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«I. Introduction Death changes life for those who survive. Litigants are not spared from this dictate. When death (or incapacity) has claimed a party ...»

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The Deadman’s Statute: Opportunities and Pitfalls

Second Edition (Sept. 2014)

Tom Williamson

Williamson Law LC

Richmond, Va.


I. Introduction

Death changes life for those who survive. Litigants are not spared from this

dictate. When death (or incapacity) has claimed a party to a controversy in litigation,

lawyers for all parties to the action must focus upon the consequences of the demise. One

of the most important new realities of the case brought on by the death is the application of Va. Code §8.01-397-the Deadman’s Statute.1 The Deadman’s Statute imposes a new evidentiary regime in two important respects. The hearsay rule vanishes as an impediment to admitting statements made by the deceased. For surviving parties, a new obstacle has arisen to use of their testimony- corroboration is required before judgment can be founded upon the survivor’s testimony.

1 § 8.01-397. Corroboration required and evidence receivable when one party incapable of testifying (subdivision (b)(5) of Supreme Court Rule 2:804 derived from this section).

In an action by or against a person who, from any cause, is incapable of testifying, or by or against the committee, trustee, executor, administrator, heir, or other representative of the person so incapable of testifying, no judgment or decree shall be rendered in favor of an adverse or interested party founded on his uncorroborated testimony. In any such action, whether such adverse party testifies or not, all entries, memoranda, and declarations by the party so incapable of testifying made while he was capable, relevant to the matter in issue, may be received as evidence in all proceedings including without limitation those to which a person under a disability is a party. The phrase "from any cause" as used in this section shall not include situations in which the party who is incapable of testifying has rendered himself unable to testify by an intentional self-inflicted injury.

For the purposes of this section, and in addition to corroboration by any other competent evidence, an entry authored by an adverse or interested party contained in a business record may be competent evidence for corroboration of the testimony of an adverse or interested party. If authentication of the business record is not admitted in a request for admission, such business record shall be authenticated by a person other than the author of the entry who is not an adverse or interested party whose conduct is at issue in the allegations of the complaint.

(Code 1950, § 8-286; 1977, c. 617; 1988, c. 426; 2013, cc. 61, 637.).

1 The latter exclusionary branch of theDeadman’s Statute creates a host of special considerations to be contemplated and agonized over by lawyers for both the survivor and the deceased. The time spent and decisions regarding the Deadman’s Statute may spell out the difference between a prima facie case and no case at all. I have drafted this paper to alert you to the pitfalls and opportunities when death or incapacity brings the exclusionary branch of the Deadman’s Statute into your case.

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Decision making about the Deadman’s Statute requires an understanding of the history and purpose of the Statute. Let’s go back to the beginning.

Prior to 1866, Virginia followed the common law rule excluding the testimony of “every witness who had any manner of interest in the result of the litigation”. Epes Adm’r v. Hardaway, 135 Va. 80, 115 S.E. 712, 713 (1923). This absolute prohibition was lifted in 1866 for most witnesses. However, the legislature continued the exclusion of testimony of a party in his own favor where one of the original parties to the contract or other transaction which is the subject of the investigation, is dead, or insane, or incompetent to testify by reason of insanity, or other legal cause, unless the party was first called to testify on behalf of the dead, incompetent or insane party. Va. Code of 1873 Ch. 172, §22.

Between 1873 and 1919 a number of exceptions and qualifications were adopted to address perceived hardships manifested in judicial opinions. Epes, 135 S.E. at 714-16.

In 1919, this tinkering culminated in adoption of the current Deadman’s Statute.2 The 2 The original version of the Deadman’s Statute has been amended to three respects. Statements of the party incapable of testifying are admissible whether or not the surviving party testifies. Parties whose inability to testify stems from a self inflicted injury are exempted from the Deadman’s Statute. Business record entries authored by a surviving party can be corroborating evidence (see Section VII below).

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were “highly remedial” in nature. Their purpose was to remove qualifications, not to create them or impose burdens on witnesses already competent. Robertson’s Ex’r v.

Atlantic Coast Realty Co., 129 Va. 494, 106 S.E. 521, 524 (1921). For this reason, no corroboration is required of a witness who was competent before the Code of 1919 Deadman’s Statute became operative. Epes, 135 S.E. at 716.

As we will see later, this construction of the Deadman’s Statute means simply looking at the language of the statute is not conclusive. The pre-1919 law must be examined to ascertain whether it permitted the witness to testify. If so, the corroboration requirement of the Deadman’s Statute will not apply to the witness.

The purpose of the Deadman’s Statute is to prevent a litigant from having the benefit of his own testimony when, because of death or incapacity, the personal representative of another litigant has been deprived of the testimony of the deceased/disabled person.3 It substitutes the corroboration requirement for the harsher common law rule which disqualified the surviving witness for interest. Willliams v.

Condit, 265 Va. 49, 52, 574 S.E.2d 241, 243 (2003; Diehl v. Butts, 255 Va. 482, 488, 499 S.E.2d 836 (1998). According to the Supreme Court of Virginia, the statute “is a wise one, and is designed to prevent fraud, and for that reason should not be whittled away.” Timberlake’s Ad’mr v. Pugh, 158 Va. 397, 163 S.E. 402, 403 (1932).

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The Deadman’s Statute, on its face, is sweeping in its application to the testimony of a surviving party. However, when the legislative history is considered, it is probably 3 “[T]he statute was designed to prevent…an opportunity for the survivor to prevail by relying on his own unsupported credibility, while his opponent, who alone might have contradicted him, is silenced by death.” Hereford v. Pates, 226 Va. 605, 608, 610, 311 S.E.2d 790, 792, 793 (1984).

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were observers or participants.

The 1866 legislation altering the common law rule of excluding interested witness testimony left intact the prohibition for surviving parties regarding “the contract or other transaction” to which both the deceased and surviving parties were parties. Epes Adm’r v. Hardaway, 135 Va. 80, 115 S.E. 712, 713 (1923) quoting Va. Code of 1873 §22. A survivor therefore should only be required to corroborate testimony concerning a transaction or event which the deceased would have had personal knowledge and is possibly disadvantaged because of an inability to testify and contradict the survivor.

For example, a personal injury plaintiff should not have to corroborate testimony about damages or pre-accident activities if these matters would not have been within the personal knowledge of the deceased defendant.

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The Deadman’s Statute corroboration requirement applies not only to parties to the litigation but to “any adverse or interested party”. An interested party need not be a party to the action or suit. Analyzing the impact of the Deadman’s Statute requires that you determine whether any witness to the case is an interested party.

An interested party is “one, not a party to the record, who is pecuniarily interested in the result of the suit.” Johnson v. Raviotta, 264 Va. 27, 34, 563 S.E.2d 727, 732 (2002) quoting Merchant’s Supply Co., Inc. v. Ex’rs of the Estate of John Hughes, 139 Va. 212, 216, 123 S.E. 355, 356 (1924). Pecuniary interests include: (a) being liable for the debt of the party for whom he testified, (b) being liable to reimburse such a party, (c) having an interest in the property at issue in the action, (d) having an interest in the

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liability to the party for whom he testified if such party recovered from the incapacitated party. Jones v. Williams, 280 Va. 635, 639, 701 S.E.2d 405, 407 (2010). Blood relationship alone will not make a party an interested party. Johnson, 264 Va. at 36, 563 S.E.2d 733.

Examples of interested parties are:

 An employee of a defendant alleged to be vicariously liable if the entity would be entitled to indemnification from the employee. Johnson, 264 Va. at 37, 563 S.E.2d 734.4  A witness who owns stock in a party to the litigation. Merchant’s Supply Co., Inc. 123 S.E. at 356.

 Beneficiary of a wrongful death claim. Paul v. Gomez, 118 F. Supp.2d 694 (W.D.

Va. 2000).

If the witness is a personal representative of an estate, the answer will vary depending on the estate’s posture in the litigation. If the estate will be financially impacted by recovery or assessment of damages, the personal representative will be deemed to be an “interested party” notwithstanding the lack of personal consequences to the representative himself. Johnson, 264 Va. at 34-35, 563 S.E.2d at 733-34. Conversely, if the estate itself will not be impacted financially by the litigation, the personal representative will not be deemed an “interested party”. Coalter’s Ex’r v. Bryan, 42 Va. (1 Gratt.) 18 (1844).

4 Employers will often endeavor to abrogate the “interested party” status of a non party employee whose conduct is at issue by releasing the employee from any indemnity obligation. See Shelton v. Chippenham & Johnston Willis Hosps., Inc., 68 Va. Cir. 468 (Richmond City 2005); Richardson v. Maskell, 64 Va. Cir.

196 (Wise 2004). This tactic will be ineffectual if there is a potential claim for contribution or if the employee is a named party.

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If the testimony of the adverse or interested party presents an essential element that, if not corroborated, would be fatal to the adverse party’s case, corroboration is required. If corroboration is required, such corroboration must be supplied by evidence which tends in some degree to independently support the element essential to the adverse or interested party’s case; the testimony, however, need not be corroborated on all material points. Johnson v. Raviotta, 264 Va. 27, 32, 563 S.E.2d 727, 731 (2002).

Corroboration need not remove all doubt but only give more strength than was had before. Hereford v. Pates, 226 Va. 605, 608, 311 S.E.2d 790, 792 (1984).

Determining what is sufficient corroboration can be difficult. What is adequate corroboration depends on the circumstances of each case. Va. Home for Boys & Girls v.

Phillips, 279 Va. 279, 286, 688 S.E.2d 284, 287 (2010); Vaughn v. Shank, 248 Va. 224, 229, 445 S.E.2d 127, 130 (1994). It must not come from the mouth of the surviving witness sought to be corroborated, be wholly dependent upon the credibility of the surviving witness nor dependent upon circumstances under the control of the surviving witness. Va. Home for Boys & Girls v. Phillips, 279 Va. 279, 286, 688 S.E.2d 284, 288 (2010); Johnson v. Raviotta, 264 Va. 27, 36, 563 S.E.2d 727, 733 (2002). The evidence must add to, strengthen, confirm and corroborate the testimony of the surviving witness.

Varner’s Ex’rs v. White, 149 Va. 177, 185, 140 S.E. 128,130 (1927).

Corroboration can come from any source including documentary or physical evidence or surrounding circumstances. Williams v. Condit, 265 Va. 49, 56, 574 S.E.2d 241, 245 (2003) (J. Lacy concurring); Brooks v. Worthington, 206 Va. 352, 357, 143 S.E.2d 841, 845 (1965). Corroboration may, and often must, be shown through

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Testimony of a witness that is inconsistent and contradictory will not be deemed sufficient corroboration. Burton’s Ex’r. v. Manson, 142 Va. 500, 510, 129 S.E. 356, 359 (1925).

Corroboration is determined not by looking at any single witness’ testimony.

Instead, it is determined by examining in the aggregate all of the evidence probative of corroboration. See Varner’s Ex’rs, 149 Va. at 185, 140 S.E. at 130 (1927). Expert testimony can be used as corroborative evidence. See Penn v. Manns, 221 Va. 88, 267 S.E.2d 126 (1980). Testimony equally consistent with two different inferences will not be deemed corroborative. See Vaughn, 248 Va. at 230, 445 S.E.2d at 130. Each point need not be corroborated nor must the corroboration rise to the level of confirmation as long as the corroboration strengthens the testimony provided by the surviving witness.

Keith v. Lulofs, 283 Va. 768, 776, 724 S.E.2d 695, 699 (2012).

In order to determine what must be corroborated, you need to look at the elements of the cause of action or defense. Then, frame the ultimate facts in issue for each element. This analysis should identify facts which are candidates for corroboration. Rice v. Charles, 260 Va. 157, 532 S.E.2d 318 (2000), a wrongful death case arising out of a passenger’s death in a vehicle operated by a surviving drunk driver, illustrates this approach. The pivotal question for the defense of contributory negligence was should the passenger have known the driver’s ability to drive was impaired. Evidence about the passenger’s knowledge about plans to purchase beer was not enough corroboration to create a jury issue. The corroborating evidence had to show that the passenger was aware of the driver’s impaired ability to operate a vehicle.

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signs and intake and output as ordered by the physician was not corroborated by the documented care that she did provide because none of that care required taking vital signs or measuring urine output. 264 Va. at 38, 563 S.E.2d at 733. Johnson shows powerfully that uncharted care allegedly given according to a surviving adverse or interested party cannot be a defense to a claim of malpractice unless the allegedly negligent provider can produce evidence specifically corroborating that the care at issue was provided.

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