com)

Available at: http://www.mdcourts.gov/opinions/cosa/2016/0689s14.pdf

In a recent reported opinion, the Court of Special Appeals of Maryland held that the burden of proof to overcome a conditional privilege in a defamation case is the preponderance of the evidence standard.

Plaintiff, Ramachandra S. Hosmane, Ph.D, and Defendant, Katherine Seley-Radtke, Ph.D, were both employed by the University of Maryland, Baltimore County (“UMBC”) in the chemistry department.  At some time prior to 2014, Plaintiff left his job at UMBC.  Subsequently, he filed a complaint in the Circuit Court for Baltimore City against Defendant alleging defamation and invasion of privacy, false light.  In pertinent part, Plaintiff alleged that Defendant had informed Plaintiff’s former co-workers and students that: (1) Plaintiff “had stolen private documents regarding” Defendant; (2) Plaintiff was “an unbalanced individual” that made Defendant worried Plaintiff might commit a shooting; (3) Plaintiff was banned from UMBC after he left his job; and (4) Plaintiff had made inappropriate comments about Defendant’s physical appearance.  Defendant answered the complaint and, among other defenses, asserted that any statements she may have made were protected by a conditional privilege.

The case proceeded to trial.  When discussing jury instructions, all parties agreed that Defendant’s statements were entitled to a conditional privilege, and that such privilege could only be overcome through evidence that Defendant had actual knowledge that the statements were false, coupled with the intent to deceive another person.  The parties disagreed, however, as to how the jury should be instructed regarding the level of proof necessary to overcome the privilege.  Plaintiff argued that, in accordance with the Maryland Pattern Jury Instruction regarding overcoming a conditional privilege, the preponderance of the evidence standard was the correct standard.  Defendant, however, noted that the Court of Appeals had adopted a uniform definition of the term “actual malice” in both the context of overcoming a conditional privilege and the context of establishing entitlement to punitive damages. Consequently, Defendant argued that the burden of proof for overcoming a conditional privilege should be the same as the burden of proof for proving punitive damages: the clear and convincing evidence standard.

After argument by the parties, the Circuit Court agreed with Defendant and instructed the jury that Plaintiff was required to adduce clear and convincing evidence to overcome the conditional privilege.  The jury returned a verdict in Defendant’s favor.  Plaintiff appealed.

The Court of Special Appeals reversed the decision of the Circuit Court.  Judge Raker, writing for the Court, explained that, in adopting a uniform definition of actual malice, the Court of Appeals had only set forth the definition of the term itself, not the burden of proof necessary to establish malice in different contexts.  Nowhere in the Court of Appeals’ opinions did the Court ever imply that the commonality of the definition of malice resulted in increased protections for persons entitled to a conditional privilege.  Therefore, the Court of Appeals’ opinions had not altered the well-established burden of proof to overcome a conditional privilege: the preponderance of the evidence standard.  Consequently, the Court held that the Circuit Court erred in instructing the jury, and it reversed and remanded the case for a new trial.


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