Corey, L. v. Wilkes-Barre Hospital ( 2019 )

J-A19025-18
2019 Pa. Super. 288
LESLEY COREY, AS ADMINISTRATRIX : IN THE SUPERIOR COURT OF
OF THE ESTATE OF JOSEPH COREY, : PENNSYLVANIA
AND LESLEY COREY, IN HER OWN :
RIGHT :
:
:
v. :
:
: No. 1980 MDA 2017
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 :
:
:
APPEAL OF: LESLEY COREY :
Appeal from the Order Entered November 20, 2017
In the Court of Common Pleas of Luzerne County Civil Division at No(s):
2015-07551
BEFORE: GANTMAN, P.J., NICHOLS, J., and FORD ELLIOTT, P.J.E.
CONCURRING AND DISSENTING OPINION BY NICHOLS, J.:
Filed: September 23, 2019
I agree with the majority opinion on many of the issues discussed in this
appeal.1 However, I am constrained to disagree with the specific application
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1 Specifically, I join the majority’s conclusions that this Court has jurisdiction
to consider the trial court’s order requiring disclosure of materials that
Appellant claims are subject to the attorney-client privilege. I also agree that
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of the “at-issue” exception to the attorney-client privilege under the
circumstances of this case.
Briefly, it bears repeating that Appellant commenced the instant against
WBH for wrongful death, survival, and loss of consortium, among other claims
related to the death of her husband (the decedent). However, approximately
six months before the decedent’s death, Appellant commenced a divorce
action against the decedent.
Of particular relevance to this matter, WBH had the following
information in its possession when it sought the materials at issue in this
appeal. First, Appellant filed for divorce in February 2013, and the decedent
filed a counter-claim. See WBH’s Mot. to Strike Appellant’s Objs. to
Subpoenas, 12/6/16, at ¶¶ 4-6. There was no dispute that Appellant and the
decedent each alleged an irretrievable breakdown in their marriage and
averred they were living separate and apart for the two years before their
divorce filings. See id. Moreover, this divorce action was “active and
pending” at all times relevant to WBH’s treatment of the decedent. Id. at ¶
7.
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Appellant did not waive her arguments on appeal by failing to take an
interlocutory appeal from the trial court’s prior order requiring her to submit
the materials for an in camera review. Additionally, I concur to the extent the
majority finds that the trial court did not err in directing an in camera review
under the circumstances of this case. Lastly, the majority has ably
summarized the general principles governing our review of Appellant’s claims
in this appeal. See Majority Op. at 9-11 (quoting Red Vision Sys. v. Nat’l
Real Estate Info. Services, L.P., 108 A.3d 54, 61-62 (Pa. Super. 2015));
see also BouSamra v. Excela Health, 210 A.3d 967, 982 (Pa. 2019).
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Second, after Appellant filed the underlying medical malpractice action
against WBH, WBH deposed her in February 2017. In her deposition,
Appellant stated she filed for divorce to save the marriage. See WBH’s Mot.
to Produce Certain Documents Identified on a Privilege Log, 5/8/17, at ¶ 7 &
Ex. D. Appellant further asserted that she did not intend to go through with
a divorce and wanted the decedent to seek treatment for substance abuse
issues. Id. at ¶¶ 6-7 & Exs. C-D.
Third, after Appellant’s deposition, WBH obtained correspondence
exchanged between the divorce counsel for Appellant and the decedent.
Those documents outlined ongoing settlement negotiation in the divorce
proceeding from May 2013 to July 2013. Id. at ¶¶ 8-12. Specifically, a May
15, 2013 letter from Appellant’s divorce counsel to the decedent’s divorce
counsel stated Appellant and the decedent were not in marriage counseling.
See id. at Ex. E. The same letter suggested that Appellant and the decedent
discussed reconciliation, but Appellant wanted to “move out of the residence
and maintain herself and the children” as a precondition for reconciliation. Id.
Appellant’s divorce counsel indicated Appellant was “preparing to move out of
the residence and wants to do so in the very near future.” Id.
In a letter from Appellant’s divorce counsel to the decedent’s counsel,
dated July 8, 2013, Appellant’s divorce counsel outlined potential terms to
settle the divorce matter. See id. at Ex. H. In a subsequent letter, dated July
23, 2013, Appellant’s divorce counsel asserted Appellant authorized her
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divorce counsel to petition for the appointment of a master if the decedent’s
counsel did not respond to the July 8 letter. See id. at Ex. I.
On August 9, 2013, seventeen days after the last known exchange
between Appellant’s and the decedent’s divorce counsel, the decedent fell ill
and was hospitalized at WBH. The decedent died on August 11, 2013.
Appellant, who was appointed administrator of her decedent’s estate, filed the
underlying medical malpractice action against WBH.
WBH served subpoenas to produce documents on Appellant’s divorce
counsel, seeking to disclose communications between Appellant and divorce
counsel. The intervening procedural history is unnecessary to discuss.
Ultimately, WBH filed a motion to compel Appellant’s divorce counsel to
disclose Appellant’s correspondence. WBH reasoned, in part, that disclosure
was necessary to rebut Appellant’s deposition testimony that she filed for
divorce to save the marriage and to have the decedent enter treatment for his
alleged substance abuse. WBH asserted that there was no Pennsylvania case
law on point, but cited to Stogner v. Sturdivant, 2011 WL 4435254 (M.D.
La. Sept. 22, 2011) (order), an unreported federal court decision.
The trial court conducted an in camera review of the contested
documents and granted WBH’s motion to compel. The trial court relied on
Stogner and Scifres v. Ford Motor Co., 2007 WL 201043 (W.D. Okla. Jan.
24, 2007) (order) to conclude the documents were relevant and nondisclosure
would result in prejudice to WBH. Although the trial court did not discuss the
individual documents to be disclosed, it included the documents, under seal,
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as part of the certified record. The trial court determined that the materials
sought by WBH were “highly relevant” to Appellant’s loss of consortium claim
and non-disclosure would “prejudice” WBH’s ability to defend against the loss
of consortium claim. Trial Ct. Op., 4/11/18, at 15.
Under Pennsylvania law, there is
a shifting burden of proof in disputes over disclosure of
communications allegedly protected by attorney-client privilege.
The party invoking a privilege must initially “set forth facts
showing that the privilege has been properly invoked; then the
burden shifts to the party seeking disclosure to set forth facts
showing that disclosure will not violate the attorney-client
privilege, e.g., because the privilege has been waived or because
some exception applies.”
Custom Designs & Mfg. Co. v. Sherwin-Williams Co., 39 A.3d 372, 376
(Pa. Super. 2012) (citation omitted).
Once the attorney-client privilege is invoked and the party seeking
disclosure attempts to establish waiver or an exception, the trial court should
issue a ruling with respect to each document actually sought. See Gocial v.
Indep. Blue Cross, 827 A.2d 1216, 1223 (Pa. Super. 2003). In some
instances, “in camera review may be required.” See id.
When relying on Stogner and Scifres, the trial court here applied the
test announced by the federal district court in Hearn v. Rhay, 68 F.R.D. 574
(E.D. Wash. 1975). The Hearn test provides that a party waives the attorney-
client privilege if the following three conditions are met:
(1) assertion of the privilege was a result of some affirmative act,
such as filing suit, by the asserting party; (2) through this
affirmative act, the asserting party put the protected information
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at issue by making it relevant to the case; and (3) application of
the privilege would have denied the opposing party access to
information vital to his defense.
Hearn, 68 F.R.D. at 581.2
The Hearn test is comparable to Pennsylvania law. Under Pennsylvania
law, it is well-settled that the attorney-client privilege “is not absolute” and a
trial judge may disclose otherwise confidential communications “when it is
shown that the interests of the administration of justice can only be frustrated
by the exercise of the privilege . . . .” Red Vision, 108 A.3d at 62 (citation
omitted). The third prong of the Hearn test requires that the information
disclosed by a court be vital to a defense. See Hearn, 68 F.R.D. at 581. This
mirrors this Court’s statements that when “the interests of justice are so
compelling, and the interests of the client in preserving the confidence so
insignificant, . . . the cloak of secrecy may be removed and the confidence
disclosed.” Cohen v. Jenkintown Cab Co., 357 A.2d 689, 692 (Pa. Super.
1976). Both tests for disclosure require a careful balancing of interests,
including whether the information is relevant and whether disclosure is
necessary under the circumstances of a case.
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2 The Hearn test is not universally accepted, and other courts have criticized
the test as overly broad. See Rhone-Poulenc Rorer Inc. v. Home Indem.
Co., 32 F.3d 851, 864 (3d Cir. 1994) (concluding, “[r]elevance is not the
standard for determining whether or not evidence should be protected from
disclosure as privileged”); see also In re Cty. of Erie, 546 F.3d 222, 229
(2d Cir. 2008) (citations omitted) (holding the “Hearn test presumes that the
information is relevant and should be disclosed and would open a great
number of privileged communications to claims of at-issue waiver”).
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Instantly, Appellant set forth sufficient facts that the communications
between her and her divorce counsel were privileged, and the burden of
disclosing the challenged material shifted to WBH. See Custom Designs &
Mfg., 39 A.3d at 376. As noted above, WBH possessed information regarding
the state of Appellant’s and the decedent’s marriage, as well as information
regarding Appellant’s own state of mind with respect to the divorce. See
WBH’s Mot. to Produce Certain Documents Identified on a Privilege Log at ¶¶
8-12 & Exs. E, H, I. WBH asserted that further information contained in the
privilege log regarding the divorce action was necessary to rebut Appellant’s
deposition testimony implicating her state of mind as to divorce and the state
of her marriage to the decedent. Moreover, the parties submitted a privilege
log, and the trial court conducted an in camera review, and submitted the
challenged materials for appellate review.
Based on a review of this record, I agree with the trial court and the
majority that WBH’s proffer established the information sought could be
relevant. Relevance alone, however, is not sufficient to warrant disclosure.
See Cohen, 357 A.2d at 692.
Instead, Pennsylvania law has consistently required more than mere
relevance to support a court’s decision to direct disclosure. See id. Our law
requires a trial court to determine whether there is a compelling need for the
document to be disclosed under the particular circumstances of a case. See
id. Furthermore, I believe that the question of disclosure is better decided on
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the specific record in a given case rather than relying on applications of
general principles.
Therefore, I cannot agree that the trial court’s general assertions of
prejudice to WBH were sufficient to compel disclosure of attorney-client
privileged documents in this case. I would remand this matter for the trial
court to review each document requested by WBH. See Gocial, 827 A.2d at
1223 (requiring that the trial court render individualized rulings for each
specific or discrete category of document at issue). I would also require the
trial court to determine whether WBH established a compelling need for
information it sought based on the record developed by the parties. See id.;
see also Cohen, 357 A.2d at 692. To the extent the information requested
was cumulative of information already in possession of WBH, I believe that it
would be difficult for the trial court to determine that the information to be
disclosed was necessary to WBH’s defense as to Appellant’s loss of consortium
claim. See Cohen, 357 A.2d at 692.
For these reasons, I respectfully dissent from the majority’s decision to
affirm the trial court’s order.
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