Testimony of parent in child’s wrongful death

Defendant ordinarily will be using the form below for a discovery deposition outline, so that no unexpected testimony occurs at Trial.

But this form will be used more often by plaintiff’s counsel, who will use the form as a checklist for testimony at both deposition and Trial. A wrongful death case for the death of a child, at whatever age, generates the plaintiff’s need to describe to the jury the activities of the deceased child, as well as furnishing the statistics that will be the foundation for computations of life expectancy and earnings. Usually the primary witness on the wrongful death damages is a parent of the child.

This form outlines various points that the plaintiff ordinarily will use to structure direct testimony at Trial. But it’s also useful at depositions. For example, if the defendant takes the deposition of a parent, plaintiff can profitably use this outline to add into the deposition the damages testimony plaintiff wants to preserve or bring to the settlement table.

Deposition or Trial Testimony: Parent in Wrongful Death Case

1. BACKGROUND OF TESTIFYING PARENT

  • Name/Address
  • Family relationship to decedent
  • Identify and describe other immediate family members of decedent – Spouse/parents/children
  • If deceased had spouse: date of marriage(s), date of divorce(s) or date of death of spouse
  • Educational background of testifying parent (or both parents)
  • Employment history of testifying parent (or both parents)

Experienced plaintiff’s counsel will not waste the opportunity for the jurors to hear testimony that lets them learn Personal information, and sympathize with the parents as persons rather than as litigants. In death cases, in many states, greatly expanded testimony of the parents’ educational and employment history, given by the parents themselves as witnesses, is allowed. The theory is that it is relevant evidence on financial contributions the deceased child would have made to the surviving parents. This is in contrast to most types of Personal Injury cases. In most Personal Injury cases, a witness who is not the person with the bodily Injury can only answer a limited number of questions regarding the employment and education of the witness himself. The theory of exclusion is that ordinarily witnesses talking about their own education and work history has no direct evidentiary relevance to an issue in the verdict form.

2. DECEASED

  • Where born and raised
  • Birth date, and age at death
  • Education History of Decedent
    • Where – When – What type – Grades
    • Graduation dates and data
    • Special recognitions or attainments
  • Employment History or Decedent
    • Where – When – Job
    • How long each job
    • Special recognitions or responsibilities
  • General health before accident
  • Hobbies and activities
  • Social activities
  • Volunteer, church, or charity connections and contributions
  • Decedent’s plans for the future
    • For employment
      • How did you know what decedent was planning
      • What were the plans?
      • Was it likely that he or she could accomplish what he or she was planning?
    • For geographical or other connections to family
      • How did you know what decedent was planning
      • What were the plans?
      • Was it likely that he or she could accomplish what he or she was planning?
  • Family activities
  • Special aspects of relationship between deceased and testifying parent
  • Special or distinctive traits of deceased

Skillful plaintiff’s counsel will want to offer into evidence photographs of deceased, including activities (e.g., vacation), if the jurisdiction’s law will allow it. Plaintiff’s counsel will also want to offer into evidence any handiwork, art, writings, etc., of deceased, on the theory that it shows abilities and nature of the child decedent.

3. DEATH OF DECEDENT

  • Date of death
  • How testifying parent learned of death

4. INJURIES TO DECEASED — WITNESS’S BYSTANDER RECOVERY

This section, as well as portions of other sections, covers both the suffering of the decedent and also the emotional distress of a “bystander” testifying parent. Whether these facts are admissible will depend on both the facts of the accident involved and also the law of the jurisdiction. It is usually best for the plaintiff to interweave testimony of the suffering of the decedent child and of the surviving parent. That helps to eliminate a juror’s reaction to separate discussions of the parent’s suffering as “just to get money.” However, on the defense side, it’s best if both the suffering of the decedent and a bystander recovery are allowed in the jurisdiction, to focus first on only the conscious pain and suffering of the decedent and only later in the deposition to inquire about bystander recovery items.

  • Whether testifying parent witnessed accident
  • How testifying witness learned of decedent’s accident and injuries
    • What was said to you?
    • What was your reaction?
  • Nature and extent of decedent’s injuries
  • Saw suffering of decedent
    • at scene of accident
    • at hospital
  • Evidence of decedent’s conscious pain and suffering witnessed by testifying parent.

On the plaintiff’s side, this is a good place to inject favorable hearsay about how the accident happened and negligence of the parties. The state of mind of the decedent may allow into evidence hearsay statements made by the decedent even days later while in the hospital, concerning how the accident happened.

A knowledgeable plaintiff’s Attorney will consider the following hearsay exceptions:

  • The “excited utterance” exception to the hearsay rule (a statement relating to a startling event made while the declarant was under the stress of excitement caused by the event).
  • The “statement under belief of impending death” exception to the hearsay rule (a statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death).

If the excited utterance doctrine applies, the Attorney will ask:

  • Was decedent still under the stress of the accident when you saw him or her?
  • What did he or she say about the accident before he or she died?

If the statement under belief of impending death doctrine applies, the Attorney will ask:

  • Did decedent know he/she was going to die?
  • What did he or she say about the accident before he or she died?

Effect on testifying parent of witnessing Injury (or seeing or hearing suffering of child):

  • What did you see or hear that told you your child was suffering?
  • How did you feel? (fright/mental anguish/other emotional reaction)
  • How long did that affect you?
  • How did it affect you?

Effect on testifying parent of witnessing death of child:

  • Did you see your child die?
  • Tell us what you saw or heard?
  • Did you know your child was dying?
  • How did you feel? (fright/mental anguish/other emotional reaction)
  • How long did that affect you?
  • How did it affect you?

5. ECONOMICALLY MEASURABLE LOSSES TO TESTIFYING PARENT

In the past – Companionship and society between child and:

  • Testifying witness
  • Other family members
  • Expectations for future relationship between child, testifying witness or other family members

In the past – Assistance to family with household or work chores by child to:

  • Testifying witness
  • Other family members
  • Expectations for future assistance from child to testifying witness or other family members

In the past – Advice and counsel, from child to:

  • Testifying witness
  • Other family members
  • Expectations for future advice and counsel from child to testifying witness or other family members

In the past – Gifts, from child to:

  • Testifying witness
  • Other family members
  • Expectations for future gifts from child to testifying witness or other family members

Economic support, from child to:

  • Testifying witness
  • Other family members
  • Expectations for future economic support from child to testifying witness or other family members

6. MENTAL ANGUISH, EMOTIONAL TRAUMA, OF WITNESS

  • How testifying parent felt
    • Immediately after death of child
    • At funeral
    • During grieving period
  • Long-term effects on testifying parent
  • Physical manifestations
    • Loss of appetite
    • Sleeplessness
  • Worry about future
    • Living alone
    • No other child
    • No spouse
    • No parent
    • Economic impact

7. SPECIAL DAMAGES

  • Medical expense
  • Nursing services by family members in hospital or at home before death
    • By testifying parent
    • By others in family
  • Funeral expense (reasonable for station in life)
  • Burial expense (reasonable for station in life)