FJD lawyers seek to compel medical exam for former Pa. justice who has yet to be deposed in legal malpractice case

Lawyers representing the First Judicial District of Pennsylvania in its case involving the

botched Philadelphia family court deal filed a motion last week seeking to compel a former state Supreme Court justice to undergo a medical exam and produce medical records.

High-power Philadelphia attorney Richard A. Sprague filed the court papers June 12 at the Philadelphia Court of Common Pleas.

The motion seeks to have Judge R. Stanton Wettick, Jr. order Sandra Schultz Newman to undergo a medical examination to determine exactly what it is that’s preventing her from giving a deposition in a case in which the First Judicial District is suing attorney Jeffrey B. Rotwitt over his alleged dual role involving a new family court building that was supposed to be constructed in downtown Philadelphia.

As of late last week, Wettick, an Allegheny County trial court judge specially assigned to preside over the matter, had not yet ruled on the motion.

The First Judicial District, better known as the Philadelphia court system, and Pennsylvania Supreme Court Chief Justice Ronald D. Castille filed suit in Philadelphia’s Common Pleas Court in November of last year against Rotwitt, his former law firm of Obermayer Rebmann Maxwell & Hippel, and Rotwitt’s Deilwydd Property Group alleging legal malpractice and related claims tied to the botched family court deal.

Rotwitt had been retained by the Philadelphia courts to search for a possible location for a new family court facility.

The lawsuit claims that Rotwitt failed to disclose his relationship with the project’s developer, a dual role that ended up enriching Rotwitt.

Castille is a plaintiff in the case because he is serving as the liaison justice to the family court project.

Former Justice Schultz Newman was the initial liaison justice to the project when pre-development work on the family court plan began.

Earlier this spring, Schultz Newman was denied a request for a protective order that would have shielded her from having to give a discovery deposition in the case.

The First Judicial District had earlier subpoenaed the former justice to give a deposition; among other things, the FJD is seeking documents said to be in Schultz Newman’s possession that relate to the legal malpractice lawsuit.

The documents supposedly contain information relating to Schultz Newman’s son, Jonathan Newman, an attorney formerly working with Obermayer Rebmann who is said to have had ties to the family court project.

While Wettick, the judge overseeing the case, previously denied Schultz Newman’s bid to shield herself from having to give a deposition, the woman has still not made herself available, the FJD’s lawyers contend.

In his June 12 filing, Sprague, the attorney representing the plaintiffs in the case, says that three weeks after the former justice’s deposition was supposed to have taken place, on May 22, he sent a letter to Schultz Newman’s attorney seeking an update on the medical condition that is supposedly preventing Schultz Newman from sitting for her deposition.

To date, the motion claims, Schultz Newman’s attorney has yet to respond to Sprague.

The motion says that it has now been more than a half-year since the subpoena was initially served upon Schultz Newman, and more than 24 weeks since the deposition date was set.

“Plaintiff submits that Sandra Schultz Newman, Esquire’s failure to provide an update of the evidence of the legitimacy of her latest excuse for not appearing, coupled with the long period prior to that when she simply made herself unavailable, and her utter failure to explain why she has not produced any documents in response to the Subpoena, all demonstrate inexcusable bad faith,” Sprague wrote in the motion.

“Despite a previous Order compelling her to appear at deposition, there is no reason to believe that Sandra Schultz Newman, Esquire will appear for the deposition to which she has been properly subpoenaed, nor is there reason to believe she will produce documents as required by the Subpoena, as she continues to allege she is suffering from some illness that renders her incapable of sitting for a deposition.”

The motion states that requiring Schultz Newman to submit to a medical exam by an independent physician and to produce her medical records for review will serve to protect the plaintiff from further prejudice.

In a response to Sprague’s motion, Gerald J. Dugan, an attorney representing defendant Rotwitt, wrote that Rotwitt takes no specific position on the issue of Schultz Newman’s medical exam request or production of medical records.

However, Dugan wrote, “Rotwitt, like plaintiff, recognizes that former Justice Newman’s testimony is critical to this case. Therefore, unless she is critically ill or has become totally incompetent, some effort must be made to obtain her testimony, and in light of what is alleged to be a serious medical condition, a concomitant effort to preserve her testimony.”

Dugan suggested in his motion that Schultz Newman might be better off offering testimony in a place more conducive than the office of the plaintiffs’ counsel, and possibly even offering deposition testimony over a period of several days as opposed to one sitting.