Present: Hassell, C.J., Lacy, Keenan, Koontz, Lemons, and Agee,
JJ., and Carrico, S.J.
GREGG LINDEMAN
OPINION BY
v. Record No. 040385 JUSTICE LAWRENCE L. KOONTZ, JR.
November 5, 2004
JAMES E. LESNICK, M.D.
FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG
AND COUNTY OF JAMES CITY
J. Warren Stephens, Judge
In this defamation case, the sole issue on appeal is
whether the trial court erred in failing to strike the evidence
on the ground that the defamatory statements were made in the
context of an absolute privilege.
BACKGROUND
Upon well-established appellate principles, we view the
evidence in the light most favorable to the prevailing party in
the trial court, who now is before us armed with a jury verdict
approved by the trial court. The Gazette, Inc. v. Harris, 229
Va. 1, 25, 325 S.E.2d 713, 731 (1985). We will recite only
those facts pertinent to our resolution of the issue presented.
In October 1997, Gregg Lindeman, a machinist, suffered a
work-related injury to his back. Thereafter, Lindeman and his
employer entered into a memorandum of agreement for payment of
benefits, which was approved by the Virginia Workers’
Compensation Commission (the Commission) in an award entered on
March 31, 1998. In addition to specified weekly compensation
“during incapacity,” the award provided for medical benefits “as
long as necessary.” The insurance company that administered the
employer’s self-insured workers’ compensation program considered
the provision for medical benefits in the award to be
“potentially for [Lindeman’s] lifetime.”
In January 1998, Lindeman was referred to James E. Lesnick,
M.D., a neurosurgeon, for treatment regarding Lindeman’s work-
related injury. Lindeman complained of back and leg pain and,
ultimately, Dr. Lesnick performed a spinal fusion surgery on
Lindeman. Responding well to the surgery, Lindeman was able to
return to work with certain restrictions. However, in July
1999, Lindeman contacted Dr. Lesnick and complained of renewed
back and leg pain. Dr. Lesnick ordered a course of physical
therapy to which Lindeman responded well. Lindeman returned to
see Dr. Lesnick in June 2000 again complaining of back and leg
pain. Although Dr. Lesnick discussed possible alternate
treatment options with Lindeman at that time and referred him to
another specialist, Lindeman became dissatisfied with Dr.
Lesnick as his treating physician and stopped seeing him.
At about this same time, Linda Harris, Lindeman’s
girlfriend, suggested that Lindeman consult with Hallett H.
Mathews, M.D., an orthopedic surgeon, regarding his continued
complaints of back and leg pain. Later in the summer of 2000,
Lindeman contacted his employer and its insurance company and
2
requested that Dr. Mathews be designated as his authorized
treating physician in place of Dr. Lesnick. He was advised
essentially that, without a referral by Dr. Lesnick, any
treatment by Dr. Mathews would be at Lindeman’s expense and not
covered by the 1998 compensation award.
Lindeman contacted Kevin P. Shea, an attorney, requesting
that Shea represent him regarding his continued receipt of
benefits under the award. Lindeman indicated to Shea that he
was working in a light duty position, but that his employer
wanted to return him to a full duty position. Lindeman also
advised Shea that he did not feel capable of returning to full
duty and that he wanted to have a new physician designated as
his treating physician. Lindeman was terminated by his employer
on September 7, 2000.
Subsequently, on September 20 and again on October 4, 2000,
Dr. Mathews examined Lindeman for the purpose of providing an
opinion regarding his future treatment. Harris, who was also a
patient of Dr. Mathews, accompanied Lindeman during these
examinations and took notes. Memoranda purporting to reflect
the couple’s impressions of Dr. Mathews’ examinations of
Lindeman were subsequently prepared and provided by Lindeman to
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Shea in the presence of Harris.1 These memoranda contained the
defamatory statements that became pertinent to the present case.
One of the memoranda contained a statement that Dr. Mathews
had said that “Dr. Lesnick was ‘about to go under’ with his
medical practice because he can’t get any patients [and] Lesnick
was ‘undereducated’ and . . . didn’t have enough training prior
to starting to perform this type of fusion [surgery].” The
other memorandum contained statements attributed to Dr. Mathews
that “it is ‘a crime’ for Dr. Lesnick” not to admit the failure
of the spinal fusion surgery performed on Lindeman, that “Dr.
Lesnick decided to ignore the facts and just send Gregg back to
work because [Dr. Lesnick] was instructed to do so” by
Lindeman’s employer and its insurance company, and that Dr.
Lesnick “appear[s] to be ‘in the pocket’ of employers and
Workman’s Comp carriers for the purpose of returning employees
to work . . . whether or not the patient is physically able to
safely resume his work duties.”
Apparently through inadvertence, Shea forwarded these
memoranda to the insurance company that administered the
workers’ compensation program of Lindeman’s employer. The
1
Harris would later testify that she did not prepare these
memoranda and that Dr. Mathews had not said anything
“derogatory” about Dr. Lesnick.
4
insurance company in turn forwarded the memoranda to the
employer, which then forwarded them to Dr. Lesnick.
On June 26, 2001, Dr. Lesnick filed a motion for judgment
in the Circuit Court of the City of Williamsburg and County of
James City (the trial court) against Lindeman, Dr. Mathews, and
Shea.2 Relevant to the issue raised in this appeal, Dr. Lesnick
alleged that he was defamed by Lindeman’s communication of the
memoranda to Shea. Dr. Lesnick alleged, among other things,
that Lindeman knew that the statements in the memoranda were
false or that he lacked reasonable grounds to believe that they
were true and that publication of the statements created a
substantial danger to Dr. Lesnick’s professional reputation.
Dr. Lesnick sought compensatory damages in the amount of
$2,000,000 and punitive damages of $350,000.
In an amended grounds of defense, Lindeman denied that the
delivery of the memoranda to Shea constituted a publication. He
further asserted that “presentation of the memos to his personal
attorney who was representing him in matters related to his care
and treatment by Dr. Lesnick and his workers’ compensation claim
are absolutely privileged and therefore no defamation occurred.”
2
Shea was dismissed from the lawsuit by nonsuit prior to
trial. The jury ultimately returned a verdict against Dr.
Mathews; however, Dr. Mathews did not join in this appeal.
5
A five-day jury trial commenced in the trial court on
October 27, 2003. At the conclusion of the presentation of Dr.
Lesnick’s evidence, Lindeman moved to strike the evidence on the
ground that the communication between Lindeman and Shea was
absolutely privileged and, thus, not actionable as defamation.
Lindeman argued that “absolute judicial privilege” applied to
any statement made that is relevant to a judicial or quasi-
judicial proceeding, and that Lindeman’s communication of the
memoranda to Shea was relevant to his ongoing workers’
compensation claim.
Dr. Lesnick responded that this privilege does not extend
to “any communication ancillary to, introductory to or somehow
related to a judicial or quasi-judicial proceeding uttered
outside the confines of that proceeding.” Dr. Lesnick further
contended that even if the privilege were to apply to relevant
communications outside the confines of a judicial or quasi-
judicial proceeding, there was no ongoing proceeding in this
case because Lindeman’s workers’ compensation claim had already
been resolved and there were no matters pending before the
Commission at the time Lindeman gave the memoranda to Shea. The
trial court overruled Lindeman’s motion to strike.
At the conclusion of the presentation of all the evidence,
Lindeman renewed his motion to strike, and the trial court again
overruled it. The case was submitted to the jury, which
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returned verdicts for Dr. Lesnick against Lindeman and Dr.
Mathews for $350,000 in compensatory damages, and punitive
damages against Lindeman and Dr. Mathews of $25,000 and $50,000
respectively.3 In a final order dated November 21, 2003, the
trial court denied motions to set aside filed by Lindeman and
Dr. Mathews and confirmed the jury’s verdicts. This appeal
followed.
DISCUSSION
Well-established principles guide our initial consideration
of the issue presented in this appeal concerning absolute
privilege to publish defamatory statements. As the designation
of the rule suggests, the maker of an absolutely privileged
communication is accorded complete immunity from liability even
though the communication is made maliciously and with knowledge
that it is false. Spencer v. Looney, 116 Va. 767, 774, 82 S.E.
745, 747 (1914). Absolute privilege, sometimes called judicial
privilege, is broad in scope and applies to communications made
in proceedings pending in a court or before a quasi-judicial
body. Penick v. Ratcliffe, 149 Va. 618, 628, 140 S.E. 664, 667
3
The jury was instructed that Lindeman’s communication of
the defamatory statements at issue was subject to a qualified
privilege that could be lost by proof of malice. Qualified
privilege is not an issue in this appeal.
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(1927). If the communication is made in such a judicial
proceeding, it need only be relevant and pertinent to the case
to be protected by the privilege. Donohoe Construction Co. v.
Mount Vernon Assocs., 235 Va. 531, 539, 369 S.E.2d 857, 861
(1988). “The reason for the rule of absolute privilege in
judicial proceedings is to encourage unrestricted speech in
litigation.” Id. at 537, 369 S.E.2d at 860. In addition,
absolute privilege is extended to statements made in the course
of judicial proceedings because of the safeguards that exist in
such proceedings, including liability for perjury and the
applicability of the rules of evidence. Lockheed Information
Management Systems Co. v. Maximus, Inc., 259 Va. 92, 101, 524
S.E.2d 420, 424-25 (2000).
Applying these principles in prior cases, as Lindeman
correctly notes, we have extended the application of the
absolute privilege well beyond the actual courtroom. See, e.g.,
Donohoe, 235 Va. at 539, 369 S.E.2d at 861-62 (statements
contained in memorandum filed in connection with enforcement of
mechanic’s lien); Watt v. McKelvie, 219 Va. 645, 651, 248 S.E.2d
826, 829 (1978) (privilege protected third party whose
statements are republished by another during a deposition). We
are also of opinion that certain proceedings before the
Commission involve a quasi-judicial body contemplated by the
privilege because the Commission, upon receipt of evidence
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submitted under penalty of perjury, resolves facts and legal
disputes falling within its statutory authority between parties
who seek to have their disputes over workers’ compensation
issues resolved by that body.
In the present case, Lindeman attributes great significance
to the undisputed fact that the defamatory statements regarding
Dr. Lesnick were made by Lindeman to his attorney. He does so
in further support of his contention that he had engaged this
attorney to represent him with regard to his desire to have Dr.
Mathews designated as his authorized treating physician in place
of Dr. Lesnick. The thrust of Lindeman’s contentions is that he
was protected by the absolute privilege because under the 1998
compensation award Lindeman was entitled to medical benefits “as
long as necessary” and, therefore, a legal proceeding was
pending continuously before the Commission. We disagree.
To accept Lindeman’s assertions would require this Court to
extend the absolute privilege to mere potential litigation. We
decline to do so. The logical extension of Lindeman’s
contentions would effectively erode the absolute privilege to
permit defamatory communications to be made with impunity merely
upon an assertion that litigation might be subsequently
initiated.
When Lindeman gave the memoranda to Shea, no claim had been
filed with or was pending before the Commission. The fact that
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the Commission had entered an ongoing award for medical benefits
does not constitute a pending proceeding as contemplated by the
absolute privilege rule. Moreover, it is self-evident that at
that time none of the protections of a judicial proceeding
existed. Lindeman was accorded the right to assert a qualified
privilege by the trial court because of the attorney-client
relationship that existed, but he was not entitled to assert an
absolute privilege under the circumstances of this case.
Accordingly, we hold that the trial court did not err in
refusing to strike Dr. Lesnick’s evidence against Lindeman.
CONCLUSION
For these reasons, we will affirm the judgment of the trial
court in favor of Dr. Lesnick.
Affirmed.
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