NOT PRECEDENTIA 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 06-1091 H.\~~ - 8 7007 

r.VlICHA~.''/'".-.. . . Ui'>l..!., CI er k

By Oep. Clerk 

CHRISTOPHER SCHMIDT, D.O., 

Appellant 

v. 

1. CRAIG CURRIE, ESQUIRE; *IRENE M. McLAFFERTY, ESQUIRE; 

J. CRAIG CURRIE & ASSOCIATES; CURRIE & McLAFFERTY; 

STANLEY DIETZ; DOLORES DIETZ 

(*Dismissed per Court Order of 8/11/06) 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania " 

D.C. Civil Action No. 04-cv-4233 \ \ .e 

(Honorable Harvey Bartle III) 

Submitted Pursuant to Third Circuit LAR 34.1 (a)
 

January 22, 2007
 

Before: SCIRICA, ChiefJudge, FUENTES and CHAGARES, Circuit Judges 

(Filed February 14, 2007) 

OPINION OF THE COURT 

Case 2:04-cv-04233-HB Document 54 Filed 03/09/07 Page 1 of 12
SCIRICA, ChiefJudge. 

This appeal arises from an action brought by Christopher Schmidt, D.O., under 

Pennsylvania's Dragonetti Act, 42 Pa. Cons. Stat. §§ 8351-8354, against 1. Craig Currie 

and Irene M. McLafferty, and the law firms of J. Craig Currie & Associates and Currie & 

McLafferty ("defendants"). I Dr. Schmidt contends defendants wrongfully initiated a civil 

proceeding against him in the underlying medical malpractice suit, Stanley and Dolores 

Dietz v. Christopher Schmidt, D.O., et al., No. 000503387 (Phila. County Ct. c.P. Nov. 7, 

2000). The District Court granted defendants' motion for summary judgment under Fed. 

R. Civ. P. 56(c). We will affirm. 

I. 

In 1998, Stanley Dietz sought treatment from Northeast Urological Associates. 

Dr. Leucci, a physician with the group, first diagnosed Dietz with Peyronie's disease. 

Shortly thereafter, Dr. Schmidt, also a physician with the group, became Dietz's treating 

physician. On December 11, 1998, Dr. Schmidt performed surgery on Dietz. 

Mr. and Mrs. Dietz brought a medical malpractice action against Dr. Schmidt in 

Philadelphia County Court of Common Pleas on May 23, 2000. Defendants Currie and 

McLafferty represented the Dietzes in that action. In the underlying medical malpractice 

I Dr. Schmidt originally brought suit against Stanley and Dolores Dietz. In a 

December 16, 2005, Order, the District Court dismissed with prejudice Mr. and Mrs. 

Dietz as parties to the case. 

On August 11, 2006, this Court granted dismissal with prejudice as to Irene M. 

McLafferty. 

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continuing a medical malpractice action, and contended they had met that standard of 

care. Dr. Schmidt did not produce an expert report in his answer to defendants' Motion 

for Summary Judgment. The District Court granted defendants' Motion for Summary 

Judgment on December 9, 2005, holding expert evidence to establish the professional 

standard of care was required to survive a motion for summary judgment. Schmidt v. 

Currie, No. 04-4233,2005 WL 3418461, at *4 (E.D. Pa. Dec. 9, 2005). Accordingly, the 

court granted defendants' motion because Dr. Schmidt had not presented expert evidence, 

and the facts were not so simple as to fall within the layperson exception. Id. at *6-7. 

Dr. Schmidt timely appeals the District Court's summary judgment order. 

II. 

The District Court had diversity jurisdiction under 28 U.S.C. § 1332 and we have 

jurisdiction under 28 U.S.C. § 1291. We review a grant of summary judgment de novo, 

applying the same test on review as the District Court. MBIA Ins. Corp. v. Royal Indem. 

Co., 426 F.3d 204,209 (3d Cir. 2005). Summary judgment is proper when "the 

pleadings, depositions, answers to interrogatories, and admissions on file, together with 

the affidavits, if any, show that there is no genuine issue as to any material fact and that 

the moving party is entitled to ajudgment as a matter oflaw." Fed. R. Civ. P. 56(c). An 

issue of material fact is genuine only when such evidence could cause a reasonable jury to 

return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

248 (1986). When the non-moving party bears the burden of proof at trial, the moving 

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party's burden may be discharged by showing an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The burden then 

shifts to the non-moving party, who "may not rest on the mere allegations or denials of 

the adverse party's pleading ... but must set forth specific facts showing that there is a 

genuine issue for trial." Fed. R. Civ. P. 56(e). If the adverse party does not adequately 

respond, summary judgment shall be entered against the adverse party. Id. 

III. 

A. Elements of a Dragonetti Act Claim 

The Dragonetti Act codifies the common law tort of wrongful use of civil 

proceedings in Pennsylvania. 42 Pa. Con. Stat. §§ 8351-8354. Dragonetti Act claims 

may be brought against parties and the attorneys that represent them. Id. To prevail on a 

Dragonetti Act claim, a plaintiff must prove that "a person who [took] part in the 

procurement, initiation or continuation of civil proceedings against another ... : (1) 

[acted] in a grossly negligent manner or without probable cause and primarily for [an 

improper] purpose ... ; and (2) the proceedings ... terminated in favor of the person 

against whom they [were] brought.,,2 Id. The statute defines probable cause for purposes 

of the Act, in part, as follows: 

A person ... has probable cause ... [if] he reasonably believes in the 

existence of the facts upon which the claim is based, and either: 

2There is no dispute that the underlying medical malpractice claim terminated in favor 

of Dr. Schmidt. 

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(1) Reasonably believes that under those facts the claim may 

be valid under the existing or developing law; ... [or] 

(3) Believes as an attorney of record, in good faith that his 

procurement, initiation or continuation of a civil cause is not 

intended to merely harass or maliciously injure the opposite 

party. 

§ 8352. "[A] party seeking redress under [the] Dragonetti [Act] bears a heavy burden," 

u.s. Express Lines Ltd. v. Higgins, 281 F.3d 383,394 (3d Cir. 2002), because the 

plaintiff need not only demonstrate either probable cause or gross negligence, but must 

also prove the underlying action was filed for an improper purpose. See Broadwater v. 

Sentner, 725 A.2d 779, 784 (Pa. Super. Ct. 1999). 

The court decides the existence of probable cause, gross negligence, or improper 

purpose as a matter oflaw when the facts are not in dispute. See Wainauskis v. Howard 

Johnson Co., 488 A.2d 1117, 1122 (Pa. Super. Ct. 1985); Meiksin v. Howard Hanna Co., 

Inc., 590 A.2d 1303, 1305 (Pa. Super. Ct. 1991); Bannar v. Miller, 701 A.2d 242,248 

(Pa. Super. Ct. 1997). Ifthere is a factual dispute as to probable cause, gross negligence, 

or improper purpose, then the matter is for the fact-finder to determine. Bannar, 701 

A.2d at 249. Dr. Schmidt contends the District Court erred in granting summary 

judgment because there existed a dispute as to "credible fact" that should have been 

resolved by a jury. (Appellant Br. 24.) Dr. Schmidt contends the defendants did not have 

probable cause to initiate or continue the underlying malpractice action because the facts 

upon which they relied lacked any credibility. (Appellant Br. 23-24.) But the District 

Court held Dr. Schmidt's failure to offer expert testimony as to the appropriate standard 

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Case 2:04-cv-04233-HB Document 54 Filed 03/09/07 Page 5 of 12
of care for attorneys initiating or continuing a legal action created no genuine issues of 

material fact. At issue is whether Dr. Schmidt, in this Dragonetti action against an 

attorney, should have presented expert testimony to survive summary judgment. 

B. Expert Requirement 

We have held previously that expert testimony is required in legal malpractice 

actions. See Lentino v. Fringe Employee Plans, Inc., 611 F.2d 474, 480-83 (3d Cir. 

1979) (affirming District Court's involuntary dismissal of a legal malpractice action 

where the plaintiff did not present expert testimony to establish the relevant standard of 

care); see also Storm v. Golden, 538 A.2d 61,65 (Pa. Super. Ct. 1988) (expert testimony 

required for fact-finder to assess the "reasonable degree of care and skill related to 

common [legal] professional practice in handling real estate transaction[s]"). In Gans v. 

Mundy, 762 F.2d 338,343 (3d Cir. 1985), we upheld the grant of summary judgment in 

favor of the defendant when the plaintiff failed to present expert testimony. We stated: 

the burden devolved upon [the plaintiff] to oppose [the defendant's] factual 

averments [in his motion for summary judgment] with expert evidence 

demonstrating that the [defendant's] conduct failed to meet the appropriate 

standard of care ... [and when the p]laintifffailed to discharge this critical 

burden. .. he did not create a factual dispute as to the applicable standard 

of care [necessary to survive summary judgment]. 

Id. The only exception is where the issues are simple and within a layperson's 

comprehension. See Lentino, 611 F.2d at 48 (finding an exception to the expert 

requirement "where the matter under investigation is so simple, and the lack of skill so 

obvious, as to be within the range of the ordinary experience and comprehension of even 

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Case 2:04-cv-04233-HB Document 54 Filed 03/09/07 Page 6 of 12
non-professional persons"); see also Rizzo v. Haines, 555 A.2d 58,66-67 (Pa. 1989) 

(finding expert not required to establish standard of care for an attorney's disclosure of 

settlement offers to his client or fiduciary transactions with his client); Bannar, 701 A.2d 

at 249 (holding, in a Dragonetti case, expert testimony not required in actions where 

"[a]ppellants make no contention the issues were complex or beyond the knowledge of 

the average person"). 

The District Court here found that a "Dragonetti action against an attorney is 

analogous to a legal malpractice action." On the basis of the facts, the court held that Dr. 

Schmidt should have produced expert testimony to survive summary judgment. Schmidt, 

No. 04-4233,2005 WL 3418461, at *6-7. We agree. Expert testimony assists the jury in 

its detennination of a defendant's confonnity to the relevant standard of care when the 

standard is one that requires special expertise to comprehend. See Lentino, 611 F.2d at 

481 ("The expert witness in professional malpractice is necessary to ... assist the jury in 

its detennination of defendant's confonnity to the relevant standard [of care]."); Nat'I 

Cash Register v. Haak, 335 A.2d 407, 410-11 (1975) (requiring expert testimony for a 

subject that "requires special experience" for a jury to adequately comprehend); Storm, 

538 A.2d at 64 ("[W]hen dealing with the higher standards attributed to a professional in 

any field a layperson's views cannot take priority without guidance as to the acceptable 

practice in which the professional must operate."); Rizzo, 555 A.2d at 66 ("[E]xpert 

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Case 2:04-cv-04233-HB Document 54 Filed 03/09/07 Page 7 of 12
testimony is essential where it would help the finder of fact understand an issue that is 

beyond the knowledge of the average person."). 

The issue in this case is not "a simple one of credibility," as Dr. Schmidt contends. 

Rather, a jury would have to navigate the contours of professional legal judgment and 

determine whether defendants made a proper assessment whether to initiate or continue a 

civil action against the plaintiff in the underlying action. In Dragonetti actions against 

attorneys, Pennsylvania courts have applied Restatement (Second) of Torts § 674 cmt. d 

(1977), which elucidates the distinction between an attorney's liability for wrongful use 

of a civil proceeding and an attorney's responsibility to present a claim to a court for 

adjudication. See Meiksin, 590 A.2d at 1305; see also Shaffer v. Stewart, 473 A.2d 1017, 

1020 (Pa. Super. Ct. 1984); Gentzler v. Atlee, 660 A.2d 13 78, 1382 (Pa. Super. Ct. 1995); 

Bannar, 701 A.2d at 248--49. Section 674, comment d, states: 

An attorney who initiates a civil proceeding on behalf of his client or one 

who takes any steps in the proceeding is not liable if he has probable cause 

for his action (see § 675); and even ifhe has no probable cause and is 

convinced that his client's claim is unfounded, he is still not liable ifhe acts 

primarily for the purpose of aiding his client in obtaining a proper 

adjudication of his claim (see § 676). An attorney is not required or 

expected to prejudge his client's claim, and although he is fully aware that 

its chances of success are comparatively slight, it is his responsibility to 

present it to the court for adjudication if his client so insists after he has 

explained to the client the nature of the chances. If, however, the attorney 

acts without probable cause for belief in the possibility that the claim will 

succeed, and for an improper purpose, as, for example, to put pressure upon 

the person proceeded against in order to compel payment of another claim 

of his own or solely to harass the person proceeded against by bringing a 

claim known to be invalid, he is subject to the same liability as any other 

person. 

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Case 2:04-cv-04233-HB Document 54 Filed 03/09/07 Page 8 of 12
Restatement (Second) of Torts § 674 cmt. d (1977). Accordingly, an attorney must 

balance several factors when deciding whether to pursue a client's claim. 

Here, an expert would have provided a framework of acceptable legal practice. 

Without this expert guidance, a jury would not have the tools to make this determination, 

as members of a jury are usually without the special training, experience or observation to 

make an assessment under § 674. Unless the facts in dispute are so simple and the lack of 

probable cause, gross negligence, or improper purpose so clear, the layperson exception 

would not apply. See Bannar, 701 A.2d at 246--47,249. 

In contesting the defendants' motion for summary judgment, Dr. Schmidt failed to 

produce an expert witness to testify about defendants' conformity to the applicable 

standard of care. Accordingly, a fact-finder could not assess whether the defendants' 

actions fell below any such standard in initiating and continuing the underlying action. 

Dr. Schmidt did not create a genuine issue of material fact to defeat the summary 

judgment motion. Because the defendants' initiation or continuation of the underlying 

legal action is not a simple matter easily comprehended by laypersons without the 

guidance of expert testimony, we agree with the District Court that Dr. Schmidt's failure 

to provide expert testimony entitles defendants to summary judgment in their favor. 

IV. 

For the reasons set forth, we will affirm the judgment of the District Court. 

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Case 2:04-cv-04233-HB Document 54 Filed 03/09/07 Page 9 of 12
UNITED STATES COURT OF APPEALS
 

FOR THE THIRD CIRCUIT
 

No. 06-1091
 

CHRISTOPHER SCHMIDT, D.O., 

Appellant 

v.
 

J. CRAIG CURRIE, ESQUIRE; *IRENE M. McLAFFERTY, ESQUIRE;
 

J. CRAIG CURRIE & ASSOCIATES; CURRIE & McLAFFERTY;
 

STANLEY DIETZ; DOLORES DIETZ
 

(*Dismissed per Court Order of 8/11/06) 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

D.C. Civil Action No. 04-cv-4233,- ~\

(Honorable Harvey Bartle III) 

Submitted Pursuant to Third Circuit LAR 34.1 (a)
 

January 22,2007
 

Before: SCIRICA, ChiefJudge, FUENTES and CHAGARES, Circuit Judges 

JUDGMENT 

This cause came to be considered on the record from the United States District 

Court for the Eastern District of Pennsylvania and was submitted pursuant to Third 

Circuit LAR 34.l(a) on January 22, 2007. On consideration whereof, it is now hereby 

Case 2:04-cv-04233-HB Document 54 Filed 03/09/07 Page 10 of 12
ORDERED and ADJUDGED by this Court that the judgment of the District Court 

entered December 12,2005, be, and the same is hereby affirmed. Costs taxed against 

appellant. All of the above in accordance with the opinion of this Court. 

ATTEST: 

lsi Marcia M. Waldron 

Clerk 

DATED: February 14,2007 

Certified as a true copy and issued in lieu 

of a formal mandate on March 9, 2007 

Teste: 1?1..- P1.tv~,

Clerk, U.S. Court of Appeals for the Third Circuit. 

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Case 2:04-cv-04233-HB Document 54 Filed 03/09/07 Page 11 of 12
OFFICE OF THE CLERK
 

UNITED STATES COURT OF APPEALS Marcia 

Clerk 

M. Waldron FOR THE THIRD CIRCUIT Telephone 21400 United States Courthouse 267-299-4927 601 Market Street 

Philadelphia PA 19106-1790 

www.ca3.uscourts.gov 

March 9, 2007 

Mr. Michael E. Kunz 

Eastern District of Pennsylvania 

U.S. District Court 

2609 U.S. Courthouse 

601 Market Street 

Philadelphia, PA 19106 

RE:	 Docket No. 06-1091 

Schmidt vs. Currie 

D.C.	 No. 04-cv-04233 

Dear	 Mr. Kunz: 

Enclosed is a certified copy of the judgment together with copy 

of the opinion in the above-entitled case(s). The certified jUdgment 

is issued in lieu of a formal mandate and is to be treated in all 

respects as a mandate. 

(X) We release herewith the certified list in lieu of the 

record in the case(s). 

Kindly acknowledge receipt for same on the enclosed copy of this 

letter. 

Counsel are advised of the issuance of the mandate by copy of 

this letter. A copy of the certified judgment is also enclosed 

showing costs taxed, if any. 

Very truly yours, 

MARCIA M. WALDRON 

Clerk 

Q~"!Yl~QQ\J(. By:	 Dana M. Moore 

Case Manager 

Enclosure 

cc: 

Marshall L. Grabois, Esq. 

Vincent P. dePillis, Esq. 

James C. Stroud, Esq. 

Case 2:04-cv-04233-HB Document 54 Filed 03/09/07 Page 12 of 12