Re: Docket Nos. 3796, 11792

OPINION1

Brendan Linehan Shannon, United States Bankruptcy Judge.

I. INTRODUCTION

Herman Melville's Moby Dick is often held up as the greatest American novel. Grueling and esoteric, it follows a crew of sailors striking out on the seas, resisting illness and starvation to mete out a living in the dramatic backdrop of an untamed and hostile wilderness. At its center is the enigmatic Captain Ahab. Famously, Ahab leads his crew on an obsessive pursuit of an unnamed evil, embodied in a white whale, with the hope to ultimately "wreak [his] hate" upon the animal. Depending on the interpretation of the reader, Melville's account of Ahab could be seen as an exultation or an indictment of an individual's single-mindedness.

Mr. Robert Henke is not Captain Ahab. He was, however, the subject of an article that appeared in the Baltimore Sun newspaper2 in 2007 entitled "A Modern-Day Ahab — In pursuit of geologic immortality, inventor Robert Henke has sacrificed everything: comfort, career, family."3 Believing the article had caused him harm, Mr. Henke filed a defamation lawsuit against the Baltimore Sun in Maryland state court seeking $100 million in damages.4

Tribune Company and its affiliates, including the Baltimore Sun, (collectively, the "Debtors") filed Chapter 11 petitions on December 8, 2008. Mr. Henke filed two claims against the Debtors based on the state court defamation complaint.5 The Debtors objected to Mr. Henke's claims.6 Following a hearing before the Honorable Kevin J. Carey, the Court sustained the Debtors' objection to Mr. Henke's claims and the claims were disallowed.7

Mr. Henke appealed that decision to the United States District Court for the District of Delaware. On February 15, 2019, the District Court ruled that Mr. Henke, who represented himself pro se, did not receive adequate notice that his hearing before Judge Carey was an evidentiary hearing on the merits and "was not afforded a fair chance to submit evidence to support his claim."8 Therefore, the District Court vacated the Bankruptcy Court order sustaining the Debtors' objection to Mr. Henke's claims and remanded the matter to the Bankruptcy Court.9

After remand, the Bankruptcy Court held a status conference on the Claim Objection.10 On May 7, 2019, the Court approved a stipulated discovery schedule signed on May 2, 2019 by Mr. Henke and counsel for the Debtors.11 The Scheduling Order provided that Mr. Henke could prepare and serve discovery requests (including requests for production of documents, requests for admissions, or interrogatories), and the Baltimore Sun would respond to those requests no later than 18 days after receipt.12 The Scheduling Order also set June 20, 2019 as the date for the new evidentiary hearing on the Claim Objection.13

On May 14, 2019, Mr. Henke filed a document seeking, in part, to extend discovery deadlines.14 On May 23, 2019, the Court held an initial status conference to discuss, among other things, Mr. Henke's request. At the status conference, Mr. Henke confirmed that he sent discovery requests to the Debtors and was awaiting answers.15 The Court advised Mr. Henke that he should be prepared to submit "evidence in support of [his] claims ... any documents and any information and materials" at the June 20, 2019 evidentiary hearing.16 The Court further advised Mr. Henke that he should arrange for any witnesses who may have relevant testimony to appear at the hearing.17 The Court directed the parties to confer regarding documents to be submitted at the evidentiary hearing and the filing of any pretrial statements so that neither side would be surprised.18 The Court set a further status conference for June 17, 2019 (after Mr. Henke should have received responses to the discovery requests, but before the evidentiary hearing), to determine whether there was a basis for adjourning the June 20, 2019 hearing date.19

The Court held two further status conferences on the Claim Objection to ensure that any pre-trial discovery disputes were resolved and to ensure that the parties had adequate time to prepare to present evidence at the hearing.20 The Court agreed to move the evidentiary hearing to from June 20, 2019 to July 2, 2019. On June 27, 2019, Mr. Henke sent a document entitled "Evidence for evidentiary hearing of July 2, 2019"21 to the Debtors. The Debtors filed an Agenda with the Court prior to the evidentiary hearing which included a copy of the Henke Evidence Document.22

On July 2, 2019, the Court held an evidentiary hearing on the Claim Objection. The Debtors called one witness: the author of the article, Mr. Gadi Dechter, who testified credibly and at length. Mr. Henke declined to cross-examine Mr. Dechter and he did not call any witnesses of his own.23 Mr. Henke did, however, submit boxes of documents into evidence.24 On August 5, 2019, the parties gave their closing arguments on the Claim Objection via teleconference.25 This matter is now ripe for disposition.

For the reasons that follow, the Court will sustain the Reorganized Debtors' Claim Objection and disallow Mr. Henke's claims.

II. FACTUAL BACKGROUND

Mr. Henke and his wife, through their small firm called Dynamic In Situ Geotechnical Testing, spent years developing a new earthquake engineering geotechnical (soil) testing technology (the "Technology"), and bringing the Technology into practice.26 The Technology was described as:

Mr. Henke and his wife, however, faced numerous hurdles in completing their research and development of the Technology. In 2006, Mr. Henke was pressing various sources for an investigation of "three decades of official and professional misconduct" that prevented the advancement of the Technology and drove Mr. Henke, his wife and their firm to a state of ruin.28 Mr. Henke alleged that the misconduct included "the possibilities of the manipulation of grant competitions, theft from proposals, retaliation and a breakdown in safeguards."29

Mr. Henke alleges that the campaign to thwart the advancement of the Technology began with his time on the faculty at Johns Hopkins University (the "University") between 1985 and 1989.30 He alleges that the University became hostile and retaliated against him for his actions as an academic "whistleblower" when he charged students with plagiarism and was unwilling to engage in grade inflation.31

After leaving his position at the University, Mr. Henke devoted his full efforts to his firm and the Technology. Mr. Henke avers that he, his wife and the firm made "remarkable progress" with the Technology, paid for through government and private support, as well as their own significant personal investment.32 Such progress included designing and constructing three costly prototype systems, laboratory testing, field tests, and publishing their work in a series of articles in a leading international journal on earthquake matters.33

However, as Mr. Henke submitted funding proposals to governmental agencies, including the National Science Foundation (the "NSF"), he grew concerned that the process was being "manipulated to insure the failures of our proposals."34 He alleges that his proposals were "being treated improperly," for example, being placed in inappropriate competitions or receiving comments by reviewers that were "technically absurd."35 Suspecting bias, Mr. and Ms. Henke sued the NSF and the National Institute of Standards and Technology ("NIST") in the early 1990's for refusing to reveal the names of the peer reviewers who examined their proposals.36 Ultimately, the lawsuits were unsuccessful.37

Mr. Henke also became concerned about the possibility of theft of ideas from his proposals and he requested that the Office of the NSF's Inspector General investigate the matter.38 The investigation took place over 2½ years, but the investigator wrote in a letter dated April 1, 1996 that there was "insufficient substance to support further inquiry."39 Mr. Henke questioned the results of the investigation, and a second investigator was assigned to review the inquiry. Around August 23, 2000, the second inquiry ended without satisfaction to Mr. Henke.40

Mr. Henke also found it suspicious when his long-standing relationship with the Federal Highway Administration dissolved in May 2001 under "highly irregular circumstances."41 Similar questions arose when his firm's "good faith collaborative arrangement" with a Japanese research institute fell apart.42

In 2006, Mr. Henke wrote letters seeking investigations into the perceived irregularities he faced in obtaining government funding for his research. He wrote to a United States senator who, at the time, was the "ranking member of the committee charged with oversight of the Offices of the Inspectors General," and to the Chair of the University's Board of Trustees.43

On November 30, 2006, Mr. Henke also sent a letter to the Baltimore Sun enclosing detailed information to support his concerns.44 Not only did he believe the Sun could "shed light on the campaign,"45 he also believed the Sun's "possibly pivotal complicity in it."46 Mr. Henke explains:

Mr. Henke thought contacting the Sun would allow him to obtain information regarding the past Sun articles, including who had suggested writing the articles.48 An editor at the Sun brought Mr. Henke's letter to Gadi Dechter, a full-time reporter at the Sun whose duties included reporting on matters involving higher education.49 Mr. Dechter looked into the matter because the letter included "accusations ... that the Sun was involved in some kind of wrongdoing ... or that articles published by the Sun previously about Mr. Henke were problematic ... [a]nd that there was some connection to Johns Hopkins University."50 Mr. Dechter talked to Mr. Henke and "found him to be an very interesting person who was articulate and had an extraordinary story to tell."51 Mr. Dechter felt his area of study — "earthquake science" — was something people had not heard about before; "the stakes were high, the promise was great, ... and the facts of his life were very dramatic."52

When the Sun expressed an interest in writing an article about Mr. Henke's experiences in developing the Technology, Mr. Henke agreed because he "felt a sincere article might well lead to the investigation he had long sought."53

The article was a substantial nine-month long effort.54 Mr. Henke provided the Sun with additional documents and a set of slides about the history of the Technology.55 Mr. Dechter interviewed Mr. Henke over the telephone and spent four days interviewing Mr. Henke and his family in person in North Carolina.56 Mr. Dechter testified that he takes detailed notes during his interviews, as well as sometimes making an audio recording of the interview which may either be transcribed or used as backup.57 Mr. Dechter also interviewed people at the University who were familiar with Mr. Henke's time there and the reasons that his contract was not renewed.58 Mr. Dechter also interviewed previous co-workers or other people in the field who could discuss Mr. Henke's character or provide independent validation of the Technology's promise.59

On October 7, 2007, the Sun published the article in its Sunday edition (the "Article").60 The Article begins by lauding the Technology (or sometimes, the "Device") and its potential. It states:

The Article then remarks on American culture, which "valorizes the uncompromising dreamers" and celebrates individuals who are "single-minded in their pursuit of greatness...."62 It categorizes Mr. Henke as one of those dreamers and observes:

The Article punctuates this description with details from Mr. Henke's personal life, including his daily exercise routine, his parenting style, and his marriage. It states:

The Article repeatedly emphasizes the tension between Mr. Henke's devotion to his family and his desire to continue working on the Device. In its discussion of Mr. Henke's departure from the University and his choice to dedicate himself full-time to the Device, it says:

The Article also recounts Mr. Henke's adolescence, meeting Ms. Henke, and the impact of his work on his family. The Article notes that Mr. Henke had recently gone on a job interview and was open to finding employment so long as the opportunity "meet[s] his requirements."68 It discusses the lesson Mr. Henke has learned from his experience:

On October 3, 2008, Mr. Henke filed a complaint in state court against the Sun seeking $100 million in damages based on claims of defamation and misrepresentation.70 The bankruptcy petitions filed by Tribune Company and the Sun (and other affiliates) on December 8, 2008 stayed Mr. Henke's lawsuit. Mr. Henke filed a proof of claim and, later, an amended proof of claim against the Debtors based on his state court lawsuit. The Debtors objected to Mr. Henke's claims. Judge Carey held a hearing on the Debtors' objection and in 2016 issued an Opinion and Order sustaining the Debtors' objection and disallowing Mr. Henke's claims.71 Mr. Henke appealed that decision and the District Court vacated the Opinion and Order and remanded the matter to this Court for trial.72

III. STANDARD

The Debtors object to Mr. Henke's claim under 11 U.S.C. § 502(b)(1), which provides that a court will disallow a claim to the extent it is unenforceable under applicable law. Mr. Henke, therefore, will be entitled to payment only if he has a valid claim under the laws of Maryland.73

The burden of proof for a claim filed in a bankruptcy proceeding "rests on different parties at different times."74 Initially, the claim holder must establish the prima facie validity of the claim.75 The claim objector must then produce evidence that, "if believed, would refute at least one of the allegations that is essential to the claim's legal sufficiency."76 At that point, the burden shifts back to the claim holder to prove the validity of the claim by a preponderance of the evidence.77 The ultimate burden of persuasion rests on the claimholder. Mr. Henke, as claim holder, met his initial burden when he filed his proof of claim. But the Debtors have adequately rebutted the validity of his claim in the Claim Objection.78 The burden now shifts back to the claimant, and Mr. Henke must prove his defamation claim by a preponderance of the evidence.

IV. THE PARTIES' POSITIONS

Mr. Henke alleges claims of defamation and misrepresentation against the Sun. He argues the Article contains statements that are defamatory, falsehoods, or omit crucial facts. Mr. Henke also alleges that the Sun made numerous misrepresentations which induced him to agree to the Article. At trial, Mr. Henke also alleged that the Sun stalked him and published articles that contained messages meant to intimidate him and his family.

In reply, the Debtors argue that Mr. Henke has not fulfilled any of the elements for defamation, much less all of them. They also argue that the Sun did not make any misrepresentations to Mr. Henke and that other articles which Mr. Henke purported as showing stalking or intimidation of him or his family were simply coincidences.

V. ANALYSIS

A. Defamation

Mr. Henke separated his eleven defamation claims into four categories:

         Category             Count                                Disputed Content

  I. Theme              1. Defamation through             Mr. Henke posits that the overall
                        Theme                             tone and theme of the Article
                                                          suggest he is reckless, eccentric,
                                                          and obsessed

  II. Material          2. Falsification of Tenure        The Article omits Mr. Henke's
  Concealments          at the University                 plagiarism accusations

                        3. Concealment of                 The Article does not discuss the
                        Possibility of Retaliation        Henkes' belief that federal
                                                          agencies were biased, and that
                                                          the University had sabotaged
                                                          their professional relationships

  III. Personal         4. Falsification of Air Force     The Article states Henke
  Attacks               Discharge                         withdrew from the air force
                                                          through a self-initiated
                                                          elimination

                        5. Defamation Regarding           The Article contains a quote in
                        Profanity                         which Henke's son—quoting his
                                                          father—uses profanity79

                        6. Falsification of               The Article states that Mr.
                        Parenting                         Henke did not permit his sons to
                                                          watch movies and TV and
                                                          restricted the types of books they
                                                          read; Article states he would let
                                                          his family suffer for the Device

  IV. Falsification     7. Falsification of Promise       The Article omits field test
  Regarding             of Technology                     results and a report from 1986
  Technology                                              that suggested the Device had
                                                          promise; it also states that
                                                          Henke's main accomplishment
                                                          has been his refusal to quit

                        8. Falsification of Sincerity     The Article states that following
                        of Undertaking                    a major earthquake in 1989, the
                                                          Henkes' believed the Device
                                                          would be in high demand80

                        9. Falsification of               The Article states that soil
                        Professionalism                   testing devices are complex and
                                                          are generally not suited to being
                                                          developed in a residential
                                                          basement

                        10. Falsification of              The Article omits details about
                        Japanese Collaboration            the Henkes' collaboration with
                                                          the Geo-Research Institute of
                                                          Japan

                        11. Falsification of Risk of      The Article incorrectly implies
                        Undertaking                       that Mr. Henke proceeded with a
                                                          substantially risky venture,
                                                          thereby knowingly endangering
                                                          his family.

Under Maryland law, Mr. Henke must prove four elements to establish a defamation claim: (1) the Sun made a defamatory statement to a third person, (2) the statement was false, (3) the Sun was legally at fault in making the statement, and (4) Mr. Henke thereby suffered harm.81 The standard of fault that the Court must apply to a defamation claim varies depending on whether the plaintiff (here, Mr. Henke) is a public figure or a private individual. If a plaintiff is a public figure, then he must meet a higher standard of fault and show that the defendant published the defamatory statement with "actual malice."82 Otherwise, the plaintiff only needs to show that the defendant negligently made the defamatory statements.

The Debtors argue that Mr. Henke should be considered a limited purpose public figure.83 Courts have recognized this subset of public figures to include individuals who, "although they are not well known throughout the country or on every issue, are nonetheless sufficiently involved in one particular arena to qualify as public figures for that purpose."84 The Third Circuit relies on a two-part inquiry to determine whether someone is a limited purpose public figure: "(1) whether the alleged defamation involves a public controversy, and (2) the nature and extent of the plaintiff's involvement in that controversy."85

The Debtors claim that the Mr. Henke has "long sought to influence the resolution of the controversies discussed in the Article," which controversies include "official and professional" efforts to thwart the development of his Technology and the broader problem of corruption in the federal grant reviewing process.86 The Debtors assert that Mr. Henke became involved in these controversies voluntarily by filing lawsuits against agencies that denied his grant applications (which were reported in multiple press outlets at the time), and approaching the Sun, hoping that the newspaper would investigate the misconduct that, he claims, led to his professional difficulties.87 The Debtors point out that, in addition to contacting the Sun, Mr. Henke contacted the Office of the National Science Foundation's Inspector General, the University, and selected politicians in hopes of starting an investigation.88 The Debtors contend that affirmatively seeking media attention "is a quintessential indicator of public figure status"89 and argue that he is a limited purpose public figure in connection with the controversies raised in the Article.

If Mr. Henke is a limited purpose public figure, then he must prove that the Article published false statements about him with "actual malice," that is, with knowledge that the statements are false or with reckless disregard of whether they are false or not.90 If Mr. Henke is not a limited purpose public figure, he need only prove that the Sun acted negligently in publishing the false statements.91 The Court declines to decide this issue. Even if the more lenient negligence standard is applied in this case, Mr. Henke has not proven his defamation claims.

1. Defamatory Statements Made to a Third Person that are False

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."92 "To determine whether a publication is defamatory, a question of law for the court, the publication must be read as a whole: `[W]ords have different meanings depending on the context in which they are used and a meaning not warranted by the whole publication should not be imputed.'"93

"[A] `false' statement is one `that is not substantially correct.'"94 "The plaintiff carries the burden to prove falsity."95

a. Theme

The first category of Mr. Henke's defamation claim is based on the Article's theme. He argues that the "prominent theme of the article represents claimant as a delusional, unaccomplished eccentric who willingly destroyed his family in a reckless quest for scientific glory."96 Mr. Henke argues the Article's tone and theme imply that he is unprofessional. He asserts the theme is reinforced through bold-face headings and various statements scattered throughout the Article, including:

Mr. Henke argues that these statements are clearly untrue. For example, he claims that he kept working on the Technology, not due to some obsession or quest for "geologic immortality," but because he faced difficult circumstances after he left the University, and he and his wife already had invested heavily in the Technology, which they had been developing for six years.101 He further argues that Mr. Dechter should not have placed much weight on Dr. Templeton's statements since he had not been in contact with Dr. Templeton since 1984.102

The Court finds that the Article does not portray Mr. Henke as unprofessional, reckless or deluded. But even assuming the Article could be read as such, the Article's theme is a protected opinion.103 Maryland law recognizes the fair comment privilege, which provides that "a newspaper, like any member of the community may, without liability, honestly express a fair and reasonable opinion or comment on matters of legitimate public interest."104 The fair comment privilege applies to public figures as well as to private figures.105

The fair comment doctrine protects an opinion only when "the facts on which it is based are truly stated or privileged or otherwise known...."106 For instance, if a newspaper publishes "[d]erogatory opinions based on false and defamatory or undisclosed facts," then those statements would not be protected.107 But, "[d]erogatory opinions based on non-defamatory facts, true facts, privileged facts, or facts assumed mutually by the opinion-maker and the recipient are privileged."108

When evaluating a statement, the "primary emphasis [is placed] on verifiability of the statement" and a court should "examine the statement's language and context to determine if it could interpreted as asserting a fact."109 Here, the context and content of the Article's theme clearly reflect the author's opinion. References to Captain Ahab, as well as descriptions of Mr. Henke's efforts as "obsessive" or in pursuit of "geologic immorality" are subjective statements that are consistent with the "rhetorical hyperbole and imaginative expression" that "`negate the impression that the writing is stating fact.'"110 Such statements are not meant to be verifiable facts. Further, to support this opinion, the Article includes numerous facts and quotations drawn from Mr. Dechter's interviews with Mr. Henke, his family and people who knew his work. There is no evidence that the underlying facts are false. Readers can draw their own conclusions (and form their own opinion) about those facts. Accordingly, the Court concludes that the evidence does not support a finding that the Article's theme is defamatory or false.

b. Material Concealments

Mr. Henke's defamation claims assert that the Article materially conceals "the possibility that he, Ms. Henke, and their firm and family had fallen victim to [a] campaign that targeted them with official and professional misconduct."111 Mr. Henke claims the Article omitted important details about the University's retaliation against him for his accusations of plagiarism and grade inflation. He further argues that the Article conceals material facts suggesting that government grant competitions were corrupted to ensure the proposals submitted by Mr. and Ms. Henke would fail.112

For defamation purposes, a "false statement is one that is not substantially correct ... [M]inor inaccuracies do not amount to falsity so long as the substance, the gist, the sting of the libelous charge be justified."113 Omitting material facts, however, may lead to liability because that "can render an account just as false as an outright misstatement ... [T]he literal truth of each individual statement is not a defense in such cases."114 But omitting facts favorable to the plaintiff does not automatically render a statement false:

Mr. Henke has not proven that the Article conceals material facts, thereby making its contents false. The Article does not omit facts related to Mr. Henke's claims about the campaign against him, his wife, their Company and the Technology:

Mr. Henke originally approached the Sun to investigate the University and the Sun in hopes of uncovering direct evidence of the alleged campaign. Without such evidence, the Sun could not include as many details about the alleged campaign as Mr. Henke would have liked.

Mr. Henke also argues that the Article falsely represents the reasons he left the University by asserting that the Technology "cost him ... an aborted academic career,"118 that he lost the University job "for failing to publish a single research paper in five years,"119 and that he "ignored the publish-or-perish warning."120 Mr. Henke claims the Article omits the important facts surrounding his departure from the University: that is, his "whistle-blower" allegations of plagiarism and grade inflation.121 However, Mr. Dechter testified that Mr. Henke did not have proof to support his allegations.122 The Article's discussion about Mr. Henke ignoring the "publish-or-perish" warning is based on quotes from University officials interviewed by Mr. Dechter.123

The Court concludes that Mr. Henke has not proven that the Article is false because it omits additional facts that might cast him in a more favorable light. The excluded details either are not well-documented or are not material enough to change the tenor or meaning of the Article. Although the Article did not include all facts requested by Mr. Henke, the omission does not run afoul of Maryland law.124

c. Personal Attacks

In the Amended Complaint, Mr. Henke alleges that the Article defames him through "direct personal attacks," including, that the Sun (i) falsely represented his "discharge from the Air Force as less than honorable,"125 (ii) falsely represented him as profane,126 and (iii) falsely represented his parenting intentions and practices.127 In support of his argument, Mr. Henke cites to the following paragraphs of the Article:

Mr. Henke disputes the truth of these assertions and argues that the statements defamed him.

The Court disagrees that the Article's descriptions of Mr. Henke's parenting style are the sort of statements that would expose him to public contempt or ridicule. The Court does not doubt that Mr. Henke is a loving parent and does not find that the statements in the Article would discourage other people from associating or dealing with him. Many parents monitor and restrict their children's media consumption. In the Amended Complaint, Mr. Henke includes additional facts to rebut the truth of the statements,133 but as discussed above, omission of Mr. Henke's preferred facts does not render the statements false. Further, the Court rejects Mr. Henke's argument that the Article's statements imply a "hidden meaning" or compare Mr. Henke's actions to a "Nazi mindset" of book-burning.134

Moreover, neither the Article's brief discussion of his "self-initiated elimination" from a military training program nor his son's quote attributing swear words to Mr. Henke are statements that would cause Mr. Henke to lose standing in the community or otherwise meet the standard for defamation. Mr. Henke has not proven that the Article's reporting on these matters is false or that Mr. Dechter misquoted his son. The Court does not conclude that the Article's statements on these issues are defamatory or false.

d. Falsification Regarding Technology

Mr. Henke also asserts that the article "falsely represent[s] the technology as unpromising and the undertaking as unproductive and so [falsely represents Henke] as delusional and unaccomplished."135 He also claims that the Article describes him as "unprofessional" and "greed-driven,"136 and belittles the Technology as "basement development."137 He also notes that the Article omits positive information about the Technology, for example, optimistic reports about the Technology in 1986 by the National Institute of Standards and Technology,138 and successful field tests with support from the Federal Highway Administration.139

The Court disagrees with Mr. Henke's assessment. The Article does not attack his qualifications and does not offer a conclusion on the Technology's value. Mr. Henke's Amended Complaint cites to words and phrases out of context of the overall Article. One could also easily state that the Article exalts Mr. Henke and the Device, comparing him to the celebrated mathematician John Nash140 and commenting that the Device "ought to grab the world's attention."141 The overall gist of the Article is a story about Mr. Henke's relentless determination and willpower to complete his quest to develop a device that "could prevent building collapses and save lives. If it works."142 The omission of Mr. Henke's preferred facts is not actionable unless the omission creates a falsity.143 The Court does not agree that the Article falsifies the value, promise or sincerity of the Technology. The Court concludes that Mr. Henke has not proven that the Article is defamatory or false in its discussion of the Technology.

2. Negligence

As discussed above, for purposes of this Opinion, the Court considers Mr. Henke a private individual. Mr. Henke, therefore, must show by a preponderance of the evidence that the Sun (1) knew the Article's statements were false, (2) acted in reckless disregard to the truth, or (3) acted negligently in failing to ascertain the truth.144

The Court again observes that Mr. Henke has not shown that any of the statements in the Article are false. But even assuming, without deciding, that he had, Mr. Henke also failed to show that the Sun acted negligently. The Court heard testimony from Mr. Dechter and admitted into evidence the notes that he took during his interviews.145 Mr. Dechter testified about the editorial process used for this Article, the purpose of which includes ensuring its accuracy before publication.146 He also testified that, when possible, he investigated allegations and facts that he had collected in the interviews from other sources.147 Mr. Dechter's written notes faithfully reflect the Article's contents and his testimony at trial was credible and sincere.148

In addition, Mr. Henke's journal entries largely support Mr. Dechter's testimony and verify that Mr. Dechter called him to check facts.149 The record reflects that Mr. Dechter followed journalistic standards and confirmed the Article's contents before it went to print. Mr. Henke did not submit any evidence of negligence, and the record reflects that the Sun was diligent in verifying the contents of the Article before it went to print. The Court rejects Mr. Henke's claim that the Sun acted negligently.

3. Harm

Mr. Henke alleges that the Article has caused him and his family countless harms and has led to their financial ruin.150 He seeks redress of $100 million.151 Under Maryland law, "[i]t is the general rule that one may recover only those damages that are affirmatively proved with reasonable certainty to have resulted as the natural, proximate and direct effect of the injury."152 Put simply, Mr. Henke needs to prove that the Article is the root of his injuries.

Mr. Henke has not shown that the Article caused the harms that he has suffered. According to his own account of the facts in the Amended Complaint, many injuries befell him and his family before the Article was published.153 In the Amended Complaint, Mr. Henke claims that the Article exacerbated his problems, including:

However, when Mr. Henke approached the Sun in 2006, he was seeking redress for similar harms that, at the time, he alleged were caused by the University.162 Mr. Henke has not presented any evidence connecting his failure to get a job that he interviewed for in June 2007 with the Article's later publication in October 2007.163 For the reasons stated above, Mr. Henke has not proven that the Article was defamatory or false or published with negligence. A failure to prove these elements prevents any recovery. However, upon review of the evidence in this case, the Court also concludes that Mr. Henke's evidence does not prove that his condition — or his family's condition — materially worsened after the Article was published.

B. Misrepresentation and Stalking

In addition to the defamation claims, Mr. Henke asserts five counts of misrepresentation.164

To succeed on a claim of fraudulent misrepresentation, Mr. Henke must show five elements: (1) a false representation was made, (2) its falsity was either known to the maker or was made with such reckless indifference to the truth as to be the equivalent to actual knowledge of falsity, (3) the representation was made for the purpose of defrauding the plaintiff, (4) the plaintiff not only relied on the representation but had a right to rely on it and would not have done the thing from which the injury arose had the misrepresentation not been made, and (5) the plaintiff actually suffered damages directly resulting from the misrepresentation.166

Mr. Henke has fallen short of his burden. First, Mr. Henke's journal entries show that he knew the Article was going to be a "human interest" story that focused on him and on "devising something new that is useful and the troubles you experience" in development.167 There is no evidence that the Sun represented that it did not need proof of Mr. Henke's allegations. Moreover, the journal entries reflect that Mr. Dechter told Mr. Henke that writing about the Air Force discharge was a "key element of the story."168 Mr. Henke's journal notes that, when talking about the possibility of attending his son's court date, Mr. Dechter assured Mr. Henke that he "wouldn't exploit [his son],"169 but the journal also shows that he knew the Article would include reference to his son's problems.170 As far as Mr. Dechter's failure to mention his affiliation with the University, the Sun had no duty to disclose that information and it is neither relevant nor material.171

The Court concludes that Mr. Henke failed to prove that Mr. Dechter or the Sun made any fraudulent misrepresentations to Mr. Henke. And, as discussed above, Mr. Henke has not proven that he suffered any damages as a result of any alleged misrepresentation.

Mr. Henke does not allege a separate cause of action for stalking, but to the extent that it is relevant to the defamation or misrepresentation claims, the Court finds that the Sun did not stalk or attempt to intimidate him. To prove his point, Mr. Henke produced a stack of newspaper clippings from the Sun dating back to 1990 that, he alleges, each refer to a person, place, or thing that is related to him in one way or another. Many articles mention acquaintances of the Henke family. Others reference San Francisco, where the Henkes had gone on a trip. In one instance, the author cites to a Mr. Robert I. Henkin. To the extent these articles track Mr. Henke, the Court finds it is simply a coincidence. It is clear that the Sun did not try to intimidate Mr. Henke and there is no indication whatsoever that anyone stalked him.172

VI. CONCLUSION

For the reasons stated above, the Court sustains the Debtors' objection to Mr. Henke's claims. The Debtors' counsel is requested to submit a proposed form of order consistent with the foregoing with fourteen days of the date hereof.173