UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROBERT S. DOBKIN,
Plaintiff-Appellant,

and

DONALD ERWIN DOBKIN; ROSALYN
DOBKIN,
Parties in Interest,

v.

JOHNS HOPKINS UNIVERSITY; PEARL
GERMAN, Individually and as
Professor and Program Director of
the Interdepartmental Program in
Gerontology; ESTELLE A. FISHBEIN,
Individually and as Vice President;
                                      No. 96-1715
JUDITH KASPER, Individually and as
Associate Professor,
Defendants-Appellees,

and

JOHNS HOPKINS UNIVERSITY
SCHOOL OF HYGIENE AND PUBLIC
HEALTH; DEBRA ROTER, Individually
and as Associate Professor; DIANE
ROWLAND, Individually and as
Assistant Professor; NATIONAL
INSTITUTES OF HEALTH; THE NATIONAL
INSTITUTE ON AGING; RANDY
FISHBEIN,
Defendants.
ESTELLE A. FISHBEIN; PEARL GERMAN,
Plaintiffs-Appellees,

and

JOHNS HOPKINS UNIVERSITY,
Plaintiff,                                                         No. 96-1716

v.

ROBERT S. DOBKIN; DONALD ERWIN
DOBKIN; ROSALYN DOBKIN,
Defendants-Appellants.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
John R. Hargrove, Senior District Judge.
(CA-93-2228-HAR, CA-94-2656-HAR, CA-95-813-HAR)

Argued: June 4, 1997

Decided: January 21, 1999

Before RUSSELL* and NIEMEYER, Circuit Judges,
and TILLEY, United States District Judge for the
Middle District of North Carolina, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.
_________________________________________________________________
*Judge Russell heard oral argument in this case but died prior to the
time the decision was filed. The decision is filed by a quorum of the
panel. 28 U.S.C. section 46(d).

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COUNSEL

ARGUED: Charles O. Morgan, Jr., San Francisco, California, for
Appellant. Jeffrey Peabody Ayres, VENABLE, BAETJER & HOW-
ARD, L.L.P., Baltimore, Maryland, for Appellees. ON BRIEF: John
T. Prisbe, VENABLE, BAETJER & HOWARD, L.L.P., Baltimore,
Maryland; Frederick G. Savage, Eileen S. Goldgeier, THE JOHNS
HOPKINS UNIVERSITY, Baltimore, Maryland, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

After Appellant Robert Dobkin's graduate traineeship grant was
terminated at the Johns Hopkins University School of Hygiene and
Public Health, Dobkin filed actions against several parties including
the University ("JHU"), Dr. Pearl German (head of the traineeship
program), and Ms. Estelle Fishbein (Vice President and General
Counsel for JHU) alleging defamation, false light invasion of privacy,
and breach of contract. Prior to filing the action, Dobkin and his par-
ents wrote a number of letters to influential persons castigating Dr.
German and Ms. Fishbein who, after Dobkin filed suit against them,
counterclaimed against Dobkin for statements made in the letters he
wrote. German and Fishbein also filed a separate action against Mr.
Dobkin's parents for assertions made in letters the parents had writ-
ten.

In Mr. Dobkin's defamation action against JHU, Dr. German, and
Ms. Fishbein (HAR 93-2228), the district court granted summary
judgment in favor of the defendants. The district court denied Mr.
Dobkin's motion for summary judgment on Dr. German's and Ms.
Fishbein's defamation counterclaim in Civil Action No. HAR 93-
2228 and denied Mr. Dobkin's parents motion for summary judgment

                    3
in HAR 94-2656. The claims of Dr. German and Ms. Fishbein against
Mr. Dobkin and his parents were consolidated for a trial which lasted
five days and terminated with verdicts in favor of Dr. German and
Ms. Fishbein on each of their respective claims.

Mr. Dobkin appeals the adverse summary judgment rulings and
appeals from the jury's verdict. We find no error and affirm, primarily
based upon the reasoning of the district court.

I.

In early 1990, Robert Dobkin applied to JHU in order to obtain a
Ph.D. in Public Health and a certificate in Gerontology within JHU's
Interdepartmental Gerontology Program. He was accepted to the
School of Hygiene and Public Health and to the Gerontology Program
for the 1990-91 academic year and was awarded a National Institute
on Aging/National Institutes of Health traineeship grant in gerontol-
ogy. Dr. German, a gerontology professor and the traineeship grant
director, initially served as Dobkin's advisor but problems eventually
developed between them, especially when Dr. German advised Dob-
kin that he was not ready to take the preliminary departmental oral
examination.1 Disregarding Dr. German's advice, Dobkin located
another advisor, stood for the examination and failed.

After the failure, Dobkin's grant was terminated. Rather than pay
his own tuition and stay in the doctoral program, Dobkin requested
that JHU award him a master's degree based on the work he had
already undertaken. Ms. Fishbein, Vice President and General Coun-
sel for JHU, became involved in trying to settle the matter of Dob-
kin's request which JHU ultimately rejected. Dobkin then took leave
from the school and eventually withdrew.

Dobkin alleges that during the settlement discussions and ensuing
investigation, Dr. German and Ms. Fishbein made statements which
he claims were defamatory.

In HAR 93-2228, Dobkin claimed that Dr. German had accused
_________________________________________________________________

1 The parties dispute who terminated the relationship.

                    4
him of sexually harassing her when she made statements to others at
JHU that Dobkin had once come to her office wearing shorts of such
an extremely short length that, when he sat down, a portion of his pri-
vate anatomy became exposed. He also claimed that Dr. German had
falsely accused him of being untruthful about his medical condition
to Robin Fox, the Assistant to the Dean of the School of Hygiene and
Public Health at JHU. The alleged defamatory statement was then put
in a memo which read as follows:

          While at Hopkins, Mr. Dobkin disclosed to a number of
          people that he had been earlier diagnosed with cancer of the
          urinary bladder. In the statement of objective section of his
          application, he states that he was diagnosed with cancer
          (type not mentioned) in 1983 and was treated at Sloan Ket-
          tering. According to Dr. German, Dr. Dan Ford examined
          Mr. Dobkin at our Student Health Center and mentioned to
          Dr. German that he (Dr. Ford) thought it unlikely that Mr.
          Dobkin had ever had bladder cancer because he still had his
          bladder.2

Dobkin claimed that Ms. Fishbein defamed him by suggesting that he
was a dangerous person when she stated in a letter to one of Dobkin's
own attorneys that the attorney had "a legal duty to warn any person,
including Dr. German and myself, if any contact with your client
leads to a reasonable belief that he is inclined to commit a violent act
against that person." Dobkin also contends that Ms. Fishbein sug-
gested he might be the Unabomber when she remarked to her son that
Dobkin had attended two universities where the Unabomber had
struck.

Before seeking judicial relief, Dobkin and his parents, Donald and
Rosalyn Dobkin, wrote letters to various persons, allegedly to redress
the termination of Dobkin's federal traineeship grant. Dobkin sent let-
ters to Dr. Thomas Sowell3 of the Hoover Institute at Stanford Uni-
_________________________________________________________________
2 Dr. German later wrote in the margin of the memo that Dr. Ford had
told her "that it was not clear what type of cancer Mr. Dobkin had since
he still had his bladder."
3 In his letter to Dr. Sowell, Dobkin stated: "I have been annihilated and
my research career completely stymied by Johns Hopkins University in
a matter involving fraudulent grant administration with the National
Institutes of Health." (J.A. at 155-58).

                    5
versity, Ross Perot,4 and William Kunstler. Dobkin's parents wrote
letters to Hillary Clinton,5 VicePresident Al Gore,6 and Senator Rob-
ert Dole.7 As a result of those assertions, JHU, Dr. German and Ms.
Fishbein brought defamation actions against Dobkin (HAR 93-2228)
and his parents (HAR 94-2656).

II.

A. Dobkin v. Johns Hopkins University
(Appeal No. 96-1715)

Dobkin contends the district court erred in granting summary judg-
ment to the JHU defendants, specifically JHU, Dr. German, and Ms.
_________________________________________________________________
4 In his letter to Mr. Perot, Dobkin stated: "My NIH grant was adminis-
tered fraudulently by Johns Hopkins, my records were slandered, the
NIH now threatens suit against me and refuses to investigate any written
allegation of corruption and lies in correspondences and actions by John
Hopkins with NIH officials to ruin me." (J.A. at 159-60).
5 In their letter to Hillary Clinton, Mr. and Mrs. Dobkin stated:

          [o]ur son, a Yale alumnus (M.P.H. 86), has been academically
          and apparently irremediably destroyed as a "reward" for his hard
          work, dedication, integrity and scholarship -- the recipient of
          pre-meditated misconduct, cover-up and fraudulent grant admin-
          istration at the highest bureaucratic levels of Johns Hopkins Uni-
          versity and involving the National Institutes of Health.

(J.A. at 142-49).
6 In their letter to Vice President Gore, Mr. and Mrs. Dobkin stated:

          Last November (with no response to date), we wrote to Hillary
          Clinton requesting any possible assistance in a matter concerning
          waste and misuse of government funding (the National Institutes
          of Health) and the premeditated academic assassination of our
          son, Robert Dobkin, and subsequent cover up at the Johns Hop-
          kins University School of Hygiene and Public Health . . . .

(J.A. at 150-53).
7 Although there was nothing alleged to be defamatory in the letter to
Senator Dole, Mr. and Mrs. Dobkin attached copies of the letters to Hil-
lary Clinton and Vice President Gore. See Letter to Senator Dole. (J.A.
at 136).

                    6
Fishbein. He contends (1) that he established genuine issues of fact
that Dr. German and Ms. Fishbein (and thus JHU) defamed him by
stating that he exposed himself; committed sexual harassment; was
not truthful about the state of his health; was psychologically unsta-
ble; and posed a danger to the lives and safety of JHU personnel; (2)
that he stated an actionable false light claim; and (3) that he stated an
actionable breach of contract claim.

Summary judgment is appropriately granted when a party having
the burden of proof on a particular claim is unable either to produce
admissible evidence or point in the record to admissible evidence
which would be sufficient to support a jury verdict on each element
of that claim. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248-49
(1986). In considering the motion, the district court must consider the
evidence and reasonable inferences to be drawn from the evidence in
the light most favorable to the non-moving party. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 597-88 (1986). Our
review of the district court's finding is de novo. Mitchell v. Data Gen.
Corp., 12 F.3d 1310, 1313 (4th Cir. 1993).

To establish defamation in Maryland, a plaintiff must prove "that
the defendant made a defamatory statement to a third person; that the
statement was false; that the defendant was legally at fault in making
the statement; and that the plaintiff thereby suffered harm."
Rosenberg v. Helinski, 616 A.2d 866, 871 (Md. 1992), cert. denied,
509 U.S. 924 (1993).8 "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." Id. (citations omitted). A communi-
cation may be conditionally privileged "`when the circumstances
induce a correct or reasonable belief that the recipient is one to whom
the publisher is under a legal duty to publish the defamatory matter
or is a person to whom its publication is otherwise within the gener-
ally accepted standards of decent conduct.'" Henthorn v. Western Md.
Ry. Co., 174 A.2d 175, 179 (Md. 1961) (citations omitted). However,
a conditional privilege can be overcome by a showing of actual mal-
_________________________________________________________________
8 In a diversity action, the law of the forum state applies. Klaxon Co.
v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941); Fortress Re, Inc. v.
Central Nat'l Ins. Co., 766 F.2d 163, 165 (4th Cir. 1985).

                     7
ice. Marchesi v. Franchino, 387 A.2d 1129, 1133 (Md. 1978). The
standard by which malice is to be measured is "`knowledge of falsity
or reckless disregard for truth.'" Id. (citation omitted). The district
judge found that Dobkin did not contest that Dr. German's alleged
statement about Dobkin's genitals becoming exposed was condition-
ally privileged. However, Dobkin contended that the conditional priv-
ilege was defeated because Dr. German uttered the statement,
knowing it was false or with a reckless disregard for the truth. Dob-
kin, however, neither presented nor pointed to evidence that Dr. Ger-
man had described the incident as sexual harassment or had acted
recklessly in describing the incident. The district court properly
granted summary judgment since there was insufficient evidence of
actual malice to create a jury question.

The second statement Mr. Dobkin contends was defamatory was
one made by Dr. German to Robin Fox, the Assistant to the Dean of
the School of Hygiene and Public Health at JHU, about the state of
Dobkin's health. Later, the statement was put in Dobkin's file. The
alleged statement appears in a memo written by Robin Fox and reads
as follows:

          While at Hopkins, Mr. Dobkin disclosed to a number of
          people that he had been earlier diagnosed with cancer of the
          urinary bladder. In the statement of objective section of his
          application, he states that he was diagnosed with cancer
          (type not mentioned) in 1983 and was treated at Sloan Ket-
          tering. According to Dr. German, Dr. Dan Ford examined
          Mr. Dobkin at our Student Health Center and mentioned to
          Dr. German that he (Dr. Ford) thought it unlikely that Mr.
          Dobkin had ever had bladder cancer because he still had his
          bladder.

Some time later, Dr. German wrote in the margin of the memo that
Dr. Ford informed her "that it was not clear what type of cancer Mr.
Dobkin had since he still had his bladder." The district judge found
that the statement was conditionally privileged because Ms. Fox was
conducting an investigation of Mr. Dobkin and Dr. German made the
statement in response to questioning from Ms. Fox. The district judge
also found that Dobkin failed to set forth specific facts indicating Dr.
German acted with actual malice. Therefore, the district judge granted

                    8
summary judgment for Dr. German on Dobkin's claim for defama-
tion. We agree that Dobkin failed to provide or point to evidence suf-
ficient to create a factual issue regarding either conditional privilege
or actual malice and, therefore, we find summary judgment on that
claim to have been appropriate.

Next, Dobkin contends that Ms. Fishbein's statements to David
Frulla, former counsel for Dobkin, that he and his firm had "a legal
duty to warn any person, including Dr. German and myself, if any
contact with your client leads to a reasonable belief that he is inclined
to commit a violent act against that person" was defamatory. Dobkin
further claims that Ms. Fishbein's statement to her son, Rand Fish-
bein, expressly or impliedly stated that Dobkin was dangerous. She
allegedly misinformed her son that Dobkin had attended two of the
universities where the Unabomber struck. The district court held that
the letter to Dobkin's attorney contained the subjective impressions
of Ms. Fishbein and her clients. Generally, to be actionable a state-
ment must contain or imply a statement of provable false fact. See
e.g., Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1093 (4th Cir.
1993) (stating that "[t]hough opinion per se is not immune from a suit
for libel, a statement is not actionable unless it asserts a provably false
fact or factual connotation"). The district judge found the letter could
not reasonably be interpreted as stating actual facts about Dobkin. As
for the statement to her son, the district judge found that the statement
about Dobkin attending two of the universities where the Unabomber
struck was substantially accurate, therefore, no legal harm was done.
See AIDS Counseling & Testing Ctrs. v. Group W Television, Inc.,
903 F.2d 1000, 1004 (4th Cir. 1990) (noting that"[i]f the gist or
`sting' of a statement is substantially true,`minor inaccuracies will
not give rise to a defamation claim'"). Again, we agree with the anal-
ysis of the district court.

Dobkin next argues that he did state an actionable false light inva-
sion of privacy claim. To state an actionable false light claim, a plain-
tiff must show: (1) publicity in a false light which a reasonable person
would find highly offensive and (2) that the actor had knowledge of
or acted in reckless disregard as to the falsity of the publicized matter
placing plaintiff in a false light. See, Restatement (Second) of Torts
§ 652E; Bagwell v. Peninsula Reg'l Med. Ctr., 665 A.2d 297 (Md.
App. 1995), cert. denied, 669 A.2d 1360 (Md. 1996). As with a defa-

                     9
mation claim, qualified privileges preclude a false light claim absent
a showing of actual malice. See Harnish v. Herald-Mail Co., 286
A.2d 146 (Md. 1972); Restatement (Second) of Torts§ 652G, com-
ment (a). The district court held that, for the same reasons that Dob-
kin's defamation claims failed, Dobkin's false light claims failed. See
AIDS Counseling & Testing Ctrs., 903 F.2d at 1004 n.1 (citing
Phillips v. Washington Magazine, Inc., 58 Md. App. 30, 36 n.1, 472
A.2d 98, 101, cert. denied, 300 Md. 89, 475 A.2d 1201 (1984) and
stating that the same considerations and legal standards apply to defa-
mation actions and invasions of privacy actions). Additionally, the
district court held that Dobkin failed to proffer any evidence demon-
strating widespread dissemination as required to state a false light
invasion of privacy claim.

As to the contract claim, the district court found that Dobkin did
not put forth any evidence raising a genuine issue of fact concerning
an express or implied contract with JHU to award Dobkin a M.P.H.
degree. We agree with the district court's reasoning on the false light
claim and its finding on the contract claim.

B. Fishbein v. Dobkin (Appeal No. 96-1716)

In this case, Dobkin's motion for summary judgment was denied
in part and the case went to trial. The Dobkins contend that the trial
judge erred by: (1) not instructing the jury that all of the letters were
petitions to the government for redress of their grievances which
would be conditionally privileged under the Petition Clause of the
First Amendment; (2) the letters were constitutionally protected; and
(3) the letters were rhetorical hyperbole. Therefore, the Dobkins argue
that Dr. German and Ms. Fishbein had to demonstrate actual malice
in order to prevail.

The Petition Clause of the First Amendment guarantees "the right
of the people . . . to petition the Government for a redress of griev-
ances." U.S. Const. Amend. I. However, the right to petition does not
provide absolute immunity to those who express libelous and damag-
ing falsehoods. See McDonald v. Smith, 472 U.S. 479, 485 (1985)
(stating that "[t]he right to petition is guaranteed; the right to commit
libel with impunity is not"). The Supreme Court stated that "there is
no sound basis for granting greater constitutional protection to state-

                     10
ments made in a petition . . . than [in] other First Amendment expres-
sions." Id. The Dobkins are not afforded the greater protection of the
actual malice standard simply because they argue the petition clause.
Rather, in accordance with other defamatory First Amendment cases,
only if Dr. German and Ms. Fishbein qualify as public figures must
they prove actual malice. A public figure must show actual malice to
recover damages. New York Times Co. v. Sullivan , 376 U.S. 254, 279-
80 (1964). Dr. German and Ms. Fishbein are not public figures either
for general purposes or limited purposes. There is a two part inquiry
to determine whether a person is a limited purpose public figure: first,
whether there was a "public controversy" which gave rise to the
alleged defamation and second, whether the "nature and extent of
[the] individual's participation" in that controversy justifies public
figure status. See Gertz v. Robert Welch, Inc. , 418 U.S. 323, 351-52
(1974); Foretich v. Capital Cities/ABC, Inc., 37 F.3d 1541, 1553 (4th
Cir. 1994). A "public controversy" has been defined as:

          A public controversy is not simply a matter of interest to the
          public; it must be a real dispute, the outcome of which
          affects the general public or some segment of it in an appre-
          ciable way . . . [E]ssentially private concerns or disagree-
          ments do not become public controversies simply because
          they attract attention. . . . Rather, a public controversy is a
          dispute that in fact has received public attention because its
          ramifications will be felt by persons who are not direct par-
          ticipants.

Foretich, 37 F.3d at 1554 (quoting Waldbaum v. Fairchild Publica-
tions, Inc., 627 F.2d 1287, 1296 (D.C. Cir.), cert. denied, 449 U.S.
898 (1980)). The termination of Robert Dobkin's grant is not a "pub-
lic controversy." Therefore, Dr. German and Ms. Fishbein are not
public figures and did not need to prove the Dobkins acted with actual
malice. Furthermore, some of the letters at issue were sent to Hillary
Clinton, Thomas Sowell, Ross Perot, and William Kunstler. These
individuals were not public officials and letters to them would not
qualify as petitioning the government.

Next, the Dobkins claim that the trial court abused its discretion by
excluding certain evidence. "[D]ecisions regarding the admission and
exclusion of evidence are peculiarly within the province of the district

                    11
court, not to be reversed on appeal absent an abuse of discretion."
Martin v. Deiriggi, 985 F.2d 129, 137 (4th Cir. 1992). First, the Dob-
kins contend the trial court erred by excluding evidence of their state
of mind at the time they wrote and published the statements. The
Dobkins argue that hearsay evidence should have been admitted, not
to prove the truth of the matter asserted, but as state of mind evidence
pursuant to Rule 803(3) of the Federal Rules of Evidence. They state
the totality of the circumstances is relevant to determine whether the
letters were published with actual malice or negligently. However, Dr.
German and Ms. Fishbein did not need to prove actual malice.

The Dobkins also cite as error the district court's exclusion of evi-
dence pertaining to Dr. German's statements about the exposure of
Mr. Dobkin's private anatomy and Ms. Fishbein's statements about
the Unabomber. As stated earlier, a trial judge has wide discretion in
admitting and excluding evidence. See Gill v. Rollins Protective
Servs. Co., 836 F.2d 194, 198 (4th Cir. 1987) (stating that "the deter-
mination of the relevancy of evidence is generally committed to the
sound discretion of the trial judge"). The Dobkins have made no
showing why the exclusion of that evidence was relevant to an issue
being tried before the jury.

We have carefully reviewed other assignments of error and find
they do not merit discussion. The judgments of the district court are,
in all aspects,

AFFIRMED.

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