Ede v. Atrium South OB-GYN, Inc. , 71 Ohio St. 3d 124 ( 1994 )

Pfeifer, J.

Evid.R. 411 states that while evidence of insurance is not admissible upon the issue of liability, the rule “does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership or control, if controverted, or bias or prejudice of a witness.”

In Beck v. Cianchetti (1982), 1 Ohio St.3d 231, 1 OBR 253, 439 N.E.2d 417, paragraph one of the syllabus, this court held that Evid.R. 411 allows cross-examination on facts which may show bias, interest, or prejudice of a witness, even though it may disclose the existence of liability insurance in a personal injury action.

This court has also held that “[t]he scope of cross-examination of a medical expert on the questions of the expert’s bias and pecuniary interest and the admissibility of evidence relating thereto are matters that rest in the sound discretion of the trial court.” Calderon v. Sharkey (1982), 70 Ohio St.2d 218, 24 O.O.3d 322, 436 N.E.2d 1008, syllabus. In order to constitute reversible error, the limitation on cross-examination by the trial court must be unreasonable, arbitrary, or unconscionable. Calderon, supra, at 222, 24 O.O.3d at 325, 436 N.E.2d at 1012.

The other relevant Rule of Evidence in this case is Evid.R. 403, which states:

“(A) Exclusion Mandatory. Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.”

The trial court in this case pointed to Evid.R. 403 in determining that the issue of the commonality of interests between Drs. Dakoske and Schneider could not be demonstrated through evidence of a common insurance carrier. The trial court ruled that the danger of prejudice outweighed the probative value of such testimony. We find that determination to be unreasonable, and therefore reversible error, for two reasons.

First, the trial court did not appreciate the probative value of establishing that Dakoske and Schneider were both insured by PIE. The trial court focused its inquiry on only one thing — whether a doctor’s premiums could be raised by PIE if the doctor refused to testify on behalf of another PIE-insured doctor. Thus, the trial court sought to determine whether PIE coerced Schneider’s testimony, but did not seem to consider Schneider’s personal bias resulting from his insurance relationship. Satisfied by Dakoske’s attorney’s assurance that Schneider was not being coerced by PIE, the trial court failed to consider other possible biases created by Schneider’s relationship with PIE. The trial court was not responsive to appellant’s argument that as a fractional part-owner of PIE, Schneider’s own premiums might fluctuate due to the result of the case. Such testimony would have been probative of bias.

Second, the trial court erred by grossly overestimating to what extent testimony that Dakoske was insured would prejudice the jury. The second sentence of Evid.R. 411 exists for a reason — it recognizes that testimony regarding insurance is not always prejudicial. However, too often courts have a Pavlovian response to insurance testimony — immediately assuming prejudice. It is naive to believe that today’s jurors, bombarded for years with information about health care insurance, do not already assume in a malpractice case that the defendant doctor is covered by insurance. The legal charade protecting juries from information they already know keeps hidden from them relevant information that could assist them in making their determinations. Our Rules of Evidence are designed with truth and fairness in mind; they do not require that courts should be blind to reality.

Evid.R. 102 sets forth the purpose of the Ohio Rules of Evidence:

“The purpose of these rules is to provide procedures for the adjudication of causes to the end that the truth may be ascertained and proceedings justly determined. * * * ”

Given the sophistication of our juries, the first sentence of Evid.R. 411 (“[e]vidence that a person was or was not insured against liability is not admissible upon the issue [of] whether he acted negligently or otherwise wrongfully”) does not merit the enhanced importance it has been given. Instead of juries knowing the truth about the existence and extent of coverage, they are forced to make assumptions which may have more prejudicial effect than the truth.

Thus, the second sentence of Evid.R. 411, which allows courts to operate in a world free from truth-stifling legal fictions, ought to be embraced. In such instances as the case at hand, truth should win out over a naively inspired fear of prejudice.

Therefore, we hold that in a medical malpractice action, evidence of a commonality of insurance interests between a defendant and an expert witness is sufficiently probative of the expert’s bias as to clearly outweigh any potential prejudice evidence of insurance might cause. Thus, in the present case, the trial court acted unreasonably in excluding evidence regarding the commonality of insurance interests of Drs. Dakoske and Schneider. The judgment of the court of appeals is reversed and the cause is remanded to the trial court for a new trial.

Judgment reversed and cause remanded.

A.W. Sweeney, Douglas, Resnick and F.E. Sweeney, JJ., concur. Moyer, C.J., concurs in the syllabus and judgment. Wright, J., dissents.