For healthcare professionals involved in medical malpractice litigation, the untimely death of a plaintiff can drastically alter the course of a trial. When a plaintiff passes away after suit is filed, but before they “testified” via written discovery responses or deposition, the narrative risks becoming skewed by speculation and conjecture. The challenge, then, is ensuring that the jury bases its decision on the facts, not on what the plaintiff’s attorneys might wish to project onto their deceased client.
In a recent case, we faced this very scenario. The plaintiff passed away before she could offer any testimony or participate in discovery. This meant there was no direct insight into her thoughts, actions, or experiences during the critical moments leading up to her death. Recognizing the potential for the plaintiff’s attorneys to fill this void with their own interpretations, we filed motions to preclude any assignment of thoughts, emotions, or subjective experiences to her during the trial.
Why was this important? Without any testimony from the plaintiff, there was no basis for speculation about what she may have felt or thought during the key events. By successfully excluding speculative and prejudicial narratives, we ensured that the jury remained focused on objective evidence rather than being swayed by unfounded emotional appeals.
This strategy highlights a crucial aspect of trial preparation: controlling the narrative when key testimony is missing. By preventing the plaintiff’s attorneys from “imagining out loud” what the deceased plaintiff thought, or wanted, or felt, we maintained the integrity of the trial. The jury deliberated based on the concrete evidence presented, rather than being led by speculative and potentially misleading interpretations.
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