CT. Moser Moser Law Use and Abuse of RCW 5.60.030 The Deadman’s Statute.

CT.

Mos

er

Moser Law

Use and Abuse of RCW Use and Abuse of RCW 5.60.0305.60.030

The Deadman’s StatuteThe Deadman’s Statute

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By Any Other Name . . .By Any Other Name . . .

Dead Man StatuteDead Man Statute Dead Man’s StatuteDead Man’s Statute Deadman StatuteDeadman Statute Deadman’s StatuteDeadman’s Statute Transaction with Transaction with

person since deceasedperson since deceased

RCW 5.60.030

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Basic black letter statement of the law, allowing an interested

party to testify.But . . .

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 otherwise, but such interest may be shown to affect his or her credibility:PROVIDED, HOWEVER, That in an action or proceeding where the adverse party sues or defends as executor, administrator or legal representative of any deceased person, or as deriving right or title by, through or from any deceased person, or as the guardian or limited guardian of the estate or person of any incompetent or disabled person, or of any minor under the age of fourteen years, 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, incompetent or disabled person, or by any such 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 capacity, and have no other or further interest in the action.

RCW 5.60.030

Text Summary•1 sentence•205 words•18 commas•2 dependent clauses•6 “person”•4 “interest”•4 “party”•4 “no” or “not”•3 “action”•3 “shall”

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Deadman’s StatuteDeadman’s Statute

Purpose of the Purpose of the StatuteStatute

Elements of the Elements of the StatuteStatute TransactionsTransactions Parties in InterestParties in Interest Adverse PartyAdverse Party Title or InterestTitle or Interest Deceased +Deceased + StatementsStatements

ExceptionsExceptions Work Around Work Around

StrategiesStrategies Waiver DoctrineWaiver Doctrine ApplicationApplication

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PURPOSE OF THE STATUTEPURPOSE OF THE STATUTEDeadman’s Statute; Use and AbuseDeadman’s Statute; Use and Abuse

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Purpose Of The StatutePurpose Of The Statute

Consider the purpose of the statute:Consider the purpose of the statute: If you represented the “protected party” If you represented the “protected party”

consider why the statute applies, consider why the statute applies, starting with the purpose of the statutestarting with the purpose of the statute

If you represent the “party in interest” If you represent the “party in interest” offering the testimony of a deceased offering the testimony of a deceased consider why the purpose of the statute consider why the purpose of the statute should not make the testimony should not make the testimony inadmissible. inadmissible.

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““Death having closed the lips of one Death having closed the lips of one party, the law closes the lips of the party, the law closes the lips of the other.”other.”

In re Cunningham's EstateIn re Cunningham's Estate, 94 Wash. 191, 161 P. 1193 (1917)., 94 Wash. 191, 161 P. 1193 (1917).

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

Erickson v. Robert F. Kerr, M.D., P.S., Inc., 125 Wash. 2d 183, 187, 883 P.2d 313, 316 (1994)

Then she told me . . .

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““One of the major purposes . . . is to One of the major purposes . . . is to give protection to the writings and give protection to the writings and documents of a decedent or persons documents of a decedent or persons claiming thereunder, so that decedent's claiming thereunder, so that decedent's purposes in making a conveyance in purposes in making a conveyance in writing will not be defeated by parol writing will not be defeated by parol description of his acts and purposes description of his acts and purposes after his death.”after his death.”

Hampton v. Gilleland, 61 Wash. 2d 537, 543, 379 P.2d 194, 197 (1963)

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Notice that pursuit of truth is not Notice that pursuit of truth is not mentioned in cases that apply the statute.mentioned in cases that apply the statute. It is not a truth seeking devise, it is a fairness It is not a truth seeking devise, it is a fairness

device. device. Ultimately the purpose is to promote fairness, Ultimately the purpose is to promote fairness,

even at the possible loss of credible evidence, even at the possible loss of credible evidence, anticipating justice will be served.*anticipating justice will be served.*

* * C. T. Moser, no citation to authorityC. T. Moser, no citation to authority

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ELEMENTS OF THE STATUTEELEMENTS OF THE STATUTEDeadman’s Statute; Use and AbuseDeadman’s Statute; Use and Abuse

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RCW 5.60.030 states in part:RCW 5.60.030 states in part:

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

O'Steen v. Wineberg's Estate, 30 Wash. App. 923, 935, 640 P.2d 28, 35 (1982)

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Party In InterestParty In Interest

A witness is considered a party in A witness is considered a party in interest: interest: 1) if the witness stands to either gain or 1) if the witness stands to either gain or

lose as a direct result of the judgment; or lose as a direct result of the judgment; or 2) if the record may be used as evidence 2) if the record may be used as evidence

against the witness in some other action. against the witness in some other action.

5A Wash. Practice., Evidence Law and Practice § 601.17 5A Wash. Practice., Evidence Law and Practice § 601.17 (5th ed.)(5th ed.)

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The witness will be considered The witness will be considered interested only if the witness's interested only if the witness's interest is present, certain, and interest is present, certain, and vested. An interest that is uncertain, vested. An interest that is uncertain, remote, or contingent is insufficient remote, or contingent is insufficient to bar the witness's testimony.to bar the witness's testimony.


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A witness is prohibited from A witness is prohibited from testifying only if he or she is an testifying only if he or she is an interested party at the interested party at the time of trial.time of trial. An interest existing at some other An interest existing at some other time does not disqualify the witness.time does not disqualify the witness.


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Adverse PartyAdverse Party

Bars the testimony of a party in interest Bars the testimony of a party in interest only when the only when the adverse party adverse party sues or sues or defends as a representative or defends as a representative or successor of a deceased.successor of a deceased.

Does not bar the testimony of a party in Does not bar the testimony of a party in interest unless there is also an interest unless there is also an adverse adverse partyparty as the term is used in the statute. as the term is used in the statute.

5A Wash. Prac., Evidence Law and Practice § 601.18 (5th 5A Wash. Prac., Evidence Law and Practice § 601.18 (5th ed.)ed.)

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Right Or TitleRight Or Title

Persons deriving right or title through Persons deriving right or title through a decedent. a decedent. Statute bars testimony by a party in Statute bars testimony by a party in

interest when the adverse party sues or interest when the adverse party sues or defends “as deriving right or title by, defends “as deriving right or title by, through or from any deceased person.”through or from any deceased person.”


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Applied to community property, where Applied to community property, where a spouse dies before trial and the a spouse dies before trial and the “party in interest” offers testimony “party in interest” offers testimony about a transaction with the spouses.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)

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““The protection is unqualified and one The protection is unqualified and one who derives a right from a deceased, who derives a right from a deceased, be it partial, total, separate or be it partial, total, separate or community, will not have testimony by community, will not have testimony by a party-in-interest forced into the a party-in-interest forced into the record over his objection.”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)

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TransactionTransaction

The doing or performing of some The doing or performing of some business between parties, or the business between parties, or the management of any affair.management of any affair.

The test of a “transaction” is whether The test of a “transaction” is whether the deceased, if living, could the deceased, if living, could contradict the witness of his own contradict the witness of his own knowledge.knowledge.

Estate of Lennon v. Lennon, 108 Wash.App. 167, 174-175, 29 P.3d 1258, 1263 (2001)

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TransactionTransaction

Does not prevent an interested party Does not prevent an interested party from testifying regarding his or her from testifying regarding his or her own feelings or impressions.own feelings or impressions.


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Deceased Person +Deceased Person +

The Deadman’s Statute also applies The Deadman’s Statute also applies to:to: Incompetent personsIncompetent persons Disabled personsDisabled persons Persons under 14 years of agePersons under 14 years of age

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StatementStatement

The dead man statute bars testimony The dead man statute bars testimony about any “statement made”:about any “statement made”: By the decedent to the witness;By the decedent to the witness; Or in the witness's presence.Or in the witness's presence.


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EXCEPTIONS TO THE EXCEPTIONS TO THE STATUTESTATUTE

Deadman’s Statute; Use and AbuseDeadman’s Statute; Use and Abuse

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Documentary EvidenceDocumentary Evidence

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

Thor v. McDearmidThor v. McDearmid, 63 Wash. App. 193, 202, 817 , 63 Wash. App. 193, 202, 817 P.2d 1380, 1387 (1991)P.2d 1380, 1387 (1991)

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Documentary EvidenceDocumentary Evidence

Notice that the first clause of the Notice that the first clause of the statute uses the term “evidence” in statute uses the term “evidence” in reference to an interested party;reference to an interested party;

The statute then uses “testify” in the The statute then uses “testify” in the second clause to modify the first.second clause to modify the first.

The purpose is to protect a The purpose is to protect a deceased’s written documents from deceased’s written documents from contrary parol testimony of the contrary parol testimony of the living.living.

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Entities & Deceased AgentEntities & Deceased Agent

““Our statute, it will be observed, applies, in its Our statute, it will be observed, applies, in its terms, only in the case of the death of a terms, only in the case of the death of a natural person who is a principal in the natural person who is a principal in the contract. It makes no reference to contract. It makes no reference to corporations, or to agents of corporations, or corporations, or to agents of corporations, or even to agents of deceased natural persons, even to agents of deceased natural persons, and to read into it this further exception would and to read into it this further exception would be, we believe, an unwarranted extension of its be, we believe, an unwarranted extension of its terms.”terms.”

Northern Bank & Trust Co. v. HarmonNorthern Bank & Trust Co. v. Harmon, 126 Wash. 25, 217 P. 8 (1923), 126 Wash. 25, 217 P. 8 (1923)

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Criminal CasesCriminal Cases

Statute doe not apply to criminal Statute doe not apply to criminal casescases

5A Wash. Prac., Evidence Law and Practice § 5A Wash. Prac., Evidence Law and Practice § 601.14 (5th ed.)601.14 (5th ed.)

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DiscoveryDiscovery

Statute does not apply to discovery. Statute does not apply to discovery. The statute does not prohibit The statute does not prohibit depositions, interrogatories, or other depositions, interrogatories, or other discovery about the transaction in discovery about the transaction in question.question.

5A Wash. Prac., Evidence Law and Practice § 5A Wash. Prac., Evidence Law and Practice § 601.15 (5th ed.)601.15 (5th ed.)

Practice Tip:

Send interrogatories

asking for any

evidence derived or

obtained through a

person now deceased,

incompetent, disabled

or under 14 yoa.

Practice Tip:

Send interrogatories

asking for any

evidence derived or

obtained through a

person now deceased,

incompetent, disabled

or under 14 yoa.

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Multiple DefendantsMultiple Defendants

If the interested party sues multiple If the interested party sues multiple defendants, testimony that may be defendants, testimony that may be barred as against one defendant (who barred as against one defendant (who is an adverse party under the statute) is an adverse party under the statute) may still be admissible for the limited may still be admissible for the limited purpose of supporting a claim against purpose of supporting a claim against another defendant (who is not an another defendant (who is not an adverse party).adverse party).

5A Wash. Prac., Evidence Law and Practice § 601.18 (5th ed.)5A Wash. Prac., Evidence Law and Practice § 601.18 (5th ed.)

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WAIVER DOCTRINEWAIVER DOCTRINEDeadman’s Statute; Use and AbuseDeadman’s Statute; Use and Abuse

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WaiverWaiver

Statute may be waived when the Statute may be waived when the protected party introduces evidence protected party introduces evidence concerning a transaction with the concerning a transaction with the deceased. deceased.

Once the protected party has opened Once the protected party has opened the door, the interested party is the door, the interested party is entitled to rebuttal.entitled to rebuttal.


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WaiverWaiver

A waiver by introduction of testimony A waiver by introduction of testimony about one transaction does not about one transaction does not extend to unrelated transactions and extend to unrelated transactions and conversations.conversations.

Engaging in pretrial discovery, Engaging in pretrial discovery, including taking depositions or including taking depositions or propounding interrogatories, is not propounding interrogatories, is not waiver.waiver.Estate of Lennon v. Lennon 1,08 Wash.App. 167, 174-175, 29 P.3d 1258, 1263 (2001)

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WaiverWaiver

Unless, a the protected party Unless, a the protected party introduces the deposition or introduces the deposition or interrogatories into evidence. interrogatories into evidence.


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Summary: Waiver DoctrineSummary: Waiver Doctrine

Testimony offered about the Testimony offered about the transactiontransaction

Failing to object at trialFailing to object at trial Cross-examination beyond scope of Cross-examination beyond scope of

directdirect Testimony of nonparty witnessTestimony of nonparty witness

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WORK AROUND STRATEGIESWORK AROUND STRATEGIESDeadman’s Statute: Use and AbuseDeadman’s Statute: Use and Abuse

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4 Ways Around The Statute4 Ways Around The Statute

Presenting documentary evidence rather Presenting documentary evidence rather than testimony;than testimony;

Presenting testimony by nonparty witnesses Presenting testimony by nonparty witnesses who have no financial stake in the outcome;who have no financial stake in the outcome;

Having the party in interest testify only Having the party in interest testify only about his or her feelings and impressions about his or her feelings and impressions relative to the transaction;relative to the transaction;

Waiver by the protected party.Waiver by the protected party.

5A Wash. Prac., Evidence Law and Practice § 601.16 (5th ed.)5A Wash. Prac., Evidence Law and Practice § 601.16 (5th ed.)

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APPLICATION BY CASE LAWAPPLICATION BY CASE LAWDeadman’s Statute; Use and AbuseDeadman’s Statute; Use and Abuse

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Injured Hospice Nurse CaseInjured Hospice Nurse Case

Botka v. Estate of HoerrBotka v. Estate of Hoerr, 105 , 105 Wash.App. 974 (2001). Application:Wash.App. 974 (2001). Application: Deadman’s Statute in personal injury Deadman’s Statute in personal injury

litigationlitigation Waiver DoctrineWaiver Doctrine Summary judgment motion proceedingSummary judgment motion proceeding ““What was the defense attorney What was the defense attorney

thinking” doctrinethinking” doctrine

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Hospice NurseHospice Nurse

Facts in Facts in Botka v. Estate of HoerrBotka v. Estate of Hoerr:: Hospice nurse Botka hired to care for Hospice nurse Botka hired to care for

Mr. Hoerr at his 3-story home;Mr. Hoerr at his 3-story home; She uses knock and announce She uses knock and announce

procedure to enter the home and is procedure to enter the home and is shown how to enter on the 2shown how to enter on the 2ndnd level and level and walk up to 3walk up to 3rdrd level bedroom; level bedroom;

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Facts in Facts in Botka v. Estate of HoerrBotka v. Estate of Hoerr:: She comes to the home on a day that She comes to the home on a day that

Mr. Hoerr’s daughter is with Mr. Hoerr’s daughter is with the father, and they do not the father, and they do not hear nurse enter house;hear nurse enter house;

Hospice nurse goes in the 2Hospice nurse goes in the 2ndnd floor door floor door and cannot find the stairway because it and cannot find the stairway because it is dark and mistakenly enters a dimly lit is dark and mistakenly enters a dimly lit laundry room and finds two more doors;laundry room and finds two more doors;

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Facts in Facts in Botka v. Estate of HoerrBotka v. Estate of Hoerr:: She comes to a door, opens it and feels She comes to a door, opens it and feels

along the wall for a light switch; along the wall for a light switch; She cannot find switch and steps into She cannot find switch and steps into

what she thinks is the stairway what she thinks is the stairway landing, but falls down empty landing, but falls down empty elevator shaft and is injured.elevator shaft and is injured.

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Nurse sues, but only after Mr. Hoerr dies; Nurse sues, but only after Mr. Hoerr dies; Estate brings motion for summary Estate brings motion for summary

judgment, saying that nurse was a judgment, saying that nurse was a trespasser and no duty of care was owed.trespasser and no duty of care was owed.

Nurse responds saying she was an Nurse responds saying she was an invitee, called ahead & told Mr. Hoerr that invitee, called ahead & told Mr. Hoerr that she was coming and she routinely entered she was coming and she routinely entered the house without someone coming to the the house without someone coming to the door. door.

Hospice NurseHospice NurseFirst clue

that there is a problem

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Estate responded by moving to strike Estate responded by moving to strike nurse’s declaration as violation of nurse’s declaration as violation of Deadman’s Statute;Deadman’s Statute;

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Estate also responded with Estate also responded with declaration of the daughter, declaration of the daughter, Walsworth, saying:Walsworth, saying: Nurse did not call ahead of timeNurse did not call ahead of time She was not given permission to come She was not given permission to come

to the houseto the house She should have used the exterior stairsShe should have used the exterior stairs She entered the house without authorityShe entered the house without authority

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Waiver Doctrine AppliedWaiver Doctrine Applied

““We hold that Walsworth's declaration waived We hold that Walsworth's declaration waived the deadman's statute. By stating that Botka the deadman's statute. By stating that Botka “had to walk up the exterior stairwell to the “had to walk up the exterior stairwell to the third floor,” “had no authority to enter third floor,” “had no authority to enter unannounced into any part of the home,” that unannounced into any part of the home,” that “there was no reason for her to be in the “there was no reason for her to be in the laundry room,” and “she should have laundry room,” and “she should have announced her arrival at the third floor,” announced her arrival at the third floor,” Walsworth necessarily implied that Hoerr did Walsworth necessarily implied that Hoerr did not give Botka authority to act as she did.”not give Botka authority to act as she did.”

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Waiver Doctrine AppliedWaiver Doctrine Applied

Thus, the nurse’s testimony that she Thus, the nurse’s testimony that she called ahead and was given called ahead and was given permission to enter the house permission to enter the house became admissible.became admissible.

Trial court reversed. Trial court reversed.

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The Lost Note CaseThe Lost Note Case

O'Steen v. Wineberg's Estate, 30 Wash. App. 923, 640 P.2d 28 (1982). Application: Deadman’s Statute to direct testimonyDeadman’s Statute to direct testimony To cross-examinationTo cross-examination To documentsTo documents Waiver doctrineWaiver doctrine ““Party in interest or to the record” testParty in interest or to the record” test

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Plaintiffs O’Steen sued the Wineberg Plaintiffs O’Steen sued the Wineberg estate claiming 10% interest in stock estate claiming 10% interest in stock of an oil company;of an oil company;

O'Steen claimed Wineberg agreed O'Steen claimed Wineberg agreed orally that money owed O’Steen orally that money owed O’Steen would be put into the oil company would be put into the oil company stock deal to obtain a 10% interest, stock deal to obtain a 10% interest, which Wineberg would hold in his own which Wineberg would hold in his own name but as trustee for O’Steen;name but as trustee for O’Steen;

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O’Steen claimed Wineberg, now O’Steen claimed Wineberg, now deceased, signed a note stating:deceased, signed a note stating:

“Farm out” is a term used for leasing mineral rights

““John O'Steen owns John O'Steen owns ten percent of LALTA ten percent of LALTA Corporation, also ten Corporation, also ten

percent of the percent of the farmout. Signed Wm. farmout. Signed Wm.

J. Wineberg.”J. Wineberg.”

““John O'Steen owns John O'Steen owns ten percent of LALTA ten percent of LALTA Corporation, also ten Corporation, also ten

percent of the percent of the farmout. Signed Wm. farmout. Signed Wm.

J. Wineberg.”J. Wineberg.”

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““Mrs. O'Steen testified on direct Mrs. O'Steen testified on direct examination to having seen the note, examination to having seen the note, to recognizing Wineberg's signature to recognizing Wineberg's signature on it, and to losing the note in 1964.”on it, and to losing the note in 1964.”

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Under cross-examination, Mrs. Under cross-examination, Mrs. O'Steen testified she was familiar O'Steen testified she was familiar with William Wineberg's handwriting with William Wineberg's handwriting and signature and recognized the and signature and recognized the handwriting and signature on the handwriting and signature on the note as Wineberg's.note as Wineberg's.

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Mrs. O'Steen lost the note in 1964 Mrs. O'Steen lost the note in 1964 when she and Johnny had marital when she and Johnny had marital difficulties and she took all of their difficulties and she took all of their valuable papers.valuable papers.

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Two witnesses testified that Johnny Two witnesses testified that Johnny O'Steen showed them a note signed O'Steen showed them a note signed by William Wineberg stating that by William Wineberg stating that O'Steen had a 10 percent interest in O'Steen had a 10 percent interest in the oil company. the oil company.

One witness testified that Wineberg One witness testified that Wineberg told him that “Johnny O’Steen is in told him that “Johnny O’Steen is in for ten percent.”for ten percent.”

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Side Notes On The Lost NoteSide Notes On The Lost Note

Mineral right were on 8,000 acres of railroad Mineral right were on 8,000 acres of railroad property in Calgary, Alberta, Canadaproperty in Calgary, Alberta, Canada

The American promoters formed a Canadian The American promoters formed a Canadian oil company they each paid 1¢ per share.oil company they each paid 1¢ per share.

The promoters found Wineberg & O’Steen The promoters found Wineberg & O’Steen at the Bahia Hotel in Ensenada, Mexico.at the Bahia Hotel in Ensenada, Mexico.

One witness heard conversation at a card One witness heard conversation at a card game between Wineberg & O’Steengame between Wineberg & O’Steen

Another witness to conversations was a Another witness to conversations was a casino manager in a Las Vegas bar.casino manager in a Las Vegas bar.

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The Court of Appeals held:The Court of Appeals held: Mrs. O'Steen is a party to the record in Mrs. O'Steen is a party to the record in

the present case. the present case. The test of “transactions with a The test of “transactions with a

deceased” is whether the dead man, if deceased” is whether the dead man, if living, could contradict the witness.living, could contradict the witness.

Testimony of the loss of a writing is not Testimony of the loss of a writing is not evidence of a transaction with the evidence of a transaction with the deceased.deceased.

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The Court of Appeals held:The Court of Appeals held: The identification of a signature upon a The identification of a signature upon a

writing is not a transaction with the writing is not a transaction with the deceased.deceased.

Mrs. O'Steen was therefore competent to Mrs. O'Steen was therefore competent to testify as to these matters, and her testify as to these matters, and her testimony on direct examination was limited testimony on direct examination was limited to these matters. to these matters.

It was not until cross-examination that she It was not until cross-examination that she was asked to testify as to the contents of the was asked to testify as to the contents of the note. note.

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The Court of Appeals held:The Court of Appeals held: Cross-examination of a witness on a matter Cross-examination of a witness on a matter

protected by the deadman's statute constitutes a protected by the deadman's statute constitutes a waiver of that protection.waiver of that protection.

The deadman's statute bars only the testimony of The deadman's statute bars only the testimony of parties to the record or parties in interest. Neither parties to the record or parties in interest. Neither witness was a party to the record. witness was a party to the record.

The test for a party in interest is whether he will The test for a party in interest is whether he will gain or lose from the judgmentgain or lose from the judgment

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Notice who did not testify:Notice who did not testify:Johnny Johnny O’SteenO’Steen

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Law

Medical Records CaseMedical 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.

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Medical RecordsMedical Records

Facts in Facts in Erickson v. KerrErickson v. Kerr:: Defendant doctor treated the decedent for Defendant doctor treated the decedent for

a number of years for depression and other a number of years for depression and other ailments, until she committed suicide. ailments, until she committed suicide.

A year later the doctor asked decedent’s A year later the doctor asked decedent’s husband how wife was doing, forgetting husband how wife was doing, forgetting she was dead. (ruled admissible)she was dead. (ruled admissible)

Husband, as PR and on behalf of himself Husband, as PR and on behalf of himself and his son, sued for medial malpractice. and his son, sued for medial malpractice.

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Doctor’s medical records were the Doctor’s medical records were the primary evidence of negligence.primary evidence of negligence.

Plaintiff moved in limine, pursuant to Plaintiff moved in limine, pursuant to the deadman’s statute, to exclude the deadman’s statute, to exclude the doctor’s testimony of the doctor’s testimony of conversations with the decedent. conversations with the decedent.

Trial court ruled plaintiffs waived the Trial court ruled plaintiffs waived the statute by introducing medical statute by introducing medical records. records.

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Jury found doctor was not negligent: Jury found doctor was not negligent: Defense verdict.Defense verdict.

Court of Appeals reversed on waiver Court of Appeals reversed on waiver doctrine.doctrine.

Both parties appealed.Both parties appealed. Supreme Court reversed in part and Supreme Court reversed in part and

affirmed in part. affirmed in part.

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We hold the introduction of Dr. Kerr's medical We hold the introduction of Dr. Kerr's medical records did not waive the protection of the records did not waive the protection of the deadman statute as to the estate. The deadman statute as to the estate. The deadman statute is inapplicable to the action deadman statute is inapplicable to the action brought by the Ericksons in their individual brought by the Ericksons in their individual capacities. capacities. See Maciejczak v. Bartell, 187 187 Wash. 113, 60 P.2d 31 (1936) (deadman Wash. 113, 60 P.2d 31 (1936) (deadman statute only applies to actions brought on statute only applies to actions brought on behalf of estate).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)

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Medical Records: 2 PlaintiffsMedical Records: 2 Plaintiffs

Estate sued for Estate sued for medical malpractice medical malpractice (a survival action)(a survival action) This was the This was the

decedent, through decedent, through the PR, suing the the PR, suing the doctor for negligencedoctor for negligence

Therefore the Therefore the records were records were introduced “on her introduced “on her own behalf” as a own behalf” as a party to the record.party to the record.

Family members Family members sued for wrongful sued for wrongful deathdeath This was the This was the

surviving family suing surviving family suing the doctor for their the doctor for their loss, caused by the loss, caused by the doctor’s malpracticedoctor’s malpractice

Plaintiffs they were Plaintiffs they were not a party to the not a party to the transaction between transaction between decedent and doctor.decedent and doctor.

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Evidence of Habit CaseEvidence of Habit Case

Lasher v. Univ. of Washington, 91 Wash. App. 165, 957 P.2d 229 (1998). Application: To incompetent personTo incompetent person To testimony of “habit”To testimony of “habit” To medical recordsTo medical records

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Facts in Lasher v. Univ. of Washington Plaintiff diagnosed with rare heart disease at Plaintiff diagnosed with rare heart disease at

21 years old, while living in Colorado.21 years old, while living in Colorado. Plaintiff moved to WA year later and treated Plaintiff moved to WA year later and treated

at Harbor View Medical by cardiologist, who at Harbor View Medical by cardiologist, who was professor at UW medical school. was professor at UW medical school.

Cardiologist reduced plaintiff’s heart Cardiologist reduced plaintiff’s heart medication to one-third of what he had been medication to one-third of what he had been taking.taking.

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Facts in Lasher v. Univ. of Washington, 4 years later plaintiff collapsed from cardiac 4 years later plaintiff collapsed from cardiac

arrest while playing half-court basketball.arrest while playing half-court basketball. Plaintiff survived, but had severe brain Plaintiff survived, but had severe brain

damaged and left incompetent.damaged and left incompetent. Plaintiff sued doctor for malpractice for Plaintiff sued doctor for malpractice for

failure to warn of risk of exercise or the failure to warn of risk of exercise or the benefits of a cardiac defibrillator device.benefits of a cardiac defibrillator device.

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Evidence of HabitEvidence of Habit

Defendant doctor barred from testifying Defendant doctor barred from testifying about conversations with incompetent patient about conversations with incompetent patient under deadman’s statute.under deadman’s statute.

Trial court allowed doctor to testify of his Trial court allowed doctor to testify of his “habit” to advise patients with certain heart “habit” to advise patients with certain heart conditions about the risk of physical conditions about the risk of physical activities.activities.

Jury returned a defense verdict, plaintiff Jury returned a defense verdict, plaintiff appealed.appealed.

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Court of Appeals reversed:Court of Appeals reversed: The purpose of the testimony about The purpose of the testimony about

“habit” was to accomplish by indirect “habit” was to accomplish by indirect testimony what Dr. Greene could not testimony what Dr. Greene could not testify to directly because of the bar in testify to directly because of the bar in the deadman's statute.the deadman's statute.

Lasher v. Univ. of Washington, 91 Wash. App. 165, 169, 957 P.2d 229, 231 (1998)

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The problem is that, notwithstanding Dr. The problem is that, notwithstanding Dr. Greene's testimony that he does sometimes Greene's testimony that he does sometimes note warnings he gives patients about the note warnings he gives patients about the risk of strenuous exercise in their charts, he risk of strenuous exercise in their charts, he made no note in Jeff Lasher's chart that he made no note in Jeff Lasher's chart that he had given him such a warning.had given him such a warning.

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

CT.

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CT. Moser Moser Law Use and Abuse of RCW 5.60.030 The Deadman’s Statute.

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