Sample Interrogatories

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.


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?


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.


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.


YOU first experienced the emotional distress.


PERSON who has knowledge of any fact pertaining to the emotional distress.


PERSON who can compare your emotional condition prior to and following the

INCIDENT.


compensation to which YOU claim to be entitled as a result of the emotional

distress.


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?


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?


the diminution in your enjoyment of life.


during which YOU experienced diminution in your enjoyment of life.


PERSON who has knowledge of any fact pertaining to such diminution in your

enjoyment of life.



INCIDENT.


compensation to which YOU claim to be entitled as a result of the diminution in

enjoyment of life.


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?


physical pain.


first experienced the physical pain.


who has knowledge of any fact pertaining to the physical pain.


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?


disability.


YOU first experienced the disability.


PERSON who has knowledge of any fact pertaining to your disability.


PERSON who can compare your physical condition prior to and following the

INCIDENT.


compensation to which YOU claim to be entitled as a result of the disability.


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?


the emotional distress.


YOU first experienced the emotional distress.





INCIDENT.



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?


the activity, sport, or hobby.


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?


the diminution in your enjoyment of life.


during which YOU experienced diminution in your enjoyment of life.


PERSON who has knowledge of any fact pertaining to such diminution in your

enjoyment of life.



INCIDENT.


compensation to which YOU claim to be entitled as a result of the diminution in

enjoyment of life.


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?


emotional distress.


first experienced the emotional distress.





INCIDENT.



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.


suffered, please set forth the nature of the treatment.


suffered, please IDENTIFY each PERSON who rendered treatment.


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?


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.


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]?


the (society, comfort, affection) that was impaired.


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).


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.


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?


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.


who would have paid the earnings but for the INCIDENT.


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.


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.


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.


physician YOU consulted in connection with the loss of earning capacity.


have been advised by any physician that YOU suffered a loss of earning capacity.


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.


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?*


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?*


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]?*

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Sample Interrogatories

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