Assertion of the Fifth Amendment Privilege in Wrongful Death Cases

A motion for summary judgment cannot be based solely on “unverified reworded statements of some of the factual allegations of the complaint,” along with unsworn, unverified, and unsigned exhibits. In addition, when a defendant asserts their Fifth Amendment privilege against self incrimination in an answer or in response to discovery requests, such assertion cannot “in and of itself be taken as an admission of the allegations[,]” but a plaintiff should be allowed to “present corroborating evidence as to each fact for which it seeks a negative inference” in connection with the assertion of the privilege.

In Smith v. Palmer, No. M2017-01822-COA-R3-CV (Tenn. Ct. App. Jan. 30, 2019), plaintiff filed a wrongful death suit against several defendants regarding the death of her daughter. The daughter and defendants were camping at a music festival, and daughter’s body was found one morning in the lake. There was a dispute as to the cause of death, and though criminal charges were not filed, plaintiff alleged that defendants “caused her daughter’s death and conspired to cover it up.”

Defendant Palmer, who was the only defendant at issue in this appeal, asserted her Fifth Amendment privilege against self incrimination in her answer and in response to discovery requests. Defendant later filed a motion for summary judgment, accompanied by a statement of undisputed material facts. Plaintiff responded to the motion, disputing several of the material facts and attaching her own affidavit as well as affidavits from several experts. Defendant then filed motions to strike and motions in limine regarding the affidavits filed by plaintiff. The trial court partially granted several of defendant’s motions to strike/motions in limine, and ultimately granted defendant’s motion for summary judgment. This appeal followed.

The lengthy opinion from the Court of Appeals was divided into three parts. First, the Court overturned the grant of summary judgment for defendant. The Court pointed out that defendant’s statement of undisputed facts cited plaintiff’s complaint and four documents filed by defendant—“an unsworn and unverified handwritten document entitled ‘voluntary statement’ …; an unverified laboratory report…; an unverified and unsigned document entitled ‘Autopsy Report’; and an unverified document entitled ‘DeKalb County Sheriff’s Department Investigative Report.” For purposes of a motion for summary judgment, Tennessee Rule of Civil Procedure 56.06 requires that “supporting…affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters therein.” The Court ruled in this case that two of defendant’s documents failed the standard of being “sworn or certified copies,” and that all four documents “constitute[d] inadmissible hearsay.” The Court further stated that the “presentation of the documents wholly fails to meet the requirement of Tennessee Rule of Evidence 901 that the documents be authenticated as a condition precedent to admissibility.” Defendant could thus not rely on these documents.

In addition, defendant could also not rely on the complaint for her statement of undisputed facts. The Court ruled that “a bare citation to the complaint does not establish the fact alleged therein for summary judgment purposes.” Because she did not cite to proper supporting evidence, defendant did not satisfy her burden of showing that there was no genuine issue of fact, and summary judgment was vacated.

The second portion of the opinion involved a detailed analysis of each of the trial court’s rulings on defendant’s motions to strike/ motions in limine. The Court of Appeals ultimately vacated all the rulings that were at issue in this appeal, consistently finding that the trial court failed to explain what made these witnesses qualified to testify regarding some areas but unqualified for other areas. This portion of the opinion was quite detailed and fact-specific, but if you ever find yourself arguing that a trial court too narrowly defined the scope of an expert witness’s area of expertise, this case might be informative.

Finally, the third section of the opinion addressed the implications of defendant’s use of her Fifth Amendment privilege. Defendant asserted her Fifth Amendment privilege against self-incrimination in both her answer and her discovery responses. The Court noted that there was no “Tennessee authority addressing the question of whether the assertion of the Fifth Amendment privilege in an answer filed in a civil case operates as an admission for the purpose of Rule 8.04,” and it reviewed other jurisdictions’ approaches to this issue. The Court agreed with a Sixth Circuit ruling and held that defendant’s “assertion of her Fifth Amendment privilege in answer to the allegations of the complaint cannot, in and of itself, be taken as an admission of the allegations in accordance with Rule 8.04.” The Court noted, though, that this holding did “not end the inquiry.” The Court also agreed with the Sixth Circuit’s ruling that “the person who claims the privilege is not the sole judge of its validity.” (internal citation omitted). The Court stated that, in this case, the trial court should make an “independent assessment of the validity of [defendant’s] invocation of the privilege as to the specific allegations of the complaint and, if the claim was not valid, allow her the opportunity to admit or deny the allegation; if she then refused to admit or deny the allegation, Rule 8.04 would apply and deem the allegation admitted.” The Court also indicated, though, that before such an analysis would take place on remand, plaintiff needed to file a motion to deem the allegations admitted or “asking the court to make a determination of the validity of the claim as to specific allegations.”

Also at issue regarding the invocation of the Fifth Amendment privilege was whether invoking such a privilege lead to negative inferences against defendant, with the Court noting that such adverse inferences have been allowed in “certain circumstances.” (internal citation omitted). The Court quoted from a Supreme Court case, which explained:

The trier of fact may draw a negative inference from a party’s invocation of the Fifth Amendment privilege in a civil case only when there is independent evidence of the fact to which a party refuses to answer by invoking [the privilege]. In instances when there is no corroborating evidence to support the fact under inquiry, no negative inference is permitted. …In determining whether a negative inference is permissible, the privilege analysis is applied on a question-by-question basis…

(quoting Akers v. Prime Succession of Tennessee, Inc., 387 S.W.3d 495 (Tenn. 2012)). Here, the “trial court determined the issue of negative inference as a blanket matter,” which was an incorrect approach. On remand, the Court stated that “the trial court should analyze the specific fact and determine whether there is independent, corroborating evidence of that fact.”

Based on its analysis, the Court reversed summary judgment, vacated the motions in limine rulings, and vacated the holdings relative to defendant’s use of her Fifth Amendment privilege.

This case was very fact-specific, but it is instructive on two broader points. One, a party moving for summary judgment must support its motion with documents and statements that satisfy the rule regarding authentication. Two, if a defendant asserts his or her Fifth Amendment privilege, a nuanced, fact-specific approach is required to determine whether the assertion was proper and whether a negative inference can be drawn.