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Simeone v. Charron12/1/2000
erial was relevant to the state's sustaining its burden on the elements of the crimes charged and in finding that the material was not unduly prejudicial. Here, the question is whether petitioner is being denied the opportunity to sustain the elements of her claim as a result of respondent's admissions of negligence and legal responsibility and the trial court's ruling that the interrogatories are irrelevant.
In our opinion, interrogatories seeking information on even brief conscious pain and suffering before death may lead to admissible information that should not be decided on discovery. Therefore, the trial justice abused her discretion in determining that the interrogatories were not relevant.
The respondent apparently asserted his Fifth Amendment privilege against self-incrimination on the motion to compel more responsive answers to the interrogatories. " he Fifth Amendment [protection] against self-incrimination may properly be invoked in a civil proceeding regardless of whether there is a pending criminal matter arising out of the same set of factual circumstances." Tona, Inc. v. Evans, 590 A.2d 873, 875 (R.I. 1991). When, as here, the court deals with private litigants, "the privilege against self-incrimination must be weighed against the right of the other party to due process and a fair trial." Pulawski v. Pulawski, 463 A.2d 151, 157 (R.I. 1983). Thus, while a witness cannot be compelled to testify after a valid assertion of the privilege, id., this Court has approved the imposition of sanctions in a civil action upon one who seeks to assert his Fifth Amendment privilege against self-incrimination. Id. In addition, adverse inferences may be drawn against a party who refuses to answer relevant questions on the grounds of self-incrimination. Id.
The respondent apparently intimated that if a judgment is entered against him in an amount in excess of that provided through his insurer, he would proceed to file for bankruptcy , and, thus, he argued, evidence gleaned via interrogatories is irrelevant. The petitioner, on the other hand, argued that evidence of willfulness and wantonness is relevant to protecting her rights as a potential creditor in a bankruptcy proceeding. The trial justice, in apparent agreement with respondent, ruled that the application of Superior Court rules pertaining to the relevance of evidence in proceedings in that court trumped any consideration of potential events in other courts. It is our opinion, however, that it is not premature, before any actual bankruptcy petition is filed, to adduce evidence of willfulness or of wanton recklessness, given that any finding that such was a factor in the death could bar a discharge of the judgment.
Conclusion
In summary, we grant in part and deny in part the petition for certiorari. We deny certiorari in respect to the petitioner's claim for punitive damages. We grant certiorari in respect to the petitioner's motion to compel more responsive answers to interrogatories. The papers of the case may be remanded to the Superior Court with our opinion endorsed thereon.
SOURCE OF APPEAL: Superior Providence
JUDGE FROM OTHER COURT: Hurst, J.
Flanders, Goldberg, JJ. Concurring
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