(CN) - Posing irrelevant questions to a sick, 70-year-old woman about her husband's faithfulness supports an emotional-distress claim, a Louisiana appeals court ruled.
The interrogation occurred as part of a lawsuit Judith Sullivan and Wilmoth Thompson filed against an assisted-living facility called Malta Park, stating claims of deficient care and of fraudulently assessing Sullivan at a higher level of care.
At her deposition, Sullivan was represented by two attorneys: her husband/caregiver, Madro Bandaries; and his assistant, M. Claire Trimble.
As the deposition concluded, Malta Park's lead attorney, F. Evans Schmidt, asked Sullivan: "Has Ms. Trimble ever talked to you about having a sexual relationship with your husband?"
Sullivan said no, and Bandaries said he would tell the judge about the comment, which he called "so far off the reservation it's unbelievable."
Schmidt continued by asking Sullivan: "Has your husband ever talked to you about having a sexual relationship with Ms. Trimble?"
Sullivan said no again and added a claim of intentional infliction of emotional distress to her lawsuit, tacking Schmidt to the list of defendants.
Her complaint described her medical condition of cerebellar ataxia, stating that she "has been confined to a wheelchair for more than 12 years, is legally blind and cannot write or feed herself correctly due to her hands being atrophied by the ataxia."
Though Schmidt knew about Sullivan's medical condition, he still "blurted out" the comments "in spite," she claimed.
The Orleans Parish Civil District Court allowed Schmidt and Malta Park to dismiss the emotional distress claim, but the Fourth Circuit Court of Appeal reversed on Dec. 10.
"The questions Mr. Schmidt posed to Ms. Sullivan in the deposition were palpably irrelevant to the underlying suit," Judge Rosemary Ledet wrote for a three-judge panel. "Stated otherwise, whether Mr. Bandaries and his associate were having an affair has no potential relevance to the issues presented in the underlying suit."
Bandaries also filed a defamation lawsuit against Schmidt and his firm based on the comments.
Schmidt claimed qualified privilege, and argued that he considered his question a reasonable follow-up to Sullivan's testimony that she did not know if Trimble was her lawyer and that Trimble was her husband's "partner."
Though the trial court had granted Schmidt summary judgment, the appeals court reversed on this point as well in a separate opinion.
Ledet agreed with Bandaries that Schmidt's questions were "akin to the proverbial, inappropriate 'when did you stop beating your wife' type of question."
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