By Kevin R. Culhane

Model Interrogatories

Excerpted from Model Interrogatories

At common law, a cause of action for injuries to the person did not survive the death of the person injured. Similarly, there was no independent civil action for the wrongful death of another. The first wrongful death action was recognized by statute in 1846, and all states now provide some form of recovery for wrongful death.

It is important to distinguish between true “wrongful death” actions and “survival” actions. A wrongful death action is ordinarily an action vested in the decedent’s surviving heirs, and seeks to compensate them for their pecuniary loss occasioned by the death. By contrast, a survival action is simply the decedent’s action for his or her own personal injuries, which survives death and which is maintained by the administrator of the decedent’s estate. While the beneficiaries of this latter action will also be the decedent’s heirs, the recoverable damages differ in the two actions, as do the rules of standing and joinder. Both actions are created by statute, although not all states recognize both actions.

It is important to recognize that the term “wrongful death” does not refer to an independent tort, but rather identifies a particular type of damage resulting from defendant’s intentional, negligent, or strict liability conduct. Accordingly, an action for wrongful death may originate in vehicular negligence, the dangerous condition of real property, a defectively manufactured product, or a host of other tortious events with which all practitioners are familiar. Wrongful death actions typically have no additional elements except that the defendant’s negligence was serious enough to cause death rather than mere personal injury.

This chapter describes interrogatory discovery within the context of wrongful death and survivorship cases. The chapter contains extensive cross-references to other sections of this book, and is organized to highlight wrongful death issues originating from vehicular negligence, premises liability, products liability, and medical malpractice cases. Additional interrogatories are included that deal exclusively with issues posed in wrongful death and survivorship cases. Because wrongful death merely refers to a peculiar type of tort damage, it should be borne in mind that many of the interrogatories contained in the other chapters of this book will be fully applicable in wrongful death cases.

§1001   Defenses in Wrongful Death and Survivorship Cases

As indicated above, a survivorship action is simply the decedent’s own tort cause of action for his or her own injuries which ultimately lead to death. Accordingly, the traditional tort defenses are applicable in the action brought by the administrator of the estate. Thus, the decedent’s comparative fault in bringing about the injury as well as decedent’s assumption of the risk may be asserted against the administrator.

As indicated above, wrongful death actions contemplate damages to decedent’s heirs based on their own pecuniary loss. Accordingly, the decedent’s comparative fault may be asserted against the heirs, as well as the heirs’ own comparative fault if present. Similarly, assumption of this risk on the part of the heirs may ordinarily be asserted in wrongful death cases. This chapter includes interrogatories directed toward these issues as well.

§1010 Definitions

See the general definitions at § 102.

§1020 Identification of Party

§1021   Identification in General

As in other types of litigation, it is important to properly identify the defendant in wrongful death cases. The interrogatories set forth in §§ 210 and 211 may be used to identify the appropriate defendants. The answers to these interrogatories may also pose substantive legal questions, including a business’ successor liability when it has acquired the assets of a predecessor business, the liability of additional partners when a party operates as a partnership, and facts necessary to disregard the corporate form if the corporation is inadequately capitalized.

§1022   Business Structure

The interrogatories set forth in § 211 are also designed to elicit more specific facts regarding a defendant’s business structure.

§1023   Address

Section 211.2 contains a general set of interrogatories to discover the address of the opposing party, whether a natural person, corporation, partnership, or sole proprietorship. These interrogatories may be used when general information regarding the opponent is desired, but may have a more specific application when an address is important to the substantive law, as with cases involving jurisdiction or venue issues.

§1024   Agency

The interrogatories set forth in § 213 should be used to determine whether there are other individuals or entities who may be vicariously responsible for decedent’s death. The specific agency relationships are explored, and several general questions regarding imputed negligence are also included to cover situations not addressed by the more specific interrogatories. The responses to these questions are particularly critical when the otherwise available insurance proceeds are insufficient to satisfy the losses occasioned by the decedent’s death.

§1025   Litigants Acting in a Representative Capacity

Special problems arise when litigants appear in a representative capacity, and this is especially so in wrongful death cases. The interrogatories set forth in § 200 are designed to ascertain the facts regarding representative status, together with all documents and witnesses pertaining thereto.

In wrongful death cases, the source and nature of a litigant’s authority may also be critical to settlement negotiations. The answers to the questions in § 200 may also reveal joinder problems, since in most states statutory heirs who do not join as plaintiffs must be joined as defendants. Further, where the defendant is a decedent, it is necessary to establish the parties’ representative status in order to bind the decedent’s estate.

§1030 Auto Accident

As every trial lawyer knows, many wrongful death cases arise out of automobile accidents. The sections that follow contain organized cross-references for typical issues that arise in automobile accident cases involving the death of a decedent. As in non-death cases, it is important to determine all relevant facts regarding the occurrence of the accident, the existence of witnesses and/or evidence, and the defendant’s contentions as to how the accident occurred.

§1031   Location

The interrogatories set forth in § 421.2 are designed to elicit general information regarding the location of the accident, together with related details.

§1032   Accident Causes

The interrogatories set forth in § 421.3 are designed to reveal whether the defendant will contend that the accident was caused by any third party, vehicle defect, weather condition, or other cause. The interrogatories will also reveal any claim of contributory or comparative fault on the part of plaintiff’s decedent, together with all facts and circumstances which bear on these contentions. Interrogatories based on these questions should ordinarily be included so that any exculpatory facts regarding defendant’s conduct will be identified at an early stage. Occasionally you should consider restricting the scope of these questions, because you might suggest a defensive position which has not occurred to the defendant.

§1033   Accident Details

The interrogatories set forth in § 421.4 require a general recitation of the facts surrounding the motor vehicle accident, including speed estimates for both vehicles, facts relating to the parties’ alertness and perception, and the parties’ reactions once the danger became known. The physical facts will be revealed by the responses, which will then often be used by experts to formulate a hypothesis as to the factual cause of the accident.

§1033.1  Decedent’s Speed

The interrogatories in § 421.6 may be used to obtain speed estimate contentions regarding plaintiff’s speed from the defendant. The follow-up interrogatories are designed to inquire as to the applicable speed limit at the accident scene, and the answers to these questions will also reveal the party’s awareness or lack of awareness as to the applicable speed limit at the time that the interrogatories are answered.

§1033.2  Defendant’s Speed

The interrogatories in § 421.7 elicit defendant’s contentions regarding defendants own speed at the time of the accident.

§1033.3  Roadway Details

The interrogatories in § 421.11 may be helpful in formulating a theory of how the accident occurred, and may also indicate that the opposing vehicle was operated too fast for existing circumstances. Occasionally, roadway detail information may be used to substantiate a claim against a public entity owning, designing, or maintaining the roadway surface.

§1033.4  Alcohol and Drugs (Defendant)

The extent to which the use of alcohol and drugs contributes to major motor vehicle accidents is widely known. Evidence of this consumption can reveal negligence in what may otherwise appear to have been a chance event, and the identification of witnesses to alcohol or drug consumption may help direct future discovery. The interrogatories set forth in § 421.14 are designed to determine whether defendant ingested alcohol or drugs prior to the accident resulting in decedent’s death.

§1033.5  Equipment Defects

The interrogatories set forth in §432 conduct a more specific inquiry relating to any contention that the accident was caused by a defect in defendant’s vehicle. The questions focus on the existence of a defect; the responses require an identification of all facts, witnesses, and documents relating to such a contention. The responses are useful not only to establish negligent maintenance or operation on the part of the owner, but to evaluate whether an equipment or component manufacturer bears partial responsibility.

§1033.5.1  Pre-accident Knowledge of Defect

When an equipment defect or failure contributes to an accident, liability may turn on what the defendant knew or should have known of the potential failure or need for repair. These interrogatories explore the state of defendant’s knowledge regarding equipment defects and also inquire as to the repair history of the vehicle to establish circumstantial evidence of prior notice. Use the interrogatories in § 432.1 coupled with those set forth in § 432.

§1033.6  Ownership, Permissive Use and Occupancy

The interrogatories in § 452.2 perform a general investigation as to each of the vehicles involved in the accident,including data regarding the owners and occupants as well as the fact of permission in permissive use cases. The responses may reveal additional defendants or witnesses, as well as the occasional additional insurance policy applicable by virtue of permissive use.

§1034   Investigation of Accident Cause

In all wrongful death cases, at least one witness to the event is deceased. In many cases, several parties are deceased and substantial questions can exist as to accident causation. Accordingly, it can be very important to determine whether a third party investigated the accident. The interrogatories set forth in § 240 require the deponent to set forth all facts, witnesses, and documents relating to any investigation.

Frequently questions of this nature will be met with an over-broad assertion of work product privilege, so careful distinction should be made between an investigation conducted for the opposing parties’ business purposes or insurance renewal and those conducted by counsel in preparation for litigation.

§1035   Witnesses

Since the decedent obviously cannot testify about what happened, witness testimony can be critical in wrongful death cases. The interrogatories set forth in §241 seek to discover the identity of and knowledge possessed by any witnesses to the subject accident. You should include these interrogatories in virtually every set, including the closing set sent shortly before the discovery cutoff.

§1036   Insurance

It is obviously important that you be aware of the existence and limits of any applicable insurance coverage. Most states hold that the insurance policies themselves are discoverable, and your knowledge of the policy limits will allow you to make a reasonable decision regarding any settlement offer. Also, the existence of a coverage dispute is information that you need to have in making your settlement decision, because in some cases an offer of settlement is made so that the carrier may avoid the cost and expenses necessary to litigate the coverage question. This can sometimes be a bona fide reason for settlement, since a coverage question may be resolved against the insured, which in turn leaves the claimant without resort to an existing policy. The interrogatories set forth in § 251 are designed to explore these issues.

§1040 Dangerous Condition of Property

§1041   Details of Occurrence

The first purpose of the interrogatories set forth in § 522 is to reveal the defendant’s contentions regarding how the incident occurred. The answers will also reveal any claim of contributory or third party negligence along with any facts or writings supporting these contentions. It is especially important that you learn whether the defendant believes that a third party was concurrently negligent so that you can ascertain that all appropriate defendants are joined in the action. This may also control apportionment of liability where apportionment is required.

§1041.1  Ownership and Maintenance of Premises

The interrogatories set forth in § 541 should be used to determine the appropriate parties to the case; in many cases involving business premises, the apparent owner is merely a lessee, and the later identification of the actual owner requires an amendment of your pleadings. You can avoid the delay that this causes by including these questions in your opening interrogatory set. The questions also require the identification of those responsible for maintenance and repair of the premises, thus revealing potential additional defendants and/or important liability witnesses.

§1041.2  Identification of Defendant/Business Status

The interrogatories set forth in § 542 consist of general questions designed to reveal whether the owner of the premises is a corporation, partnership, or other. This information must be obtained in order to assure that all appropriate defendants are joined and that potentially applicable insurance policies have been identified. Also, the proper identification of the defendant’s status will prevent the delay that occurs when it is necessary for you to subsequently amend your pleadings.

§1042   Knowledge of Dangerous Condition

The wrongful death plaintiff must establish actual or constructive knowledge of the defective condition in order to recover. The purpose of the interrogatories set forth in § 550 is to determine whether the defendant had such knowledge to identify all relevant facts, witnesses and documents, and to otherwise establish the degree of notice the defendant possessed. The detail required in the defendant’s responses will identify any further discovery required on the notice issue, and a required admission of notice in response to these interrogatories can often enhance the settlement prospects of the case. In addition, these interrogatories can be directed to third party defendants to determine whether these defendants had knowledge of the defective condition.

§1042.1  Inherent Dangers and Imputed Notice

In many cases, the defendant will deny notice of any dangerous condition, particularly if there are no other witnesses on the notice issue. The plaintiff can still prevail in these cases if it can be established that some aspect of the premises or the business conducted thereon posed an inherent risk of injury. You should use the interrogatories set forth in § 551 in these cases. If the defendant denies an inherent danger which would be obvious to others, the jury will disbelieve defendant; if defendant acknowledges an inherent danger, then defendant must address the question of what steps were taken to warn the plaintiff’s decedent.

§1042.2  Circumstantial Notice (Subsequent Repairs)

Many states refuse to admit evidence of subsequent repairs as implied admissions of negligence on policy grounds. For this reason, many attorneys do not inquire about subsequent repairs, but this can be a mistake. Defendant plainly has notice of the dangerous condition at the time the repairs are made. This notice may support an inference of prior notice. The fact of subsequent repairs can open the door to inquiries about when the repairs were ordered and why. The interrogatories in § 552 are therefore reasonably calculated to lead to admissible evidence. You should not assume that any repair that occurs after an accident was prompted by the accident itself. If you can establish that the need for repair was appreciated prior to the occurrence, this evidence establishes the requisite notice of the defect.

§1042.3  Inspection of Premises

Many injury and death cases occur on business premises, so there is a duty on the part of the landowner to inspect for dangerous conditions. Defendant’s deviation from a procedural manual for inspection is powerful liability evidence, as is the absence of any procedure manual. The interrogatories in § 553 should be used to elicit information regarding the defendant’s inspection procedures, the individuals responsible for implementing the same, and any documents or witnesses pertaining thereto.

§1050 Defective Product

Many wrongful deaths are caused by defective products. In an ordinary product liability case, it is important to determine whether the apparent defendant actually manufactured the product or has information as to who did. Further, the early identification of the actual manufacturer of the product can avoid later confusion which may arise when you attempt to locate design drawings, production protocols, trade manuals and the like.

§1051   Identification of Product Manufacturer

The interrogatories set forth in §621 should be used to determine whether the responding defendant manufactured the product or has information as to who did. Other responses may insure that the appropriate parties are named in the action. They will also help to focus your later discovery in cases involving multi-level manufacturing and distributing enterprises.

§1052   Product Design

Sections 631 and 633 set forth basic questions which should be used in cases alleging negligent or defective design of the product. They address a variety of design considerations, beginning with questions intended to establish the relevant facts regarding the design of the product.

These sections also include questions that help to evaluate the design choice itself by inquiring as to the safety problems which were considered in the product design. These questions are fundamental in a design defect case, because the “defectiveness” concept requires balancing of the safety hazards against the cost, feasibility, and utility of alternative designs. Because the substantive law involves this balancing process, you are entitled to inquire as to safety risks which were actually considered in the product design. This will allow your experts to evaluate the design against other alternatives. Additionally, the fact that the defendant was aware of a given safety hazard in selecting the product design may give rise to a duty to warn even if there is no safer alternative. These interrogatories require the defendant to identify the safety risks included in the challenged design, and for that reason, can be especially effective at the time of trial.

Some states characterize a design as defective if the product fails to meet the reasonable safety expectations of the ordinary consumer. This set includes questions directed to that concept, including inquires as to whether the ordinary consumer’s safety expectations were inconsistent with the design or utility of the challenged product.

Finally, product manufacturers are now required to anticipate potential product misuses in the design of their products. Section 654 includes questions that require the defendant to identify any misuses which were considered in the design of the subject product, and the measures defendant took to ameliorate the risk of harm.

§1053   Product Marketing

§1053.1  Saleof Subject Product

In wrongful death cases based on strict liability, negligence, and warranty, it is important to establish the sale and distribution chain by which the product reached the decedent’s hands. The following interrogatories in § 641 begin that inquiry with generalized questions pertaining to the sale of the subject product, identifying data, and any documentation of the sale. These generalized questions may then be followed by more particularized questions regarding distribution.

§1053.2  Distribution

Provided that the defendant qualifies as a “commercial supplier” liability may attach even if the defendant neither manufactured the subject product nor supplied it to the ultimate consumer. Each link in the distribution chain has indemnity rights against that person’s immediate supplier, all the way back to the manufacturer. Accordingly, products liability cases often include defendants who are simply distributors, i.e., they obtain the product from a manufacturer and distribute it to a retailer or secondary distributor.

The interrogatories in §642 provide exemplars for use in establishing the distribution chain of the subject product. The inclusion of these interrogatories will identify the participants in the distribution chain, which in turn may identify additional parties to be joined and focus further discovery. Also, it is important to identify each entity involved in the distribution of the product to determine whether the product underwent alteration before it reached the ultimate consumer.

§1053.3  Instructions re Product Use

In many cases, defendants contend that the decedent violated instructions for the use of the subject product or that the instructions included language warning of potential risks. For this reason, you should discover the nature and contents of any instructions given by the defendant with respect to the use of the subject product. The interrogatories in § 646 are designed for this purpose.

§1060 Medical Malpractice

It is critical to establish that a physician-patient relationship existed between the plaintiff’s decedent and the defendant. In the absence of a relationship, there is ordinarily no duty of care owed. The interrogatories that follow seek the facts and circumstances surrounding the formation of that relationship. This can be particularly important because the plaintiff’s decedent often has contracted with a third-party provider, such as a hospital, and the nature and extent of the physician-patient relationship may be disputed.

The interrogatories in the Sections that follow also deal with the nature and extent of the services that the physician agreed to provide, including any limitations thereon. The responses to these questions are important to reveal any limitation upon the physician-patient relationship or the physician’s undertaking. Finally, some of the interrogatories cross-referenced below seek discovery of all the documentation relating to the relationship. For additional interrogatories for use in medical malpractice cases generally, see Chapter Eleven.

§1061   Scope of Physician Undertaking

The interrogatories set forth in § 1141 are designed to explore the nature and extent of the physician’s undertaking at the inception of the relationship. The responses are obviously critical to the question of whether the defendant conformed to the applicable standard of care, and will likely also reveal whether the defendant will advance a “limited undertaking” defense.

§1062   Documentation Regarding Physician-Patient Relationship

The interrogatories in §1142 are directed to the issue of whether there exists any documentary record relating to the diagnosis and treatment of plaintiff’s symptoms.

§1063   Failure to Diagnose

Many medical malpractice actions stem from the alleged failure on the part of defendant to correctly diagnose plaintiff’s decedent’s medical condition. This failure to diagnose can be based on the taking of inadequate medical history, the failure to perform appropriate diagnostic testing, and/or the failure to accurately interpret the results of the diagnostic procedures. The interrogatories in § 1151 deal with the decedent’s history and the diagnostic process. They inquire as to the nature and extent of the medical history, the presence or absence of diagnostic test results and like matters. In addition, these interrogatories require the identification of all witnesses and documents relating to the diagnostic process.

§1064   Administration of Medications

Many of the reported malpractice cases deal with the administration of prescription medicines. The utility of the medicine itself, the presence or absence of potential side effects, and contraindications obtained from the medical history can all form the basis of a negligence claim against the physician. Conversely, the physician’s failure to prescribe safe and effective medication can likewise form the basis for a finding that the physician fell below the applicable standard of care. The interrogatories in § 1152 deal with the administration of medications by the physician as well as medical indications and contraindications for the specific medicine prescribed.

§1065   Identification of Operative Procedure

The interrogatories in § 1154.1 help establish whether the defendant performed an operative procedure upon the decedent. This information can be very important in certain cases, since the plaintiff may not be aware of all the individuals who participated in the operative procedure. These questions require a general identification of each step involved in the successful completion of the operation so that responses can be matched with the documentation pertaining to the operation. Obtaining this information can be very important, particularly since plaintiff’s experts will be required to rely on the information gathered in response to these interrogatories in determining whether the conduct fell below the standard of care.

§1066   Postoperative and Discharge Procedures

The interrogatories in § 1154.6 to discover the nature and extent of any postoperative orders made by defendant as well as any general instructions given at the time of plaintiff’s decedent’s discharge. Use them in cases in which medical complications allegedly developed as a result of decedent’s postoperative activities; they can be very important when comparative negligence is alleged. In addition to the general inquiry relating to postoperative orders and discharge instructions, these interrogatories seek to discover all facts, witnesses, and relevant documents pertaining to such orders or discharge instructions.

§1067   Informed Consent

One of the most frequently recurring allegations in medical malpractice wrongful death cases is the failure of the physician to obtain informed consent from the patient. The informed consent doctrine presents interesting causation issues, since under the substantive law of most states, the failure to obtain informed consent renders the physician liable for any resulting injury. This rule is predicated upon the theory that the patient should be entitled to decline the treatment even if the chance of an adverse reaction is minimal.

The interrogatories set forth in § 1158 explore the facts and circumstances surrounding the decedent’s consent to the course of treatment. They seek to discover the nature and extent of the risks the physician disclosed to the decedent to determine it the consent was based upon a full disclosure of all material risks.

§1068   Failure to Obtain Required Tests

Even though the defendant may not have ordered a test that should have been obtained, no liability attaches if the test would nevertheless not have revealed the decedent’s condition. The interrogatories set forth in § 1161 address the contention that the tests would not have disclosed the specific problem and hence were not necessary to formulate the diagnosis.

§1070 Defenses in Wrongful Death Cases

As indicated at the beginning of this chapter, many of the ordinary tort defenses have some application in the context of wrongful death and survivorship actions. The interrogatories cross-referenced in the Sections that follow address the defendant’s contentions regarding these defenses and seek to discover all relevant facts, witnesses, and physical evidence. As with other aspects of interrogatory discovery, the use of these interrogatories should allow for early case evaluation and may also help structure further discovery in the case.

§1071   Affirmative Defenses and Denials

The interrogatories in § 340 should be included in the plaintiff’s opening interrogatories. The questions require the defendant to identify all facts, witnesses, and documents relating to each affirmative defense or denial. The information provided will easily serve to direct your future discovery efforts. Many affirmative defenses and denials are routinely included in the answer. These interrogatories will identify defenses or denials as to which there is no factual basis.

§1072   Alcohol and Drugs (Plaintiff’s Decedent)

It is critical for you to determine whether the defendant contends that the plaintiff was under the influence of alcohol or drugs. In cases where the fact of ingestion or intoxication is arguable, the interrogatories set forth in § 342 will allow you to identify and depose the percipient witnesses. Bear in mind that in some cases, third party witnesses will advance an opinion that decedent was intoxicated based solely on the direction of vehicle travel, etc. In these cases the interrogatories will reveal the absence of supporting facts, which in turn can be used to support an in limine exclusion motion.

§1073   Imputed Contributory or Comparative Negligence

The interrogatories set forth in § 343.4 should be used if the facts reveal a substantive basis for imputed, contributory, or comparative negligence. The substantive law of many states will impute contributory negligence in wrongful death cases, and the facts elicited here will allow you to prepare for the “case within a case.”

§1074   Assumption of Risk

The interrogatories set forth in § 344 should be used when assumption of the risk is alleged as a defense. The questions are constructed to track the legal requirements of risk assumption, because this routinely-asserted defense is rarely established by the facts. The questions require the identification of all facts, witnesses, and writings bearing on this defense, and should allow you to evaluate whether the defense can be successfully advanced.

§1075   Joint and Several Liability

The interrogatories set forth in § 346 require all of the relevant data relating to any claim that a third party contributed to the decedent’s injuries. One purpose is to identify additional defendants who should be joined in the action. The information may also be important in states that follow a modified comparative negligence rule that does not aggregate the negligence of all defendants before comparison with the percentage attributable to decedent. Finally, several states now require an apportionment of general damages by abrogating or modifying the rule of joint and several liability. Where this is the law, you must discover defendant’s contentions regarding the numeric basis of the apportionment.

§1076   Claimant’s Contributory Negligence

As indicated above, the claimants in a wrongful death case are the decedent’s heirs. In certain fact situations, it may be claimed that those heirs contributed to the event that caused the decedent’s death, and in these cases many states bar or reduce the heir’s recovery. The interrogatories set forth in § 343 can be modified to reveal all contentions, facts, witnesses, and documents pertaining to the claimant’s comparative or contributory negligence.

§1077   Decedent’s Conduct

The interrogatories in § 343 can also be modified to reveal all contentions, facts, witnesses, and documents pertaining to the decedent’s comparative fault, contributory negligence, or assumption of the risk. Remember to include these interrogatories in a closing set to be sent shortly before the discovery cutoff so that new or different allegations will be identified.

§1078   Admissions by Decedent

It is critical that you discover any information regarding an alleged admission by decedent prior to his or her death. The interrogatories set forth in § 241 can be adapted to discover this information at an early stage in your case, but you should also consider including these questions in a closing set to be sent shortly before the discovery cutoff. Also, the responses will identify persons present at the time that any alleged admission was made. This information can then be used to plan further discovery.

§1079   Decedent’s Health Before Incident

In order to prevail in a wrongful death action, plaintiff must establish that the incident resulted in decedent’s death. The interrogatories that follow are designed to elicit defendant’s contentions regarding plaintiff’s health prior to the accident. This will help the plaintiff establish whether there is evidence to indicate the absence of a causal connection between defendant’s act and decedent’s death.

  1. Do you contend that decedent suffered from any physical symptom, injury or illness prior to the INCIDENT?*

  2. Do you contend that any pre-existing symptom, injury, or illness contributed to decedent’s death?*

§1079.1  Pre-existing Conditions

Since the plaintiff must establish that defendant’s act caused or contributed to decedent’s death, it is important for defendant to discover whether decedent suffered from some preexisting injury or illness. The interrogatories contained in this section are for use by the defendant to discover the facts relating to any preexisting conditions.

  1. Do YOU contend that decedent suffered from any preexisting symptom, injury, or illness as of the date of the INCIDENT?*

  2. Please state whether decedent was examined or treated by any doctor in the five years immediately preceding the INCIDENT.

  3. If your answer to interrogatory number 2 was yes, please IDENTIFY each doctor who examined or treated decedent.

  4. If your answer to interrogatory number 2 was yes, please set forth the dates of treatment.

  5. If your answer to interrogatory number 2 was yes, please set forth the nature of the examination or treatment.

  6. If your answer to interrogatory number 2 was yes, please set forth any diagnosis made.

§1080 Damages in Wrongful Death Cases

§1081   General Damages

This section contains general damages contention interrogatories modified to apply in wrongful death cases. Since virtually all jurisdictions will award damages for actual pecuniary loss, the questions inquire about the plaintiff’s claims for future care and support, and further seek circumstantial confirmation of these claims by inquiring as to past contributions of care and support. As these are matters which are often reflected in personal documents, check registers, etc., other questions seek identification of any writings pertaining to past or future payments for care or support. If you practice in a jurisdiction which allows this recovery you may also consider including the last interrogatories in the set relating to the pecuniary value of lost care, comfort, society, and companionship.

  1. Please state whether decedent contributed monetarily to your support or care.

  2. If your answer to interrogatory number 1 was yes, please set forth the dollar amount decedent contributed to your support or care within the year prior to the death of the decedent.

  3. If your answer to interrogatory number 1 was yes, please set forth the dollar amount decedent contributed to your support during the five years immediately preceding the death of the decedent.

  4. Do YOU contend that the decedent would have contributed to your care and support in the future but for the death of the decedent?*

  5. If your answer to interrogatory number 4 was yes, please set forth the nature of the support and care which decedent would have contributed.

  6. If your answer to interrogatory number 4 was yes, please set forth the dollar amount which the decedent would have contributed.

  7. If your answer to interrogatory number 4 was yes, please set forth the manner in which YOU calculated the dollar amount that the decedent would have contributed.

  8. If your answer to interrogatory number 4 was yes, please further set forth the present value of such future contributions.

  9. Do YOU contend that YOU suffered any loss of care, comfort, society or affection as a result of the death of decedent?*

  10. If your answer to interrogatory number 9 was yes, please set forth the nature of the care, comfort, society or affection.

  11. If your answer to interrogatory number 9 was yes, please set forth the pecuniary value of the care, comfort, society, or affection.

  12. If your answer to interrogatory number 9 was yes, please set forth the manner in which YOU calculated the pecuniary value of the care, comfort, society, or affection.

§1082   Special Damages – General Interrogatories

This section contains a series of interrogatories pertaining to the plaintiff’s claim of special or pecuniary damages sustained by decedent prior to decedent’s death. The questions focus on the recurring types of special damage, including medical expenses, lost earnings and lost earning capacity.

  1. Did decedent incur expenses for any form of medical care or treatment as a result of the INCIDENT?

  2. If your answer to interrogatory number 1 was yes, please IDENTIFY the provider of any service as to which the expense was incurred.

  3. If your answer to interrogatory number 1 was yes, please set forth the dates that the expenses were incurred.

  4. Do YOU contend that decedent suffered a loss of earnings as a result of the INCIDENT?*

  5. If your answer to interrogatory number 4 was yes please set forth the amount of any earnings decedent lost.

  6. If your answer to interrogatory number 4 was yes, please set forth the method by which YOU calculated the amount of the lost earnings.

  7. If your answer to interrogatory number 4 was yes, please IDENTIFY each PERSON who would have paid those earnings.

  8. If your answer to interrogatory number 4 was yes, please set forth the date that decedent ceased work because of the INCIDENT.

  9. If your answer to interrogatory number 4 was yes, please set forth each reason that decedent stopped working.

  10. If your answer to interrogatory number 4 was yes, please set forth whether decedent stopped work as a result of the order of any doctor.

§1083   Lost Care, Comfort, Society and Affection

Although some jurisdictions do not provide for the recovery of “general damages” in wrongful death cases, some jurisdictions do allow recovery for the “pecuniary value” of lost care, comfort, society and affection. This interrogatory determines whether defendant contests plaintiff’s claims for these losses.

  1. Do YOU contend that the plaintiff did not suffer a loss of decedent’s care, comfort, society, or affection as a result of decedent’s death?*

§1084   Out-of-Pocket Losses

In most states the wrongful death plaintiff can recover the pecuniary value of lost financial support and care. The interrogatories that follow are designed to elicit defendant’s contentions regarding these losses.

  1. Do YOU contend that decedent did not contribute monetarily to plaintiff’s support and care prior to decedent’s death?*

  2. Do YOU contend that decedent would not have contributed to plaintiff’s care and support in the future had decedent survived?*

§1085   Burial Expenses

Virtually every state that provides for a wrongful death action allows a plaintiff to recover out-of-pocket losses relating to burial expenses. This interrogatory elicits defendant’s contentions regarding the nature and extent of burial expenses.

  1. Do YOU contend that any of the expenses that plaintiff seeks to recover were unnecessarily incurred by plaintiff?*

§1086   Survivorship Actions – Decedent’s General Damages

Some states allow recovery for decedent’s pre-death pain and suffering in survivorship actions. The interrogatories that follow are designed to elicit defendant’s contentions regarding decedent’s subjective complaints prior to decedent’s death.

  1. Do YOU contend that decedent fabricated any complaint, symptom, or illness prior to decedent’s death?*

  2. Do YOU contend that decedent failed to take any action which decedent should have taken in order to minimize the effects of decedent’s injuries?*

§1087   Survivorship Actions – Decedent’s Special Damages

As indicated above, the damages recoverable in a survivorship action are those damages that the decedent would have been recovered by had the decedent lived. This general rule has been modified by statute in several states, and you should familiarize yourself with the substantive law of your jurisdiction to select the appropriate discovery. The interrogatories in §322 elicit defendant’s contentions regarding the nature and extent of special damages, and can be easily modified for use in survivorship cases.

§1090 Miscellaneous Investigatory Interrogatories

§1091   Compensation from Collateral Sources

Consider using the interrogatories in §330 for several reasons. Some states will admit evidence that the plaintiff’s decedent received forms of compensation from collateral sources. As a second independent justification for discovery, information regarding the existence and payment of collateral source compensation may reveal the existence of other persons or entities who may have the right to intervene in the action and who might in any event possess a lien upon the settlement proceeds or judgment.

§1092   Witnesses/Investigations

The interrogatories in §§ 230-240 may be adapted for use by either party, and provide a general inquiry as to all witnesses and documents known to the other party as well as all investigation conducted to date. These questions should be included in opening discovery and are only infrequently excluded in closing discovery. This section also includes several questions relating to the existence and content of photographs, moving pictures, and other documentary evidence. Note: a frequently used tactic is to object to general questions regarding investigation of the occurrence because some of the information which would otherwise be required by the question would be subject to the attorney work-product privilege. You can anticipate and obviate this objection by modifying the interrogatories to specifically exclude material which otherwise qualifies for work-product protection. This might also be accomplished in the definition section.

§1093   Expert Identification

The nature and extent of expert testimony can be critical in wrongful death cases. Keep in mind that most jurisdictions have specialized statutory schemes for expert discovery so that the opponent may not be compelled over objection to respond to an interrogatory inquiry. Of course, the defendant may waive such an objection, and frequently expert information is disclosed for the purpose of enhancing settlement prospects. Bear in mind that in some jurisdictions the work product privilege evaporates only upon a determination by opposing counsel that the individual will in fact testify. Until that time the expert is merely a “consultant” to the attorney for purposes of his or her case preparation. Where this is the rule, you should modify the questions so that they apply to those persons who will be called to testify in the proceeding. An expert’s qualifications or educational accomplishments should never be taken at face value. The interrogatories set forth in § 242 are for use where expert identification through interrogatories is permitted.

§1094   Insurance

Although the existence of insurance is rarely relevant to the facts of an occurrence, most states hold this material discoverable to advance the policy in favor of settlement. The interrogatories set forth in § 251 are designed to discover the relevant facts regarding insurance coverage. Give special attention to the questions inquiring as to whether there is any coverage dispute. A dispute may have serious ramifications for plaintiff’s settlement posture and may also disclose the necessity for plaintiff to intervene in concurrent litigation between the carrier and the defendant.

§1095   Tender of Defense/Indemnity

The interrogatories set forth in § 253 help to insure that all appropriate defendants are named by identifying other persons or entities who may have liability. It is often important for the plaintiff to identify third party defendants at an early stage, because those defendants may be in possession of favorable evidence which might be less readily available once the third party defendant allies his or her position with that of the defendant. Also, because some states require the apportionment of general damages, it is important to identify any defendant not already named in the action.

§1096   Due Diligence in Preparation of Response

The interrogatories in § 255 should be included in every set as the last question group. These interrogatories reflect the broader duty of inquiry applicable to interrogatory discovery. They may be used to preclude admission of undisclosed evidence.


Kevin R. Culhane is a partner with a law firm of Hansen, Boyd, Culhane & Watson in Sacramento, California. His practice consists primarily of professional liability and appellate law. He has been faculty member at Hastings Center for Trial and Appellate Advocacy in San Francisco, and frequently lectures on discovery and trial matters for California’s Continuing Education of the Bar. Following a one-year term as Vice-President of the State Bar of California, Mr. Culhane was appointed to two successive terms as a member of the Judicial Council of California.  Mr. Culhane is the author of Model Interrogatories, from which this article is excerpted.