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




                                   3
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

                                   6
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.




                                       7
(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

                                    8
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

                                   9
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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