Posted August 11, 2015 | Uncategorized
The dead man’s rule (or dead man’s statute) is a law designed to prevent witnesses from testifying in furtherance of their own interests, or against a deceased person’s interests, with regards to communications or interactions they had with the deceased person. The main purpose of this rule is to preclude witnesses from committing perjury in order to further their own interests which a deceased person’s estate would be unable to dispute.
Pennsylvania’s Dead Man’s Statute is found at 42 Pa.C.S. § 5930. Notably, this law is comprised of a single, 318 word sentence which even the most brilliant lawyers have found difficult to interpret. However, when it is broken down into smaller parts, the meaning becomes more clear:
In addition, there are multiple exceptions to this rule include when the proceeding is against surviving joint partners/primosors/promisees and when an action is against several defendants and one disclaims his interests.
In some cases, such as those involving medical malpractice, the dead man’s rule can act as a bar to filing a personal injury claim.
For example, in the case of Toogood v. Rogal, 573 Pa. 245 (Pa. 2003) a plaintiff was precluded from filing a medical malpractice case against a doctor’s estate. In that case, the plaintiff claimed that the doctor had committed medical malpractice in administering a nerve block injection. The doctor then passed away and an estate was raised. The Court dismissed the plaintiff’s case because the dead man’s rule prohibited the plaintiff from introducing expert medical testimony against the doctor which was required to establish malpractice under Pa.R.C.P. 1035.2.
This does not mean all personal injury cases against an estate will be barred. In Speight v. Mahalis, 2008 Phila. Ct. Com. Pl. LEXIS 312 (Pa. C.P. 2008), aff’d, 984 A.2d 1032 (Pa. Super. Ct. 2009) a plaintiff in a personal injury case was permitted to use testimony by a police officer and plaintiff’s treating physician as evidence to support his case because they were an independent witness and a medical professional with no interest in the outcome of the case.
Also, in Pennsylvania, a person can use a tortfeasor’s deposition testimony against his/her estate if it is completed prior to the death of the tortfeasor. In the case of G.J.D. v. Johnson, 447 Pa. Super. 340 (Pa. Super. Ct. 1995), aff’d, 552 Pa. 169 (Pa. 1998) the court found that the decedent’s estate could not preclude prior deposition testimony taken of the tortfeasor, despite the fact the estate choose not to conduct additional discovery and refrained from using the plaintiff’s deposition testimony at trial.
In summary, the Pennsylvania dead man’s statute can create evidentiary issues that legal practitioners must be aware of. In some cases, a plaintiff may be able to salvage his/her case by presenting testimony from an uninterested third party or taking early discovery if the defendant is elderly or ill as a safeguard in case he/she dies before trial. Other times, a plaintiff may be precluded from bringing a claim entirely if they cannot introduce necessary evidence.
Brent Wieand is a trial lawyer in Philadelphia who practices throughout Pennsylvania and New Jersey. He handles serious injury claims for nursing home abuse and neglect, car accidents, medical malpractice and work injuries. For a free case consultation, call Brent today at 1(800) 481-5206.
Disclaimer: This article does not constitute legal advice and should not be taken as such. For legal advice always consult with an attorney as to the facts and circumstances specific to your claim.