by Kevin R. Culhane

Emotional Distress
Death of Decedent
Loss of Consortium
Special and Punitive Damages

These interrogatories are for use by either the defendant or the plaintiff, and seek to ascertain the parties' various contentions regarding general damages. The section includes questions dealing with physical pain and suffering as well as mental or emotional harm. It includes questions on various activities, sports, or hobbies which have been impacted by the claimed injuries. As with the other contention interrogatories set forth in this book, these questions require a statement of all pertinent facts, an identification of all persons who possess knowledge relating to of these facts, and specific data which may be used to evaluate the claim. Defendants will ordinarily include these basic fact interrogatories in their opening interrogatory set.

Do YOU contend that YOU suffered physical pain as a result of any injury sustained in the INCIDENT?
If your answer to interrogatory number 1 was yes, please set forth the nature of the physical pain.
If your answer to interrogatory number 1 was yes, please set forth the date that YOU first experienced the physical pain.
If your answer to interrogatory number 1 was yes, please IDENTIFY any PERSON who has knowledge of any fact pertaining to the physical pain.
If your answer to interrogatory number 1 was yes, please IDENTIFY any PERSON who can compare your physical condition prior to and following the INCIDENT.
If your answer to interrogatory number 1 was yes, please set forth the amount of compensation to which YOU claim to be entitled as a result of the physical pain.
Please set forth the method by which YOU calculated the amount to which YOU claim to be entitled as a result of the physical pain.
Do YOU contend that YOU suffered any permanent disability as a result of any injury sustained in the INCIDENT?
If your answer to interrogatory number 8 was yes, please set forth the nature of the disability.
If your answer to interrogatory number 8 was yes, please set forth the date that YOU first experienced the disability.
If your answer to interrogatory number 8 was yes, please IDENTIFY any PERSON who has knowledge of any fact pertaining to your disability.
If your answer to interrogatory number 8 was yes, please IDENTIFY any PERSON who can compare your physical condition prior to and following the INCIDENT.
If your answer to interrogatory number 8 was yes, please set forth the amount of compensation to which YOU claim to be entitled as a result of the disability.
Please set forth the method by which YOU calculated the amount to which YOU claim to be entitled as a result of the disability.
Do YOU claim to have experienced emotional distress as a result of the INCIDENT?
If your answer to interrogatory number 15 was yes, please set forth the nature of the emotional distress.
If your answer to interrogatory number 15 was yes, please set forth the date that YOU first experienced the emotional distress.
If your answer to interrogatory number 15 was yes, please IDENTIFY any PERSON who has knowledge of any fact pertaining to the emotional distress.
If your answer to interrogatory number 15 was yes, please IDENTIFY any PERSON who can compare your emotional condition prior to and following the INCIDENT.
If your answer to interrogatory number 15 was yes, please set forth the amount of compensation to which YOU claim to be entitled as a result of the emotional distress.
Please set forth the method by which YOU calculated the amount to which YOU claim to be entitled as a result of the emotional distress.
Do YOU contend that the INCIDENT caused YOU to discontinue any activity, sport, or hobby in which YOU engaged prior to the INCIDENT?
If your answer to interrogatory number 22 was yes, please set forth the nature of the activity, sport, or hobby.
If your answer to interrogatory number 22 was yes, please set forth the dates during which the activity, sport, or hobby was discontinued.
If YOU have been able to resume the activity, sport, or hobby, state how often YOU engage in that activity.
Do YOU contend that the INCIDENT caused any diminution in your enjoyment of life?
If your answer to interrogatory number 26 was yes, please set forth the nature of the diminution in your enjoyment of life.
If your answer to interrogatory number 26 was yes, please set forth the dates during which YOU experienced diminution in your enjoyment of life.
If your answer to interrogatory number 26 was yes, please IDENTIFY any PERSON who has knowledge of any fact pertaining to such diminution in your enjoyment of life.
If your answer to interrogatory number 26 was yes, please IDENTIFY any PERSON who can compare your emotional condition prior to and following the INCIDENT.
If your answer to interrogatory number 26 was yes, please set forth the amount of compensation to which YOU claim to be entitled as a result of the diminution in enjoyment of life.
Please set forth the method by which YOU calculated the amount to which YOU claim to be entitled as a result of the diminution in your enjoyment of life.

§311.1 Plaintiff to Defendant

The interrogatories set forth in this section seek to ascertain the defendant’s contentions regarding the plaintiff’s general damages. This section includes questions dealing with physical pain and suffering as well as mental or emotional harm. It includes questions regarding the various activities, sports or hobbies that may have been impacted by the claimed injuries. As with the other contention interrogatories set forth in this book, these questions require a statement of all pertinent facts, an identification of all persons who possess knowledge relating to such facts, and other specific data which may be used to evaluate the claim.

Do YOU contend the plaintiff did not suffer physical pain as the result of injuries sustained in the INCIDENT?*
Do YOU contend the plaintiff did not suffer any permanent disability as a result of injuries sustained in the INCIDENT?*
Do YOU contend the plaintiff did not suffer emotional distress as a result of the INCIDENT?*
Do YOU contend the plaintiff was not required to discontinue [here specify activities, sport or hobby] as a result of the INCIDENT?*
Do YOU contend that [here specify injuries] sustained in the INCIDENT did not cause the plaintiff to sustain diminution in his/her enjoyment of life?*

§311.2 Defendant to Plaintiff

This section includes questions dealing with physical pain and suffering as well as mental or emotional harm, impairment of day to day activities and other matters pertaining to general damages. The questions set forth in this section focus on these issues from the defendant’s perspective.

Do YOU contend that YOU suffered physical pain as a result of any injury sustained in the INCIDENT?
If your answer to interrogatory number 1 was yes, please set forth the nature of the physical pain.
If your answer to interrogatory number 1 was yes, please set forth the date that YOU first experienced the physical pain.
If your answer to interrogatory number 1 was yes, please IDENTIFY any PERSON who has knowledge of any fact pertaining to the physical pain.
If your answer to interrogatory number 1 was yes, please IDENTIFY any PERSON who can compare your physical condition prior to and following the INCIDENT.
If your answer to interrogatory number 1 was yes, please set forth the amount of compensation to which YOU claim to be entitled as a result of the physical pain.
Please set forth the method by which YOU calculated the amount to which YOU claim to be entitled as a result of the physical pain.
Do YOU contend that YOU suffered any permanent disability as a result of any injury sustained in the INCIDENT?
If your answer to interrogatory number 8 was yes, please set forth the nature of the disability.
If your answer to interrogatory number 8 was yes, please set forth the date that YOU first experienced the disability.
If your answer to interrogatory number 8 was yes, please IDENTIFY any PERSON who has knowledge of any fact pertaining to your disability.
If your answer to interrogatory number 8 was yes, please IDENTIFY any PERSON who can compare your physical condition prior to and following the INCIDENT.
If your answer to interrogatory number 8 was yes, please set forth the amount of compensation to which YOU claim to be entitled as a result of the disability.
Please set forth the method by which YOU calculated the amount to which YOU claim to be entitled as a result of the disability.
Do YOU claim to have experienced emotional distress as a result of the INCIDENT?
If your answer to interrogatory number 15 was yes, please set forth the nature of the emotional distress.
If your answer to interrogatory number 15 was yes, please set forth the date that YOU first experienced the emotional distress.
If your answer to interrogatory number 15 was yes, please IDENTIFY any PERSON who has knowledge of any fact pertaining to the emotional distress.
If your answer to interrogatory number 15 was yes, please IDENTIFY any PERSON who can compare your emotional condition prior to and following the INCIDENT.
If your answer to interrogatory number 15 was yes, please set forth the amount of compensation to which YOU claim to be entitled as a result of the emotional distress.
Please set forth the method by which YOU calculated the amount to which YOU claim to be entitled as a result of the emotional distress.
Do YOU contend that the INCIDENT caused YOU to discontinue any activity, sport, or hobby in which YOU engaged prior to the INCIDENT?
If your answer to interrogatory number 22 was yes, please set forth the nature of the activity, sport, or hobby.
If your answer to interrogatory number 22 was yes, please set forth the dates during which the activity, sport, or hobby was discontinued.
If YOU have been able to resume the activity, sport, or hobby, state how often YOU engage in that activity.
Do YOU contend that the INCIDENT caused any diminution in your enjoyment of life?
If your answer to interrogatory number 26 was yes, please set forth the nature of the diminution in your enjoyment of life.
If your answer to interrogatory number 26 was yes, please set forth the dates during which YOU experienced diminution in your enjoyment of life.
If your answer to interrogatory number 26 was yes, please IDENTIFY any PERSON who has knowledge of any fact pertaining to such diminution in your enjoyment of life.
If your answer to interrogatory number 26 was yes, please IDENTIFY any PERSON who can compare your emotional condition prior to and following the INCIDENT.
If your answer to interrogatory number 26 was yes, please set forth the amount of compensation to which YOU claim to be entitled as a result of the diminution in enjoyment of life.
Please set forth the method by which YOU calculated the amount to which YOU claim to be entitled as a result of the diminution in your enjoyment of life.

§312 Emotional Distress — Witnessing Harm to Third Person

§312.1 Plaintiff to Defendant

A significant component of modern personal injury practice relates to claims of emotional distress damages occasioned by defendant's wrongful conduct. The claimed emotional distress damages are parasitic to a physical injury; they are treated as garden variety general damages and are addressed by the interrogatories set forth in § 310.

When the claimed emotional distress damages occur as a result of an injury to a third person, additional limitations may apply. The courts that allow recovery in these circumstances typically circumscribe these causes of action by providing that the claimant must 1) be located at or near the scene of the incident; 2) suffer the subject distress from sensory and contemporaneous observance of the incident; and 3) be closely related to the person who suffered the physical injury. See, e.g., Dillon v. Legg, 68 Cal.2d 728 (1968). The interrogatories in this section may be used by plaintiffs claiming emotional distress damages as a result of injuries inflicted upon a third person.

Do YOU contend that at the time of the INCIDENT plaintiff was insufficiently close to the scene to have suffered emotional distress damages?*
Do YOU contend that plaintiff did not observe the INCIDENT?*
Do YOU contend that plaintiff did not experience emotional distress as a result of observing the INCIDENT?*

§312.2 Defendant to Plaintiff

As noted above, claims of emotional distress arising from injuries to third parties have become increasingly frequent. The interrogatories in this section may be used to evaluate the nature and extent of these claims.

Do YOU contend that at the time of the INCIDENT YOU were located near the scene thereof?
If your answer to interrogatory number 1 was yes, please set forth where YOU were located at the time of the INCIDENT.
If your answer to interrogatory number 1 was yes, please set forth the events YOU observed.
If your answer to interrogatory number 1 was yes, please IDENTIFY any PERSON can confirm your observation of the INCIDENT.
If your answer to interrogatory number 1 was yes, please state whether there exists any WRITING confirming your observation of the INCIDENT.
Please IDENTIFY the CUSTODIAN of any WRITING identified in your answer to interrogatory number 5.
Do YOU claim to have experienced any emotional distress as a result of your observation of the INCIDENT?
If your answer to interrogatory number 7 was yes, please set forth the nature of the emotional distress.
If your answer to interrogatory number 7 was yes, please set forth the date that YOU first experienced the emotional distress.
If your answer to interrogatory number 7 was yes, please IDENTIFY any PERSON who has knowledge of any fact pertaining to the emotional distress.
If your answer to interrogatory number 7 was yes, please IDENTIFY any PERSON who can compare your emotional condition prior to and following the INCIDENT.
If your answer to interrogatory number 7 was yes, please set forth the amount of compensation to which YOU claim to be entitled as a result of the emotional distress.
Please set forth the method by which YOU calculated the amount to which YOU claim to be entitled as a result of the emotional distress.
Please state whether YOU have obtained any psychiatric treatment as a result of any emotional distress that YOU suffered as a result of observing the INCIDENT.
If YOU obtained psychiatric care as a result of any emotional distress that YOU suffered, please set forth the dates YOU obtained treatment.
If YOU obtained psychiatric care as a result of any emotional distress that YOU suffered, please set forth the nature of the treatment.
If YOU obtained psychiatric care as a result of any emotional distress that YOU suffered, please IDENTIFY each PERSON who rendered treatment.
If YOU obtained psychiatric care as a result of any emotional distress that YOU suffered, please set forth the cost of treatment.

§313 Death of Decedent

This section contains general damages contention interrogatories that are modified to apply in wrongful death cases. Since virtually all jurisdictions 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 that 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 that allows this kind of recovery you should also consider including the interrogatories relating to the pecuniary value of lost care, comfort, society, and companionship.

Please state whether, prior to (his/her) death, decedent contributed monetarily to your support.
If your answer to interrogatory number 1 was yes, please set forth the dollar amount by which decedent contributed to your support within the last year prior to (his/her) death.
If your answer to interrogatory number 1 was yes, please set forth the dollar amount by which decedent contributed to your support for each of the five years immediately preceding (his/her) death.
Please IDENTIFY each WRITING relating to the amount of any financial support that YOU received from the decedent within the five years immediately preceding (his/her) death.
Please IDENTIFY each PERSON who has knowledge of the support that decedent contributed to YOU during the last five years immediately preceding (his/her) death.
Do YOU contend that the decedent would have contributed to your support in the future but for (his/her) death?
If your answer to interrogatory number 6 was yes, please set forth the nature of the support that YOU contend the decedent would have contributed.
If your answer to interrogatory number 6 was yes, please set forth the dollar amount that YOU contend the decedent would have contributed.
If your answer to interrogatory number 6 was yes, please set forth the manner by which YOU calculated the dollar amount that YOU contend that the decedent would have contributed.
If your answer to interrogatory number 6 was yes, please set forth the present value of these future contributions.
Please IDENTIFY each PERSON who has knowledge of any fact relating to your contention that the decedent would have contributed to your support in the future but for decedent's death.
Do YOU contend that YOU are entitled to compensation for the pecuniary value of lost (society, comfort, care) that YOU have sustained as a result of the death of decedent?
If your answer to interrogatory number 12 was yes, please set forth nature of the (society, comfort, care) that forms the basis for your claim.
If your answer to interrogatory number 12 was yes, please set forth the pecuniary value of the (society, comfort, care).
If your answer to interrogatory number 12 was yes, please set forth nature the means YOU utilized to calculate the pecuniary value of the (society, comfort, care).
Please IDENTIFY each PERSON who has knowledge of any fact relating to your claim for lost (society, comfort, care).
Please IDENTIFY each WRITING relating to your claim for lost (society, comfort, care).
Please IDENTIFY the CUSTODIAN of each WRITING identified in your answer to interrogatory number 17.

§314 Loss of Consortium

§314.1 Plaintiff to Defendant

Many states recognize a loss of consortium claim in the spouse of a person injured as a result of the fault of another. This cause of action seeks to compensate for the spouse's loss of conjugal fellowship and sexual relations with the injured individual. See, e.g., Rodriguez v. Bethlehem Steel Corp., 12 Cal. 3d 382 (1974). In most states that recognize loss of consortium claims, plaintiff's recovery is not reduced by the injured spouse's contributory negligence. Lantis v. Condon, 95 Cal. App. 3d 1525 156 (1979).

The interrogatories that follow explore defendant's contentions regarding plaintiff's loss of consortium claim, and may be included in interrogatory sets whenever plaintiff's spouse has been injured as a result of the wrongful conduct of another.

Do YOU contend that plaintiff did not suffer a loss of consortium as a result of the injury [here IDENTIFY primary plaintiff] suffered in the INCIDENT?*
Do YOU contend that plaintiff did not suffer a loss of [here IDENTIFY primary claimant]'s (care, society, comfort, affection) as a result of the INCIDENT?*
Do YOU contend that plaintiff suffered any loss of conjugal relations as a result of any cause unrelated to the INCIDENT?*
Do YOU contend that plaintiff suffered a loss of [here IDENTIFY primary plaintiff]'s care, society, affection or companionship as a result of any cause unrelated to the INCIDENT?*

§314.2 Defendant to Plaintiff

When the spouse of an injured person advances a loss of consortium claim, the defendant is required to examine the nature of the allegedly injured relationship in order to evaluate the claim. The interrogatories that follow may be used for this purpose.

Do YOU contend that YOU suffered impairment of conjugal relations as a result of any injury sustained by [here IDENTIFY primary claimant]?
If your answer to interrogatory number 1 was yes, please set forth the frequency with which YOU engaged in conjugal relations prior to the INCIDENT.
If your answer to interrogatory number 1 was yes, please set forth the frequency with which YOU engaged in conjugal relations following the INCIDENT.
If your answer to interrogatory number 1 was yes, please set forth the nature of any impairment to conjugal relations that YOU experienced.
If your answer to interrogatory number 1 was yes, please set forth the date upon which the impairment to conjugal relations ended.
Please state whether YOU have obtained any form of psychiatric treatment as a result of any impairment to conjugal relations that YOU have experienced.
If your answer to interrogatory number 6 was yes, please set forth the nature of the psychiatric treatment YOU obtained.
If your answer to interrogatory number 6 was yes, please IDENTIFY the PERSON who provided any such psychiatric care.
If your answer to interrogatory number 6 was yes, please set forth the cost of any treatment YOU received.
Do YOU contend that YOU suffered any impairment of (society, comfort, affection) as a result of the injury to [here IDENTIFY primary claimant]?
If your answer to interrogatory number 10 was yes, please set forth the nature of the (society, comfort, affection) that was impaired.
If your answer to interrogatory number 10 was yes, please set forth the nature of the impairment.
If your answer to interrogatory number 10 was yes, please set forth the date upon which the impairment ended.
Please state whether YOU obtained any psychiatric treatment as a result of any impairment to (society, comfort, affection).
If your answer to interrogatory number 14 was yes, please set forth the nature of any psychiatric treatment YOU received.
If your answer to interrogatory number 14 was yes, please IDENTIFY each PERSON who provided the psychiatric treatment.
If your answer to interrogatory number 14 was yes, please set forth the dates that YOU obtained treatment.
If your answer to interrogatory number 14 was yes, please set forth the cost of any treatment YOU obtained.

§315 Defendant's Contentions re Apportionment of Damages

In recent years several states have adopted apportionment statutes that limit plaintiff's recovery against each defendant to the percentage of fault ascribed to each defendant. These apportionment statutes usually apply to general damages, and thus the plaintiff is required to join as a party defendant each person or entity that may have had responsibility for causing plaintiff's loss. The interrogatories below explore defendant's contentions regarding the apportionment of damages between responsible parties.

Do YOU contend that the conduct of any other PERSON contributed to plaintiff’s damages?
If your answer to interrogatory number 1 was yes, please IDENTIFY each PERSON that YOU contend contributed to plaintiff's damages.
If your answer to interrogatory number 1 was yes, please set forth how that PERSON contributed to plaintiff’s damages.
If your answer to interrogatory number 1 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to that contention.
If your answer to interrogatory number 1 was yes, please IDENTIFY each WRITING relating to that contention.
Please IDENTIFY the CUSTODIAN of each WRITING identified in your answer to interrogatory number 5.
If YOU contend that the conduct of any other PERSON contributed to the damages plaintiff suffered, please set forth the numerical percentage by which YOU contend that PERSON contributed to plaintiff's damages.
Please set forth each factor YOU considered in determining the numerical percentage by which that PERSON contributed to plaintiff's damages.
Please IDENTIFY each PERSON who has knowledge of any fact YOU considered in determining the numerical percentage by which any other PERSON contributed to plaintiff's damages.
Please IDENTIFY each WRITING relating to any fact that YOU considered in determining the numerical percentage by which any other PERSON contributed to plaintiff's damages.
Please IDENTIFY the CUSTODIAN of any WRITING identified in your answer to interrogatory number 10.

§320 Special and Punitive Damages

§321 General Interrogatories

This section contains a series of interrogatories pertaining to the plaintiff's claim for special or pecuniary damages. The questions focus on the recurring types of special damage, including medical expenses, lost earnings, lost earning capacity, chattel damage, and chattel loss of use. Bear in mind that the information regarding special damages may be useful not only to substantiate the claim for these losses, but as a general measure of the severity of the accident or occurrence itself. For this reason interrogatories selected from this section should ordinarily be included in opening discovery.

Have YOU incurred expenses for medical care as a result of the INCIDENT?
If your answer to interrogatory number 1 was yes, please IDENTIFY each PERSON who provided goods or services in connection with the treatment YOU received.
If your answer to interrogatory number 1 was yes, please set forth the dates that the goods or services were provided.
If your answer to interrogatory number 1 was yes, please set forth whether YOU anticipate that any provider will be required to supply further goods or services in the future.
If your answer to interrogatory number 1 was yes, please set forth the cost of any goods or services identified.
Do YOU claim a loss of earnings as a result of the INCIDENT?
If your answer to interrogatory number 6 was yes, please set forth the amount of any earnings that YOU lost.
If your answer to interrogatory number 6 was yes, please set forth the method by which YOU calculated your lost earnings.
If your answer to interrogatory number 6 was yes, please IDENTIFY each PERSON who would have paid the earnings but for the INCIDENT.
If your answer to interrogatory number 6 was yes, please set forth the date that YOU ceased work by virtue of any event connected with the INCIDENT.
If your answer to interrogatory number 6 was yes, please set forth the event that caused YOU to cease work.
If your answer to interrogatory number 6 was yes, please state whether YOU ceased work as a result of any doctor's order.
If your answer to interrogatory number 6 was yes, please set forth the date that YOU resumed work.
If your answer to interrogatory number 6 was yes, please IDENTIFY each physician who advised YOU that YOU could return to work.
Please state whether YOU claim a loss of earning capacity as a result of the injuries which are the subject of plaintiff's complaint.
If your answer to interrogatory number 15 was yes, please set forth the amount of money YOU would have received but for the loss of earning capacity.
If your answer to interrogatory number 15 was yes, please set forth the manner in which YOU calculated your loss of earning capacity.
If your answer to interrogatory number 15 was yes, please set forth the dates that YOU claim your earning capacity was impaired.
If your answer to interrogatory number 15 was yes, please IDENTIFY any physician YOU consulted in connection with the loss of earning capacity.
If your answer to interrogatory number 15 was yes, please state whether YOU have been advised by any physician that YOU suffered a loss of earning capacity.
If your answer to interrogatory number 15 was yes, please set forth the date that the diminution or loss of earning capacity terminated.
Do YOU claim to have suffered property damage as a result of the INCIDENT which is the subject of plaintiff's complaint?
If your answer to interrogatory number 22 was yes, please describe the property that was damaged.
If your answer to interrogatory number 22 was yes, please set forth the extent of the damage.
If your answer to interrogatory number 22 was yes, please state whether the damage can be repaired.
If your answer to interrogatory number 22 was yes, please state the cost to repair the damage.
If YOU contend that any damaged property cannot be repaired, please set forth the cost of replacement.
If your damaged property was an automobile, please set forth the make and model thereof.
If your damaged property was an automobile, please set forth the odometer reading immediately preceding the INCIDENT.
Do YOU claim damages for the loss of use of any property that YOU claim was damaged as a result of the INCIDENT?
If your answer to interrogatory number 30 was yes, please set forth the extent of the loss of use.
If your answer to interrogatory number 30 was yes, please set forth the method which YOU used to calculate the reasonable value of the lost use.
If your answer to interrogatory number 30 was yes, please set forth the period of time during which YOU experienced loss of use.
If your answer to interrogatory number 30 was yes, please set forth the steps that YOU took to obtain a replacement for your (property) during the time that YOU were deprived of its use.
If your answer to interrogatory number 30 was yes, please state whether YOU immediately sought to repair the (property).
If YOU immediately sought to repair the (property), please IDENTIFY the PERSON YOU consulted to accomplish the repair.
If YOU did not immediately seek the repair of the (property), please state why YOU did not do so.

§322 Special Damages--Defendant's Contentions

§322.1 General Contentions

This section contains numerous interrogatories to discover whether the defendant disputes plaintiff's claims for medical expenses, lost earnings, loss of earning capacity, property damage, or property loss of use. If these elements of damages are claimed, these interrogatories should be included because if there is no serious dispute as to the nature and extent of these damages, the case is more likely to settle. If a bona fide dispute does exist, these questions will reveal that fact by eliciting all facts, witnesses, and documents that relate to these claims.

In addition, this section contains other questions pertaining to defendant's claim that plaintiff failed to mitigate damages or seeks recovery for an injury which was aggravated by the conduct of a third person. Finally, questions are included to determine whether the defendant claims that plaintiff fabricated any complaint or symptom. A negative answer may be used at trial to support the plaintiff's credibility. Any affirmative answer must be accompanied by all facts, witnesses, and documents relating to that contention. One means to select the appropriate interrogatories from this section is to examine each affirmative defense and denial set forth in the defendant's answer, so that the interrogatories may be tailored to the matters that the defendant has put in issue. See also §340.

Do YOU contend that any medical treatment plaintiff received was unnecessary?*
Do YOU contend that any medical treatment plaintiff received was necessitated by a condition that existed prior to the INCIDENT?*
Do YOU contend that any loss of earnings experienced by plaintiff was caused by any event that predated the INCIDENT?*
Do YOU contend that any loss of earning capacity experienced by plaintiff was caused by any event that predated the INCIDENT?*
Do YOU contend that the amount of damages that plaintiff seeks to recover for property damage is in any manner inaccurate?*
Do YOU contend that the amount of damages sought by plaintiff for the loss of use of plaintiff's [property] is in any manner inaccurate?*

§322.2 Plaintiff's Failure to Mitigate

Do YOU contend that plaintiff failed to mitigate plaintiff's damages?*
If your answer to interrogatory number 1 was yes, please set forth the precise manner in which plaintiff failed to mitigate [his/her] damages.
Do YOU contend that any damage plaintiff sustained was subsequently aggravated by the conduct of any other PERSON?*
If your answer to interrogatory number 3 was yes, please IDENTIFY any other PERSON who aggravated plaintiff's damage.
Do YOU contend that the plaintiff has fabricated any injury in this litigation?*
If your answer to interrogatory number 5 was yes, please set forth the precise manner in which the plaintiff fabricated that injury.
Do YOU contend that plaintiff has exaggerated the effect of any injury for which plaintiff seeks recovery in the instant litigation?*
If your answer to interrogatory number 7 was yes, please set forth the precise manner in which plaintiff has exaggerated [his/her] injury.
Do YOU contend that plaintiff failed to take any action to minimize the effects of plaintiff's injury?*
If your answer to interrogatory number 9 was yes, please set forth the action plaintiff failed to take to minimize the effects of [his/her] injury.
Do YOU contend that plaintiff exacerbated any injury by failing to follow any medical advice?*
If your answer to interrogatory number 11 was yes, please set forth the medical advice that plaintiff failed to follow.

§323 Punitive Damages

§323.1 Pretrial Discovery Regarding Financial Condition

Under the law in effect in many states, evidence of the defendant’s financial condition must be admitted so that any award of punitive damages can be reasonably tailored to deter such future conduct. (See, e.g., Tomaselli v. Transamerica Ins. Co., 25 Cal.App.4th 1269 (1994).) Even though evidence of the defendant’s financial condition is in fact required, some states preclude pretrial discovery into a defendant’s financial condition until a plaintiff has obtained a court order permitting such discovery. In most cases, such court orders are predicated upon a court’s finding that there is a substantial probability that the plaintiff will prevail on the claim. (See, e.g., California Code of Civil Procedure §3295(c).) This section includes forms for moving the court for such a pretrial order as a prerequisite to pretrial discovery of a defendant’s financial condition.

§323.2 Sample: Motion for Order Permitting Discovery of Defendant’s Profits and Financial Condition

Download the form in Microsoft Word.

§323.3 Plaintiff to Defendant

In addition to compensatory damages, most states allow punitive damages upon an appropriate showing. The California statutory authorization is typical; punitive damages may be recovered when the defendant has been guilty of oppression, fraud or malice. Cal. Civ. Code § 3294(a). The theory that underlies an award of punitive damages is that they are imposed for sake of example and to punish the defendant.

The interrogatories that follow are keyed to the necessary elements that must be demonstrated to justify an award of punitive damages.

§323.3.1 Malice

As discussed above, one of the predicates for an award of punitive damages is malice on the part of the defendant. The requisite malice may be inferred from the circumstances, see, e.g., Parrott v. Bank of America National Trust & Savings Association, 97 Cal. App. 2d 14, 24 (1950), and is also demonstrated when the defendant acts in conscious disregard of the rights or safety of the plaintiff. See, e.g., G.D. Searle & Co. v. Superior Court, 49 Cal. App. 3d 22, 32 (1975). Because evidence of a defendant's evil motive or conscious disregard for the rights of others will almost always be circumstantial, the interrogatories that follow are designed to explore defendant's awareness of the risk of harm posed by defendant's conduct.

Please state whether prior to the INCIDENT YOU considered the risk that [here specify the injury-producing event].
If your answer to interrogatory number 1 was yes, please set forth each factor YOU considered in determining the likelihood that the risk would occur.
If your answer to interrogatory number 1 was yes, please set forth each reason YOU proceeded notwithstanding your awareness of the risk.
If your answer to interrogatory number 1 was yes, please describe the factors YOU considered in determining whether the risk could be avoided.
If your answer to interrogatory number 1 was yes, please IDENTIFY each WRITING relating to your consideration of the risks posed by your conduct.
Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 5.

§323.3.2 Oppression

Even when malice cannot be demonstrated, punitive damages may be awarded when the defendant's conduct can be characterized as oppressive. Under some statutory definitions, oppression means conduct that subjects a person to “cruel and unjust hardship.” See, e.g., Cal. Civ. Code § 3294(c). The interrogatories that follow are directed from plaintiff to defendant in cases where the punitive damage claim is predicated upon oppressive conduct.

Please state whether prior to the time that YOU [here describe alleged conduct], YOU considered whether that conduct would impose hardship upon the plaintiff.
If your answer to interrogatory number 1 was yes, please set forth each factor YOU considered in your determination that your conduct posed a risk of hardship to the plaintiff.
If your answer to interrogatory number 1 was yes, please set forth each reason YOU proceeded notwithstanding the risk of hardship to the plaintiff.
If your answer to interrogatory number 1 was yes, please set forth whether YOU determined that any benefit YOU derived from [here specify challenged conduct] outweighed the risk of hardship to the plaintiff.
If your answer to interrogatory number 1 was yes, please set forth each reason why the benefit YOU derived from [here specify challenged conduct] outweighed the risk of hardship to the plaintiff.
If YOU did not consider the risk that [here specify challenged conduct] posed a risk of hardship to the plaintiff, please state each and every reason why YOU did not do so.

§323.3.3 Ratification of Agent's Acts

Because punitive damages can only be awarded against a wrongdoer, a principal is not responsible for punitive damages unless the principal directed or ratified the act. The interrogatories that follow are for use in cases in which the defendant contends that the wrongdoer acted without prior authority or subsequent ratification by the defendant.

Do YOU contend that YOU did not authorize [here specify the wrongful conduct by agent]?*
Do YOU contend that YOU did not ratify the [here specify the alleged wrongful conduct]?*

§323.4 Defendant to Plaintiff

A significant component of modern defense practice includes the defense of punitive damage claims. The interrogatories in this section may be used to explore the facts, witnesses and documents relating to a punitive damages claim.

Do YOU contend that in [here specify allegedly wrongful conduct] defendant was motivated by malice towards plaintiff?*
Do YOU contend that any act by defendant was undertaken to oppress plaintiff?*
Do YOU contend that in engaging in any conduct which is the subject of your complaint defendant intended to defraud plaintiff?*
Do YOU contend that any conduct on the part of defendant was undertaken in conscious disregard of plaintiff's safety?*
Do YOU contend that defendant authorized any conduct on the part of [here IDENTIFY agent]?*
Do YOU contend that defendant ratified the conduct of [here IDENTIFY agent]?*

Kevin R. Culhane is a partner with a law firm of Hansen, Boyd, Culhane & Watson in Sacramento, California. His practice consists primarily of professional liability and appellate law. He has been faculty member at Hastings Center for Trial and Appellate Advocacy in San Francisco, and frequently lectures on discovery and trial matters for California’s Continuing Education of the Bar. Following a one-year term as Vice-President of the State Bar of California, Mr. Culhane was appointed to two successive terms as a member of the Judicial Council of California. Mr. Culhane is the author of Model Interrogatories, from which this article is excerpted.

Updated 01/26/12

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Model Interrogatories

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More than 4,500 pattern interrogatories in key practice areas; each category includes explanatory text, practice tips & model questions, all in print & on CD for easy customization.