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In a case brought by the spouse of a deceased plaintiff with loss of consortium claims, the Pennsylvania Superior Court has ruled that divorce records are discoverable.

The Superior Court upheld a Luzerne County judge's order for the disclosure of certain divorce records in Corey v. Wilkes-Barre General Hospital.

The ruling stems from Lesley Corey's wrongful death lawsuit against Wilkes-Barre General Hospital over the death of her estranged husband, Joseph Corey. Lesley Corey also filed a loss of consortium claim, but the defendants sought divorce records as divorce proceedings were active when her husband died, according to Judge Kate Ford Elliott's precedential Sept. 23 opinion.

At issue are communications between Lesley Corey and her attorney that Corey claimed were privileged. A Luzerne County judge ordered the disclosure of those communications, finding that the loss of consortium claim created an exception to attorney-client privilege.

Corey appealed, but a three-judge panel of the Superior Court ruled 2-1 to affirm.

"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," Ford Elliott said.

"Where, as here, 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," Ford Elliott continued. "Appellant cannot hide behind the attorney-client privilege to protect communications she had with her divorce attorney when it was appellant 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 appellant an unfair advantage and by prejudicing WBH's defense of the claim."

Ford Elliott was joined in the majority by Judge Susan Peikes Gantman.

In a concurring and dissenting opinion, Judge Carolyn Nichols agreed that the information sought by the defendants could be relevant, but said that alone was not enough to compel production of the records.

"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," Nichols said. "Instead, Pennsylvania law has consistently required more than mere relevance to support a court's decision to direct disclosure. 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."

Stuart O'Neal of Burns White represents the hospital and did not return a call seeking comment.

Michael Brophy, Corey's attorney, said he was surprised by the ruling.

"There were several Superior and Supreme court cases that I thought compelled a different result," Brophy said. "I was surprised the Superior Court majority did not address them."