Clark v. Druckman
| Citation | 624 S.E.2d 864 |
| Decision Date | 30 November 2005 |
| Docket Number | No. 32576.,No. 32577.,32576.,32577. |
| Court | West Virginia Supreme Court |
| Parties | Carolyn CLARK, M.D., Plaintiff Below, Respondent, v. William DRUCKMAN; Salsbery & Druckman, a West Virginia Partnership; Richard Lindsay; Tabor, Lindsay & Associates, a West Virginia Partnership; and Frederick Delp Defendants Below, Petitioners and Carolyn Clark, M.D., Plaintiff Below, Petitioner, v. William Druckman; Salsbery & Druckman, a West Virginia Partnership; Richard Lindsay; Tabor, Lindsay & Associates, a West Virginia Partnership; and Frederick Delp Defendants Below, Respondents. |
Syllabus by the Court
1. "The appellate standard of review of questions of law answered and certified by a circuit court is de novo." Syllabus Point 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996).
3. The litigation privilege is generally applicable to bar a civil litigant's claim for civil damages against an opposing party's attorney if the alleged act of the attorney occurs in the course of the attorney's representation of an opposing party and is conduct related to the civil action.
2. An attorney for a party in a civil lawsuit does not owe a duty of care to that party's adversary in the lawsuit such that the adversary may assert a cause of action for negligence against the opposing attorney.
D.C. Offutt, Jr., Offutt, Fisher & Nord, Jack H. Vital, III, Lockwood and Vital, Huntington, for Carolyn Clark, M.D.
Stephen B. Farmer, Christopher S. Arnold, Stacy A. Jacques, Farmer, Cline & Campbell, PLLC, Charleston, for William S. Druckman and Salsbery & Druckman, a West Virginia Partnership.
James S. Varner, Sr., James N. Riley, Debra Herron, McNeer, Highland, McMunn, & Varner, Clarksburg, for Richard Lindsay and Tabor Lindsay & Associates, a West Virginia Partnership.
Richard W. Stuhr, Colombo & Stuhr, Co., L.P.A., Worthington, OH, Timothy R. Linkous Colomo & Stuhr, P.L.L.C., Morganton, for Amicus Curiae Debra Sams, D.O.
This matter is presented to us upon certified questions presented by the Circuit Court of Cabell County pursuant to W. Va.Code § 58-5-2 (1998).1 The underlying tort action arises from claims asserted by a physician against the attorneys who brought a medical malpractice action against the physician on behalf of a former patient of the physician. The certified questions presented relate to the duty of care, if any, an opposing counsel owes a party and the scope of the litigation privilege in West Virginia. Having determined that "there is a sufficientry precise and undisputed factual record on which the legal issues can be determined" and that those issues substantially control the case, we will address the issues presented. Syl. Pt. 5, in part, Bass v. Coltelli, 192 W.Va. 516, 453 S.E.2d 350 (1994).
On December 5, 2002, Carolyn Clark, M.D. ["Dr. Clark"] filed a complaint in the Circuit Court of Cabell County, West Virginia, being civil action number 02-C-1002, against William S. Druckman, Salsbery and Druckman, a West Virginia partnership,2 Richard Lindsay, Tabor Lindsay & Associates, a West Virginia partnership,3 and Frederick L. Delp.4 Druckman and Lindsay are the former counsel for Amy and Roy Dempsey. Druckman and Lindsay filed a medical professional negligence action against Dr. Clark on behalf of the Dempseys in the Circuit Court of Kanawha County, West Virginia in November 1999 arising from an alleged failure to timely diagnose an aggressive form of breast cancer in Mrs. Dempsey. Frederick L. Delp replaced Druckman and Lindsay as counsel for the Estate of Amy Dempsey5 after Druckman and Lindsay were permitted to withdraw as counsel in February 2001. Thereafter, the Dempsey action was voluntarily dismissed, with prejudice, on December 7, 2001. Nearly one year later, Dr. Clark filed her complaint against Druckman, Lindsay and Delp asserting claims of negligence, intentional infliction of emotional distress, tortious interference with Dr. Clark's business relationship with her insurance carrier and malicious prosecution. Dr. Clark sought compensatory and punitive damages arising from the filing and prosecution of the Dempsey action.
Having conceded that probable cause existed to initially file the action against her, Dr. Clark focuses her claims on the disclosure of expert witnesses regarding causation and the applicable standard of care in the Dempsey action. In September 2000, Druckman filed Plaintiff's Initial Disclosure of Expert Witnesses in the Dempsey action, disclosing David M. Burkons, M.D., and Melvin Ravitz, M.D., as experts "regarding the negligence of the defendants" and Barry Singer, M.D. and Lee Levitt, M.D. as experts regarding causation and damages. The disclosure noted that these witnesses "may be used at the trial of [the Dempsey] matter." It does not appear from the record before this Court that Dr. Clark made any attempt to depose these experts or otherwise discover their opinions prior to the withdrawal of Druckman and Lindsay in February 2001. At a July 6, 2001 hearing, Mr. Delp appeared as replacement counsel for the Estate of Amy Dempsey. At that hearing, the court, on its own initiative, scheduled a statutory status conference for August 31, 2001.6 Prior to the mandatory status conference, Mr. Delp re-disclosed the experts previously disclosed by Druckman and Lindsay on August 24, 2001. Dr. Clark claims that neither Druckman and Lindsay nor Mr. Delp actually contacted these experts prior to their disclosure.
After certain discovery, Druckman and Lindsay filed motions for summary judgment on September 15, 2004 and September 20, 2004 respectively.7 In their motions, Druckman and Lindsay argued the litigation privilege bars civil actions against lawyers for damages arising from litigation conduct. In response, Dr. Clark argued that the litigation privilege is restricted to claims of defamation, relating solely to communications and not conduct. During an October 6, 2004, hearing on the motions, the circuit court and counsel for the parties decided to certify certain questions of law governing resolution of Dr. Clark's claims to this Court. A second hearing was held on October 20, 2004, during which counsel presented oral arguments regarding the issues to be certified. By Order dated November 15, 2004, the circuit court certified the following questions to this Court:
1. Whether an attorney for a party in a lawsuit owes a duty of care to that party's adversary in the lawsuit such that the adversary may assert a cause of action for negligence against the opposing attorney?
Answer of the Circuit Court: No.
2. Is a party to a civil action barred, by virtue of the litigation privilege, from bringing any type of claim for civil damages against the opposing party's attorney if the alleged act of the attorney in the course of the attorney's representation of the opposing party is conduct and not a written or oral statement which arose in the civil action and which has some relationship to the civil action?
Answer of the Circuit Court: Yes.
On January 15, 2005, Dr. Clark filed her Petition to Certify Questions with this Court. Druckman and Lindsay likewise filed their Petition for Certified Questions on February 4, 2005. By Orders dated March 24, 2005, we granted both Petitions and consolidated the matters for purposes of oral argument, consideration and opinion. Upon due consideration of the parties' arguments, the designated record before this Court and the pertinent legal authorities, we now address the certified questions presented.8
We begin by recognizing that "[t]he appellate standard of review of questions of law answered and certified by a circuit court is de novo." Syl. Pt. 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996).
Initially, we are asked to determine "[w]hether an attorney for a party in a lawsuit owes a duty of care to that party's adversary in the lawsuit such that the adversary may assert a cause of action for negligence against the opposing attorney[.]" The question of whether a duty of care exists is a question of law. Syl. Pt. 5, Aikens v. Debow, 208 W.Va. 486, 541 S.E.2d 576 (2000). Dr. Clark urges this Court to recognize that counsel for a party in a lawsuit owes the opposing party a duty of care, the breach of which would subject counsel to a claim for negligence. Dr. Clark argues recognizing such a duty may aid in preventing frivolous lawsuits. Conversely, Druckman and Lindsay argue that counsel's duty is to zealously advocate and promote the interests of his or her client and that the recognition of a competing duty to an opposing party would compromise counsel's duty to his or her own client. The circuit court indicated its belief that a duty to an opposing party does not exist in its answer to the first certified question. We agree.
We have previously stated that
[t]his Court holds each and every attorney to the inflexible requirement that he "diligently, faithfully and legitimately perform every act necessary to protect, conserve and advance the interests of his client." Bank of Mill Creek v. Elk Horn Coal Corp., 133 W.Va. 639, 657, 57 S.E.2d 736, 748 (1950). An attorney who deviates from this duty is subject to disciplinary action, see Rules of Professional Conduct, and/or civil liability, the latter of which may be pursued only by the client injured by his counsel's negligence.
Delaware CWC Liquidation Corp. v. Martin, 213 W.Va. 617, 623, 584 S.E.2d 473, 479 (2003) ()(emphasis added). See also Norton v. Hines, 49 Cal.App.3d 917, 922, 123 Cal.Rptr. 237 (Cal.Ct.App.1975) (...
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