Although the Dead Man's Act is riddled with exceptions, it can still sometimes apply to dramatically affect a case.
In the case of Loeffler v. Douglass, No. CI-22-00454 (C.P. Lanc. Co. Aug. 13, 2024 Brown, J.), the Court held that the Dead Man’ s Act applied to prevent a plaintiff from testifying as to any element of negligence.
The Dead Man's Act precludes "any person whose interest shall be adverse" to the interests of the deceased party from testifying "to any matter occurring before the death" of the deceased. 42 Pa.C.S.A. Section 5930. The Act was passed to prevent the injustice that may arise from permitting a surviving adverse party to give testimony that is favorable to himself or herself and to the detriment of the decedent's interest and that the decedent's representative cannot rebut.
This case arose out of a motor vehicle accident. The plaintiff filed suit against the allegedly negligent defendant driver.
The defendant-driver served plaintiff with interrogatories and requests for production of documents.
Thereafter, before the plaintiff responded to defendant's discovery, the defendant driver died. Counsel for the defendant-driver withdrew the discovery.
Subsequently, the administrator of the estate of the defendant driver was substituted as a defendant.
The defendant administrator served plaintiff with requests for production of documents and served several non-parties with subpoenas. Notably, the defense did not serve interrogatories and had not yet requested any depositions. The defendant administrator also filed a motion in limine, based on the Dead Man’s Act, to preclude plaintiff from testifying as to any element of negligence.
The plaintiff claimed that the protections of the Dead Man’s Act had been waived by virtue of the discovery which had taken place.
The Court rejected these arguments and found that neither the type discovery propounded by the defendant-driver, while alive, nor the discovery propounded by the defendant administrator after the death of the defendant-driver served to waive the protections afforded by the Dead Man’s Act. The Court reviewed the Dead Man's Rule and emphasized that here, the defense had not served interrogatories and had not yet requested testimony by any other means. As such, the discovery waiver did not apply because the defense had not requested any testimony with the discovery requests propounded.
Accordingly, based on an application of the Dead Man's Act, the Court held that plaintiff was precluded from testifying as to any element of negligence. The Court added that, if plaintiff could establish a prima facie case of negligence by other means, then plaintiff would be allowed to testify about the extent of plaintiff’s damages.
Anyone wishing to review a copy of this decision may click this LINK.
I send thanks to Attorney Benjamin P. Novak of the Lancaster, PA office of Fowler, Hirtzel, McNulty & Spaulding, LLC for bringing this case to my attention.
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