Schmidt, R. v. Leboon, S.

J-A24027-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RICHARD GEORGE SCHMIDT, M.D. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
STEVEN LEE LEBOON AND CASSANDRA
LEBOON
Appellants No. 3484 EDA 2014
Appeal from the Order Entered on November 24, 2014
In the Court of Common Pleas of Bucks County
Civil Division at No.: 2013-00951
BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*
MEMORANDUM BY WECHT, J.: FILED NOVEMBER 09, 2015
Steven LeBoon (“LeBoon”)1 and Cassandra LeBoon appeal the
November 24, 2014 order in which the trial court resolved several discovery
motions. We affirm.
A prior panel of this Court summarized the initial factual history of this
case as follows:
LeBoon suffered from work related injuries when, on May 6,
2009, management employees of the Alan McIlvain Company
attempted to perform the tasks of rank and file workers during
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
Although both Steven and Cassandra LeBoon are the
defendants/appellants in this matter, Steven LeBoon’s injury precipitated all
of the litigation in this case. Therefore, we use LeBoon to refer to the
defendants/appellants in the instant litigation and refer directly to Cassandra
LeBoon when relevant.
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the course of a labor stoppage. While removing lumber from a
cutting table, LeBoon injured his right shoulder and later alleged
injuries to his back and left shoulder. On May 12, 2009, LeBoon
filed a Workers’ Compensation claim, [in] which LeBoon allege[d]
Liberty Mutual (his employer’s Workers’ Compensation carrier)
denied on the basis that LeBoon had no medically documented
injury. Thereafter, LeBoon consulted his personal physician and,
relying on his health insurance, determined to undergo surgery
on June 11, 2009. Informed of the pending surgery, Liberty
Mutual requested that LeBoon undergo an independent medical
examination (“IME”). Thereafter, IMX Medical Management
Services, acting on Liberty Mutual’s behalf, scheduled the IME
with Richard George Schmidt, M.D., to take place on June 19,
2009. Dr. Schmidt is a board-certified orthopedic surgeon.
Following the examination, Dr. Schmidt completed a Bureau of
Workers’ Compensation Physician’s Affidavit of Recovery
attesting that LeBoon was able to return to work. Subsequently,
Liberty Mutual introduced that affidavit at Workers’
Compensation hearings held on July 8, 2009, and October 14,
2009. In addition, Dr. Schmidt testified at a deposition
convened in conjunction with the Workers’ Compensation
hearing in October. [Dr.] Schmidt noted that he had examined
magnetic resonance images of LeBoon’s shoulder, neck, and
spine and observed post-surgical changes in the shoulder as well
as degenerative changes in the spine, but saw no acute changes
or disc herniation. Although [Dr.] Schmidt conceded that
LeBoon suffered a work place injury (as LeBoon’s employer had
also conceded), he opined that the injury had resolved by the
time he conducted the IME. He described LeBoon’s injuries as a
transient strain of the shoulders, neck, and lower back and
suggested that LeBoon’s complaints were indicative of “symptom
magnification.” [Dr.] Schmidt showed no awareness of LeBoon’s
operative report, which documented actual tearing in LeBoon’s
shoulder.
Following the proceedings, on December 31, 2009, Workers’
Compensation Judge Bruce K. Doman (“WCJ”) rendered a
decision granting LeBoon’s claim for Workers’ Compensation
benefits. In his Findings of Fact in support of the decision, Judge
Doman found [Dr.] Schmidt’s testimony credible in part, to the
extent that [Dr.] Schmidt found the work-related injuries of
LeBoon’s left shoulder and cervical and lumber spines to be
resolved prior to the date of the IME. The WCJ found [Dr.]
Schmidt’s testimony not to be credible concerning LeBoon’s right
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shoulder, as it appeared to ignore the diagnostic studies and
operative reports compiled by LeBoon’s treating physicians. In
addition, the WCJ accepted documentation of LeBoon’s average
weekly wage at the time of injury and awarded him
compensation for total disability to be paid on a monthly basis
over the remainder of LeBoon’s projected life span.
Based on the award, LeBoon elected to settle his claim for a
lump sum payment of $185,000, subject to the terms of a
Compromise and Release Agreement by Stipulation Pursuant to
Section 449 of the Workers’ Compensation Act. In paragraph
18, LeBoon, with the aid of counsel, inserted the following
language purporting to limit the scope and effect of the
Agreement:
This Agreement does not impact in any manner any other
legal matter or administrative proceeding involving the
parties. This agreement fully and completely resolves any
workers’ compensation claim involving the Claimant,
including the work injury of May 6, 2009.
Compromise and Release Agreement by Stipulation Pursuant to
Section 449 of the Workers’ Compensation Act, 5/6/10, at 3 ¶18.
Following payment of the award, LeBoon commenced [a] civil
action, pro se, against Liberty Mutual, IMX and Dr. Schmidt,
alleging tortious conduct surrounding the manner in which each
had fulfilled its respective role in the evaluation and processing
of LeBoon’s Workers’ Compensation claim.1 Although LeBoon’s
Complaint did not differentiate his causes of action by count, it
did include summary assertions of intentional infliction of
emotion distress, negligent infliction of emotional distress and
fraud, all arising from the mishandling of his Workers’
Compensation claim. [As part of a claim that Dr. Schmidt
inflicted emotional distress by deviating from the standard of
care, LeBoon submitted a certificate of merit signed by Theron C.
Male, Ph.D.] It also specified harm resulting from LeBoon’s loss
of income during the claim’s disposition process including the
loss of his home and his car, and his family’s dependency on
public welfare for sustenance. All defendants denied LeBoon’s
allegations and each filed preliminary objections in the nature of
demurrer on the grounds, inter alia, that any conduct otherwise
actionable in tort was subsumed in the remedy of the Workers’
Compensation Act. The trial court, the Honorable Clyde W.
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Waite, granted the defendant’s respective preliminary objections
and dismissed LeBoon’s complaint with prejudice.
1
LeBoon had previously commenced an action in the
United States District Court for the Eastern District of
Pennsylvania naming IMX and Dr. Schmidt as defendants.
Shortly after commencing that action LeBoon amended the
complaint, adding Liberty Mutual as a defendant. By order
of April 18, 2011, the court dismissed LeBoon’s action
without prejudice.
LeBoon v. Schmidt, IMX Med. Mgmt. Svcs., Inc., & Liberty Mutual Ins.
Co., 2235 EDA 2011, slip. op at 2-5 (Pa. Super. Feb. 28, 2012).
LeBoon appealed the dismissal of his complaint to this Court, and we
affirmed the trial court on February 28, 2012. LeBoon then filed a petition
for allowance of appeal with our Supreme Court, which was denied on
August 16, 2012.
On February 13, 2013, Dr. Schmidt filed an initial complaint against
LeBoon. On May 31, 2013, Dr. Schmidt filed an amended complaint in which
he asserted claims of wrongful use of civil proceedings and abuse of process.
Dr. Schmidt also sought counsel fees and an injunction to prevent LeBoon
from filing further lawsuits against Dr. Schmidt in relation to LeBoon’s
workers’ compensation claim, from issuing subpoenas for Dr. Schmidt’s
testimony or documents related to the workers’ compensation claim, and
from contacting Dr. Schmidt.2 As suggested by the foregoing history, the
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2
On March 12, 2013, LeBoon filed a new federal lawsuit against Dr.
Schmidt, which was dismissed for failure to state a claim.
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filing of the complaint initiated a flurry of activity and over two hundred
docket entries have been made in the intervening time.
The trial court summarized the most recent procedural history of this
case as follows:
On November 20, 2014, [the trial court] held a hearing to
resolve ten discovery motions filed by both parties to this
litigation. [The trial court] then entered an Order on November
24, 2014 (“the November 24th Order”) ruling on each discovery
motion from the November 20th hearing. As is relevant to this
Appeal, the November 24th Order: (i) granted [Dr. Schmidt’s]
motion to compel Theron C. Male, Ph.D. to testify regarding his
psychological care and treatment of [LeBoon]; (ii) granted [Dr.
Schmidt’s] motion to compel Steven Goldflam to produce
[LeBoon’s] tax returns for the years 2007-2013; (iii) granted
[Dr. Schmidt’s] motion to overrule [LeBoon’s] objections to over
twenty interrogatories; (iv) granted [Dr. Schmidt’s] motion to
overrule [LeBoon’s] objections to seventeen requests for
production of documents; and (v) granted [Dr. Schmidt’s]
motion to compel both [LeBoon and Cassandra LeBoon] to
appear for a deposition.
On November 26, 2014, [LeBoon] filed a Notice of Appeal from
that Order. . . .
Trial Court Opinion (“T.C.O.”), 12/26/2014, at 1 (unnumbered).
The trial court did not order, and LeBoon did not file, a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a).
LeBoon raises the following issues for review:
1. Were [LeBoon’s] rights under 45 CFR 1644.512(e), Pa.R.C.P.
4033.1, Pa.R.C.P. 4011, Pa.R.A.P. 313, 42 Pa.C.S.A. § 5929
and 42 Pa.C.S.A. § 5944 violated due to [the trial judge’s]
err[or] when he granted [Dr. Schmidt’s] Motion to Compel
Theron C. Male to testify about his psychological care and
treatment of [LeBoon]?
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2. Were [the LeBoons’] rights under Pa.R.C.P. 4003.1, 23 USC
§ 7525, IRSRRA’98, The Privacy Act of 1974, Pa.R.A.P. 313,
and 42 Pa.C.S.A. § 5928 violated due to [the trial judge’s]
err[or] when he granted [Dr. Schmidt’s] Motion to Compel
Steve Goldflam produce [LeBoon’s] tax returns for the years
2007-2013?
3. Were [the LeBoons’] rights under 42 Pa.C.S.A. § 5923, 42
Pa.C.S.A. § 5924, Pa.R.C.P. 4003.1, Pa.R.C.P. 4011, and
Pa.R.A.P. 313 violated due to [the trial judge’s] err[or] when
he granted [Dr. Schmidt’s] Motion Overrule [the LeBoons’]
Objections to Interrogatories?
4. Were [the LeBoons’] rights under 42 Pa.C.S.A § 5923, 42
Pa.C.S.A. § 5924, Pa.R.C.P. 4003.1, Pa.R.C.P. 4011, 42
Pa.C.S.A. § 5928 and Pa.R.A.P. 313 violated due to [the trial
judge’s] err[or] when he granted [Dr. Schmidt’s] Motion to
Overrule [the LeBoons] Objections to Requests for Production
of Documents?
5. Were [the LeBoons’] rights under 42 Pa.C.S.A. § 5923, 42
Pa.C.S.A. § 5924, Pa.R.C.P. 4003.1, Pa.R.C.P. 4011, 42
Pa.C.S.A. § 5928 and Pa.R.A.P. 313 violated due to [the trial
judge’s] err[or] when he granted [Dr. Schmidt’s] Motion to
Compel the deposition of [LeBoon]?
6. Were [the LeBoons’] rights under 42 Pa.C.S.A. § 5923, 42
Pa.C.S.A. § 5924, Pa.R.C.P. 4003.1, Pa.R.C.P. 4011, 42
Pa.C.S.A. § 5928 and Pa.R.A.P. 313 violated due to [the trial
judge’s] err[or] when he granted [Dr. Schmidt’s] Motion to
Compel the deposition of Cassandra LeBoon?
7. Were [the LeBoons’] rights under rules of Discovery violated
due to [the trial judge’s] err when he denied access to [Dr.
Schmidt’s] financial tax returns, even after he stated in the
Amended Complaint that [Dr.] Schmidt “has been forced to
expend time at the expense of his medical practice”?
LeBoon’s Brief at 6-7 (citations modified).
We first must determine whether we have jurisdiction. LeBoon asserts
that the order is a collateral order pursuant to Pa.R.A.P. 313 and, therefore,
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we have jurisdiction. However, LeBoon provides no argument in support of
his assertion.
Addressing this issue, we have stated:
“[I]n general, discovery orders are not final, and are therefore
unappealable.” Jones v. Faust, 852 A.2d 1201, 1203 (Pa.
Super. 2004). However, “discovery orders involving privileged
material are nevertheless appealable as collateral to the principal
action” pursuant to Pa.R.A.P. 313 (“Collateral Orders”). Id.Rule 313(a) states that “[a]n appeal may be taken as of right
from a collateral order of [a] . . . lower court.” Pa.R.A.P. 313(a).
A collateral order is an order separable from and collateral
to the main cause of action where the right involved is too
important to be denied review and the question presented
is such that if review is postponed until final judgment in
the case, the claim will be irreparably lost.
Pa.R.A.P. 313(b). “A discovery order is collateral only when it is
separate and distinct from the underlying cause of action.”
Feldman v. Ide, 915 A.2d 1208, 1211 (Pa. Super. 2007).
As this Court explained recently:
Prior to the decision of the Pennsylvania Supreme Court in
Ben v. Schwartz, 729 A.2d 547 (Pa. 1999), Pennsylvania
courts did not often entertain interlocutory appeals from
discovery orders, unless the discovery order was not
related in any way to the merits of the action itself. In
Schwartz, the Pennsylvania Supreme Court revised this
rule and held that an appeal from a discovery order raising
a question of the application of a privilege is separable
from the underlying issue, so long as the issue of privilege
may be addressed by an appellate court without analysis
of the underlying issue. Schwartz, 729 A.2d at 551–52.
Castellani v. Scranton Times, L.P., 916 A.2d 648, 652 (Pa.
Super. 2007).
T.M. v. Elwyn, Inc., 950 A.2d 1050, 1056-57 (Pa. Super. 2008) (some
citations modified; others omitted).
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As stated above, normally, we first would determine whether the order
appealed is a collateral order. However, LeBoon has asserted his arguments
about privilege in the merits portion of his brief and intertwined the
jurisdictional and merits issues. Therefore, we examine each issue in turn to
determine whether the order is collateral or interlocutory and then discuss
the merits if we have the jurisdiction to do so.
In his first issue, LeBoon asserts that the trial court erred in permitting
Dr. Male to be deposed regarding LeBoon’s treatment. LeBoon argues that
the psychologist-patient privilege pursuant to 42 Pa.C.S.A. § 5944 prevents
disclosure of any information regarding treatment. He also asserts that he
has not waived any Health Insurance Portability and Accountability Act of
1996 (“HIPAA”) protection. LeBoon’s Brief at 14-15.
We have previously found similar claims to be reviewable as collateral
orders. See Gormley v. Edgar, 995 A.2d 1197, 1201 (Pa. Super. 2010).
Therefore, we proceed to the merits.
Our standard of review is well-settled. “Generally, in reviewing the
propriety of a discovery order, our standard of review is whether the trial
court committed an abuse of discretion. However, to the extent that we are
faced with questions of law, our scope of review is plenary.” Id. at 1202.
In reviewing a claim of privilege in mental health records pursuant to
the Mental Health Procedures Act, our Supreme Court stated that “[i]t must
be emphasized that evidentiary privileges have been viewed by this Court to
be in derogation of the search for truth, and are generally disfavored for this
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reason. . . .” Octave ex rel. Octave v. Walker, 103 A.3d 1255, 1262 (Pa.
2014). In that case, the Court held that “a patient waives his confidentiality
protections under the MHPA where, judged by an objective standard, he
knew or reasonably should have known his mental health would be placed
directly at issue by filing the lawsuit.” Id. In Gormley, we affirmed the
trial court’s decision to order disclosure of mental health records, despite the
plaintiff’s claim of psychologist-patient privilege, when the plaintiff put her
mental health at issue in the case by claiming anxiety as a result of an
accident. Gormley, 995 A.2d at 1206; see also Rost v. State Bd. of
Psychology, 659 A.2d 626, 629 (Pa. Cmwlth. 1995) (“Waiver of the
privilege may occur where the client places the confidential information at
issue in the case. It may also be waived where there is no longer an
expectation of privacy regarding the information because the client has
made it known to third persons.”) (citations omitted). Here, in the
underlying case, by claiming infliction of emotional distress, LeBoon firmly
put his mental health at issue. Therefore, he waived any claim to privilege.
Insofar as LeBoon has asserted a privilege pursuant to HIPAA, he cites
“45 CFR 1644.512(e).” Although that section does not exist, we presume
that LeBoon intended to cite 45 C.F.R. § 164.512(e). The section provides
that “a covered entity may disclose protected health information in the
course of any judicial . . . proceeding” “in response to an order of a court . .
. provided that the covered entity disclosed only the protected health
information expressly authorized by such order.” 45 C.F.R.
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§ 164.512(e)(1)(1). Here, the trial court issued such an order directing Dr.
Male to testify regarding his treatment of LeBoon. Dr. Male can do so
without violating HIPAA. LeBoon has raised no other HIPAA privilege and
has, therefore, waived any other that he might have raised. The trial court
did not abuse its discretion in ordering this discovery.
LeBoon next contends the trial court erred in ordering his bookkeeper
to provide copies of his tax returns. LeBoon cites a variety of statutes to
assert a privilege for those returns. LeBoon’s Brief at 16-18.
However, none of the “privileges” LeBoon asserts is even remotely
relevant. He cites the attorney-client privilege, but no attorney is involved
in this case. He cites two general rules of discovery, Pa.R.C.P. 4003.1 and
4011, neither of which involves a privilege. He cites the collateral order
rule, Pa.R.A.P. 313, without any explanation as to how that would assert a
privilege. He asserts a federal privilege between a taxpayer and a federally
authorized tax practitioner, 26 U.S.C. § 7525, although Mr. Goldflam has not
been alleged to be a federally authorized tax practitioner.3 LeBoon purports
to find a privilege in other federal laws without citation to any statute or
decisional authority. Nothing LeBoon cites provides a privilege that would
protect his tax returns. As no actual assertion of privilege has been made,
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3
Under federal law, a certified public accountant may practice before
the Internal Revenue Service. See 5 U.S.C.A. § 500. The record reveals
that Mr. Goldflam is not an accountant, let alone a certified public
accountant.
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there is no right that is too important to be denied review. Therefore, the
order to compel the production of the tax returns is not a collateral order,
and we do not have jurisdiction to reach its merits.
In the next four issues, LeBoon asserts that the trial court erred by
failing to recognize that a spousal privilege precludes answers to
interrogatories, production of documents, and the taking of LeBoon’s and
Cassandra LeBoon’s depositions. We first address jurisdiction.
As with other claims of privilege, the privilege would be lost if review
were postponed until after a final judgment. The spousal privilege has long
been recognized in our law and serves an important public policy of
preserving marital harmony. See Commonwealth v. Mattison, 82 A.3d
386, 394 (Pa. 2013) (“The spousal confidential communications privilege has
its roots in common law and ‘is based upon considerations of public policy,
as in the case of husband and wife to preserve the peace, harmony and
confidence’ in their relations.”). In this case, the privilege also is separable
from the underlying issue of wrongful use of judicial process.4 Thus, Rule
313 is satisfied.
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4
But see Fid. Nat. Title Ins. Co. of New York v. United Settlement
Servs., Inc., 924 A.2d 1270, 1272 (Pa. Super. 2007) (holding that spousal
privilege was not separable in case alleging that husband and wife engaged
in fraud, because the spousal privilege does not extend to communications
that perpetrate a fraud, and the court would have to determine whether
fraud was committed to determine whether the privilege applied).
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The two privileges cited by LeBoon are as follows:
Except as otherwise provided in this subchapter, in a civil matter
neither husband nor wife shall be competent or permitted to
testify to confidential communications made by one to the other,
unless this privilege is waived upon the trial.
42 Pa.C.S.A § 5923.
In a civil matter neither husband nor wife shall be competent or
permitted to testify against each other.
42 Pa.C.S.A. § 5924(a).
A communication does not qualify as a confidential communication
when it has been divulged to a third party. Commonwealth v. G.Y., 63
A.3d 259, 267 (Pa. Super. 2013).5 “The determination of what constitutes a
confidential communication depends upon whether the defendant has a
reasonable expectation that the communication will remain confidential.”
Mattison, 82 A.3d at 394. Additionally, our Supreme Court has held that,
while communication can be non-verbal, observations of conduct without
“the attribution of a message” would not be a communication between
spouses. Id. at 395.
We also have recognized that the testimonial privilege requires that
the spouse must be called upon to testify against the other for it to apply.
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5
There are few cases addressing sections 5923 and 5924. Therefore,
we look to the cases that construed the substantially similar equivalents in
criminal proceedings, 42 Pa.C.S.A. §§ 5913 and 5914.
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No such privilege exists when the testimony is not adverse to the other
spouse. Com. ex rel. Platt v. Platt, 404 A.2d 410, 413 (Pa. Super. 1979).
With this background in mind, we address each of LeBoon’s
contentions in turn. Regarding interrogatories, LeBoon asserts that
Cassandra LeBoon has no independent knowledge about the case and that
the only answers that she could supply would be known to her through
confidential communications with LeBoon. LeBoon’s Brief at 19-21. LeBoon
makes the same argument with respect to the production of documents. Id.
at 22-24.
In his written answers, LeBoon only claimed spousal privilege in
response to one of more than twenty disputed interrogatories. Similarly, he
did not raise that privilege as a response to any additional interrogatories at
argument. LeBoon also did not assert a spousal privilege to any of the
disputed document requests, and we can find no such assertion in the
hearing transcript. Therefore, because the privilege was not raised as an
issue before the trial court, the issue is waived on appeal. See Majorsky v.
Douglas, 58 A.3d 1250, 1267 (Pa. Super. 2012); Pa.R.A.P. 302(a).
For the interrogatory in which the issue was preserved, the privilege is
inapplicable. That interrogatory asked whether an attorney provided
assistance to the LeBoons in the underlying suit. Because this would involve
a third party, no spousal privilege would apply.
LeBoon next contends that the trial court erred in granting Dr.
Schmidt’s motions to compel LeBoon’s and Cassandra LeBoon’s depositions.
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LeBoon argues that the deposition would require him to divulge confidential
communications with Cassandra LeBoon. LeBoon contends that the trial
court ordered him and Cassandra LeBoon to answer all questions “regardless
of [the] privilege asserted.” LeBoon’s Brief at 26, 30. LeBoon also argues
that Cassandra LeBoon cannot be forced to testify against her husband, so
anything elicited in her deposition would be inadmissible in court. LeBoon’s
Brief at 25-32.
LeBoon and Cassandra LeBoon cannot assert a blanket spousal
privilege that entirely prevents Dr. Schmidt from questioning them. The
privilege only applies to confidential communications between spouses. It is
not reasonable to suggest that every question that Dr. Schmidt would ask
would elicit a confidential communication. Additionally, the trial court did
not preclude the LeBoons from asserting a spousal privilege during the
deposition. The trial court stated:
You will appear for deposition. Mrs. LeBoon will appear for
deposition. If there is an objection to a specific question
regarding a communication between spouses or against another
spouse, you can make that objection, you can provide the
answer, and then the trial judge will determine whether or not it
will proceed further.
Notes of Testimony, 11/20/2014, at 68-69. It is clear that the court
specifically permitted the LeBoons to object to specific questions, subject to
the trial court’s ruling upon those objections, but not to avoid a deposition
entirely based upon a blanket assertion of spousal privilege. Thus, no relief
is due at this time.
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As to LeBoon’s final objection, our rules state that “[i]t is not
ground[s] for objection that the information sought will be inadmissible at
the trial if the information sought appears reasonably calculated to lead to
the discovery of admissible evidence.” Pa.R.C.P. 4003.1(b). Therefore, it
does not matter if Cassandra LeBoon’s deposition testimony would not be
admissible at trial, provided that it reasonably could lead to admissible
evidence. Because Cassandra LeBoon was a party to the underlying lawsuit
and was involved in events leading to the current litigation, it is reasonable
to anticipate that her testimony, even if not admissible, would lead to the
discovery of admissible evidence. Again, a blanket claim of privilege cannot
shield Cassandra LeBoon from being deposed, although she certainly may
assert a privilege in response to individual questions as the trial court
acknowledged. Because the trial court correctly disposed of the assertions
of spousal privilege that were raised before it, there was not abuse of
discretion.
Finally, LeBoon asserts that the trial court erred in failing to compel
Dr. Schmidt to turn over Dr. Schmidt’s tax returns. However, LeBoon does
not argue that any privilege applies to this issue. See LeBoon’s Brief at 33-
34. Because there is no privilege at issue, this is not a collateral issue and
we do not have jurisdiction to review its merits.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/2015
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