November 30, 2022

Volume XII, Number 334

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Oregon Rules Statutory Beneficiaries Are Not Parties to Wrongful Death Cases

Oregon’s wrongful death statute, ORS 30.020, specifically limits standing in a wrongful death cause of action to “the personal representative of the decedent….” The personal representative is then allowed to file suit “for the benefit of the decedent’s surviving spouse, surviving children, surviving parents and other individuals, if any, who under the law of intestate succession of the state of the decedent’s domicile would be entitled to inherit the personal property of the decedent….”

Background

In Dahlton v. Kyser the question was whether requests for production seeking documentation from the decedent’s parents about the injuries they asserted, such as loss of society and companionship. Oregon’s Supreme Court concluded that, for purposes of ORCP 44 C, “the statutory beneficiaries are not ‘parties’ to a wrongful death action, because the only person with authority to control the litigation is the personal representative of the decedent.” The beneficiaries could not be required to provide information per ORCP 44 C.

Decision

Dahlton seemed to rule narrowly. For instance, it did not comment on whether a defendant could subpoena this same information. Dahlton also might create a question at trial about the extent of evidence the statutory beneficiaries are allowed to support damages “for pecuniary loss and for loss of the society, companionship and services of the decedent,” per ORS 30.020(2)(d). If the beneficiaries are not required to comply with ORCP 44 C, it seems unfair to allow the beneficiaries to then present evidence that might have been obtained under that rule.

© 2022 Wilson ElserNational Law Review, Volume XII, Number 279
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About this Author

Michael Lowry Las Vegas Retail Manufacturing Attorney Wilson Elser Law Firm
Partner

Michael Lowry has an active litigation and defense practice, with clients among the country’s largest and most recognizable brands in several industries, such as retail, restaurant and hospitality, commercial transportation, manufacturing and more. As a member of the firm’s emergency response team, when transportation clients face a catastrophic event, Michael and other members of Wilson Elser’s 24/7 go-team arrive on the scene to help gather and preserve information that may be critical to the client’s defense, as well as liaison at the scene with investigating...

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