Monday, October 21, 2019

Discovery of Communications With Divorce Attorney Allowed Relative to Loss of Consortium Claims

In the case of Corey v. Wilkes-Barre General Hospital, No. 1980 MDA 2017 (Pa. Super. Sept. 23, 2019 Ford Elliot, J., Gantman, J., Nichols, J.) (Op. by Ford Elliot, J.) (concurring and dissenting Op. by Nichols, J.) the Pennsylvania Superior Court affirmed a decision by a Luzerne County judge allowing for the disclosure for certain divorce records in a wrongful death lawsuit against a hospital.

According to the Opinion the Plaintiff-wife filed a wrongful death lawsuit against the hospital over the death of her then estranged husband. As part of that lawsuit, the Plaintiff-wife filed a loss of consortium claim.

When the Defendants sought to discovery information contained in the divorce proceedings that were active at the time the estranged husband passed away, the Plaintiffs asserted that any communications between the Plaintiff-wife and her attorney in those proceedings were protected by the attorney/client privilege.

The Pennsylvania Superior Court affirmed the ruling by a Luzerne County judge that the loss of consortium claim created an exception to the attorney/client privilege relative to the disclosure of the communications between the Plaintiff-wife and her attorney in the separate divorce proceedings.

In its Opinion, the Superior Court emphasized that, in order to recover on a loss of consortium claim, the spouse who brings that claim must demonstrate and injury to the marital relationship that deprives him or her of the companion, society, affection and sexual relations that spouses share prior to the injury and that, but for the injury, the two would have continued to share.

The Superior Court noted that, where an alleged marital injury is suffered during the pendency of a divorce, the spouse bringing a claim for loss of consortium places the marital relationship at issue because, in order to prove a loss of consortium, the divorcing spouse must first prove the existence of consortium.

In this regard, the appellate court noted that a spouse cannot hide behind the attorney/client privilege to protect communications he or she may have had with a divorce attorney when it is that spouse who placed the marital relationship, and consequently, the state of the divorce, at issue in the first place by including the claim for loss of consortium. 

The Superior Court noted that, to rule otherwise and to allow for the privilege to be asserted, would “frustrate the administration of justice by given [the spouse] an unfair advantage and by prejudicing [a Defendant’s] defense of the claim.”

Anyone wishing to review Judge Ford Elliott's Majority Opinion may click this LINK.

Judge Nichols Concurring and Dissenting Opinion can be viewed HERE.

Source: Article: “Court: Divorce Records Discoverable in Cases with Loss of Consortium Claims.” By P.J. D’Annunzio of the Pennsylvania Law Weekly (September 25, 2019).

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