Case Bulletin – Spouse Claiming Loss of Consortium Waives Attorney-Client Privilege for Communications with Divorce Attorney, Superior Court Rules
The recent Corey decision by the Pennsylvania Superior Court serves to underscore the importance of discovery designed to seek information regarding marital issues in a case where loss of consortium is claimed. The Superior Court ruled last month that a spouse who brought a survival action against her husband’s treating physician and hospital could not “hide behind the attorney-client privilege” when it came to her claim for loss of consortium. Corey v. Wilkes Barre Hospital Co., 2019 Pa. Super. 288 (Pa. Super. 9/23/19).
On November 25, 2015, the Plaintiff filed a medical malpractice action relating to the medical care that her husband (“Decedent”), who had passed away on August 11, 2013, received from the Defendants. The Complaint raised claims for wrongful death, a survival action, corporate negligence, and loss of consortium.
The Plaintiff had filed a Divorce Complaint against the Decedent on February 5, 2013 averring an irretrievably broken marriage and a two-year separation. The Decedent filed a Counterclaim on April 1, 2013. The Divorce action continued with communications between counsel for the parties until the Decedent’s death on August 11, 2013.
The Defendants challenged the Plaintiff’s loss of consortium claim based on the pending divorce at the time of the Decedent’s death. During the discovery period for the Plaintiff’s civil suit, the Defendants deposed the Plaintiff and then filed subpoenas for the Plaintiff’s divorce records, which the Plaintiff objected to, asserting attorney-client privilege over the documents from her divorce attorney. The Defendants filed a motion to compel the documents which were withheld based on a claim of privilege, and the court directed that an in camera review take place. The Defendants also filed a second notice of deposition of the Plaintiff, which the Plaintiff objected to.
Following a hearing on later-filed motions for partial summary judgment, the trial court issued an order granting the Defendants’ motion to compel the production of the documents reviewed by the court in camera, and directing that the second deposition of the Plaintiff take place as requested. The Plaintiff filed a timely notice of appeal, appealing the trial court’s order, and asserting a claim of attorney client privilege over the documents ordered by the trial court to be given to the Defendants.
The Defendants objected to the appeal on the basis that appellate courts in Pennsylvania will not, absent unusual circumstances “review discovery or sanction orders prior to a final judgment on the main action.” Corey, at pg. 9 (citing Knopick v. Boyle, 189 A.3d 432 (Pa. Super. 2018)). However, the Superior Court allowed the appeal as raising a “colorable claim of attorney-client privilege” and therefore, being immediately appealable. Corey, at pg. 10 (citing Gocial v. Independent Blue Cross, 827 A.2d 1216 (Pa. Super. 2003)).
The Superior Court noted the tension between the competing interests of the policy reasons for the attorney-client privilege, and the policy in favor of the accessibility of evidence which is material to the truth-determining process of discovery. Corey, at pgs. 12-13 (citing Red Vision System v. National Real Estate Information Services, L.P., 108 A.3d 54 (Pa. Super. 2015)). However, the court also noted that trial courts may require privileged communications to be disclosed “when it is shown that the administration of justice can only be frustrated by the exercise of the privilege.” Id.
The court ruled that where an alleged marital injury is suffered during the pendency of a divorce, the spouse who brings the loss of consortium claim has placed the marital relationship at issue since the spouse must prove the existence of consortium in order to prove its loss. Corey, at pg. 14. The court opined that the Plaintiff could not “hide behind” the attorney-client privilege to protect her communications with her divorce attorney when she was the party placing the status of her marriage at issue by bringing a loss of consortium claim. Id. The court therefore held that the trial court had properly exercised its discretion in ordering the disclosure of the subject communications between the Plaintiff and her divorce attorney. Id.
In a concurring and dissenting opinion, Judge Nichols of the Superior Court opined that while she agreed with the prevailing opinion, she would have required that the trial court undergo an individualized balancing analysis for each document requested by the Defendants. Judge Nichols argued that a generalized argument based on relevancy was not appropriate but rather that “the question of disclosure is better decided on the specific record in a given case rather than relying on applications of general principles.” Corey, at pg. 22.