The Deadman's Statute by xiangpeng

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									The Deadman’s Statute
 Use and Abuse of RCW 5.60.030
       By Any Other Name . . .
   Dead Man Statute
   Dead Man’s Statute
   Deadman Statute
                            RCW 5.60.030
   Deadman’s Statute
   Transaction with
    person since deceased
No person offered as a witness shall be excluded from giving evidence by
reason of his or her interest in the event of the action, as a party thereto or
                                Text shown to affect
otherwise, but such interest may be Summary his or her credibility:
PROVIDED, HOWEVER, That in an action or proceeding where the adverse
                         • 1 sentence
party sues or defends as executor, administrator or legal representative of
                      Basic205 words or title by, through
any deceased person, • asblack letter statement or from any
                         or    deriving right
                          of the law, allowing an
deceased person, or as the guardian or limited guardian of the estate or
                         • or commas
person of any incompetent18disabled person, or of any minor under the age
                       interested party to testify.
of fourteen years, then a party in interest or to the record, shall not be
admitted to testify in his or 2 dependent clauses
                         • her own behalf.as to any transaction had by him
                                    But . .
                         • 6 “person”
or her with, or any statement made to him or her, or in his or her presence,
by any such deceased, incompetent or disabled person, or by any such
                              4 “interest”
minor under the age of•fourteen years: PROVIDED FURTHER, That this
exclusion shall not apply to parties of record who sue or defend in a
representative or fiduciary 4 “party” have no other or further interest in
                         • capacity, and
the action.              • 4 “no” or “not”
                       • 3 “action”
                       • 3 “shall”
                              RCW 5.60.030
               Deadman’s Statute
   Purpose of the               Exceptions
    Statute                      Work Around
   Elements of the               Strategies
    Statute                      Waiver Doctrine
       Transactions             Application
       Parties in Interest
       Adverse Party
       Title or Interest
       Deceased +
       Statements
Deadman’s Statute; Use and Abuse

PURPOSE OF THE STATUTE
          Purpose Of The Statute
   Consider the purpose of the statute:
       If you represented the “protected party”
        consider why the statute applies, starting with
        the purpose of the statute
       If you represent the “party in interest”
        offering the testimony of a deceased consider
        why the purpose of the statute should not
        make the testimony inadmissible.
         Purpose Of The Statute
   “Death having closed the lips of one party,
    the law closes the lips of the other.”




    In re Cunningham's Estate, 94 Wash. 191, 161 P. 1193 (1917).
          Purpose Of The Statute
    “The purpose of the statute is to
                                                              Then she
                                                             told me . . .

    ‘prevent interested parties from
    giving self-serving testimony
    about conversations or
    transactions with the decedent.’
    Wildman v. Taylor, 46 Wash.App.
    546, 549, 731 P.2d 541 (1987).”

    Erickson v. Robert F. Kerr, M.D., P.S., Inc., 125 Wash.
    2d 183, 187, 883 P.2d 313, 316 (1994)
          Purpose Of The Statute
   “One of the major purposes . . . is to give
    protection to the writings and documents
    of a decedent or persons claiming
    thereunder, so that decedent's purposes
    in making a conveyance in writing will not
    be defeated by parol description of his
    acts and purposes after his death.”
    Hampton v. Gilleland, 61 Wash. 2d 537, 543,
    379 P.2d 194, 197 (1963)
          Purpose Of The Statute
   Notice that pursuit of truth is not
    mentioned in cases that apply the statute.
       It is not a truth seeking devise, it is a fairness
        device.
       Ultimately the purpose is to promote fairness,
        even at the possible loss of credible evidence,
        anticipating justice will be served.*


* C. T. Moser, no citation to authority
Deadman’s Statute; Use and Abuse

ELEMENTS OF THE STATUTE
    RCW 5.60.030 states in part:
   “(I)n an action ... where the adverse party sues
    or defends ... as deriving right or title by,
    through or from any deceased person ... then a
    party in interest or to the record, shall not be
    admitted to testify in his or her own behalf as to
    any transaction had by him or her with, or any
    statement made to him or her, or in his or her
    presence, by any such deceased ...”

O'Steen v. Wineberg's Estate, 30 Wash. App. 923, 935, 640 P.2d 28, 35
(1982)
                 Party In Interest
   A witness is considered a party in interest:
       1) if the witness stands to either gain or lose
        as a direct result of the judgment; or
       2) if the record may be used as evidence
        against the witness in some other action.

    5A Wash. Practice., Evidence Law and Practice § 601.17 (5th ed.)
                  Party In Interest
   The witness will be considered interested
    only if the witness's interest is present,
    certain, and vested. An interest that is
    uncertain, remote, or contingent is
    insufficient to bar the witness's testimony.

    5A Wash. Practice., Evidence Law and Practice § 601.17 (5th ed.)
                  Party In Interest
   A witness is prohibited from testifying only
    if he or she is an interested party at the
    time of trial. An interest existing at some
    other time does not disqualify the witness.

    5A Wash. Practice., Evidence Law and Practice § 601.17 (5th ed.)
                    Adverse Party
   Bars the testimony of a party in interest
    only when the adverse party sues or
    defends as a representative or successor
    of a deceased.
   Does not bar the testimony of a party in
    interest unless there is also an adverse
    party as the term is used in the statute.

    5A Wash. Prac., Evidence Law and Practice § 601.18 (5th ed.)
                      Right Or Title
   Persons deriving right or title through a
    decedent.
       Statute bars testimony by a party in interest
        when the adverse party sues or defends “as
        deriving right or title by, through or from any
        deceased person.”

        5A Wash. Prac., Evidence Law and Practice § 601.18 (5th ed.)
                      Right Or Title
   Applied to community property, where a
    spouse dies before trial and the “party in
    interest” offers testimony about a
    transaction with the spouses.



Diel v. Beekman, 7 Wash. App. 139, 154, 499 P.2d 37, 47 (1972)
overruled on other grounds by Chaplin v. Sanders, 100 Wash. 2d 853,
676 P.2d 431 (1984)
                     Right Or Title
   “The protection is unqualified and one
    who derives a right from a deceased, be it
    partial, total, separate or community, will
    not have testimony by a party-in-interest
    forced into the record over his objection.”

    Diel v. Beekman, 7 Wash. App. 139, 154, 499 P.2d 37, 47 (1972)
    overruled on other grounds by Chaplin v. Sanders, 100 Wash. 2d
    853, 676 P.2d 431 (1984)
                        Transaction
   The doing or performing of some business
    between parties, or the management of
    any affair.
   The test of a “transaction” is whether the
    deceased, if living, could contradict the
    witness of his own knowledge.


    Estate of Lennon v. Lennon, 108 Wash.App. 167, 174-175, 29 P.3d
    1258, 1263 (2001)
                        Transaction
   Does not prevent an interested party from
    testifying regarding his or her own
    feelings or impressions.




    Estate of Lennon v. Lennon, 108 Wash.App. 167, 174-175, 29 P.3d
    1258, 1263 (2001)
            Deceased Person +
   The Deadman’s Statute also applies to:
       Incompetent persons
       Disabled persons
       Persons under 14 years of age
                       Statement
   The dead man statute bars testimony
    about any “statement made”:
       By the decedent to the witness;
       Or in the witness's presence.




5A Wash. Prac., Evidence Law and Practice § 601.19 (5th ed.)
Deadman’s Statute; Use and Abuse

EXCEPTIONS TO THE
STATUTE
         Documentary Evidence
   RCW 5.60.030 does not bar documentary
    evidence, although it may limit testimony
    about the documents. Wildman v. Taylor,
    46 Wash.App. 546, 731 P.2d 541 (1987).

    Thor v. McDearmid, 63 Wash. App. 193, 202, 817 P.2d
    1380, 1387 (1991)
        Documentary Evidence
   Notice that the first clause of the statute
    uses the term “evidence” in reference to
    an interested party;
   The statute then uses “testify” in the
    second clause to modify the first.
   The purpose is to protect a deceased’s
    written documents from contrary parol
    testimony of the living.
      Entities & Deceased Agent
   “Our statute, it will be observed, applies, in its
    terms, only in the case of the death of a natural
    person who is a principal in the contract. It
    makes no reference to corporations, or to
    agents of corporations, or even to agents of
    deceased natural persons, and to read into it
    this further exception would be, we believe, an
    unwarranted extension of its terms.”

Northern Bank & Trust Co. v. Harmon, 126 Wash. 25, 217 P. 8 (1923)
               Criminal Cases
   Statute doe not apply to criminal cases


5A Wash. Prac., Evidence Law and Practice § 601.14 (5th
ed.)
                   Discovery
   Statute does not apply to discovery. The
    statute does not prohibit depositions,
    interrogatories, or other discovery about
    the transaction in question.

5A Wash. Prac., Evidence Law and Practice § 601.15 (5th
ed.)
              Multiple Defendants
   If the interested party sues multiple
    defendants, testimony that may be barred
    as against one defendant (who is an
    adverse party under the statute) may still
    be admissible for the limited purpose of
    supporting a claim against another
    defendant (who is not an adverse party).

    5A Wash. Prac., Evidence Law and Practice § 601.18 (5th ed.)
Deadman’s Statute; Use and Abuse

WAIVER DOCTRINE
                             Waiver
   Statute may be waived when the
    protected party introduces evidence
    concerning a transaction with the
    deceased.
   Once the protected party has opened the
    door, the interested party is entitled to
    rebuttal.

    Estate of Lennon v. Lennon, 108 Wash.App. 167, 174-
    175, 29 P.3d 1258, 1263 (2001)
                             Waiver
   A waiver by introduction of testimony
    about one transaction does not extend to
    unrelated transactions and conversations.
   Engaging in pretrial discovery, including
    taking depositions or propounding
    interrogatories, is not waiver.


    Estate of Lennon v. Lennon 1,08 Wash.App. 167, 174-175,
    29 P.3d 1258, 1263 (2001)
                             Waiver
   Unless, a the protected party introduces
    the deposition or interrogatories into
    evidence.




    Estate of Lennon v. Lennon, 108 Wash.App. 167, 174-175,
    29 P.3d 1258, 1263 (2001)
     Summary: Waiver Doctrine
   Testimony offered about the transaction
   Failing to object at trial
   Cross-examination beyond scope of direct
   Testimony of nonparty witness
Deadman’s Statute: Use and Abuse

WORK AROUND STRATEGIES
     4 Ways Around The Statute
   Presenting documentary evidence rather than
    testimony;
   Presenting testimony by nonparty witnesses who
    have no financial stake in the outcome;
   Having the party in interest testify only about his
    or her feelings and impressions relative to the
    transaction;
   Waiver by the protected party.

5A Wash. Prac., Evidence Law and Practice § 601.16 (5th ed.)
Deadman’s Statute; Use and Abuse

APPLICATION BY CASE LAW
        Injured Hospice Nurse Case
   Botka v. Estate of Hoerr, 105 Wash.App.
    974 (2001). Application:
       Deadman’s Statute in personal injury litigation
       Waiver Doctrine
       Summary judgment motion proceeding
       “What was the defense attorney thinking”
        doctrine
                 Hospice Nurse
   Facts in Botka v. Estate of Hoerr:
       Hospice nurse Botka hired to care for Mr.
        Hoerr at his 3-story home;
       She uses knock and announce procedure to
        enter the home and is shown how to enter on
        the 2nd level and walk up to 3rd level
        bedroom;
                  Hospice Nurse
   Facts in Botka v. Estate of Hoerr:
       She comes to the home on a day that
        Mr. Hoerr’s daughter is with the father,
        and they do not hear nurse enter house;
       Hospice nurse goes in the 2nd floor door and
        cannot find the stairway because it is dark
        and mistakenly enters a dimly lit laundry room
        and finds two more doors;
                  Hospice Nurse
   Facts in Botka v. Estate of Hoerr:
       She comes to a door, opens it and feels
        along the wall for a light switch;
       She cannot find switch and steps into what
        she thinks is the stairway landing, but falls
        down empty elevator shaft and is injured.
                                     First clue that
                                        there is a
              Hospice Nurse              problem


   Nurse sues, but only after Mr. Hoerr dies;
   Estate brings motion for summary
    judgment, saying that nurse was a
    trespasser and no duty of care was owed.
   Nurse responds saying she was an invitee,
    called ahead & told Mr. Hoerr that she was
    coming and she routinely entered the
    house without someone coming to the
    door.
             Hospice Nurse
   Estate responded by moving to strike
    nurse’s declaration as violation of
    Deadman’s Statute;
                Hospice Nurse
   Estate also responded with declaration of
    the daughter, Walsworth, saying:
       Nurse did not call ahead of time
       She was not given permission to come to the
        house
       She should have used the exterior stairs
       She entered the house without authority
Waiver Doctrine Applied
 “We hold that Walsworth's declaration waived
 the deadman's statute. By stating that Botka
 “had to walk up the exterior stairwell to the
 third floor,” “had no authority to enter
 unannounced into any part of the home,” that
 “there was no reason for her to be in the
 laundry room,” and “she should have
 announced her arrival at the third floor,”
 Walsworth necessarily implied that Hoerr did
 not give Botka authority to act as she did.”
       Waiver Doctrine Applied
   Thus, the nurse’s testimony that she
    called ahead and was given permission to
    enter the house became admissible.
   Trial court reversed.
             The Lost Note Case
   O'Steen v. Wineberg's Estate, 30 Wash.
    App. 923, 640 P.2d 28 (1982). Application:
       Deadman’s Statute to direct testimony
       To cross-examination
       To documents
       Waiver doctrine
       “Party in interest or to the record” test
          The Lost Note Case
   Plaintiffs O’Steen sued the Wineberg
    estate claiming 10% interest in stock of
    an oil company;
   O'Steen claimed Wineberg agreed orally
    that money owed O’Steen would be put
    into the oil company stock deal to obtain
    a 10% interest, which Wineberg would
    hold in his own name but as trustee
    for O’Steen;
          The Lost Note Case
   O’Steen claimed Wineberg, now deceased,
    signed a note stating:
            “John O'Steen owns ten
                percent of LALTA
              Corporation, also ten
            percent of the farmout.
           Signed Wm. J. Wineberg.”

          “Farm out” is a term used for leasing mineral rights
          The Lost Note Case
   “Mrs. O'Steen testified on direct
    examination to having seen the note, to
    recognizing Wineberg's signature on it,
    and to losing the note in 1964.”
          The Lost Note Case
   Under cross-examination, Mrs. O'Steen
    testified she was familiar with William
    Wineberg's handwriting and signature and
    recognized the handwriting and signature
    on the note as Wineberg's.
          The Lost Note Case
   Mrs. O'Steen lost the note in 1964 when
    she and Johnny had marital difficulties and
    she took all of their valuable papers.
          The Lost Note Case
   Two witnesses testified that Johnny
    O'Steen showed them a note signed by
    William Wineberg stating that O'Steen had
    a 10 percent interest in the oil company.
   One witness testified that Wineberg told
    him that “Johnny O’Steen is in for ten
    percent.”
    Side Notes On The Lost Note
   Mineral right were on 8,000 acres of railroad
    property in Calgary, Alberta, Canada
   The American promoters formed a Canadian
    oil company they each paid 1¢ per share.
   The promoters found Wineberg & O’Steen at
    the Bahia Hotel in Ensenada, Mexico.
   One witness heard conversation at a card
    game between Wineberg & O’Steen
   Another witness to conversations was a
    casino manager in a Las Vegas bar.
             The Lost Note Case
   The Court of Appeals held:
       Mrs. O'Steen is a party to the record in the
        present case.
       The test of “transactions with a deceased” is
        whether the dead man, if living, could
        contradict the witness.
       Testimony of the loss of a writing is not
        evidence of a transaction with the deceased.
             The Lost Note Case
   The Court of Appeals held:
       The identification of a signature upon a
        writing is not a transaction with the deceased.
       Mrs. O'Steen was therefore competent to
        testify as to these matters, and her testimony
        on direct examination was limited to these
        matters.
       It was not until cross-examination that she
        was asked to testify as to the contents of the
        note.
             The Lost Note Case
   The Court of Appeals held:
       Cross-examination of a witness on a matter
        protected by the deadman's statute
        constitutes a waiver of that protection.
       The deadman's statute bars only the
        testimony of parties to the record or parties in
        interest. Neither witness was a party to the
        record.
       The test for a party in interest is whether he
        will gain or lose from the judgment
          The Lost Note Case
   Notice who did not testify: Johnny O’Steen
           Medical Records Case
   Erickson v. Robert F. Kerr, M.D., P.S., Inc.,
    125 Wash. 2d 183 (1994). Application:
       To medical records and business records
        exception
       Waiver doctrine
       Multiple parties doctrine
       Discussion of unfair application of statute by
        disqualifying the defendant doctor from
        testifying in his/her own defense in
        malpractice case.
               Medical Records
   Facts in Erickson v. Kerr:
       Defendant doctor treated the decedent for a
        number of years for depression and other
        ailments, until she committed suicide.
       A year later the doctor asked decedent’s
        husband how wife was doing, forgetting she
        was dead. (ruled admissible)
       Husband, as PR and on behalf of himself and
        his son, sued for medial malpractice.
            Medical Records
   Doctor’s medical records were the primary
    evidence of negligence.
   Plaintiff moved in limine, pursuant to the
    deadman’s statute, to exclude the doctor’s
    testimony of conversations with the
    decedent.
   Trial court ruled plaintiffs waived the
    statute by introducing medical records.
            Medical Records
   Jury found doctor was not negligent:
    Defense verdict.
   Court of Appeals reversed on waiver
    doctrine.
   Both parties appealed.
   Supreme Court reversed in part and
    affirmed in part.
                Medical Records
   We hold the introduction of Dr. Kerr's medical
    records did not waive the protection of the
    deadman statute as to the estate. The deadman
    statute is inapplicable to the action brought by
    the Ericksons in their individual capacities. See
    Maciejczak v. Bartell, 187 Wash. 113, 60 P.2d 31
    (1936) (deadman statute only applies to actions
    brought on behalf of estate).

    Erickson v. Robert F. Kerr, M.D., P.S., Inc., 125 Wash.
    2d 183, 189-90, 883 P.2d 313, 317 (1994)
    Medical Records: 2 Plaintiffs
   Estate sued for                Family members sued
    medical malpractice             for wrongful death
    (a survival action)                This was the surviving
       This was the                    family suing the doctor
        decedent, through the           for their loss, caused
        PR, suing the doctor            by the doctor’s
        for negligence                  malpractice
       Therefore the records          Plaintiffs they were not
        were introduced “on             a party to the
        her own behalf” as a            transaction between
        party to the record.            decedent and doctor.
          Evidence of Habit Case
   Lasher v. Univ. of Washington, 91 Wash.
    App. 165, 957 P.2d 229 (1998).
    Application:
       To incompetent person
       To testimony of “habit”
       To medical records
          Evidence of Habit Case
   Facts in Lasher v. Univ. of Washington
       Plaintiff diagnosed with rare heart disease at
        21 years old, while living in Colorado.
       Plaintiff moved to WA year later and treated
        at Harbor View Medical by cardiologist, who
        was professor at UW medical school.
       Cardiologist reduced plaintiff’s heart
        medication to one-third of what he had been
        taking.
          Evidence of Habit Case
   Facts in Lasher v. Univ. of Washington,
       4 years later plaintiff collapsed from cardiac
        arrest while playing half-court basketball.
       Plaintiff survived, but had severe brain
        damaged and left incompetent.
       Plaintiff sued doctor for malpractice for failure
        to warn of risk of exercise or the benefits of a
        cardiac defibrillator device.
            Evidence of Habit
   Defendant doctor barred from testifying
    about conversations with incompetent
    patient under deadman’s statute.
   Trial court allowed doctor to testify of his
    “habit” to advise patients with certain
    heart conditions about the risk of physical
    activities.
   Jury returned a defense verdict, plaintiff
    appealed.
               Evidence of Habit
   Court of Appeals reversed:
       The purpose of the testimony about “habit”
        was to accomplish by indirect testimony what
        Dr. Greene could not testify to directly
        because of the bar in the deadman's statute.


    Lasher v. Univ. of Washington, 91 Wash. App. 165, 169, 957 P.2d
    229, 231 (1998)
              Evidence of Habit
   The problem is that, notwithstanding Dr.
    Greene's testimony that he does
    sometimes note warnings he gives
    patients about the risk of strenuous
    exercise in their charts, he made no note
    in Jeff Lasher's chart that he had given
    him such a warning.

    Lasher v. Univ. of Washington, 91 Wash. App. 165, 170,
    957 P.2d 229, 232 (1998)
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