sample interrogatories
TRANSCRIPT
Interrogatories: DamageEmotional distress, loss of consortium, death, special and
punitive damages.
by Kevin R. CulhaneExcerpted from Model Interrogatories
These interrogatories are for use by either the defendant or the plaintiff, and seek to
ascertain the parties' various contentions regarding general damages. The section includes
questions dealing with physical pain and suffering as well as mental or emotional harm. It
includes questions on various activities, sports, or hobbies which have been impacted by
the claimed injuries. As with the other contention interrogatories set forth in this book,
these questions require a statement of all pertinent facts, an identification of all persons
who possess knowledge relating to of these facts, and specific data which may be used to
evaluate the claim. Defendants will ordinarily include these basic fact interrogatories in
their opening interrogatory set.
1.Do YOU contend that YOU suffered physical pain as a result of any injury sustained in
the INCIDENT?
2.If your answer to interrogatory number 1 was yes, please set forth the nature of the
physical pain.
3.If your answer to interrogatory number 1 was yes, please set forth the date that YOU
first experienced the physical pain.
4.If your answer to interrogatory number 1 was yes, please IDENTIFY any PERSON
who has knowledge of any fact pertaining to the physical pain.
5.If your answer to interrogatory number 1 was yes, please IDENTIFY any PERSON
who can compare your physical condition prior to and following the INCIDENT.
6.If your answer to interrogatory number 1 was yes, please set forth the amount of
compensation to which YOU claim to be entitled as a result of the physical pain.
7.Please set forth the method by which YOU calculated the amount to which YOU claim
to be entitled as a result of the physical pain.
8.Do YOU contend that YOU suffered any permanent disability as a result of any injury
sustained in the INCIDENT?
9.If your answer to interrogatory number 8 was yes, please set forth the nature of the
disability.
10. If your answer to interrogatory number 8 was yes, please set forth the date that
YOU first experienced the disability.
11. If your answer to interrogatory number 8 was yes, please IDENTIFY any
PERSON who has knowledge of any fact pertaining to your disability.
12. If your answer to interrogatory number 8 was yes, please IDENTIFY any
PERSON who can compare your physical condition prior to and following the
INCIDENT.
13. If your answer to interrogatory number 8 was yes, please set forth the amount of
compensation to which YOU claim to be entitled as a result of the disability.
14. Please set forth the method by which YOU calculated the amount to which YOU
claim to be entitled as a result of the disability.
15. Do YOU claim to have experienced emotional distress as a result of the
INCIDENT?
16. If your answer to interrogatory number 15 was yes, please set forth the nature of
the emotional distress.
17. If your answer to interrogatory number 15 was yes, please set forth the date that
YOU first experienced the emotional distress.
18. If your answer to interrogatory number 15 was yes, please IDENTIFY any
PERSON who has knowledge of any fact pertaining to the emotional distress.
19. If your answer to interrogatory number 15 was yes, please IDENTIFY any
PERSON who can compare your emotional condition prior to and following the
INCIDENT.
20. If your answer to interrogatory number 15 was yes, please set forth the amount of
compensation to which YOU claim to be entitled as a result of the emotional
distress.
21. Please set forth the method by which YOU calculated the amount to which YOU
claim to be entitled as a result of the emotional distress.
22. Do YOU contend that the INCIDENT caused YOU to discontinue any activity,
sport, or hobby in which YOU engaged prior to the INCIDENT?
23. If your answer to interrogatory number 22 was yes, please set forth the nature of
the activity, sport, or hobby.
24. If your answer to interrogatory number 22 was yes, please set forth the dates
during which the activity, sport, or hobby was discontinued.
25. If YOU have been able to resume the activity, sport, or hobby, state how often
YOU engage in that activity.
26. Do YOU contend that the INCIDENT caused any diminution in your enjoyment of
life?
27. If your answer to interrogatory number 26 was yes, please set forth the nature of
the diminution in your enjoyment of life.
28. If your answer to interrogatory number 26 was yes, please set forth the dates
during which YOU experienced diminution in your enjoyment of life.
29. If your answer to interrogatory number 26 was yes, please IDENTIFY any
PERSON who has knowledge of any fact pertaining to such diminution in your
enjoyment of life.
30. If your answer to interrogatory number 26 was yes, please IDENTIFY any
PERSON who can compare your emotional condition prior to and following the
INCIDENT.
31. If your answer to interrogatory number 26 was yes, please set forth the amount of
compensation to which YOU claim to be entitled as a result of the diminution in
enjoyment of life.
32. Please set forth the method by which YOU calculated the amount to which YOU
claim to be entitled as a result of the diminution in your enjoyment of life.
§311.1 Plaintiff to DefendantThe interrogatories set forth in this section seek to ascertain the defendant’s contentions
regarding the plaintiff’s general damages. This section includes questions dealing with
physical pain and suffering as well as mental or emotional harm. It includes questions
regarding the various activities, sports or hobbies that may have been impacted by the
claimed injuries. As with the other contention interrogatories set forth in this book, these
questions require a statement of all pertinent facts, an identification of all persons who
possess knowledge relating to such facts, and other specific data which may be used to
evaluate the claim.
1.Do YOU contend the plaintiff did not suffer physical pain as the result of injuries
sustained in the INCIDENT?*
2.Do YOU contend the plaintiff did not suffer any permanent disability as a result of
injuries sustained in the INCIDENT?*
3.Do YOU contend the plaintiff did not suffer emotional distress as a result of the
INCIDENT?*
4.Do YOU contend the plaintiff was not required to discontinue [here specify activities,
sport or hobby] as a result of the INCIDENT?*
5.Do YOU contend that [here specify injuries] sustained in the INCIDENT did not cause
the plaintiff to sustain diminution in his/her enjoyment of life?*
§311.2 Defendant to PlaintiffThis section includes questions dealing with physical pain and suffering as well as mental
or emotional harm, impairment of day to day activities and other matters pertaining to
general damages. The questions set forth in this section focus on these issues from the
defendant’s perspective.
1.Do YOU contend that YOU suffered physical pain as a result of any injury sustained in
the INCIDENT?
2.If your answer to interrogatory number 1 was yes, please set forth the nature of the
physical pain.
3.If your answer to interrogatory number 1 was yes, please set forth the date that YOU
first experienced the physical pain.
4.If your answer to interrogatory number 1 was yes, please IDENTIFY any PERSON
who has knowledge of any fact pertaining to the physical pain.
5.If your answer to interrogatory number 1 was yes, please IDENTIFY any PERSON
who can compare your physical condition prior to and following the INCIDENT.
6.If your answer to interrogatory number 1 was yes, please set forth the amount of
compensation to which YOU claim to be entitled as a result of the physical pain.
7.Please set forth the method by which YOU calculated the amount to which YOU claim
to be entitled as a result of the physical pain.
8.Do YOU contend that YOU suffered any permanent disability as a result of any injury
sustained in the INCIDENT?
9.If your answer to interrogatory number 8 was yes, please set forth the nature of the
disability.
10. If your answer to interrogatory number 8 was yes, please set forth the date that
YOU first experienced the disability.
11. If your answer to interrogatory number 8 was yes, please IDENTIFY any
PERSON who has knowledge of any fact pertaining to your disability.
12. If your answer to interrogatory number 8 was yes, please IDENTIFY any
PERSON who can compare your physical condition prior to and following the
INCIDENT.
13. If your answer to interrogatory number 8 was yes, please set forth the amount of
compensation to which YOU claim to be entitled as a result of the disability.
14. Please set forth the method by which YOU calculated the amount to which YOU
claim to be entitled as a result of the disability.
15. Do YOU claim to have experienced emotional distress as a result of the
INCIDENT?
16. If your answer to interrogatory number 15 was yes, please set forth the nature of
the emotional distress.
17. If your answer to interrogatory number 15 was yes, please set forth the date that
YOU first experienced the emotional distress.
18. If your answer to interrogatory number 15 was yes, please IDENTIFY any
PERSON who has knowledge of any fact pertaining to the emotional distress.
19. If your answer to interrogatory number 15 was yes, please IDENTIFY any
PERSON who can compare your emotional condition prior to and following the
INCIDENT.
20. If your answer to interrogatory number 15 was yes, please set forth the amount of
compensation to which YOU claim to be entitled as a result of the emotional
distress.
21. Please set forth the method by which YOU calculated the amount to which YOU
claim to be entitled as a result of the emotional distress.
22. Do YOU contend that the INCIDENT caused YOU to discontinue any activity,
sport, or hobby in which YOU engaged prior to the INCIDENT?
23. If your answer to interrogatory number 22 was yes, please set forth the nature of
the activity, sport, or hobby.
24. If your answer to interrogatory number 22 was yes, please set forth the dates
during which the activity, sport, or hobby was discontinued.
25. If YOU have been able to resume the activity, sport, or hobby, state how often
YOU engage in that activity.
26. Do YOU contend that the INCIDENT caused any diminution in your enjoyment of
life?
27. If your answer to interrogatory number 26 was yes, please set forth the nature of
the diminution in your enjoyment of life.
28. If your answer to interrogatory number 26 was yes, please set forth the dates
during which YOU experienced diminution in your enjoyment of life.
29. If your answer to interrogatory number 26 was yes, please IDENTIFY any
PERSON who has knowledge of any fact pertaining to such diminution in your
enjoyment of life.
30. If your answer to interrogatory number 26 was yes, please IDENTIFY any
PERSON who can compare your emotional condition prior to and following the
INCIDENT.
31. If your answer to interrogatory number 26 was yes, please set forth the amount of
compensation to which YOU claim to be entitled as a result of the diminution in
enjoyment of life.
32. Please set forth the method by which YOU calculated the amount to which YOU
claim to be entitled as a result of the diminution in your enjoyment of life.
§312 Emotional Distress — Witnessing Harm to Third Person
§312.1 Plaintiff to DefendantA significant component of modern personal injury practice relates to claims of
emotional distress damages occasioned by defendant's wrongful conduct. The claimed
emotional distress damages are parasitic to a physical injury; they are treated as garden
variety general damages and are addressed by the interrogatories set forth in § 310.
When the claimed emotional distress damages occur as a result of an injury to a third
person, additional limitations may apply. The courts that allow recovery in these
circumstances typically circumscribe these causes of action by providing that the
claimant must 1) be located at or near the scene of the incident; 2) suffer the subject
distress from sensory and contemporaneous observance of the incident; and 3) be closely
related to the person who suffered the physical injury. See, e.g., Dillon v. Legg, 68 Cal.2d
728 (1968). The interrogatories in this section may be used by plaintiffs claiming
emotional distress damages as a result of injuries inflicted upon a third person.
1.Do YOU contend that at the time of the INCIDENT plaintiff was insufficiently close to
the scene to have suffered emotional distress damages?*
2.Do YOU contend that plaintiff did not observe the INCIDENT?*
3.Do YOU contend that plaintiff did not experience emotional distress as a result of
observing the INCIDENT?*
§312.2 Defendant to PlaintiffAs noted above, claims of emotional distress arising from injuries to third parties have
become increasingly frequent. The interrogatories in this section may be used to evaluate
the nature and extent of these claims.
1.Do YOU contend that at the time of the INCIDENT YOU were located near the scene
thereof?
2.If your answer to interrogatory number 1 was yes, please set forth where YOU were
located at the time of the INCIDENT.
3.If your answer to interrogatory number 1 was yes, please set forth the events YOU
observed.
4.If your answer to interrogatory number 1 was yes, please IDENTIFY any PERSON can
confirm your observation of the INCIDENT.
5.If your answer to interrogatory number 1 was yes, please state whether there exists any
WRITING confirming your observation of the INCIDENT.
6.Please IDENTIFY the CUSTODIAN of any WRITING identified in your answer to
interrogatory number 5.
7.Do YOU claim to have experienced any emotional distress as a result of your
observation of the INCIDENT?
8.If your answer to interrogatory number 7 was yes, please set forth the nature of the
emotional distress.
9.If your answer to interrogatory number 7 was yes, please set forth the date that YOU
first experienced the emotional distress.
10. If your answer to interrogatory number 7 was yes, please IDENTIFY any
PERSON who has knowledge of any fact pertaining to the emotional distress.
11. If your answer to interrogatory number 7 was yes, please IDENTIFY any
PERSON who can compare your emotional condition prior to and following the
INCIDENT.
12. If your answer to interrogatory number 7 was yes, please set forth the amount of
compensation to which YOU claim to be entitled as a result of the emotional
distress.
13. Please set forth the method by which YOU calculated the amount to which YOU
claim to be entitled as a result of the emotional distress.
14. Please state whether YOU have obtained any psychiatric treatment as a result of
any emotional distress that YOU suffered as a result of observing the INCIDENT.
15. If YOU obtained psychiatric care as a result of any emotional distress that YOU
suffered, please set forth the dates YOU obtained treatment.
16. If YOU obtained psychiatric care as a result of any emotional distress that YOU
suffered, please set forth the nature of the treatment.
17. If YOU obtained psychiatric care as a result of any emotional distress that YOU
suffered, please IDENTIFY each PERSON who rendered treatment.
18. If YOU obtained psychiatric care as a result of any emotional distress that YOU
suffered, please set forth the cost of treatment.
§313 Death of DecedentThis section contains general damages contention interrogatories that are modified to
apply in wrongful death cases. Since virtually all jurisdictions 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 that 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 that allows this kind of recovery you should also consider including the
interrogatories relating to the pecuniary value of lost care, comfort, society, and
companionship.
1.Please state whether, prior to (his/her) death, decedent contributed monetarily to your
support.
2.If your answer to interrogatory number 1 was yes, please set forth the dollar amount by
which decedent contributed to your support within the last year prior to (his/her)
death.
3.If your answer to interrogatory number 1 was yes, please set forth the dollar amount by
which decedent contributed to your support for each of the five years immediately
preceding (his/her) death.
4.Please IDENTIFY each WRITING relating to the amount of any financial support that
YOU received from the decedent within the five years immediately preceding
(his/her) death.
5.Please IDENTIFY each PERSON who has knowledge of the support that decedent
contributed to YOU during the last five years immediately preceding (his/her)
death.
6.Do YOU contend that the decedent would have contributed to your support in the
future but for (his/her) death?
7.If your answer to interrogatory number 6 was yes, please set forth the nature of the
support that YOU contend the decedent would have contributed.
8.If your answer to interrogatory number 6 was yes, please set forth the dollar amount
that YOU contend the decedent would have contributed.
9.If your answer to interrogatory number 6 was yes, please set forth the manner by which
YOU calculated the dollar amount that YOU contend that the decedent would
have contributed.
10. If your answer to interrogatory number 6 was yes, please set forth the present
value of these future contributions.
11. Please IDENTIFY each PERSON who has knowledge of any fact relating to your
contention that the decedent would have contributed to your support in the future
but for decedent's death.
12. Do YOU contend that YOU are entitled to compensation for the pecuniary value
of lost (society, comfort, care) that YOU have sustained as a result of the death of
decedent?
13. If your answer to interrogatory number 12 was yes, please set forth nature of the
(society, comfort, care) that forms the basis for your claim.
14. If your answer to interrogatory number 12 was yes, please set forth the pecuniary
value of the (society, comfort, care).
15. If your answer to interrogatory number 12 was yes, please set forth nature the
means YOU utilized to calculate the pecuniary value of the (society, comfort,
care).
16. Please IDENTIFY each PERSON who has knowledge of any fact relating to your
claim for lost (society, comfort, care).
17. Please IDENTIFY each WRITING relating to your claim for lost (society,
comfort, care).
18. Please IDENTIFY the CUSTODIAN of each WRITING identified in your answer
to interrogatory number 17.
§314 Loss of Consortium
§314.1 Plaintiff to DefendantMany states recognize a loss of consortium claim in the spouse of a person injured as a
result of the fault of another. This cause of action seeks to compensate for the spouse's
loss of conjugal fellowship and sexual relations with the injured individual. See, e.g.,
Rodriguez v. Bethlehem Steel Corp., 12 Cal. 3d 382 (1974). In most states that recognize
loss of consortium claims, plaintiff's recovery is not reduced by the injured spouse's
contributory negligence. Lantis v. Condon, 95 Cal. App. 3d 1525 156 (1979).
The interrogatories that follow explore defendant's contentions regarding plaintiff's
loss of consortium claim, and may be included in interrogatory sets whenever plaintiff's
spouse has been injured as a result of the wrongful conduct of another.
1.Do YOU contend that plaintiff did not suffer a loss of consortium as a result of the
injury [here IDENTIFY primary plaintiff] suffered in the INCIDENT?*
2.Do YOU contend that plaintiff did not suffer a loss of [here IDENTIFY primary
claimant]'s (care, society, comfort, affection) as a result of the INCIDENT?*
3.Do YOU contend that plaintiff suffered any loss of conjugal relations as a result of any
cause unrelated to the INCIDENT?*
4.Do YOU contend that plaintiff suffered a loss of [here IDENTIFY primary plaintiff]'s
care, society, affection or companionship as a result of any cause unrelated to the
INCIDENT?*
§314.2 Defendant to Plaintiff
When the spouse of an injured person advances a loss of consortium claim, the defendant
is required to examine the nature of the allegedly injured relationship in order to evaluate
the claim. The interrogatories that follow may be used for this purpose.
1.Do YOU contend that YOU suffered impairment of conjugal relations as a result of any
injury sustained by [here IDENTIFY primary claimant]?
2.If your answer to interrogatory number 1 was yes, please set forth the frequency with
which YOU engaged in conjugal relations prior to the INCIDENT.
3.If your answer to interrogatory number 1 was yes, please set forth the frequency with
which YOU engaged in conjugal relations following the INCIDENT.
4.If your answer to interrogatory number 1 was yes, please set forth the nature of any
impairment to conjugal relations that YOU experienced.
5.If your answer to interrogatory number 1 was yes, please set forth the date upon which
the impairment to conjugal relations ended.
6.Please state whether YOU have obtained any form of psychiatric treatment as a result
of any impairment to conjugal relations that YOU have experienced.
7.If your answer to interrogatory number 6 was yes, please set forth the nature of the
psychiatric treatment YOU obtained.
8.If your answer to interrogatory number 6 was yes, please IDENTIFY the PERSON
who provided any such psychiatric care.
9.If your answer to interrogatory number 6 was yes, please set forth the cost of any
treatment YOU received.
10. Do YOU contend that YOU suffered any impairment of (society, comfort,
affection) as a result of the injury to [here IDENTIFY primary claimant]?
11. If your answer to interrogatory number 10 was yes, please set forth the nature of
the (society, comfort, affection) that was impaired.
12. If your answer to interrogatory number 10 was yes, please set forth the nature of
the impairment.
13. If your answer to interrogatory number 10 was yes, please set forth the date upon
which the impairment ended.
14. Please state whether YOU obtained any psychiatric treatment as a result of any
impairment to (society, comfort, affection).
15. If your answer to interrogatory number 14 was yes, please set forth the nature of
any psychiatric treatment YOU received.
16. If your answer to interrogatory number 14 was yes, please IDENTIFY each
PERSON who provided the psychiatric treatment.
17. If your answer to interrogatory number 14 was yes, please set forth the dates that
YOU obtained treatment.
18. If your answer to interrogatory number 14 was yes, please set forth the cost of any
treatment YOU obtained.
§315 Defendant's Contentions re Apportionment of DamagesIn recent years several states have adopted apportionment statutes that limit plaintiff's
recovery against each defendant to the percentage of fault ascribed to each defendant.
These apportionment statutes usually apply to general damages, and thus the plaintiff is
required to join as a party defendant each person or entity that may have had
responsibility for causing plaintiff's loss. The interrogatories below explore defendant's
contentions regarding the apportionment of damages between responsible parties.
1.Do YOU contend that the conduct of any other PERSON contributed to plaintiff’s
damages?
2.If your answer to interrogatory number 1 was yes, please IDENTIFY each PERSON
that YOU contend contributed to plaintiff's damages.
3.If your answer to interrogatory number 1 was yes, please set forth how that PERSON
contributed to plaintiff’s damages.
4.If your answer to interrogatory number 1 was yes, please IDENTIFY each PERSON
who has knowledge of any fact relating to that contention.
5.If your answer to interrogatory number 1 was yes, please IDENTIFY each WRITING
relating to that contention.
6.Please IDENTIFY the CUSTODIAN of each WRITING identified in your answer to
interrogatory number 5.
7.If YOU contend that the conduct of any other PERSON contributed to the damages
plaintiff suffered, please set forth the numerical percentage by which YOU
contend that PERSON contributed to plaintiff's damages.
8.Please set forth each factor YOU considered in determining the numerical percentage
by which that PERSON contributed to plaintiff's damages.
9.Please IDENTIFY each PERSON who has knowledge of any fact YOU considered in
determining the numerical percentage by which any other PERSON contributed to
plaintiff's damages.
10. Please IDENTIFY each WRITING relating to any fact that YOU considered in
determining the numerical percentage by which any other PERSON contributed to
plaintiff's damages.
11. Please IDENTIFY the CUSTODIAN of any WRITING identified in your answer
to interrogatory number 10.
§320 Special and Punitive Damages
§321 General InterrogatoriesThis section contains a series of interrogatories pertaining to the plaintiff's claim for
special or pecuniary damages. The questions focus on the recurring types of special
damage, including medical expenses, lost earnings, lost earning capacity, chattel damage,
and chattel loss of use. Bear in mind that the information regarding special damages may
be useful not only to substantiate the claim for these losses, but as a general measure of
the severity of the accident or occurrence itself. For this reason interrogatories selected
from this section should ordinarily be included in opening discovery.
1.Have YOU incurred expenses for medical care as a result of the INCIDENT?
2.If your answer to interrogatory number 1 was yes, please IDENTIFY each PERSON
who provided goods or services in connection with the treatment YOU received.
3.If your answer to interrogatory number 1 was yes, please set forth the dates that the
goods or services were provided.
4.If your answer to interrogatory number 1 was yes, please set forth whether YOU
anticipate that any provider will be required to supply further goods or services in
the future.
5.If your answer to interrogatory number 1 was yes, please set forth the cost of any goods
or services identified.
6.Do YOU claim a loss of earnings as a result of the INCIDENT?
7.If your answer to interrogatory number 6 was yes, please set forth the amount of any
earnings that YOU lost.
8.If your answer to interrogatory number 6 was yes, please set forth the method by which
YOU calculated your lost earnings.
9.If your answer to interrogatory number 6 was yes, please IDENTIFY each PERSON
who would have paid the earnings but for the INCIDENT.
10. If your answer to interrogatory number 6 was yes, please set forth the date that
YOU ceased work by virtue of any event connected with the INCIDENT.
11. If your answer to interrogatory number 6 was yes, please set forth the event that
caused YOU to cease work.
12. If your answer to interrogatory number 6 was yes, please state whether YOU
ceased work as a result of any doctor's order.
13. If your answer to interrogatory number 6 was yes, please set forth the date that
YOU resumed work.
14. If your answer to interrogatory number 6 was yes, please IDENTIFY each
physician who advised YOU that YOU could return to work.
15. Please state whether YOU claim a loss of earning capacity as a result of the
injuries which are the subject of plaintiff's complaint.
16. If your answer to interrogatory number 15 was yes, please set forth the amount of
money YOU would have received but for the loss of earning capacity.
17. If your answer to interrogatory number 15 was yes, please set forth the manner in
which YOU calculated your loss of earning capacity.
18. If your answer to interrogatory number 15 was yes, please set forth the dates that
YOU claim your earning capacity was impaired.
19. If your answer to interrogatory number 15 was yes, please IDENTIFY any
physician YOU consulted in connection with the loss of earning capacity.
20. If your answer to interrogatory number 15 was yes, please state whether YOU
have been advised by any physician that YOU suffered a loss of earning capacity.
21. If your answer to interrogatory number 15 was yes, please set forth the date that
the diminution or loss of earning capacity terminated.
22. Do YOU claim to have suffered property damage as a result of the INCIDENT
which is the subject of plaintiff's complaint?
23. If your answer to interrogatory number 22 was yes, please describe the property
that was damaged.
24. If your answer to interrogatory number 22 was yes, please set forth the extent of
the damage.
25. If your answer to interrogatory number 22 was yes, please state whether the
damage can be repaired.
26. If your answer to interrogatory number 22 was yes, please state the cost to repair
the damage.
27. If YOU contend that any damaged property cannot be repaired, please set forth the
cost of replacement.
28. If your damaged property was an automobile, please set forth the make and model
thereof.
29. If your damaged property was an automobile, please set forth the odometer
reading immediately preceding the INCIDENT.
30. Do YOU claim damages for the loss of use of any property that YOU claim was
damaged as a result of the INCIDENT?
31. If your answer to interrogatory number 30 was yes, please set forth the extent of
the loss of use.
32. If your answer to interrogatory number 30 was yes, please set forth the method
which YOU used to calculate the reasonable value of the lost use.
33. If your answer to interrogatory number 30 was yes, please set forth the period of
time during which YOU experienced loss of use.
34. If your answer to interrogatory number 30 was yes, please set forth the steps that
YOU took to obtain a replacement for your (property) during the time that YOU
were deprived of its use.
35. If your answer to interrogatory number 30 was yes, please state whether YOU
immediately sought to repair the (property).
36. If YOU immediately sought to repair the (property), please IDENTIFY the
PERSON YOU consulted to accomplish the repair.
37. If YOU did not immediately seek the repair of the (property), please state why
YOU did not do so.
§322 Special Damages--Defendant's Contentions
§322.1 General ContentionsThis section contains numerous interrogatories to discover whether the defendant
disputes plaintiff's claims for medical expenses, lost earnings, loss of earning capacity,
property damage, or property loss of use. If these elements of damages are claimed, these
interrogatories should be included because if there is no serious dispute as to the nature
and extent of these damages, the case is more likely to settle. If a bona fide dispute does
exist, these questions will reveal that fact by eliciting all facts, witnesses, and documents
that relate to these claims.
In addition, this section contains other questions pertaining to defendant's claim that
plaintiff failed to mitigate damages or seeks recovery for an injury which was aggravated
by the conduct of a third person. Finally, questions are included to determine whether the
defendant claims that plaintiff fabricated any complaint or symptom. A negative answer
may be used at trial to support the plaintiff's credibility. Any affirmative answer must be
accompanied by all facts, witnesses, and documents relating to that contention. One
means to select the appropriate interrogatories from this section is to examine each
affirmative defense and denial set forth in the defendant's answer, so that the
interrogatories may be tailored to the matters that the defendant has put in issue. See also
§340.
1.Do YOU contend that any medical treatment plaintiff received was unnecessary?*
2.Do YOU contend that any medical treatment plaintiff received was necessitated by a
condition that existed prior to the INCIDENT?*
3.Do YOU contend that any loss of earnings experienced by plaintiff was caused by any
event that predated the INCIDENT?*
4.Do YOU contend that any loss of earning capacity experienced by plaintiff was caused
by any event that predated the INCIDENT?*
5.Do YOU contend that the amount of damages that plaintiff seeks to recover for
property damage is in any manner inaccurate?*
6.Do YOU contend that the amount of damages sought by plaintiff for the loss of use of
plaintiff's [property] is in any manner inaccurate?*
§322.2 Plaintiff's Failure to Mitigate1.Do YOU contend that plaintiff failed to mitigate plaintiff's damages?*
2.If your answer to interrogatory number 1 was yes, please set forth the precise manner in
which plaintiff failed to mitigate [his/her] damages.
3.Do YOU contend that any damage plaintiff sustained was subsequently aggravated by
the conduct of any other PERSON?*
4.If your answer to interrogatory number 3 was yes, please IDENTIFY any other
PERSON who aggravated plaintiff's damage.
5.Do YOU contend that the plaintiff has fabricated any injury in this litigation?*
6.If your answer to interrogatory number 5 was yes, please set forth the precise manner in
which the plaintiff fabricated that injury.
7.Do YOU contend that plaintiff has exaggerated the effect of any injury for which
plaintiff seeks recovery in the instant litigation?*
8.If your answer to interrogatory number 7 was yes, please set forth the precise manner in
which plaintiff has exaggerated [his/her] injury.
9.Do YOU contend that plaintiff failed to take any action to minimize the effects of
plaintiff's injury?*
10. If your answer to interrogatory number 9 was yes, please set forth the action
plaintiff failed to take to minimize the effects of [his/her] injury.
11. Do YOU contend that plaintiff exacerbated any injury by failing to follow any
medical advice?*
12. If your answer to interrogatory number 11 was yes, please set forth the medical
advice that plaintiff failed to follow.
§323 Punitive Damages
§323.1 Pretrial Discovery Regarding Financial ConditionUnder the law in effect in many states, evidence of the defendant’s financial condition
must be admitted so that any award of punitive damages can be reasonably tailored to
deter such future conduct. (See, e.g., Tomaselli v. Transamerica Ins. Co., 25 Cal.App.4th
1269 (1994).) Even though evidence of the defendant’s financial condition is in fact
required, some states preclude pretrial discovery into a defendant’s financial condition
until a plaintiff has obtained a court order permitting such discovery. In most cases, such
court orders are predicated upon a court’s finding that there is a substantial probability
that the plaintiff will prevail on the claim. (See, e.g., California Code of Civil Procedure
§3295(c).) This section includes forms for moving the court for such a pretrial order as a
prerequisite to pretrial discovery of a defendant’s financial condition.
§323.2 Sample: Motion for Order Permitting Discovery of
Defendant’s Profits and Financial Condition
Download the form in Microsoft Word.
§323.3 Plaintiff to DefendantIn addition to compensatory damages, most states allow punitive damages upon an
appropriate showing. The California statutory authorization is typical; punitive damages
may be recovered when the defendant has been guilty of oppression, fraud or malice. Cal.
Civ. Code § 3294(a). The theory that underlies an award of punitive damages is that they
are imposed for sake of example and to punish the defendant.
The interrogatories that follow are keyed to the necessary elements that must be
demonstrated to justify an award of punitive damages.
§323.3.1 MaliceAs discussed above, one of the predicates for an award of punitive damages is malice on
the part of the defendant. The requisite malice may be inferred from the circumstances,
see, e.g., Parrott v. Bank of America National Trust & Savings Association, 97 Cal. App.
2d 14, 24 (1950), and is also demonstrated when the defendant acts in conscious
disregard of the rights or safety of the plaintiff. See, e.g., G.D. Searle & Co. v. Superior
Court, 49 Cal. App. 3d 22, 32 (1975). Because evidence of a defendant's evil motive or
conscious disregard for the rights of others will almost always be circumstantial, the
interrogatories that follow are designed to explore defendant's awareness of the risk of
harm posed by defendant's conduct.
1.Please state whether prior to the INCIDENT YOU considered the risk that [here
specify the injury-producing event].
2.If your answer to interrogatory number 1 was yes, please set forth each factor YOU
considered in determining the likelihood that the risk would occur.
3.If your answer to interrogatory number 1 was yes, please set forth each reason YOU
proceeded notwithstanding your awareness of the risk.
4.If your answer to interrogatory number 1 was yes, please describe the factors YOU
considered in determining whether the risk could be avoided.
5.If your answer to interrogatory number 1 was yes, please IDENTIFY each WRITING
relating to your consideration of the risks posed by your conduct.
6.Please IDENTIFY the present CUSTODIAN of each WRITING identified in your
answer to interrogatory number 5.
§323.3.2 OppressionEven when malice cannot be demonstrated, punitive damages may be awarded when the
defendant's conduct can be characterized as oppressive. Under some statutory definitions,
oppression means conduct that subjects a person to “cruel and unjust hardship.” See, e.g.,
Cal. Civ. Code § 3294(c). The interrogatories that follow are directed from plaintiff to
defendant in cases where the punitive damage claim is predicated upon oppressive
conduct.
1.Please state whether prior to the time that YOU [here describe alleged conduct], YOU
considered whether that conduct would impose hardship upon the plaintiff.
2.If your answer to interrogatory number 1 was yes, please set forth each factor YOU
considered in your determination that your conduct posed a risk of hardship to the
plaintiff.
3.If your answer to interrogatory number 1 was yes, please set forth each reason YOU
proceeded notwithstanding the risk of hardship to the plaintiff.
4.If your answer to interrogatory number 1 was yes, please set forth whether YOU
determined that any benefit YOU derived from [here specify challenged conduct]
outweighed the risk of hardship to the plaintiff.
5.If your answer to interrogatory number 1 was yes, please set forth each reason why the
benefit YOU derived from [here specify challenged conduct] outweighed the risk
of hardship to the plaintiff.
6.If YOU did not consider the risk that [here specify challenged conduct] posed a risk of
hardship to the plaintiff, please state each and every reason why YOU did not do
so.
§323.3.3 Ratification of Agent's ActsBecause punitive damages can only be awarded against a wrongdoer, a principal is not
responsible for punitive damages unless the principal directed or ratified the act. The
interrogatories that follow are for use in cases in which the defendant contends that the
wrongdoer acted without prior authority or subsequent ratification by the defendant.
1.Do YOU contend that YOU did not authorize [here specify the wrongful conduct by
agent]?*
2.Do YOU contend that YOU did not ratify the [here specify the alleged wrongful
conduct]?*
§323.4 Defendant to PlaintiffA significant component of modern defense practice includes the defense of punitive
damage claims. The interrogatories in this section may be used to explore the facts,
witnesses and documents relating to a punitive damages claim.
1.Do YOU contend that in [here specify allegedly wrongful conduct] defendant was
motivated by malice towards plaintiff?*
2.Do YOU contend that any act by defendant was undertaken to oppress plaintiff?*
3.Do YOU contend that in engaging in any conduct which is the subject of your
complaint defendant intended to defraud plaintiff?*
4.Do YOU contend that any conduct on the part of defendant was undertaken in
conscious disregard of plaintiff's safety?*
5.Do YOU contend that defendant authorized any conduct on the part of [here
IDENTIFY agent]?*Do YOU contend that defendant ratified the conduct of [here IDENTIFY agent]?*