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Editor: Colin Miller
Univ. of South Carolina School of Law

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Tuesday, July 20, 2010

Hired Gun: Court Of Appeals Of Utah Finds Evidence That Expert Was Hired By Insurance Company Inadmissible

Like its federal counterpart, Utah Rule of Evidence 411 provides that

Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This 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, or bias or prejudice of a witness.

Of course, even when evidence of liability insurance is offered for a permissible purpose under Rule 411, it is still subject to the balancing test prescribed by Federal Rule of Evidence 403 and Utah Rule of Evidence 403, which indicates that

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

So, is evidence that an expert was hired by the defendant's insurance company admissible under Rule 411 and 403? According to the recent opinion of the Court of Appeals of Utah in Kearl v. Okelberry, 2010 WL 2784593 (Utah App. 2010), the answer is "no."

In Okelberry, Robert Kearl filed a negligence suit against Edwin Ray Okelberry for injuries sustained when a jack released and dropped a trailer on his leg. At trial, the defendant's expert, Dr. Smith, testified regarding Kearl's injury and tests that he performed on the jack. That's all I can say about Dr. Smith's testimony because, after the jury returned a verdict of no liability, Kearl appealed but failed to include "a transcript of Dr. Smith's testimony at trial."

Kearl alleged on appeal, inter alia, that the trial court erred by excluding evidence that Dr. Smith was "hired by" Okelberry's insurance company. According to Kearl, this evidence was admissible "to demonstrate Dr. Smith's bias." But the problem for Kearl was that he also failed to include the trial court's ruling on this issue at trial and the transcript from the hearing on his motion to admit this evidence. Thus, the Court of Appeals of Utah "assume[d] the regularity of the proceedings below" and denied Kearl's appeal.

In dicta, however, the court

note[d] that the merits of this claim are questionable at best. Evidence of a witness's connection to an insurance company is admissible only if there is a "substantial connection" between the witness and the insurance company.... A substantial connection exists, for example, when the witness maintains an employment relationship with the insurance carrier independent of the person's position as an expert witness....Here, Dr. Smith's only connection to the insurance company was that the company hired him as an expert witness.

-CM 

http://lawprofessors.typepad.com/evidenceprof/2010/07/411--kearl-v-okelberrynot-reported-in-p3d-2010-wl-2784593utah-app2010.html

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