The testimony of a deceased plaintiff in a wrongful death case is often the most critical evidence presented. Defense counsel in such cases must be prepared to limit this testimony where possible, and minimize its impact on the jury if it is admitted at trial. Whether the testimony of a decedent is admissible at trial often presents a complex question that requires an analysis of applicable rules of procedure and evidence, as well as state “Dead Man’s Statutes,” some of which allow for the admissibility of a decedent’s testimony in a broad range of circumstances. We recently published a comprehensive article entitled “Speaking from the Grave: The Admissibility of a Decedent’s Testimony” in the Federation of Defense & Corporate Counsel Quarterly discussing these issues.
This article addresses admissibility and strategy recommendations relating to the introduction of a decedent’s testimony at trial. The court’s ruling on the admissibility issue is typically most crucial in wrongful death actions—including toxic tort, product liability, and medical malpractice actions—where the testimony implicates the defendant, describes the decedent’s medical condition before his death, or creates sympathy for the plaintiff. See Donovan v. Sears Roebuck & Co., 849 F. Supp. 86, 87-88 (D. Mass. 1994) (excluding testimony in product liability action); Anselmo v. Reback, 400 Mass. 865, 868-69 (1987) (excluding testimony in medical malpractice action); Brandt v. A.W. Chesterton Co., No. PC 07-4811, 2011 WL 1827790 (R.I. Super. Ct. May 9, 2011) (admitting testimony in asbestos action). In order to effectively challenge this testimony, defense counsel must understand the applicable rules of procedure and evidence, as well as the case law interpreting them.
Rules of Civil Procedure
Defense counsel may have fundamental challenges to the admissibility of the decedent’s testimony under the applicable rules of procedure. Under state and federal rules, the opportunity to cross-examine the witness is a prerequisite to the admission of a deposition against a party:
- State rules of procedure allow the deposition of a deceased witness to be used against “any party who was present or represented at the taking of the deposition or who had due notice thereof.” Mass. R. Civ. P. 32(a)(3); see also R.I. Super. R. Civ. P. 32(a)(3); Conn. Practice Book § 13-31(a)(4); see also Frizzell v. Wes Pine Millwork, Inc., 4 Mass. App. Ct. 710, 712-13 (1976) (holding out-of-state deposition inadmissible under Mass. R. Civ. P. 32(a)).
- Similarly, the Federal Rules of Civil Procedure provide that a deposition may be used against a party who was “present or represented at the taking of the deposition or had reasonable notice of it.” Fed. R. Civ. P. 32(a)(1); see also GAVCO, Inc. v. Chem-Trend Inc., 81 F. Supp. 2d 633, 638 (W.D.N.C. 1999) (holding deposition testimony inadmissible under Fed. R. Civ. P. 32(a)).
- A party seeking to perpetuate testimony before an action is brought must file a petition in court and provide notice to all adverse parties under state and federal rules of procedure. See Fed. R. Civ. P. 27(a); Conn. Gen. Stat. § 52-156a; R.I. Gen. Laws § 9-18-15; Mass. R. Civ. P. 27(a); see also Mass. Gen. Laws ch. 233, §§ 46 & 47.
- Courts allow such petitions “only in special circumstances where it is necessary to preserve testimony and require the moving party to show why the evidence is likely to be lost.” Malinou v. Seattle Sav. Bank, 970 A.2d 6, 12 (R.I. 2009); see also In re Yamaha Motor Corp., U.S.A., 251 F.R.D. 97, 99 (N.D.N.Y. 2008).
Nevertheless, even if the applicable rules of civil procedure allow for the use of the deposition, the admissibility of the testimony may be excluded under the rules of evidence governing hearsay. See Kolb v. Suffolk County, 109 F.R.D. 125, 127 (E.D.N.Y. 1985).
The testimony of a decedent, as an out-of-court statement, generally constitutes inadmissible hearsay where it is offered to prove the truth of the matter asserted. See Fed. R. Evid. 801 & 802. Where there was no opportunity for cross-examination, defense counsel should seek to exclude such testimony at trial. In response, plaintiffs may attempt to invoke several hearsay exceptions:
- The “former testimony” exception makes an unavailable witness’s prior testimony admissible against a party where the party (or its predecessor in interest) had an opportunity and similar motive to develop the testimony at the former hearing. See Fed. R. Civ. P. 804(b)(1); Conn. Code Evid. § 8-6(1); Mass. G. Evid. § 804(b)(1); R.I. R. Evid. 804(b)(1); see also Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986) (holding similar motive requirement not met in subsequent asbestos action brought by different plaintiff).
Under the “dying declaration” exception, an unavailable witness’s testimony is admissible where it: (1) was made under the belief of “imminent” or “impending” death; and (2) concerned the cause or circumstances surrounding the death. See Fed. R. Evid. 804(b)(2); R.I. R. Evid. 804(b)(2).
- While some jurisdictions limit the applicability of this exception to criminal cases, the Federal Rules of Evidence and rules of other states have expanded its application to civil cases as well. Compare Conn. Code Evid. § 8-6(2) and Mass. G. Evid. § 804(2) (providing exception in criminal cases) with Fed. R. Evid. 804(b)(2) and R.I. R. Evid. 804(b)(2) (allowing exception in civil cases).
- The decedent’s diagnosis with a life-threatening disease alone would generally be insufficient to establish that his death was “imminent” or “impending” under the rule. See Shepard v. United States, 290 U.S. 96, 100 (1933) (holding declarant “must have spoken with the consciousness of a swift and certain doom”); see also Trascher v. Territo, 89 So. 3d 357, 368 (La. 2012) (holding exception not met in asbestos case where decedent had less than six months to live). But see Quackenbos v. Am. Optical Corp., No. PC 04-6504, 2008 WL 914390 (R.I. Super. Ct. Jan. 17, 2008) (admitting decedent’s prior videotaped deposition in asbestos action).
Dead Man’s Statutes
Traditional Dead Man’s Statutes preserved “surviving traces” of common law witness competency disqualifications where communications with a deceased person were at issue based on concerns that “such situations are especially ripe for perjurious testimony.” Litif v. United States, 682 F. Supp. 2d 60, 66 (D. Mass. 2010), aff’d, 670 F.3d 39 (1st Cir. 2012); see also Fed. R. Evid. 601 Advisory Committee’s Note. These rules have largely been abolished, and under modern law, every person is generally competent to be a witness, except as otherwise provided by statute. See Fed. R. Evid. 601.
While the Dead Man’s statutes effective today vary significantly by jurisdiction, some of them—including those in Massachusetts, Connecticut, and Rhode Island—provide a hearsay exception allowing for the admissibility of a decedent’s statements:
The Massachusetts Dead Man’s Statute provides that “a declaration of a deceased person shall not be inadmissible in evidence as hearsay . . . if the court finds that it was made in good faith and upon the personal knowledge of the declarant.” Mass. Gen. Laws ch. 233, § 65; see also Mass. G. Evid. § 804(b)(5)(A).
- The proponent of the evidence has the burden of establishing the foundational requirements of good faith and personal knowledge. See Barbosa v. Hopper Feeds, Inc., 404 Mass. 610, 621 (1989); Notes to Mass. G. Evid. § 804(b)(5)(A).
- The statute does not admit the testimony of a decedent where the “affected parties were unfairly denied an opportunity to cross-examine.”Anselmo v. Reback, 400 Mass. 865, 869 (1987).
The Connecticut Dead Man’s Statute provides that declarations and memoranda of deceased persons are admissible in actions by or against representatives of the deceased person if “relevant to the matter in issue.” Conn. Gen. Stat. § 52-172.
- There are two requirements for the statute to apply: (1) the statements must be “relevant to the matter in issue”; and (2) the action must be brought “by or against the representatives of the deceased persons.” Dinan v. Marchand, 279 Conn. 558, 577 (2006).
- The Rhode Island Dead Man’s Statute provides that a declaration of a deceased person is admissible non-hearsay if the court finds that it was “made in good faith before the commencement of the action and upon the personal knowledge of the declarant.” R.I. R. Evid. 804(c).
Although plaintiffs often attempt to admit the testimony of decedents under these Dead Man’s Statutes, defendants should object where there was no opportunity for cross-examination. The right of cross-examination has long been recognized in both civil and criminal cases as critical for “separating hearsay from knowledge, error from truth, opinion from fact, and inference from recollection.” Roche v. Mass. Bay Transp. Auth., 400 Mass. 217, 222 (1987); see also Alford v. United States, 282 U.S. 687, 691 (1931). In fact, this right is one of the primary purposes underlying the hearsay rule today and considered to be a “vital feature” of our civil justice system. See Fed. R. Evid. Intro. Advisory Notes to Art. VIII; see also Trascher v. Territo, 89 So. 3d 357, 362 (La. 2012); Cury v. Philip Morris USA, No. 93 Civ. 2395 (CSH), 1995 WL 594856, at *7 (S.D.N.Y. Oct. 6, 1995) (excluding testimony where party did not have “meaningful opportunity to cross-examine”).
Applicability of Dead Man’s Statutes in Federal Court
There is no federal Dead Man’s Statute, and the courts are split on whether state Dead Man’s Statutes apply in federal court. In fact, this complex issue has puzzled both courts and legal scholars: “Some scholars have said that dead man’s statutes are substance, others have said that they are procedure, while still others have put them in the ‘twilight zone.’” Maltas v. Maltas, 197 F. Supp. 2d 409, 424 (D. Md. 2002) (quoting Robert G. Lawson, Modifying the Kentucky Rules of Evidence–A Separation of Powers Issue, 88 Ky. L.J. 525, 574 (2000)).
Many courts have held that Dead Man’s Statutes governing witness competency (typically barring the testimony of decedents in certain circumstances) apply in federal court pursuant to Federal Rule of Civil Procedure 601, which requires the application of state competency law in federal court. See Rosenfeld v. Basquiat, 78 F.3d 84, 89-90 (2d Cir. 1996) (discussing New York Dead Man’s statute); Estate of Genecin ex rel. Genecin v. Genecin, 363 F. Supp. 2d 306, 313-14 (D. Conn. 2005) (discussing Maryland Dead Man’s statute).
Some courts have also concluded that Dead Man’s statutes creating hearsay exceptions allowing for the admissibility of a decedent’s testimony apply in federal court:
- In a negligence action in federal court, the U.S.D.C. for the District of Connecticut held that a decedent’s statements were admissible against the defendant assisted living facility under the Connecticut Dead Man’s Statute. See Larsen v. Sunrise Senior Living Management, Inc., 7:08-CV-455 (WWE), 2010 WL 4340468, at *1 (D. Conn. Oct. 20, 2010). The court concluded that the statute is a rule of substantive law, relying on two decisions involving Dead Man’s Statutes of other states. See id. (citing Rosenfeld 78 F.3d at 88 and Estate of Genecin, 363 F.Supp.2d at 313).
- The U.S.D.C. for the District of Massachusetts admitted the statements of two decedents under the Massachusetts Dead Man’s Statute in a Federal Tort Claims Act case brought against the United States. See Litif v. United States, 682 F. Supp. 2d 60 (D. Mass. 2010), aff’d, 670 F.3d 39 (1st Cir. 2012). The court held the statements admissible, concluding that the Massachusetts Dead Man’s Statute addresses witness competency, and ultimately found the United States liable for $2.7 million in damages. Id. at 86.
Other courts have recognized that, rather than relating to witness competency, these statutes represent exceptions to state hearsay rules and are thus inapplicable in federal court:
- In a case involving an intrafamily dispute regarding a gift from a decedent governed by Connecticut state law, the District of Maryland held that the Connecticut Dead Man’s Statute was inapplicable in federal court because it “creates an exception to the state hearsay rule” and “is not a rule of witness competency at all.” See Maltas v. Maltas, 197 F. Supp. 2d 409, 425 (D. Md. 2002), rev’d on other grounds, 65 F. App’x. 917 (4th Cir. 2003).
- In a product liability action where the decedent was injured from a defective “scissor” footrest mechanism in a reclining chair, the District of Massachusetts granted a motion in limine to exclude the testimony of two witnesses regarding the decedent’s account of how the accident occurred. See Donovan v. Sears Roebuck & Co., 849 F. Supp. 86 (D. Mass. 1994). The court concluded that the Massachusetts Dead Man’s Statute “is not a rule of substantive policy,” reasoning that “if this hearsay exception were deemed “substantive,” then all state hearsay exceptions would apply in federal court, which would be contrary to Congress’s intent. Id. at 87-88.
Accordingly, where plaintiffs attempt to invoke Dead Man’s Statutes creating hearsay exceptions in federal court, such attempts should be challenged.
Minimizing the Impact of the Decedent’s Testimony on the Jury
The introduction of a decedent’s testimony in a wrongful death case, particularly videotaped deposition testimony implicating the defendant or portraying the decedent before his death, can have an undeniably powerful and potentially devastating impact on the defendant. As such, where defendants are unable to preclude such testimony, they must be prepared to minimize its effect on the jury.
Defense counsel’s preparation for videotaped trial preservation depositions, including thorough analysis of discovery responses and medical records, is critical. Where the plaintiff fails to fully comply with discovery obligations, a discovery conference and motion to compel may be necessary. A prompt motion for protective order preventing the deposition from going forward may also be appropriate if plaintiff’s counsel insists on proceeding with the deposition without adequate discovery. Because the videotaped deposition will be presented to the jury, defense counsel should take care to act civilly and professionally, presenting themselves in the best possible light.
To develop an effective trial strategy, defense counsel must also consider the jurors’ perceptions of the decedent and his family. Jurors are often guided more by their attitudes, beliefs (including those regarding death and dying), and life experiences, than by a careful understanding of the law. They may tend to give the deceased the benefit of the doubt, viewing the testimony as credible even where bias is evident. Plaintiff’s counsel typically takes advantage of these driving forces by introducing video and photographs of the decedent.
It is wise to develop a strategic approach to reduce the impact of the decedent’s testimony. Body language, proximity to the witness, and voice (including volume, tone, and rate of speech) should convey authenticity, respect, and sincerity. Defense counsel should communicate compassion for the decedent and his family. Negative information concerning the decedent—such as his smoking history, alcohol use, or other lifestyle choices—should be elicited in a matter-of-fact and non-threatening manner. Be particularly mindful of the manner in which jurors will interpret videotaped testimony. As in other situations, it is often best to develop testimony that can be pieced together into a closing argument, rather than attempting to elicit game-changing concessions or admissions.
The question of whether a decedent’s testimony is admissible in wrongful death cases, particularly where the defendant had no meaningful opportunity for cross-examination, is a complex one that requires an examination of the applicable rules of evidence and procedure as well as the relevant case law. The resolution of this issue will often have a critical impact on the case, especially when the testimony implicates the defendant or creates sympathy for the plaintiff. In the event that the testimony is deemed admissible, defense counsel must carefully develop a deposition and trial strategy. Planning, preparation, and the exercise of judgment are crucial in effectively minimizing the emotional impact of the decedent’s testimony on the jury.