Opinion
Civ. No. JFM-97-2523.
December 4, 1998.
MEMORANDUM
Plaintiff, Robert S.K. Young, M.D., has filed suit against defendant Pharmacia Upjohn Co. ("Upjohn"), alleging defamation arising out of a November, 1995 letter sent by Upjohn's counsel to the United States Attorney's Office and the Office of Criminal Investigations at the U.S. Food and Drug Administration ("FDA"). Upjohn has filed a motion for summary judgment on the ground that the statements made in the letter were absolutely privileged and may not form the basis for a defamation action. The motion will be granted.
Two other motions are pending before this Court. Young's May 19, 1998 motion to file a surreply will be granted because I have considered all of the submissions in deciding the present motion. I need not decide Upjohn's motion for leave to file a motion for partial summary judgment because judgment is being entered in its favor on other grounds.
I.
On May 4, 1976, Upjohn submitted a New Drug Application for Halcion Tablets ("Halcion") to the FDA. The FDA approved Halcion for marketing on November 15, 1982.In 1991, the FDA began an establishment inspection of the process leading to its approval of Halcion. It released an Establishment Inspection Report ("EIR") in April 1994 that had been reviewed and signed by the plaintiff, Dr. Young, an employee of the FDA's Office of Scientific Investigations. At the time that the EIR was released, Upjohn was involved in civil litigation related to Halcion in the United Kingdom. Dr. Young assisted and provided information on internal FDA matters to Upjohn's opponent in that litigation.
Following the EIR's release, a FDA Task Force comprised of senior FDA officials began an investigation of Upjohn's conduct in the Halcion approval process. In addition, beginning in September 1994, the Task Force began providing information about Upjohn's conduct to the United States Attorney's Office for the Western District of Michigan. The U.S. Attorney's Office began a criminal investigation of Upjohn at that time, and the FDA's Office of Criminal Investigation provided it with investigative support.
In June 1995 (before the Task Force issued its conclusions), Upjohn hired a law firm, Jenner Block, to represent it in the criminal investigation. Charles B. Sklarsky was one of the attorneys assigned to the case. On November 13, 1995, in an effort to put an end to the criminal investigation of Upjohn, Sklarsky sent a letter to Special Agent Kathleen Martin-Weis of the FDA's Office of Criminal Investigation and Assistant United States Attorney James Redford. The letter, relying upon the deposition testimony of D. Michael Erspamer, an FDA employee, stated that the 1994 EIR had contained inaccurate information because certain FDA employees had deviated from FDA rules and regulations in conducting the establishment inspection. That portion of the letter does not expressly refer to any improper conduct by Dr. Young. In addition, however, the letter challenged the propriety of Dr. Young's relationship with Upjohn's opponents in the United Kingdom litigation, and stated that Dr. Young's conduct with respect to that litigation "demonstrates gross impropriety on his part and calls into question his fairness and integrity." It further stated that "Dr. Young's mistreatment of Upjohn deserves further examination."
Eventually, the FDA's Office of Internal Affairs obtained a copy of the Sklarsky letter from an unknown source. On May 17, 1996, a memorandum written by Special Agent Tommy L. Hampton advised the Director for the Center for Drug Evaluation and Research that Dr. Young's conduct, while not "a violation of law [or] regulations . . . appears to have been ill-advised and you might want to take appropriate management action, if deemed appropriate." However, on September 13, 1996, Special Agent Hampton wrote a second memorandum in order to correct any false impression that Dr. Young "had, in fact, conducted the specified conduct nor (sic) that the conduct would constitute an actionable offense if found to be accurate." Instead, he stated that he intended the first memorandum "to convey the possibility that Dr. Young's alleged disclosure of the conclusion of the Halcion EIR prior to a FOIA request, if found to be factual, might be considered administratively inappropriate and subject to possible management action."
On August 6, 1997, Dr. Young filed this defamation action against Upjohn, alleging that Sklarsky's defamatory letter caused him to lose advancement opportunities at the FDA and to suffer public scorn and humiliation.
II.
Under Maryland law, an attorney is absolutely privileged to publish defamatory statements about another person in the course of a judicial proceeding if the statements have some reference or relation to, or connection with, the proceeding. See Maulsby v. Reifsnider, 14 A. 505, 505-06, 510-11 (Md. 1888). There is no real question that Sklarsky's comments regarding Dr. Young's alleged improprieties and unfair treatment of Upjohn were related to the criminal investigation of Upjohn. Attorneys are "allowed the widest latitude in commenting on the character, the conduct and motives of parties and witnesses and other persons directly or remotely connected with the subject-matter in litigation." Id. at 505. The issue in this case is whether Sklarsky's statements were made "in the course of a judicial proceeding."
According to Sklarsky's affidavit, FDA's Office of Criminal Investigations and the United States Attorney's Office for the Western District of Michigan had embarked upon a criminal investigation during the time that Jenner Block represented Upjohn in 1995. Sklarsky states that "[a]s part of my representation of Upjohn, I had numerous communications with Assistant U.S. Attorney James Redford and Special Agent Martin-Weis about the ongoing investigation." Sklarsky Aff. ¶ 7 (emphasis added). He further describes the November 1995 letter as "an effort to put an end to the criminal investigation" of Upjohn by providing information about errors or improprieties on the part of the FDA. Dr. Young has not submitted any evidence to contradict the fact that both the FDA's Office of Criminal Investigations and the U.S. Attorney's Office were investigating Upjohn in November, 1995. In fact, in his surreply memorandum, Dr. Young concedes that one investigation by the Department of Justice and FDA was apparently initiated "some time around September 1994," and that Sklarsky's letter was written during that investigation. Young Surreply Mem. at 5.
In my judgment, the criminal investigation of Upjohn constituted a "judicial proceeding" for the purposes of absolute privilege. Maryland courts generally take a broad view of the absolute privilege afforded to an attorney, so as not "to fetter and restrain him in that open and fearless discharge of duty which he owes to his client, and which the demands of justice require."Maulsby, 14 A. at 506. In addition, Maryland courts have applied absolute privilege where the alleged defamatory communication "has some relation to a proceeding that is contemplated in good faith and under serious consideration." Arundel Corp. v. Green, 540 A.2d 815, 819 (Md.Ct.Spec.App. 1988) (quoting Restatement (Second) of Torts § 586 cmt. e). As the subject of a federal criminal investigation, Upjohn had no choice but to assume that the investigators were seriously considering bringing criminal charges. The fact that the Department of Justice eventually decided not to bring charges cannot be determinative of whether Sklarsky's statements were made "in the course of a judicial proceeding." The purpose of extending absolute privilege to attorneys in judicial proceedings is to allow them to pursue a zealous representation of their clients without personal fear of resulting defamation actions. If absolute privilege only applied where criminal charges were eventually filed, an attorney would have to proceed cautiously at the pre-indictment stage and would possibly forego the most zealous representation of his client's interest in convincing the investigators not to bring criminal charges. For those reasons, other courts have extended an absolute privilege to attorneys representing clients in pre-indictment situations. See, e.g., Simmons v. Climaco, 507 N.E.2d 465, 468 (Ohio Ct.App. 1986) (finding absolute privilege applies to letters written to government agencies by an attorney in connection with a grand jury investigation even though no charges were ever brought against the attorney's client).
The Maryland Court of Appeals has suggested on two occasions that an initial complaint made to a prosecutor would be entitled to absolute privilege. See Caldor, Inc. v. Bowen, 625 A.2d 959, 968 (Md. 1993) (noting in dicta that Professors Prosser and Keeton have suggested that an informal complaint to a prosecuting attorney "is to be regarded as an initial step in a judicial proceeding" and entitled to absolute privilege); Miner v. Novotny, 498 A.2d 269, 272 (Md. 1985) (same). If a judicial proceeding begins at the time of a complaint to a prosecuting attorney, and absolute privilege protects the person initiating the complaint, it would be decidedly unfair to deprive the attorney for the person under investigation by the prosecutor of the same privilege.
Finally, the Maryland Court of Appeals has recognized that "the ultimate purpose of the judicial process is to determine the truth. The investigation, evaluation, presentation and determination of facts are inherent and essential parts of this process. If this process is to function effectively, those who participate must be able to do so without being hampered by the fear of private suits for defamation." Adams v. Peck, 415 A.2d 292, 294 (Md. 1980). Though Adams dealt with applying the privilege to unsworn communications between an attorney and a witness prior to trial, the reasoning adopted by the Court of Appeals in that case is equally applicable here. The U.S. Attorney's Office and the FDA's Office of Criminal Investigations, in deciding whether to bring criminal charges against Upjohn, had to investigate evaluate the evidence of criminal wrongdoing. In order to participate effectively in the investigation and evaluation on behalf of his client, Sklarsky had to be able to present evidence, including allegations about the reliability of potential witnesses, to the investigating prosecutors without fearing defamation actions brought by those witnesses. The public policy concerns justifying absolute immunity for attorneys in judicial proceedings are equally applicable in criminal investigations by federal prosecutors. "It is better, therefore, to make the rule of law so large that counsel acting bona fide in the discharge of duty shall never be troubled, although, by making it so large, others who have acted mala fide and maliciously are included." Maulsby, 14 A. at 506.
For these reasons, defendants Upjohn's motion for summary judgment is granted. A separate order to that effect is being entered herewith.