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Wrongful Death
Interrogatories Definitions, identification, investigation, auto accident, dangerous property condition, defective product, medical malpractice, defenses, and damages. by Kevin R. Culhane Excerpted from Model Interrogatories
At common law, a cause of action for
injuries to the person did not survive the death of the person injured.
Similarly, there was no independent civil action for the wrongful death
of another. The first wrongful death action was recognized by statute in
1846, and all states now provide some form of recovery for wrongful
death. It is important to distinguish
between true “wrongful death” actions and “survival” actions. A wrongful
death action is ordinarily an action vested in the decedent’s surviving
heirs, and seeks to compensate them for their pecuniary loss occasioned
by the death. By contrast, a survival action is simply the decedent’s
action for his or her own personal injuries, which survives death and
which is maintained by the administrator of the decedent’s estate. While
the beneficiaries of this latter action will also be the decedent’s
heirs, the recoverable damages differ in the two actions, as do the
rules of standing and joinder. Both actions are created by statute,
although not all states recognize both actions. It is important to recognize
that the term “wrongful death” does not refer to an independent tort,
but rather identifies a particular type of damage resulting from
defendant’s intentional, negligent, or strict liability conduct.
Accordingly, an action for wrongful death may originate in vehicular
negligence, the dangerous condition of real property, a defectively
manufactured product, or a host of other tortious events with which all
practitioners are familiar. Wrongful death actions typically have no
additional elements except that the defendant’s negligence was serious
enough to cause death rather than mere personal injury. This chapter describes
interrogatory discovery within the context of wrongful death and
survivorship cases. The chapter contains extensive cross-references to
other sections of this book, and is organized to highlight wrongful
death issues originating from vehicular negligence, premises liability,
products liability, and medical malpractice cases. Additional
interrogatories are included that deal exclusively with issues posed in
wrongful death and survivorship cases. Because wrongful death merely
refers to a peculiar type of tort damage, it should be borne in mind
that many of the interrogatories contained in the other chapters of this
book will be fully applicable in wrongful death cases. §1001 Defenses in
Wrongful Death and Survivorship Cases As indicated above, a survivorship
action is simply the decedent’s own tort cause of action for his or her
own injuries which ultimately lead to death. Accordingly, the
traditional tort defenses are applicable in the action brought by the
administrator of the estate. Thus, the decedent’s comparative fault in
bringing about the injury as well as decedent’s assumption of the risk
may be asserted against the administrator. As indicated above, wrongful
death actions contemplate damages to decedent’s heirs based on their own
pecuniary loss. Accordingly, the decedent’s comparative fault may be
asserted against the heirs, as well as the heirs’ own comparative fault
if present. Similarly, assumption of this risk on the part of the heirs
may ordinarily be asserted in wrongful death cases. This chapter
includes interrogatories directed toward these issues as well. §1010 Definitions See the general definitions at § 102. §1020 Identification of Party §1021
Identification in General As in other types of litigation, it
is important to properly identify the defendant in wrongful death cases.
The interrogatories set forth in §§ 210 and 211 may be used to identify
the appropriate defendants. The answers to these interrogatories may
also pose substantive legal questions, including a business’ successor
liability when it has acquired the assets of a predecessor business, the
liability of additional partners when a party operates as a partnership,
and facts necessary to disregard the corporate form if the corporation
is inadequately capitalized. §1022 Business
Structure The interrogatories set forth in §
211 are also designed to elicit more specific facts regarding a
defendant’s business structure. §1023 Address Section 211.2 contains a general set
of interrogatories to discover the address of the opposing party,
whether a natural person, corporation, partnership, or sole
proprietorship. These interrogatories may be used when general
information regarding the opponent is desired, but may have a more
specific application when an address is important to the substantive
law, as with cases involving jurisdiction or venue issues. §1024 Agency The interrogatories set forth in §
213 should be used to determine whether there are other
individuals or entities who may be vicariously responsible for
decedent’s death. The specific agency relationships are explored, and
several general questions regarding imputed negligence are also included
to cover situations not addressed by the more specific interrogatories.
The responses to these questions are particularly critical when the
otherwise available insurance proceeds are insufficient to satisfy the
losses occasioned by the decedent’s death. §1025 Litigants
Acting in a Representative Capacity Special problems arise when litigants
appear in a representative capacity, and this is especially so in
wrongful death cases. The interrogatories set forth in § 200 are
designed to ascertain the facts regarding representative status,
together with all documents and witnesses pertaining thereto. In wrongful death cases, the
source and nature of a litigant’s authority may also be critical to
settlement negotiations. The answers to the questions in § 200 may also
reveal joinder problems, since in most states statutory heirs who do not
join as plaintiffs must be joined as defendants. Further, where the
defendant is a decedent, it is necessary to establish the parties’
representative status in order to bind the decedent’s estate. §1030 Auto Accident As every trial lawyer knows, many
wrongful death cases arise out of automobile accidents. The sections
that follow contain organized cross-references for typical issues that
arise in automobile accident cases involving the death of a decedent. As
in non-death cases, it is important to determine all relevant facts
regarding the occurrence of the accident, the existence of witnesses
and/or evidence, and the defendant’s contentions as to how the accident
occurred. §1031 Location The interrogatories set forth in §
421.2 are designed to elicit general information regarding the location
of the accident, together with related details. §1032 Accident
Causes The interrogatories set forth in §
421.3 are designed to reveal whether the defendant will contend that the
accident was caused by any third party, vehicle defect, weather
condition, or other cause. The interrogatories will also reveal any
claim of contributory or comparative fault on the part of plaintiff’s
decedent, together with all facts and circumstances which bear on these
contentions. Interrogatories based on these questions should ordinarily
be included so that any exculpatory facts regarding defendant’s conduct
will be identified at an early stage. Occasionally you should consider
restricting the scope of these questions, because you might suggest a
defensive position which has not occurred to the defendant. §1033 Accident
Details The interrogatories set forth in §
421.4 require a general recitation of the facts surrounding the motor
vehicle accident, including speed estimates for both vehicles, facts
relating to the parties’ alertness and perception, and the parties’
reactions once the danger became known. The physical facts will be
revealed by the responses, which will then often be used by experts to
formulate a hypothesis as to the factual cause of the accident. §1033.1 Decedent’s
Speed The interrogatories in § 421.6 may be
used to obtain speed estimate contentions regarding plaintiff’s speed
from the defendant. The follow-up interrogatories are designed to
inquire as to the applicable speed limit at the accident scene, and the
answers to these questions will also reveal the party’s awareness or
lack of awareness as to the applicable speed limit at the time that the
interrogatories are answered. §1033.2 Defendant’s
Speed The interrogatories in § 421.7 elicit
defendant’s contentions regarding defendants own speed at the time of
the accident. §1033.3 Roadway Details The interrogatories in § 421.11 may
be helpful in formulating a theory of how the accident occurred, and may
also indicate that the opposing vehicle was operated too fast for
existing circumstances. Occasionally, roadway detail information may be
used to substantiate a claim against a public entity owning, designing,
or maintaining the roadway surface. §1033.4 Alcohol and
Drugs (Defendant) The extent to which the use of
alcohol and drugs contributes to major motor vehicle accidents is widely
known. Evidence of this consumption can reveal negligence in what may
otherwise appear to have been a chance event, and the identification of
witnesses to alcohol or drug consumption may help direct future
discovery. The interrogatories set forth in § 421.14 are designed to
determine whether defendant ingested alcohol or drugs prior to the
accident resulting in decedent’s death. §1033.5 Equipment
Defects The interrogatories set forth in §432
conduct a more specific inquiry relating to any contention that the
accident was caused by a defect in defendant’s vehicle. The questions
focus on the existence of a defect; the responses require an
identification of all facts, witnesses, and documents relating to such a
contention. The responses are useful not only to establish negligent
maintenance or operation on the part of the owner, but to evaluate
whether an equipment or component manufacturer bears partial
responsibility. §1033.5.1 Pre-accident
Knowledge of Defect When an equipment defect or failure contributes to an
accident, liability may turn on what the defendant knew or should have
known of the potential failure or need for repair. These interrogatories
explore the state of defendant’s knowledge regarding equipment defects
and also inquire as to the repair history of the vehicle to establish
circumstantial evidence of prior notice. Use the interrogatories in §
432.1 coupled with those set forth in § 432. §1033.6 Ownership,
Permissive Use and Occupancy The interrogatories in § 452.2
perform a general investigation as to each of the vehicles involved in
the accident, including data regarding the owners and occupants as well
as the fact of permission in permissive use cases. The responses may
reveal additional defendants or witnesses, as well as the occasional
additional insurance policy applicable by virtue of permissive use. §1034
Investigation of Accident Cause In all wrongful death cases, at least
one witness to the event is deceased. In many cases, several parties are
deceased and substantial questions can exist as to accident causation.
Accordingly, it can be very important to determine whether a third party
investigated the accident. The interrogatories set forth in § 240
require the deponent to set forth all facts, witnesses, and documents
relating to any investigation. Frequently questions of this
nature will be met with an over-broad assertion of work product
privilege, so careful distinction should be made between an
investigation conducted for the opposing parties’ business purposes or
insurance renewal and those conducted by counsel in preparation for
litigation. §1035 Witnesses Since the decedent obviously cannot
testify about what happened, witness testimony can be critical in
wrongful death cases. The interrogatories set forth in §241 seek to
discover the identity of and knowledge possessed by any witnesses to the
subject accident. You should include these interrogatories in virtually
every set, including the closing set sent shortly before the discovery
cutoff. §1036 Insurance It is obviously important that you be
aware of the existence and limits of any applicable insurance coverage.
Most states hold that the insurance policies themselves are
discoverable, and your knowledge of the policy limits will allow you to
make a reasonable decision regarding any settlement offer. Also, the
existence of a coverage dispute is information that you need to have in
making your settlement decision, because in some cases an offer of
settlement is made so that the carrier may avoid the cost and expenses
necessary to litigate the coverage question. This can sometimes be a
bona fide reason for settlement, since a coverage question may be
resolved against the insured, which in turn leaves the claimant without
resort to an existing policy. The interrogatories set forth in § 251 are
designed to explore these issues. §1040 Dangerous Condition of
Property §1041 Details of
Occurrence The first purpose of the
interrogatories set forth in § 522 is to reveal the defendant’s
contentions regarding how the incident occurred. The answers will also
reveal any claim of contributory or third party negligence along with
any facts or writings supporting these contentions. It is especially
important that you learn whether the defendant believes that a third
party was concurrently negligent so that you can ascertain that all
appropriate defendants are joined in the action. This may also control
apportionment of liability where apportionment is required. §1041.1 Ownership and
Maintenance of Premises The interrogatories set forth in §
541 should be used to determine the appropriate parties to the case; in
many cases involving business premises, the apparent owner is merely a
lessee, and the later identification of the actual owner requires an
amendment of your pleadings. You can avoid the delay that this causes by
including these questions in your opening interrogatory set. The
questions also require the identification of those responsible for
maintenance and repair of the premises, thus revealing potential
additional defendants and/or important liability witnesses. §1041.2 Identification
of Defendant/Business Status The interrogatories set forth in § 542 consist of
general questions designed to reveal whether the owner of the premises
is a corporation, partnership, or other. This information must be
obtained in order to assure that all appropriate defendants are joined
and that potentially applicable insurance policies have been identified.
Also, the proper identification of the defendant’s status will prevent
the delay that occurs when it is necessary for you to subsequently amend
your pleadings. §1042 Knowledge
of Dangerous Condition The wrongful death plaintiff must
establish actual or constructive knowledge of the defective condition in
order to recover. The purpose of the interrogatories set forth in § 550
is to determine whether the defendant had such knowledge to identify all
relevant facts, witnesses and documents, and to otherwise establish the
degree of notice the defendant possessed. The detail required in the
defendant’s responses will identify any further discovery required on
the notice issue, and a required admission of notice in response to
these interrogatories can often enhance the settlement prospects of the
case. In addition, these interrogatories can be directed to third party
defendants to determine whether these defendants had knowledge of the
defective condition. §1042.1 Inherent
Dangers and Imputed Notice In many cases, the defendant will
deny notice of any dangerous condition, particularly if there are no
other witnesses on the notice issue. The plaintiff can still prevail in
these cases if it can be established that some aspect of the premises or
the business conducted thereon posed an inherent risk of injury. You
should use the interrogatories set forth in § 551 in these cases. If the
defendant denies an inherent danger which would be obvious to others,
the jury will disbelieve defendant; if defendant acknowledges an
inherent danger, then defendant must address the question of what steps
were taken to warn the plaintiff’s decedent. §1042.2 Circumstantial
Notice (Subsequent Repairs) Many states refuse to admit evidence
of subsequent repairs as implied admissions of negligence on policy
grounds. For this reason, many attorneys do not inquire about subsequent
repairs, but this can be a mistake. Defendant plainly has notice of the
dangerous condition at the time the repairs are made. This notice may
support an inference of prior notice. The fact of subsequent repairs can
open the door to inquiries about when the repairs were ordered and why.
The interrogatories in § 552 are therefore reasonably calculated to lead
to admissible evidence. You should not assume that any repair that
occurs after an accident was prompted by the accident itself. If you can
establish that the need for repair was appreciated prior to the
occurrence, this evidence establishes the requisite notice of the
defect. §1042.3 Inspection of
Premises Many injury and death cases occur on
business premises, so there is a duty on the part of the landowner to
inspect for dangerous conditions. Defendant’s deviation from a
procedural manual for inspection is powerful liability evidence, as is
the absence of any procedure manual. The interrogatories in § 553 should
be used to elicit information regarding the defendant’s inspection
procedures, the individuals responsible for implementing the same, and
any documents or witnesses pertaining thereto. §1050 Defective Product Many wrongful deaths are caused by
defective products. In an ordinary product liability case, it is
important to determine whether the apparent defendant actually
manufactured the product or has information as to who did. Further, the
early identification of the actual manufacturer of the product can avoid
later confusion which may arise when you attempt to locate design
drawings, production protocols, trade manuals and the like. §1051
Identification of Product Manufacturer The interrogatories set forth in §621
should be used to determine whether the responding defendant
manufactured the product or has information as to who did. Other
responses may insure that the appropriate parties are named in the
action. They will also help to focus your later discovery in cases
involving multi-level manufacturing and distributing enterprises. §1052 Product
Design Sections 631 and 633 set forth basic
questions which should be used in cases alleging negligent or defective
design of the product. They address a variety of design considerations,
beginning with questions intended to establish the relevant facts
regarding the design of the product. These sections also include
questions that help to evaluate the design choice itself by inquiring as
to the safety problems which were considered in the product design.
These questions are fundamental in a design defect case, because the
“defectiveness” concept requires balancing of the safety hazards against
the cost, feasibility, and utility of alternative designs. Because the
substantive law involves this balancing process, you are entitled to
inquire as to safety risks which were actually considered in the product
design. This will allow your experts to evaluate the design against
other alternatives. Additionally, the fact that the defendant was aware
of a given safety hazard in selecting the product design may give rise
to a duty to warn even if there is no safer alternative. These
interrogatories require the defendant to identify the safety risks
included in the challenged design, and for that reason, can be
especially effective at the time of trial. Some states characterize a
design as defective if the product fails to meet the reasonable safety
expectations of the ordinary consumer. This set includes questions
directed to that concept, including inquires as to whether the ordinary
consumer’s safety expectations were inconsistent with the design or
utility of the challenged product. Finally, product manufacturers
are now required to anticipate potential product misuses in the design
of their products. Section 654 includes questions that require the
defendant to identify any misuses which were considered in the design of
the subject product, and the measures defendant took to ameliorate the
risk of harm. §1053 Product
Marketing §1053.1 In wrongful death cases based on
strict liability, negligence, and warranty, it is important to establish
the sale and distribution chain by which the product reached the
decedent’s hands. The following interrogatories in § 641 begin that
inquiry with generalized questions pertaining to the sale of the subject
product, identifying data, and any documentation of the sale. These
generalized questions may then be followed by more particularized
questions regarding distribution. §1053.2 Distribution Provided that the defendant qualifies
as a “commercial supplier” liability may attach even if the defendant
neither manufactured the subject product nor supplied it to the ultimate
consumer. Each link in the distribution chain has indemnity rights
against that person’s immediate supplier, all the way back to the
manufacturer. Accordingly, products liability cases often include
defendants who are simply distributors, i.e., they obtain the product
from a manufacturer and distribute it to a retailer or secondary
distributor. The interrogatories in §642
provide exemplars for use in establishing the distribution chain of the
subject product. The inclusion of these interrogatories will identify
the participants in the distribution chain, which in turn may identify
additional parties to be joined and focus further discovery. Also, it is
important to identify each entity involved in the distribution of the
product to determine whether the product underwent alteration before it
reached the ultimate consumer. §1053.3 Instructions re
Product Use In many cases, defendants contend
that the decedent violated instructions for the use of the subject
product or that the instructions included language warning of potential
risks. For this reason, you should discover the nature and contents of
any instructions given by the defendant with respect to the use of the
subject product. The interrogatories in § 646 are designed for this
purpose. §1060 Medical Malpractice It is critical to establish that a
physician-patient relationship existed between the plaintiff’s decedent
and the defendant. In the absence of a relationship, there is ordinarily
no duty of care owed. The interrogatories that follow seek the facts and
circumstances surrounding the formation of that relationship. This can
be particularly important because the plaintiff’s decedent often has
contracted with a third-party provider, such as a hospital, and the
nature and extent of the physician-patient relationship may be disputed. The interrogatories in the
Sections that follow also deal with the nature and extent of the
services that the physician agreed to provide, including any limitations
thereon. The responses to these questions are important to reveal any
limitation upon the physician-patient relationship or the physician’s
undertaking. Finally, some of the interrogatories cross-referenced below
seek discovery of all the documentation relating to the relationship.
For additional interrogatories for use in medical malpractice cases
generally, see Chapter Eleven. §1061 Scope of
Physician Undertaking The interrogatories set forth in §
1141 are designed to explore the nature and extent of the physician’s
undertaking at the inception of the relationship. The responses are
obviously critical to the question of whether the defendant conformed to
the applicable standard of care, and will likely also reveal whether the
defendant will advance a “limited undertaking” defense. §1062
Documentation Regarding Physician-Patient Relationship The interrogatories in §1142 are
directed to the issue of whether there exists any documentary record
relating to the diagnosis and treatment of plaintiff’s symptoms. §1063 Failure to
Diagnose Many medical malpractice actions stem
from the alleged failure on the part of defendant to correctly diagnose
plaintiff’s decedent’s medical condition. This failure to diagnose can
be based on the taking of inadequate medical history, the failure to
perform appropriate diagnostic testing, and/or the failure to accurately
interpret the results of the diagnostic procedures. The interrogatories
in § 1151 deal with the decedent’s history and the diagnostic process.
They inquire as to the nature and extent of the medical history, the
presence or absence of diagnostic test results and like matters. In
addition, these interrogatories require the identification of all
witnesses and documents relating to the diagnostic process. §1064
Administration of Medications Many of the reported malpractice
cases deal with the administration of prescription medicines. The
utility of the medicine itself, the presence or absence of potential
side effects, and contraindications obtained from the medical history
can all form the basis of a negligence claim against the physician.
Conversely, the physician’s failure to prescribe safe and effective
medication can likewise form the basis for a finding that the physician
fell below the applicable standard of care. The interrogatories in §
1152 deal with the administration of medications by the physician as
well as medical indications and contraindications for the specific
medicine prescribed. §1065
Identification of Operative Procedure The interrogatories in § 1154.1 help
establish whether the defendant performed an operative procedure upon
the decedent. This information can be very important in certain cases,
since the plaintiff may not be aware of all the individuals who
participated in the operative procedure. These questions require a
general identification of each step involved in the successful
completion of the operation so that responses can be matched with the
documentation pertaining to the operation. Obtaining this information
can be very important, particularly since plaintiff’s experts will be
required to rely on the information gathered in response to these
interrogatories in determining whether the conduct fell below the
standard of care. §1066
Postoperative and Discharge Procedures The interrogatories in § 1154.6 to
discover the nature and extent of any postoperative orders made by
defendant as well as any general instructions given at the time of
plaintiff’s decedent’s discharge. Use them in cases in which medical
complications allegedly developed as a result of decedent’s
postoperative activities; they can be very important when comparative
negligence is alleged. In addition to the general inquiry relating to
postoperative orders and discharge instructions, these interrogatories
seek to discover all facts, witnesses, and relevant documents pertaining
to such orders or discharge instructions. §1067 Informed
Consent One of the most frequently recurring
allegations in medical malpractice wrongful death cases is the failure
of the physician to obtain informed consent from the patient. The
informed consent doctrine presents interesting causation issues, since
under the substantive law of most states, the failure to obtain informed
consent renders the physician liable for any resulting injury. This rule
is predicated upon the theory that the patient should be entitled to
decline the treatment even if the chance of an adverse reaction is
minimal. The interrogatories set forth in §
1158 explore the facts and circumstances surrounding the decedent’s
consent to the course of treatment. They seek to discover the nature and
extent of the risks the physician disclosed to the decedent to determine
it the consent was based upon a full disclosure of all material risks. §1068 Failure to
Obtain Required Tests Even though the defendant may not
have ordered a test that should have been obtained, no liability
attaches if the test would nevertheless not have revealed the decedent’s
condition. The interrogatories set forth in § 1161 address the
contention that the tests would not have disclosed the specific problem
and hence were not necessary to formulate the diagnosis. §1070 Defenses in Wrongful
Death Cases As indicated at the beginning of this
chapter, many of the ordinary tort defenses have some application in the
context of wrongful death and survivorship actions. The interrogatories
cross-referenced in the Sections that follow address the defendant’s
contentions regarding these defenses and seek to discover all relevant
facts, witnesses, and physical evidence. As with other aspects of
interrogatory discovery, the use of these interrogatories should allow
for early case evaluation and may also help structure further discovery
in the case. §1071 Affirmative
Defenses and Denials The interrogatories in § 340 should
be included in the plaintiff’s opening interrogatories. The questions
require the defendant to identify all facts, witnesses, and documents
relating to each affirmative defense or denial. The information provided
will easily serve to direct your future discovery efforts. Many
affirmative defenses and denials are routinely included in the answer.
These interrogatories will identify defenses or denials as to which
there is no factual basis. §1072 Alcohol and
Drugs (Plaintiff’s Decedent) It is critical for you to determine
whether the defendant contends that the plaintiff was under the
influence of alcohol or drugs. In cases where the fact of ingestion or
intoxication is arguable, the interrogatories set forth in § 342 will
allow you to identify and depose the percipient witnesses. Bear in mind
that in some cases, third party witnesses will advance an opinion that
decedent was intoxicated based solely on the direction of vehicle
travel, etc. In these cases the interrogatories will reveal the absence
of supporting facts, which in turn can be used to support an in limine
exclusion motion. §1073 Imputed
Contributory or Comparative Negligence The interrogatories set forth in §
343.4 should be used if the facts reveal a substantive basis for
imputed, contributory, or comparative negligence. The substantive law of
many states will impute contributory negligence in wrongful death cases,
and the facts elicited here will allow you to prepare for the “case
within a case.” §1074 Assumption
of Risk The interrogatories set forth in §
344 should be used when assumption of the risk is alleged as a defense.
The questions are constructed to track the legal requirements of risk
assumption, because this routinely-asserted defense is rarely
established by the facts. The questions require the identification of
all facts, witnesses, and writings bearing on this defense, and should
allow you to evaluate whether the defense can be successfully advanced. §1075 Joint and Several Liability The interrogatories set forth in §
346 require all of the relevant data relating to any claim that a third
party contributed to the decedent’s injuries. One purpose is to identify
additional defendants who should be joined in the action. The
information may also be important in states that follow a modified
comparative negligence rule that does not aggregate the negligence of
all defendants before comparison with the percentage attributable to
decedent. Finally, several states now require an apportionment of
general damages by abrogating or modifying the rule of joint and several
liability. Where this is the law, you must discover defendant’s
contentions regarding the numeric basis of the apportionment. §1076 Claimant’s
Contributory Negligence As indicated above, the claimants in
a wrongful death case are the decedent’s heirs. In certain fact
situations, it may be claimed that those heirs contributed to the event
that caused the decedent’s death, and in these cases many states bar or
reduce the heir’s recovery. The interrogatories set forth in § 343 can
be modified to reveal all contentions, facts, witnesses, and documents
pertaining to the claimant’s comparative or contributory negligence. §1077 Decedent’s
Conduct The interrogatories in § 343 can also
be modified to reveal all contentions, facts, witnesses, and documents
pertaining to the decedent’s comparative fault, contributory negligence,
or assumption of the risk. Remember to include these interrogatories in
a closing set to be sent shortly before the discovery cutoff so that new
or different allegations will be identified. §1078 Admissions
by Decedent It is critical that you discover any
information regarding an alleged admission by decedent prior to his or
her death. The interrogatories set forth in § 241 can be adapted to
discover this information at an early stage in your case, but you should
also consider including these questions in a closing set to be sent
shortly before the discovery cutoff. Also, the responses will identify
persons present at the time that any alleged admission was made. This
information can then be used to plan further discovery. §1079 Decedent’s
Health Before Incident In order to prevail in a wrongful
death action, plaintiff must establish that the incident resulted in
decedent’s death. The interrogatories that follow are designed to elicit
defendant’s contentions regarding plaintiff’s health prior to the
accident. This will help the plaintiff establish whether there is
evidence to indicate the absence of a causal connection between
defendant’s act and decedent’s death.
§1079.1 Pre-existing
Conditions Since the plaintiff must establish
that defendant’s act caused or contributed to decedent’s death, it is
important for defendant to discover whether decedent suffered from some
preexisting injury or illness. The interrogatories contained in this
section are for use by the defendant to discover the facts relating to
any preexisting conditions.
§1080 Damages in Wrongful
Death Cases §1081 General
Damages This section contains general damages
contention interrogatories modified to apply in wrongful death cases.
Since virtually all jurisdictions will award damages for actual
pecuniary loss, the questions inquire about the plaintiff’s claims for
future care and support, and further seek circumstantial confirmation of
these claims by inquiring as to past contributions of care and support.
As these are matters which are often reflected in personal documents,
check registers, etc., other questions seek identification of any
writings pertaining to past or future payments for care or support. If
you practice in a jurisdiction which allows this recovery you may also
consider including the last interrogatories in the set relating to the
pecuniary value of lost care, comfort, society, and companionship.
§1082 Special
Damages-General Interrogatories This section contains a series of
interrogatories pertaining to the plaintiff’s claim of special or
pecuniary damages sustained by decedent prior to decedent’s death. The
questions focus on the recurring types of special damage, including
medical expenses, lost earnings and lost earning capacity.
§1083 Lost Care,
Comfort, Society and Affection Although some jurisdictions do not
provide for the recovery of “general damages” in wrongful death cases,
some jurisdictions do allow recovery for the “pecuniary value” of lost
care, comfort, society and affection. This interrogatory determines
whether defendant contests plaintiff’s claims for these losses.
§1084
Out-of-Pocket Losses In most states the wrongful death
plaintiff can recover the pecuniary value of lost financial support and
care. The interrogatories that follow are designed to elicit defendant’s
contentions regarding these losses.
§1085 Burial
Expenses Virtually every state that provides
for a wrongful death action allows a plaintiff to recover out-of-pocket
losses relating to burial expenses. This interrogatory elicits
defendant’s contentions regarding the nature and extent of burial
expenses.
§1086
Survivorship Actions – Decedent’s General Damages Some states allow recovery for
decedent’s pre-death pain and suffering in survivorship actions. The
interrogatories that follow are designed to elicit defendant’s
contentions regarding decedent’s subjective complaints prior to
decedent’s death.
§1087
Survivorship Actions – Decedent’s Special Damages As indicated above, the damages
recoverable in a survivorship action are those damages that the decedent
would have been recovered by had the decedent lived. This general rule
has been modified by statute in several states, and you should
familiarize yourself with the substantive law of your jurisdiction to
select the appropriate discovery. The interrogatories in §322 elicit
defendant’s contentions regarding the nature and extent of special
damages, and can be easily modified for use in survivorship cases.
§1090 Miscellaneous
Investigatory Interrogatories §1091
Compensation from Collateral Sources Consider using the interrogatories in
§330 for several reasons. Some states will admit evidence that the
plaintiff’s decedent received forms of compensation from collateral
sources. As a second independent justification for discovery,
information regarding the existence and payment of collateral source
compensation may reveal the existence of other persons or entities who
may have the right to intervene in the action and who might in any event
possess a lien upon the settlement proceeds or judgment. §1092
Witnesses/Investigations The interrogatories in §§ 230-240 may
be adapted for use by either party, and provide a general inquiry as to
all witnesses and documents known to the other party as well as all
investigation conducted to date. These questions should be included in
opening discovery and are only infrequently excluded in closing
discovery. This section also includes several questions relating to the
existence and content of photographs, moving pictures, and other
documentary evidence. Note: a frequently used tactic is to object to
general questions regarding investigation of the occurrence because some
of the information which would otherwise be required by the question
would be subject to the attorney work-product privilege. You can
anticipate and obviate this objection by modifying the interrogatories
to specifically exclude material which otherwise qualifies for
work-product protection. This might also be accomplished in the
definition section. §1093 Expert
Identification The nature and extent of expert
testimony can be critical in wrongful death cases. Keep in mind that
most jurisdictions have specialized statutory schemes for expert
discovery so that the opponent may not be compelled over objection to
respond to an interrogatory inquiry. Of course, the defendant may waive
such an objection, and frequently expert information is disclosed for
the purpose of enhancing settlement prospects. Bear in mind that in some
jurisdictions the work product privilege evaporates only upon a
determination by opposing counsel that the individual will in fact
testify. Until that time the expert is merely a “consultant” to the
attorney for purposes of his or her case preparation. Where this is the
rule, you should modify the questions so that they apply to those
persons who will be called to testify in the proceeding. An expert’s
qualifications or educational accomplishments should never be taken at
face value. The interrogatories set forth in § 242 are for use where
expert identification through interrogatories is permitted. §1094 Insurance Although the existence of insurance
is rarely relevant to the facts of an occurrence, most states hold this
material discoverable to advance the policy in favor of settlement. The
interrogatories set forth in § 251 are designed to discover the relevant
facts regarding insurance coverage. Give special attention to the
questions inquiring as to whether there is any coverage dispute. A
dispute may have serious ramifications for plaintiff’s settlement
posture and may also disclose the necessity for plaintiff to intervene
in concurrent litigation between the carrier and the defendant. §1095 Tender of
Defense/Indemnity The interrogatories set forth in §
253 help to insure that all appropriate defendants are named by
identifying other persons or entities who may have liability. It is
often important for the plaintiff to identify third party defendants at
an early stage, because those defendants may be in possession of
favorable evidence which might be less readily available once the third
party defendant allies his or her position with that of the defendant.
Also, because some states require the apportionment of general damages,
it is important to identify any defendant not already named in the
action. §1096 Due
Diligence in Preparation of Response The interrogatories in § 255 should
be included in every set as the last question group. These
interrogatories reflect the broader duty of inquiry applicable to
interrogatory discovery. They may be used to preclude admission of
undisclosed evidence.
Kevin R. Culhane is a partner with a law firm of
Hansen, Boyd, Culhane & Watson in |
