In my last post , I discussed the Appellate Division, Second Dept.'s approach to the mere mention of the concept of professional liability insurance during a trial. Unfortunately, the result was a mistrial.
As if on cue, the New York State Court of Appeals addressed the issue anew about a week after the Grogan decision. In Salm v. Moses , NY Slip Op 07479 (2009) , decided October 22, 2009, defendant moved at trial to preclude plaintiff from questioning defendant's expert dental witness about his relationship to defendant's professional liability insuror. Both individuals were insured by, and shareholders of, the same insurance company.
Plaintiff objected, but the trial court granted defendant's motion, so that such cross examination of defendant's expert could not take place. The trial court based its decision on the prejudicial effect that knowledge of defendant's insurance coverage would have on the jury.
The Court of Appeals affirmed the Appellate Division, First Department's Order affirming the trial court's decision, finding that the trial court was well within its discretion based on the perceived “risk of confusion or prejudice.” And it restated some general principles in getting there. Evidence that a defendant carries liability insurance is generally inadmissible for two reasons: (a) if a jury knows that an insurance company is footing the bill, that will encourage an adverse verdict; and (b) evidence of insurance coverage injects a collateral issue that has no bearing on whether the defendant was negligent.
Is the Court of Appeals also underestimating the sophistication of modern jurors with this decision? Isn't it time that the Court acknowledge that the State's citizens, unless they've been hiding out in caves, are aware of the role insurance companies play in commerce and in lawsuits? Justice Pigott, in the concurring opinion regognizes that “[i]t is common knowledge that most defendants carry insurance. Indeed, most prospective jurors are cognizant of the significant role in litigation that liability insurance plays…”
As for the missed opportunity to show the relationship of defendant's expert toward defendant, Justice Pigott believes, as I do, that the jury should have been presented with such evidence, through cross examination. And so, you might be confused, as I was at first, to see that Justice Pigott was concurring, instead of dissenting. But on closer examination, it becomes clear that Jusitce Pigott went along with the majority on procedural grounds. Plaintiff's counsel had had the opportunity at trial to voir dire defendant's expert concerning potential bias, but failed to request it. Apparently, Justice Pigott viewed this as a failure to preserve the issue for appellate review.
But look at the big picture here. The Court of Appeals is relying on ancient, outdated principles, and ensuring their continued survival. And it has done so here at the expense of plaintiff's right of cross examination. Clearly, the trial court was overly cautious, let alone blind to the realities of the modern world, when it prevented plaintiff's cross examination–an exercise that surely would have shown an overly comfortable relationship between defandant and the expert hired to defend him. Might the exposure of this arrangement changed the outcome at the trial level, from defense verdict to plaintiff's verdict? We'll never know, because the Court of Appeals has allowed the lower courts to continue living in the past.