Monday, February 3, 2014
In a previous post, I wrote about a Missouri court that granted a new trial on the basis of post-verdict evidence of a racist juror (who allegedly called the plaintiff by a racial slur during jury deliberations).
The case also provides an example of jurors wondering about just who will pay if the defendant is found liable---the defendant, or some third party. Juror interest in this issue is at the root of Federal Rule of Evidence 411, which provides, "Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully." As the advisory committee note to Rule 411 observes, the rule is motivated by "the feeling that knowledge of the presence or absence of liability insurance would induce juries to decide cases on improper grounds." In other words, the jury might pick the deep pocket of a defendant's insurance company to compensate a sympathetic plaintiff, regardless of whether the plaintiff is entitled to damages at law.
In Exhibit 5 of the plaintiff's motion papers (see page 76 of the linked PDF) in Amrine v. Ossman, we see the jury's handwritten question: "Does any award/compensation to the Plaintiff are paid by who? State or [Defendant] Ossman?"Because Ossman was being sued for malpractice allegedly committed during his service as a public defender, the jury figured out that perhaps the State of Missouri would pay his damages should the plaintiff prevail. (For what it's worth, the state would indeed pay.)
The judge (see page 76 of the PDF) instructed the jury, "The existence or non-existence of any type of insurance, benefit, right or obligation of repayment, public or private, must not be considered or discussed by any of you in arriving at your verdict. Such matters are not relevant ..."
Do we think the jury obeyed the instruction? See Exhibit 9 (page 81 of the PDF) in which a juror swears in an affidavit, "We as a jury asked ourselves [after receiving the judge's instruction], if we were to award Joe Amrine money, would it come out of our tax dollars?"
Here we see the opposite problem of that anticipated by the drafters of Rule 411. The jurors considered finding against the plaintiff (regardless of the evidence) because the pockets from which the plaintiff's damages would be come might well be their own.
I wonder if we might be better off just letting juries hear about third-party payment sources. Let lawyers (or maybe trial judges) explain the issues and encourage a verdict based on the evidence. After all, if the jury will consider the issue regardless, why not guide their discussion instead of leaving it to chance? For every jury that sends a note about its improper consideration of third-party payors, there must be countless juries that do so without being detected. Then again, perhaps the uncertainty created by the current rules discourages juries from actually acting on their suspicions. It's hard to know.
(For what it's worth, courts have split on whether parties may mention the Legal Expense Fund, which indemnifies many Missouri state employees for suits related to their work, in cases in which the LEF would pay in the event of a plaintiff's victory. What is the correct answer?)