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A doctor who sues a law firm for “wrongful use of civil proceedings” — for allegedly filing a baseless medical malpractice case — is not required to turn over communications he had with his attorneys about their views on the merits of the malpractice suit, a federal judge has ruled. In his four-page opinion in Schmidt v. Currie, U.S. District Judge Harvey Bartle III found that, in a suit under Pennsylvania’s Dragonetti Act, the doctor’s opinion about the merits of the underlying suit against him — as well as the views of the lawyers who defended him — are simply irrelevant. Instead, Bartle found that the Dragonetti Act focuses only on whether the plaintiff and lawyers who filed the underlying suit had a reasonable basis for doing so. In the suit, Christopher Schmidt claims he was wrongly sued for medical malpractice by a surgery patient, Stanley Dietz. In the malpractice suit, Dietz had claimed that Schmidt negligently damaged the blood supply to Dietz’s penis and negligently damaged the dorsal nerve that provided sensation to his penis, leaving him physically incapable of having an erection and with no sensation to the upper portion of his penis. The case went to trial before Philadelphia Common Pleas Judge Gary Glazer in August 2002, and the jury handed up a verdict in favor of Schmidt. Schmidt then filed a Dragonetti Act suit against Dietz and his lawyers — J. Craig Currie and Irene M. McLafferty of Currie & McLafferty — claiming there was no “probable cause” to bring a malpractice claim. The suit alleges that Dietz and his lawyers knew the case had no basis, but decided to pursue it nonetheless and, in doing so, “acted maliciously and for the primary purpose of harassing [Schmidt].” A discovery dispute erupted when Currie & McLafferty’s lawyer — V.P. dePillis of Rawle & Henderson — demanded access to the communications between Schmidt and the lawyers who had defended him in the malpractice case relating to whether any of them believed Dietz and his lawyers had probable cause to bring the case. In court papers, dePillis argued that since the Dragonetti Act imposes a “reasonable lawyer” standard, the communications between Schmidt and his lawyers is relevant. But Schmidt’s lawyer — Marshall L. Grabois of Penna Grabois & Associates — argued that all of the communications were protected by the attorney-client privilege and the work product doctrine. Grabois said in his brief that dePillis was asking the court to hold that Schmidt, by filing a Dragonetti Act claim, had effectively waived his right to assert any privileges. But Bartle found there was no reason to reach the complicated attorney-client privilege issues because the law firm’s motion failed for a much simpler reason — relevance. “Whether or not [Schmidt] and his attorneys in the Dietz action considered that action to be in violation of the Dragonetti Act is totally irrelevant and not reasonably calculated to lead to the discovery of admissible evidence,” Bartle wrote. Instead, Bartle said, the only relevant issues are whether the actions of Dietz and his lawyers amounted to “wrongful use of civil proceedings.” Under the Dragonetti Act, Bartle said, courts focus on whether the plaintiff and lawyers in the underlying case had a reasonable belief in the case’s merits when they filed and pursued it. “Dr. Schmidt was brought into the underlying action involuntarily as a defendant. What he and his defense attorneys thought about the Dietz action has no bearing under the provisions of the Dragonetti Act,” Bartle wrote. The Dragonetti Act, Bartle said, “is concerned only with the conduct and beliefs” of the plaintiff in the underlying case and his attorneys since they “were the ones using civil proceedings.” Since he had decided the motion on relevancy grounds, Bartle said there was no need to “delve into the thicket of attorney-client privilege and attorney work product.”

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