Waiver of the Dead Man’s Act and Use of a Decedent’s Discovery Deposition

In Eyster v. Conrad, 2020 IL App (5th) 180261, the court took up the issue of whether attaching the discovery deposition of a deceased party to support a motion for summary judgment can result in the waiver of the protections afforded by the Dead-Man’s Act, 735 ILCS 5/8-201 (West 2016), and under what “rare, but compelling circumstances” a discovery deposition can be so used. The court answered the first question in the affirmative.

In Eyster, 2020 IL App (5th) 180261, ¶ 3, the plaintiff filed multiple lawsuits for injuries he allegedly sustained in three separate motor vehicle accidents. Two of the lawsuits were filed in Williamson County and one was filed in Jackson County. The two Williamson County cases were consolidated for discovery and trial and were transferred to Jackson County. In the lawsuit against Conrad, the plaintiff was claiming that he sustained new injuries and an aggravation of prior injuries. During the course of the litigation, Conrad died from causes unrelated to the accident and a special administrator was appointed.

The defense filed a motion for summary judgment supported by the transcript of the decedent’s discovery deposition and the affidavit of the only post-occurrence witness, the responding police officer. The defense argued that pursuant to the Dead-Man’s Act, the plaintiff could never introduce admissible evidence to establish the decedent’s negligence because the plaintiff and the decedent were the only witnesses to the accident. Therefore, the plaintiff should be barred from testifying about the facts of the accident and his conversations with the decedent. The defense further argued that since the affidavit of the responding officer established that he had no firsthand knowledge of the accident, his testimony should be barred as hearsay and therefore, could not be used to create a genuine issue of material fact.

The defendant also argued that the decedent’s discovery deposition was not admissible as substantive evidence because the plaintiff could not satisfy the requirements for admission under Illinois Supreme Court Rule 212 (a)(5) (eff. Jan. 1, 2011) which allows discovery depositions to be used:

[U]pon reasonable notice to all parties, as evidence at trial or hearing against a party who appeared at the deposition or was given proper notice thereof, if the court finds that the deponent is not a controlled expert witness, the deponent’s evidence deposition has not been taken, and the deponent is unable to attend or testify because of death or infirmity, and if the court, based on its sound discretion, further finds such evidence at trial or hearing will do substantial justice between or among the parties.

Ill. S. Ct. R. 212(a)(5).

Citing to the committee comments on the rule, the defense argued that Rule 212(a)(5) required a party to demonstrate, “rare, but compelling circumstances” that would justify the trial court exercising its discretion to permit the introduction of a decedent’s discovery deposition as substantive evidence.” Ill. S. Ct. R. 212 Committee Comments (adopted January 1, 2011). The defense argued that at his discovery deposition, the defendant testified that he was 90 years old and retired. The parties stipulated at the deposition that all objections, except as to the form of the questions were reserved. Signature for the deposition was waived. The plaintiff had over two years to take the defendant’s evidence deposition, if he so desired and failed to do so. Thus, there were no “compelling circumstances” that would warrant the admission of the defendant’s discovery deposition into evidence.

In opposition to the summary judgment motion, the plaintiff argued that the defendant had waived the protection of the Dead-Man’s Act because the affidavit of the responding police officer was attached to the defendant’s motion, thereby introducing facts about the accident. Furthermore, the responding police officer would not be barred by the Dead-Man’s Act because he was not a party or otherwise directly interested in the case and that if called as a witness, his traffic crash report could be used to refresh his recollection.

In response to the plaintiff’s argument, the defendant argued that the few facts set forth in the officer’s affidavit, such as the date and time of the accident and the identity of the drivers and vehicles were not facts that the decedent could have refuted. Moreover, the purpose of the affidavit was to show that the officer had no firsthand knowledge of the accident and that his report was based on inadmissible hearsay.

The trial court granted the motion for summary judgment holding that the defendant’s death precluded the plaintiff from testifying as to any conversation between the plaintiff and the decedent or any event that occurred in the defendant’s presence. The court noted that the plaintiff was aware of the defendant’s age and had two years to take his evidence deposition but failed to do so. The trial court further found that the defendant did not waive the Dead-Man’s Act by providing an affidavit which merely stated that the affiant had no personal knowledge of the accident.

In overturning the grant of summary judgment, the Appellate Court, Fifth District, noted that the Dead-Man’s Act is intended “to protect decedents’ estates from fraudulent claims and to equalize the position of the parties in regard to the giving of testimony.” Gunn v. Sobucki, 216 IIl. 2d 602, 609 (2005), Eyster, 2020 IL App (5th) 180261, ¶ 19. While noting that the privilege of invoking the Dead-Man’s Act belongs to the representative of the deceased to assert or waive, the court stated that a representative may waive the protections of the Act either by offering testimony about the event or conversations that took place in the presence of the decedent or by admitting the deposition of the decedent into evidence. 735 ILCS 5/8-201(a), (b) (West 2016). The court held that here, the defendant attached the complete transcript of the decedent’s discovery deposition in support of his motion for summary judgment and that the deposition was not offered for a limited purpose. To the contrary, the defense used the decedent’s testimony to argue the merits of the motion for summary judgment. During his deposition, the defendant testified about his recollection of the accident. The court held that the defense “called” the defendant as its own witness to provide specific testimony about an event that occurred in the decedent’s presence and in doing so, waived the protections of the Act.

The court also held that the trial court should have allowed the plaintiff to permit the decedent’s discovery deposition to be admitted as substantive evidence under Supreme Court Rule 212(a)(5). The court held that the decedent’s discovery deposition met all of the requirements of Supreme Court Rule 212(a)(5). The only question that remained was whether doing so would do substantial justice to the parties. The court noted that although the trial court found that the plaintiff knew of the decedent’s age and had over two years to take the decedent’s evidence deposition and failed to do so, there was no evidence that the defendant was in ill health or that his death was imminent. Furthermore, the defense counsel’s failure to question his own client during the deposition suggested that the defendant’s counsel was unaware of any infirmity or health issues of the defendant other than his age. The court therefore held that the record suggested that the trial court did not consider all of the facts and circumstances that were present in the case which resulted in the denial of substantial justice between the parties.

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C. William Busse is the President of the law firm of Busse, Busse, P.C. He has more than 33 years of legal experience handling civil jury trials and appeals. Mr. Busse has concentrated his practice in the defense of tort and insurance coverage litigation. He has handled hundreds of personal injury and wrongful death cases in various Illinois venues, including automobile, trucking, premises liability, product liability, aviation and construction injury claims, as well as fire and explosion and property damage claims. Mr. Busse served on the Board of Directors of the Illinois Defense Counsel from 2002 to 2014 and is a co-author of, “The 50 Year History of the IDC”. Mr. Busse previously served as the chair of the Civil Practice Committee and co-chair of the IDC Legislative Committee. He can be reached at cwbusse@bussepc.com.