The Law Office of Frederick R. Franke, Jr. LLC
OPENING THE DOOR TO EVIDENCE
The Dead Man’s Statute is a carryover from the ancient prohibition against persons with an interest in a transaction from being witnesses in litigation over that transaction. In the case with the Dead Man’s Statute, one party to the transaction is silenced by death so (goes the argument) the other party ought to also be silenced in order to level the playing field.
Dead Man Statutes, in general, are not held in high regard. In 1938, for example, the American Bar Association pushed for repeal of these statutes to permit the tryor of fact to decide how much credence to give to an interested witness. Indeed, over 30 states have repealed their Dead Man Statutes, and other states have limited its application.
Nevertheless, Maryland retains its statute. Md. Code Ann., Cts. & Jud. Proc. § 9-116. It is narrowly construed and subject to many exceptions. One exception, contained in the statute itself, is that the Dead Man’s Statute does not apply if the otherwise–excluded witness is “called to testify by the opposite party” or if such evidence is already in the proceeding.
A recent, but unreported, case explores the boundaries of that exception. [Regardless of its lack of precedential value, the case is worth looking at because it discusses a heretofore unexplored area of Maryland law.]
The issue in Bekessy v. Floyd, 2015 W.L. 5885162 (July 2015), was whether the use of a deposition transcript by the opposing party in a motion for summary judgment constituted a waiver of the Dead Man’s Statute.
Discovery, of course, is meant to be broad and it invariably includes “evidence” that is not admissible. Depositions may contain testimony that would be excluded from trial by the Dead Man’s Statute.
No Maryland case directly addresses this issue. The Court of Special Appeals based its decision on various other jurisdictions for the proposition that the use of the otherwise excludible testimony for summary judgment purposes constitutes a waiver at least to the extent that the testimony was used to support the opponent’s argument (as opposed to permitting the entire deposition to come in once a part is used).
If part of a deposition is submitted to the court in support of a summary judgment motion, the parties submitting that material are asking the court to treat this information as evidence. Once the protected party has opened the door, the Court of Special Appeals held that the interested party is entitled to testify by way of rebuttal. The logic of the cases supporting this conclusion would seem to be self-evident. Unfortunately, the Court of Special Appeals rendered its decision as an unreported case so we continue, in effect, to have no declaration of the Maryland rule.