Does a Loss of Consortium Mean a Loss of Confidentiality?
Customarily the confidentiality between an attorney and his client is sacrosanct, but the case of Lesley Corey, As Administratrix of the Estate of Joseph Corey, and Lesley Corey, in her Own Right v. Wilkes Barre Hospital Company, LLC d/b/a/ Wilkes-Barre General Hospital Emergency Department and J. Charles Lentini, M.D. v. Pennsylvania Physicians Services, LLC, 2019 Pa. Super. 288 (“Lesley Corey”) explores a situation where that confidentiality in a divorce matter may be breached.
When bringing a civil claim, one must be cognizant of what doors are opened simply by the filing of the claim. If something is somehow relevant to the claims being made, and can offer insight into them, then there is a potential that the Court will allow the opposing party to explore it through discovery. As Lesley Corey demonstrates, not even the usually impenetrable attorney/client privilege can necessarily protect something from discovery if a party makes it an issue in a case.
In Lesley Corey, the Appellant (Plaintiff) brought a lawsuit (“lawsuit”) on November 25, 2015 alleging injuries stemming from medical care her husband received at the hands of the Defendants led to his death. Loss of consortium due to her husband’s death was one of Plaintiff’s claims in the lawsuit. On February 5, 2013, over two (2) years prior to the lawsuit, Plaintiff filed a divorce complaint against her husband, claiming, among other things, that her marriage was irretrievably broken and that she suffered marital indignities from her husband (“divorce action”). Plaintiff’s husband filed a divorce counterclaim also alleging that their marriage was irretrievably broken and that he suffered marital indignities from Plaintiff. In August 2013, about six (6) months after the initiation of the divorce action, Plaintiff’s husband died. At the time of his death, the divorce action was still active, and Plaintiff and her husband had never reconciled.
When initially faced with Plaintiff’s loss of consortium claim, the Defendants filed preliminary objections seeking to strike Plaintiff’s said claim, but they were dismissed as premature. Pursuing this same line of attack, Defendants issued subpoenas for Plaintiff’s divorce records upon the respective divorce attorneys. Motion proceedings ensued as follows:
- Plaintiff filed objections to the subpoenas, but Defendants’ motion to strike those objections were granted, and the divorce attorneys were ordered to respond within twenty (20) days to the subpoena;
- Then the divorce attorneys filed objections to the subpoenas, which invited Defendants to file a motion to strike the objections. Again the motion to strike was granted and the attorneys, in response, released non-privileged divorce records;
- The divorce attorneys’ limited response to the subpoenas led to Defendants filing a motion to compel against them for the privileged divorce records. An in camera review of the divorce records was then ordered, but the divorce attorneys merely stated that attorney/client privilege was not waived;
- Undeterred, Defendants then issued a notice of deposition upon Plaintiff, to which Plaintiff objected.
Ultimately, Defendants filed for partial summary judgment to dispose of the loss of consortium claim. The trial court, when ruling on the summary judgment motion, noted “[A]s I have said repeatedly, ordinarily an attorney-client privilege maintains the utmost authority that is rarely if at any time called into question.” The Court further observed that the basis of the loss of consortium claim “directly reflects the status of the marriage at the time of [the husband’s] death.” As a result, the Court ruled that the privileged divorce records were, therefore, discoverable and ordered them to be produced.
Plaintiff’s attorney still resisted releasing the privileged records, prompting Defendants to file a motion for contempt and sanctions against Plaintiff in response, to which Plaintiff then filed a motion to disqualify and a motion to vacate, each of which were denied/dismissed. Plaintiff filed an appeal to Pennsylvania Superior Court from the denial and dismissal.
As an initial matter, the Court pointed out that while discovery orders are typically not appealable before final judgment, there is an exception for so-called “collateral orders.” A collateral order is one that “(1) is separable from and collateral to the main cause of action; (2) concerns a right too important to be denied review; and (3) presents a claim that will be irreparably lost if review is postponed until final judgment in the case.”
The Court ruled that ordering the disclosure of information covered by the attorney/client privilege is a collateral order. Specifically, the order is separable from and collateral to the main cause of action, it is an extremely important right that must be reviewed, and once breached, the privilege is irreparably lost.
The Court began its analysis of the merits of this matter by first pointing out that a loss of consortium claim includes a claim for loss of sexual relations between spouses, but also includes the non-sexual conjugal fellowship between husband and wife, namely the right to their mutual company, society, cooperation, affection, and aid. Consequently, a loss of consortium claim requires the demonstration of the loss of one or more of the above characteristics of a marital relationship. The spouse who brings a loss of consortium claim, by definition, places the condition of the marital relationship at issue as – in the words of the Court – “the divorcing spouse must first prove the existence of consortium.”
The Court stated that Plaintiff cannot “hide behind attorney-client privilege” in order to protect privileged communications about the condition of her marriage, while, at the same time, making the condition of her marriage the basis of her claim for loss of consortium. The Court believed that to allow the privilege to protect this communication would frustrate the administration of justice by giving a party in Plaintiff’s position the ability to have an unfair advantage over the party defending against her claim for loss of consortium.
Based on the above, the Pennsylvania Superior Court entered an order affirming the order to require the disclosure of the privileged divorce records.
This case serves as a cautionary tale. When bringing a civil claim, if one puts something at issue, then one must be prepared to disclose even privileged information about it, as the bringing of the claim opens the door to allow access to the privileged information.
Originally published in The Legal Intelligencer on March 18, 2020 and can be found here.