The Deadman’s Statute
Use and Abuse of RCW 5.60.030
By Any Other Name . . .
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Dead Man Statute
Dead Man’s Statute
Deadman Statute
Deadman’s Statute
Transaction with
person since deceased
RCW 5.60.030
No person offered as a witness shall be excluded from giving evidence by
reason of his or her interest in the event of the action, as a party thereto or
otherwise, but such interest may
be Summary
shown to affect his or her credibility:
Text
PROVIDED, HOWEVER, That in an action or proceeding where the adverse
• executor,
1 sentence
party sues or defends as
administrator or legal representative of
any deceased person,
deriving
right or statement
title by, through or from any
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deceased person, or asof
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• 18
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interested
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testify.
of fourteen years, then
a party in interest
or to
record, shall not be
• or 2herdependent
admitted to testify in his
own
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to any transaction had by him
But
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or her with, or any statement
to him or her, or in his or her presence,
• 6 made
“person”
by any such deceased, incompetent or disabled person, or by any such
minor under the age of•fourteen
4 “interest”
years: PROVIDED FURTHER, That this
exclusion shall not apply to parties of record who sue or defend in a
• 4
“party”
representative or fiduciary
capacity,
and have no other or further interest in
the action.
• 4 “no” or “not”
• 3 “action”
• 3 “shall”
RCW 5.60.030
Deadman’s Statute
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Purpose of the
Statute
Elements of the
Statute
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Transactions
Parties in Interest
Adverse Party
Title or Interest
Deceased +
Statements
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Exceptions
Work Around
Strategies
Waiver Doctrine
Application
Deadman’s Statute; Use and Abuse
PURPOSE OF THE STATUTE
Purpose Of The Statute
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Consider the purpose of the statute:
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If you represented the “protected party”
consider why the statute applies, starting with
the purpose of the statute
If you represent the “party in interest”
offering the testimony of a deceased consider
why the purpose of the statute should not
make the testimony inadmissible.
Purpose Of The Statute
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“Death having closed the lips of one party,
the law closes the lips of the other.”
In re Cunningham's Estate, 94 Wash. 191, 161 P. 1193 (1917).
Purpose Of The Statute
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“The purpose of the statute is to
‘prevent interested parties from
giving self-serving testimony
about conversations or
transactions with the decedent.’
Wildman v. Taylor, 46 Wash.App.
546, 549, 731 P.2d 541 (1987).”
Erickson v. Robert F. Kerr, M.D., P.S., Inc., 125 Wash.
2d 183, 187, 883 P.2d 313, 316 (1994)
Then she
told me . . .
Purpose Of The Statute
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“One of the major purposes . . . is to give
protection to the writings and documents
of a decedent or persons claiming
thereunder, so that decedent's purposes
in making a conveyance in writing will not
be defeated by parol description of his
acts and purposes after his death.”
Hampton v. Gilleland, 61 Wash. 2d 537, 543,
379 P.2d 194, 197 (1963)
Purpose Of The Statute
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Notice that pursuit of truth is not
mentioned in cases that apply the statute.
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It is not a truth seeking devise, it is a fairness
device.
Ultimately the purpose is to promote fairness,
even at the possible loss of credible evidence,
anticipating justice will be served.*
* C. T. Moser, no citation to authority
Deadman’s Statute; Use and Abuse
ELEMENTS OF THE STATUTE
RCW 5.60.030 states in part:
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“(I)n an action ... where the adverse party sues
or defends ... as deriving right or title by,
through or from any deceased person ... then a
party in interest or to the record, shall not be
admitted to testify in his or her own behalf as to
any transaction had by him or her with, or any
statement made to him or her, or in his or her
presence, by any such deceased ...”
O'Steen v. Wineberg's Estate, 30 Wash. App. 923, 935, 640 P.2d 28, 35
(1982)
Party In Interest
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A witness is considered a party in interest:
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1) if the witness stands to either gain or lose
as a direct result of the judgment; or
2) if the record may be used as evidence
against the witness in some other action.
5A Wash. Practice., Evidence Law and Practice § 601.17 (5th ed.)
Party In Interest
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The witness will be considered interested
only if the witness's interest is present,
certain, and vested. An interest that is
uncertain, remote, or contingent is
insufficient to bar the witness's testimony.
5A Wash. Practice., Evidence Law and Practice § 601.17 (5th ed.)
Party In Interest
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A witness is prohibited from testifying only
if he or she is an interested party at the
time of trial. An interest existing at some
other time does not disqualify the witness.
5A Wash. Practice., Evidence Law and Practice § 601.17 (5th ed.)
Adverse Party
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Bars the testimony of a party in interest
only when the adverse party sues or
defends as a representative or successor
of a deceased.
Does not bar the testimony of a party in
interest unless there is also an adverse
party as the term is used in the statute.
5A Wash. Prac., Evidence Law and Practice § 601.18 (5th ed.)
Right Or Title
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Persons deriving right or title through a
decedent.
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Statute bars testimony by a party in interest
when the adverse party sues or defends “as
deriving right or title by, through or from any
deceased person.”
5A Wash. Prac., Evidence Law and Practice § 601.18 (5th ed.)
Right Or Title
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Applied to community property, where a
spouse dies before trial and the “party in
interest” offers testimony about a
transaction with the spouses.
Diel v. Beekman, 7 Wash. App. 139, 154, 499 P.2d 37, 47 (1972)
overruled on other grounds by Chaplin v. Sanders, 100 Wash. 2d 853,
676 P.2d 431 (1984)
Right Or Title
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“The protection is unqualified and one
who derives a right from a deceased, be it
partial, total, separate or community, will
not have testimony by a party-in-interest
forced into the record over his objection.”
Diel v. Beekman, 7 Wash. App. 139, 154, 499 P.2d 37, 47 (1972)
overruled on other grounds by Chaplin v. Sanders, 100 Wash. 2d
853, 676 P.2d 431 (1984)
Transaction
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The doing or performing of some business
between parties, or the management of
any affair.
The test of a “transaction” is whether the
deceased, if living, could contradict the
witness of his own knowledge.
Estate of Lennon v. Lennon, 108 Wash.App. 167, 174-175, 29 P.3d
1258, 1263 (2001)
Transaction
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Does not prevent an interested party from
testifying regarding his or her own
feelings or impressions.
Estate of Lennon v. Lennon, 108 Wash.App. 167, 174-175, 29 P.3d
1258, 1263 (2001)
Deceased Person +
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The Deadman’s Statute also applies to:
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Incompetent persons
Disabled persons
Persons under 14 years of age
Statement
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The dead man statute bars testimony
about any “statement made”:
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By the decedent to the witness;
Or in the witness's presence.
5A Wash. Prac., Evidence Law and Practice § 601.19 (5th ed.)
Deadman’s Statute; Use and Abuse
EXCEPTIONS TO THE
STATUTE
Documentary Evidence
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RCW 5.60.030 does not bar documentary
evidence, although it may limit testimony
about the documents. Wildman v. Taylor,
46 Wash.App. 546, 731 P.2d 541 (1987).
Thor v. McDearmid, 63 Wash. App. 193, 202, 817 P.2d
1380, 1387 (1991)
Documentary Evidence
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Notice that the first clause of the statute
uses the term “evidence” in reference to
an interested party;
The statute then uses “testify” in the
second clause to modify the first.
The purpose is to protect a deceased’s
written documents from contrary parol
testimony of the living.
Entities & Deceased Agent
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“Our statute, it will be observed, applies, in its
terms, only in the case of the death of a natural
person who is a principal in the contract. It
makes no reference to corporations, or to
agents of corporations, or even to agents of
deceased natural persons, and to read into it
this further exception would be, we believe, an
unwarranted extension of its terms.”
Northern Bank & Trust Co. v. Harmon, 126 Wash. 25, 217 P. 8 (1923)
Criminal Cases
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Statute doe not apply to criminal cases
5A Wash. Prac., Evidence Law and Practice § 601.14 (5th
ed.)
Discovery
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Statute does not apply to discovery. The
statute does not prohibit depositions,
interrogatories, or other discovery about
the transaction in question.
5A Wash. Prac., Evidence Law and Practice § 601.15 (5th
ed.)
Multiple Defendants
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If the interested party sues multiple
defendants, testimony that may be barred
as against one defendant (who is an
adverse party under the statute) may still
be admissible for the limited purpose of
supporting a claim against another
defendant (who is not an adverse party).
5A Wash. Prac., Evidence Law and Practice § 601.18 (5th ed.)
Deadman’s Statute; Use and Abuse
WAIVER DOCTRINE
Waiver
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Statute may be waived when the
protected party introduces evidence
concerning a transaction with the
deceased.
Once the protected party has opened the
door, the interested party is entitled to
rebuttal.
Estate of Lennon v. Lennon, 108 Wash.App. 167, 174175, 29 P.3d 1258, 1263 (2001)
Waiver
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A waiver by introduction of testimony
about one transaction does not extend to
unrelated transactions and conversations.
Engaging in pretrial discovery, including
taking depositions or propounding
interrogatories, is not waiver.
Estate of Lennon v. Lennon 1,08 Wash.App. 167, 174-175,
29 P.3d 1258, 1263 (2001)
Waiver
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Unless, a the protected party introduces
the deposition or interrogatories into
evidence.
Estate of Lennon v. Lennon, 108 Wash.App. 167, 174-175,
29 P.3d 1258, 1263 (2001)
Summary: Waiver Doctrine
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Testimony offered about the transaction
Failing to object at trial
Cross-examination beyond scope of direct
Testimony of nonparty witness
Deadman’s Statute: Use and Abuse
WORK AROUND STRATEGIES
4 Ways Around The Statute
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Presenting documentary evidence rather than
testimony;
Presenting testimony by nonparty witnesses who
have no financial stake in the outcome;
Having the party in interest testify only about his
or her feelings and impressions relative to the
transaction;
Waiver by the protected party.
5A Wash. Prac., Evidence Law and Practice § 601.16 (5th ed.)
Deadman’s Statute; Use and Abuse
APPLICATION BY CASE LAW
Injured Hospice Nurse Case
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Botka v. Estate of Hoerr, 105 Wash.App.
974 (2001). Application:
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Deadman’s Statute in personal injury litigation
Waiver Doctrine
Summary judgment motion proceeding
“What was the defense attorney thinking”
doctrine
Hospice Nurse
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Facts in Botka v. Estate of Hoerr:
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Hospice nurse Botka hired to care for Mr.
Hoerr at his 3-story home;
She uses knock and announce procedure to
enter the home and is shown how to enter on
the 2nd level and walk up to 3rd level
bedroom;
Hospice Nurse
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Facts in Botka v. Estate of Hoerr:
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She comes to the home on a day that
Mr. Hoerr’s daughter is with the father,
and they do not hear nurse enter house;
Hospice nurse goes in the 2nd floor door and
cannot find the stairway because it is dark
and mistakenly enters a dimly lit laundry room
and finds two more doors;
Hospice Nurse
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Facts in Botka v. Estate of Hoerr:
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She comes to a door, opens it and feels
along the wall for a light switch;
She cannot find switch and steps into what
she thinks is the stairway landing, but falls
down empty elevator shaft and is injured.
Hospice Nurse
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First clue that
there is a
problem
Nurse sues, but only after Mr. Hoerr dies;
Estate brings motion for summary
judgment, saying that nurse was a
trespasser and no duty of care was owed.
Nurse responds saying she was an invitee,
called ahead & told Mr. Hoerr that she was
coming and she routinely entered the
house without someone coming to the
door.
Hospice Nurse
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Estate responded by moving to strike
nurse’s declaration as violation of
Deadman’s Statute;
Hospice Nurse
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Estate also responded with declaration of
the daughter, Walsworth, saying:
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Nurse did not call ahead of time
She was not given permission to come to the
house
She should have used the exterior stairs
She entered the house without authority
Waiver Doctrine Applied
“We hold that Walsworth's declaration waived
the deadman's statute. By stating that Botka
“had to walk up the exterior stairwell to the
third floor,” “had no authority to enter
unannounced into any part of the home,” that
“there was no reason for her to be in the
laundry room,” and “she should have
announced her arrival at the third floor,”
Walsworth necessarily implied that Hoerr did
not give Botka authority to act as she did.”
Waiver Doctrine Applied
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Thus, the nurse’s testimony that she
called ahead and was given permission to
enter the house became admissible.
Trial court reversed.
The Lost Note Case
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O'Steen v. Wineberg's Estate, 30 Wash.
App. 923, 640 P.2d 28 (1982). Application:
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Deadman’s Statute to direct testimony
To cross-examination
To documents
Waiver doctrine
“Party in interest or to the record” test
The Lost Note Case
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Plaintiffs O’Steen sued the Wineberg
estate claiming 10% interest in stock of
an oil company;
O'Steen claimed Wineberg agreed orally
that money owed O’Steen would be put
into the oil company stock deal to obtain
a 10% interest, which Wineberg would
hold in his own name but as trustee
for O’Steen;
The Lost Note Case
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O’Steen claimed Wineberg, now deceased,
signed a note stating:
“John O'Steen owns ten
percent of LALTA
Corporation, also ten
percent of the farmout.
Signed Wm. J. Wineberg.”
“Farm out” is a term used for leasing mineral rights
The Lost Note Case
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“Mrs. O'Steen testified on direct
examination to having seen the note, to
recognizing Wineberg's signature on it,
and to losing the note in 1964.”
The Lost Note Case
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Under cross-examination, Mrs. O'Steen
testified she was familiar with William
Wineberg's handwriting and signature and
recognized the handwriting and signature
on the note as Wineberg's.
The Lost Note Case
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Mrs. O'Steen lost the note in 1964 when
she and Johnny had marital difficulties and
she took all of their valuable papers.
The Lost Note Case
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Two witnesses testified that Johnny
O'Steen showed them a note signed by
William Wineberg stating that O'Steen had
a 10 percent interest in the oil company.
One witness testified that Wineberg told
him that “Johnny O’Steen is in for ten
percent.”
Side Notes On The Lost Note
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Mineral right were on 8,000 acres of railroad
property in Calgary, Alberta, Canada
The American promoters formed a Canadian
oil company they each paid 1¢ per share.
The promoters found Wineberg & O’Steen at
the Bahia Hotel in Ensenada, Mexico.
One witness heard conversation at a card
game between Wineberg & O’Steen
Another witness to conversations was a
casino manager in a Las Vegas bar.
The Lost Note Case
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The Court of Appeals held:
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Mrs. O'Steen is a party to the record in the
present case.
The test of “transactions with a deceased” is
whether the dead man, if living, could
contradict the witness.
Testimony of the loss of a writing is not
evidence of a transaction with the deceased.
The Lost Note Case
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The Court of Appeals held:
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The identification of a signature upon a
writing is not a transaction with the deceased.
Mrs. O'Steen was therefore competent to
testify as to these matters, and her testimony
on direct examination was limited to these
matters.
It was not until cross-examination that she
was asked to testify as to the contents of the
note.
The Lost Note Case
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The Court of Appeals held:
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Cross-examination of a witness on a matter
protected by the deadman's statute
constitutes a waiver of that protection.
The deadman's statute bars only the
testimony of parties to the record or parties in
interest. Neither witness was a party to the
record.
The test for a party in interest is whether he
will gain or lose from the judgment
The Lost Note Case
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Notice who did not testify: Johnny O’Steen
Medical Records Case
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Erickson v. Robert F. Kerr, M.D., P.S., Inc.,
125 Wash. 2d 183 (1994). Application:
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To medical records and business records
exception
Waiver doctrine
Multiple parties doctrine
Discussion of unfair application of statute by
disqualifying the defendant doctor from
testifying in his/her own defense in
malpractice case.
Medical Records
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Facts in Erickson v. Kerr:
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Defendant doctor treated the decedent for a
number of years for depression and other
ailments, until she committed suicide.
A year later the doctor asked decedent’s
husband how wife was doing, forgetting she
was dead. (ruled admissible)
Husband, as PR and on behalf of himself and
his son, sued for medial malpractice.
Medical Records
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Doctor’s medical records were the primary
evidence of negligence.
Plaintiff moved in limine, pursuant to the
deadman’s statute, to exclude the doctor’s
testimony of conversations with the
decedent.
Trial court ruled plaintiffs waived the
statute by introducing medical records.
Medical Records
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Jury found doctor was not negligent:
Defense verdict.
Court of Appeals reversed on waiver
doctrine.
Both parties appealed.
Supreme Court reversed in part and
affirmed in part.
Medical Records
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We hold the introduction of Dr. Kerr's medical
records did not waive the protection of the
deadman statute as to the estate. The deadman
statute is inapplicable to the action brought by
the Ericksons in their individual capacities. See
Maciejczak v. Bartell, 187 Wash. 113, 60 P.2d 31
(1936) (deadman statute only applies to actions
brought on behalf of estate).
Erickson v. Robert F. Kerr, M.D., P.S., Inc., 125 Wash.
2d 183, 189-90, 883 P.2d 313, 317 (1994)
Medical Records: 2 Plaintiffs
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Estate sued for
medical malpractice
(a survival action)
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This was the
decedent, through the
PR, suing the doctor
for negligence
Therefore the records
were introduced “on
her own behalf” as a
party to the record.
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Family members sued
for wrongful death
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This was the surviving
family suing the doctor
for their loss, caused
by the doctor’s
malpractice
Plaintiffs they were not
a party to the
transaction between
decedent and doctor.
Evidence of Habit Case
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Lasher v. Univ. of Washington, 91 Wash.
App. 165, 957 P.2d 229 (1998).
Application:
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To incompetent person
To testimony of “habit”
To medical records
Evidence of Habit Case
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Facts in Lasher v. Univ. of Washington
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Plaintiff diagnosed with rare heart disease at
21 years old, while living in Colorado.
Plaintiff moved to WA year later and treated
at Harbor View Medical by cardiologist, who
was professor at UW medical school.
Cardiologist reduced plaintiff’s heart
medication to one-third of what he had been
taking.
Evidence of Habit Case
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Facts in Lasher v. Univ. of Washington,
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4 years later plaintiff collapsed from cardiac
arrest while playing half-court basketball.
Plaintiff survived, but had severe brain
damaged and left incompetent.
Plaintiff sued doctor for malpractice for failure
to warn of risk of exercise or the benefits of a
cardiac defibrillator device.
Evidence of Habit
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Defendant doctor barred from testifying
about conversations with incompetent
patient under deadman’s statute.
Trial court allowed doctor to testify of his
“habit” to advise patients with certain
heart conditions about the risk of physical
activities.
Jury returned a defense verdict, plaintiff
appealed.
Evidence of Habit
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Court of Appeals reversed:

The purpose of the testimony about “habit”
was to accomplish by indirect testimony what
Dr. Greene could not testify to directly
because of the bar in the deadman's statute.
Lasher v. Univ. of Washington, 91 Wash. App. 165, 169, 957 P.2d
229, 231 (1998)
Evidence of Habit

The problem is that, notwithstanding Dr.
Greene's testimony that he does
sometimes note warnings he gives
patients about the risk of strenuous
exercise in their charts, he made no note
in Jeff Lasher's chart that he had given
him such a warning.
Lasher v. Univ. of Washington, 91 Wash. App. 165, 170,
957 P.2d 229, 232 (1998)
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