In Corey v. Wilkes Barre Hospital (“Hospital”), the Pennsylvania Superior Court determined that divorce documents, typically protected from discovery on the basis of attorney-client privilege, can be discoverable as being relevant and material to plaintiff’s loss of consortium claim.
Leslie Corey filed a Complaint alleging injuries relating to medical care provided to her husband, Joseph Corey, for wrongful death, a survival action, loss of consortium, and corporate negligence. Defendants determined that Ms. Corey filed a Divorce Complaint in February 2013, alleging that the marriage was irretrievably broken. Mr. Corey filed a counterclaim for fault divorce (indignities) among other claims. During the pendency of the divorce, Mr. Corey died in August 2013.
The Hospital filed a preliminary objection attempting to strike Ms. Corey’s loss of consortium claim. The preliminary objection was overruled as premature. Thereafter, the Hospital issued subpoenas to Mr. and Mrs. Corey’s divorce attorneys for the divorce records, but Ms. Corey objected to the production of the records. The Court issued an Order overruling the objection, and ordering the production of the records. Thereafter, Mr. and Mrs. Corey’s divorce attorneys filed objections to the subpoenas.
Following a hearing on the divorce attorneys’ objections, the Court issued an Order overruling the divorce attorneys’ objections, and ordering the production of the divorce records. The divorce attorneys produced documents that they deemed were non-privileged, and supplemented the responses with a privilege log indicating the existence of certain documents that were being withheld based on attorney- client privilege.
Thereafter, the Hospital filed a motion to compel the production of documents enumerated in the privilege log prepared by one of the divorce attorneys. A hearing was conducted and an Order was issued wherein the divorce attorney was directed to provide the Court with the privilege log and documents for an in camera review. Neither Ms. Corey nor her divorce attorney objected to the Court’s request for an in camera review.
After receipt of non-privileged documents, the Hospital sought to take a second deposition of Ms. Corey claiming that the non-privileged divorce documents reflected significant inconsistencies in her prior deposition. Ms. Corey objected to the second deposition of arguing that she was questioned extensively regarding the divorce proceedings over the course of the initial five (5) hour deposition. A hearing on this issue was conducted on August 17, 2017 and the matter was taken under advisement. Thereafter, the Hospital filed a motion seeking to dismiss Ms. Corey’s loss of consortium claim.
Prior to ruling on the Hospital’s motion to dismiss the loss of consortium claim, the Court ruled on the Hospital’s motions to compel production of the documents withheld on the basis of privilege, and second deposition of Ms. Corey. Ultimately, the Court determined that the withheld documents were relevant and discoverable because they were placed into evidence by Ms. Corey in seeking her loss of consortium claim. The Court also ordered Ms. Corey to submit for a second deposition.
Ms. Corey’s attorney produced some privileged documents, but not all. Therefore, the Hospital filed a Motion for Contempt of Court and Sanctions Directed to Ms. Corey’s attorney for failing to comply with the trial court’s Order. In response, Ms. Corey’s attorney filed cross motions to disqualify the trial court and a motion to vacate the trial court’s Order which compelled the production of the so-called privileged documents. Following a hearing, the Court deferred ruling on the motion for contempt and sanctions, and denied the cross motions to disqualify the trial court and vacate its prior order. Ms. Corey appealed the trial court’s decision claiming that Pennsylvania did not recognize a Loss of Consortium exception to the attorney-client privilege.
In Pennsylvania, the attorney-client privilege provides:
In a civil matter counsel shall not be competent or permitted to testify to confidential communications made to him by his client, nor shall the client be compelled to disclose the same, unless in either case this privilege is waived upon the trial by the client. 42 Pa.C.S.A. § 5928.
The Superior Court reaffirmed that the attorney-client privilege exists to encourage clients to provide information freely to their attorneys to allow the attorney to give sound and informed advice to guide their clients’ actions in accordance with the law. As such, many Pennsylvania courts have determined that the privileged communications kept from the court do not really represent a loss of evidence since the client would not have written or uttered the words absent the safeguards of the attorney-client privilege.
On the other hand, the Superior Court, quoting from Pennsylvania’s Supreme Court has recognized that “a loss of consortium claim includes a claim for loss of sexual relations. Consortium is defined as ‘the legal right of one spouse to the company, affection, and assistance of and to sexual relations with the other.’” Tucker v. Phila. Daily News, 848 A.2d 113, 127 (Pa. 2004) (citation omitted). Therefore, to recover on a loss of consortium claim, the spouse who brings the claim must demonstrate an injury to the marital relationship that deprives him or her of the conjugal fellowship, company, society, cooperation, affection, and sexual relations that the spouses shared prior to the injury and that but-for the injury, the two would continue to share.
Ultimately, the Superior Court determined where the alleged marital injury is suffered during the pendency of a divorce, the spouse bringing the claim has placed the marital relationship at issue because in order to prove a loss of consortium, the divorcing spouse must first prove the existence of consortium. The Court reasoned that Ms. Corey cannot hide behind the attorney-client privilege to protect communications she had with her divorce attorney when it was Ms. Corey who placed her marital relationship, and consequently, the state of the divorce, at issue by including a claim for loss of consortium in her complaint. “To do so would frustrate the administration of justice by giving [Ms. Corey] an unfair advantage and by prejudicing WBH’s defense of the claim.” Therefore, the Superior Court held that the trial court properly exercised its discretion when it ordered disclosure of the communications.