Woman's sexual past not admissible in wrongful death suit, Georgia court rules.

Evidence of a deceased woman's sexual history may not be considered in determining the value of her life in a wrongful death case, a panel of the Georgia Court of Appeals has ruled. The judges rejected defense lawyers' attempt to use evidence of the woman's pregnancies, abortions, and unprotected sex to attack claims that she could have lived a long, economically valuable life and been a good mother.

Robert Killian of Brunswick, Georgia, who represents the woman's son, said he was unaware of any other reported decisions addressing this issue. The ruling gives trial courts a precedent "to prevent private matters that would not be admissible to attack the character of a living person from being used to attack the character of a deceased person," he said.

Laura Johnson Flores, 23, was killed in a head-on collision in 1994 while riding in a car driven by her boyfriend, Edward Smith. Her three-year-old son was also a passenger. The boy's guardian ad litem, Lynn Brock, filed a wrongful death claim against Smith and Dana Wedincamp, the driver of the other car.

During discovery, Wedincamp's lawyers sought information regarding Flores's sexual history, including evidence that she had two abortions, gave up two children for adoption, and missed work due to pregnancy. The defense also hoped to admit evidence that her practice of engaging in unprotected sex could have reduced her life expectancy and that she had visitation disputes with her ex-husband. Killian filed a motion in limine, seeking to exclude the evidence.

In a pretrial hearing, the trial court--which had little appellate guidance--issued a split decision. It granted the motion to exclude evidence of Flores's abortions, children given up for adoption, custody disputes, and possible reduced life expectancy due to her sexual practices. The court reasoned that if it allowed such evidence, these matters would arise in virtually every wrongful death action.

However, the trial court also ruled that if the plaintiff tried to prove that Flores was a good mother or liked to work with children, it would allow the defense to counter with evidence about the abortions and children given up for adoption. The court said a jury might conclude that a good mother would not become pregnant three times in three years after her son was born. The court also said it would allow evidence that Flores missed work because of her pregnancies.

When both sides appealed the decision, the court of appeals ruled that none of the evidence was admissible. Under Georgia's wrongful death statute, damages are measured from the decedent's point of view, not the surviving plaintiff's. "The defendant wants to unfairly devalue the decedent's life to the jury by focusing on her sex life and sex partners, evidence that is irrelevant to the value of her life to herself," the court said. "This course of action cannot be condoned." (Brock v. Wedincamp, Nos. A01A1730, A01A1731, 2002 WL 47143 (Ga. Ct. App. Jan. 15, 2002).)

The wrongful death claim has not yet gone to trial. Defendant Wedincamp has asked the state supreme court to rule on the evidence dispute. If that court affirms the decision, Killian said, the case will become "a straightforward wrongful death case."