Written by attorney Geoffrey Trachtenberg

Paternity Statutes Do Not Apply to Wrongful Death Actions Involving Unborn Children

These are complicated times. It seems that, in addition to proving wrongful death, when the decedent is an unborn child, you had better be able to prove paternity as well.

In the case, Aranda v. Cardenas, both the mother and her unborn child were apparently subject to fatal medical malpractice. The Defendants, however, disputed whether the unborn child's father was indeed the child's father, raising the affirmative defense of capacity to sue.

The Defendants were able to pursued the trial court to apply very harsh statutory presumptions and other requirements imposed by the paternity statutes, A.R.S. §§ 25-801 through 25-818, to the paternity dispute in the wrongful death case. On appeal, the Plaintiff argued that the trial court erred in referring to the paternity statutes and in requiring deoxyribonucleic acid (DNA) tests to prove paternity.

Of course, wrongful death is a creature of statute and the Wrongful Death Act, A.R.S. § 12-611, et seq., does not specify a procedure or standard of proof for proving paternity. Still, I had to laugh a little when the Court stated that "we must look to 'context, subject matter, historical background, effects and consequences, and spirit and purpose'" of the Act to see whether to apply the paternity statutes. Simply put, it is hard to imagine that, when the Wrongful Death Act was enacted in 1887, there was no paternity statute and Legislature had probably not considered "DNA testing."

Anyway, in a somewhat discombobulated fashion, the Court of Appeals correctly decided not to apply the paternity statutes to wrongful death, holding "[w]e cannot conclude that the legislature intended to allow a party who would be a stranger to a paternity proceeding, and thus unable to request mandatory paternity testing . . . to rely on the paternity testing requirement in a wrongful death action where paternity is at issue." This Greek for "it makes no logical sense to apply paternity statutes to wrongful death claims." Yes, I speak the language.

The second issue addressed by the Court, the party who bears the burden of proof, is somewhat of an oddity because everyone seemed to agree that the capacity to sue was an "affirmative defense." Yet, this turns our to be one of those rare cases where the plaintiff bears the burden in connection with such as defense, and I think correctly so.

In my view, for the same reasons that it makes no sense to apply the paternity statutes to a "stranger," it makes no sense to impose the burden on the stranger to disprove paternity. The Court correctly observed that "[t]he plaintiff should have the best access to the information establishing th[e] relationship [whereas] [t]he defendant, on the other hand, is typically a stranger to the relationship who has caused the death of the decedent and may not have any knowledge of the relationship or lack thereof." Thus, the Court concluded that, "[o]nce the defense is timely raised, the party claiming capacity, authority, or legal existence has the burden of proof on that issue."

And the final issue resolved by the Court was whether the Plaintiff had presented sufficient evidence to establish a triable issue on paternity. It seems strange to me that the Court of Appeals addressed this instead of remanding it back to the trial court to determine, in light of the newly determined correct legal standard, but that's just me.

Fortunately, the Court decided that there was a triable issue, but something the defense raised caught my eye. That is, the argument that the Plaintiff's testimony in opposition to summary judgment was, among other things, "self-serving." How often do we hear this - i.e., that our evidence is insufficient because it is "self-serving." How absurd is this argument? Finally, we now have some caselaw to cite to in response to this "non-objection objection." The Court held that, "the fact that . . . testimony might be self-serving, which the trial court noted in its ruling, would not, alone, bar it. It would instead be a matter of credibility for the fact-finder to determine."

And lastly, another aside, the Court noted that "[w]e are perplexed by [Plaintiff's] failure to avow that he had sexual intercourse with [the mother] during the relevant time period." So am I, but as I said, these are "complicated times."

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