Wisker Ex Rel. Wisker v. Hart

Allegrucci, J.,

concurring in part and dissenting in part:

Although I concur with most of the majority opinion, I respectfully dissent from Syllabus ¶ 4, and the corresponding portion of the majority opinion.

It would serve no useful purpose to restate what this court held in Harrier v. Gendel, 242 Kan. 798, 751 P.2d 1038 (1988). The majority is now overruling Gendel before the ink is barely dry. Suffice it to say this court on numerous occasions has found statements by counsel or evidence so prejudicial as to require a mistrial, notwithstanding the admonition to disregard them. This was not a bifurcated trial in which liability was first determined and then the damages, if any. There are jurors who might, based upon the introduction of such evidence, “disregard their oath and the judge’s instructions and . . . decide the case on an improper ground.” As a trial judge, I once admonished a jury not to take it upon itself to visit the scene of the accident, only to find out later that two of the jurors, upon leaving the courtroom, went directly to the scene to “see for themselves.”

The majority finds the analogy of collateral source evidence to evidence of a defendant’s insurance as not a valid one. However, in my judgment, the majority chooses to ignore reality and by this decision also overrule, for all practical purposes, our decision in Farley v. Engelken, 241 Kan. 663, 740 P.2d 1058 (1987). According to the rationale of the majority, it is difficult, if not impossible, to envision a violation of the collateral source rule that would not be harmless.

I would reverse and remand the case for a new trial. I agree that the plaintiff did not receive a perfect trial; however, in my judgment, neither did he receive a fair trial.

Herd, J., joins the above concurring and dissenting opinion.