Saturday, December 18, 2010
Lacking Substance: Supreme Court Of Kansas Finds Evidence Of Liability Insurance Was Inadmissible To Prove Bias
Federal 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.
Meanwhile, K.S.A. 60-454 provides that
Evidence that a person was, at the time a harm was suffered by another, insured wholly or partially against loss arising from liability for that harm is inadmissible as tending to prove negligence or other wrongdoing.
In other words, Kansas's counterpart to Rule 411 makes no mention of evidence of liability insurance being admissible for other purposes such as proving bias. As the recent opinion of the Supreme Court of Kansas in Kansas Medical Mut. Ins. v. Svaty, 2010 WL 5033519 (Kan. 2010), makes clear, however, Kansas courts have read such language into K.S.A. 60-454 and applied the "substantial connections test" applied by most jurisdictions.
Jeanette Allen filed [an] underlying medical malpractice action against William Slater, M.D. During pretrial discovery, Dr. Slater designated Dr. Ted Macy as his expert witness. The use of Dr. Macy as an expert became a point of contention, leading Allen to file a motion to strike Dr. Macy as an expert. Judge Ron Svaty, the district judge presiding over the underlying medical malpractice action, denied the motion but allowed additional discovery regarding Dr. Macy and his opinions. In addition to interrogatories seeking supplementation of Dr. Macy's opinions and some additional information, Allen served a notice of subpoena duces tecum to take the deposition of officials at KaMMCO. Dr. Macy is an insured of KaMMCO, and Allen believed this formed a connection between Dr. Macy and Dr. Slater because Dr. Slater testified at his deposition that he was insured "by KaMMCO or a branch of KaMMCO."
In addressing Allen's argument, the Supreme Court of Kansas noted that while Federal Rule of Evidence 411 explicitly allows for evidence of liability insurance to be admitted to prove bias, K.S.A. 60-454 contains no such explicit provision. That said, the Kansas Supremes noted that in State Farm Fire & Casualty Co. v. Hornback, 217 Kan. 17, 535 P.2d 441 (1975), it found no reversible error in disclosing the existence of liability insurance to show witness interest or bias.
The Court then found, however, that evidence of liability insurance is not automatically admissible to prove bias; instead, it pointed out that
other jurisdictions have considered the question of whether evidence that an expert witness is a member of the same member-owned insurance company as a defendant may be admitted at trial....
In considering that situation, most jurisdictions apply what has become characterized as a "connections test" or a "substantial connections test." "The substantial connection analysis looks to whether a witness has 'a sufficient degree of 'connection' with the liability insurance carrier to justify allowing proof of this relationship as a means of attacking the credibility of the witness.'"
And, according to the court, the problem for Allen was that most "jurisdictions have reached the conclusion that evidence of both physicians being members of the same mutual insurance company is not admissible, without a showing of a substantial connection between the expert and the company." And because Allen could not show such a substantial connection, the Kansas Supremes rejected her argument.