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Common Sense and Elephants

insuranceThe Rhode Island Supreme Court recently approved the actions of a trial court judge who took the unusual step of speaking to jurors about insurance–an issue that is ordinarily mysteriously absent from the evidence in most personal injury trials.

The trial judge in Oden v. Schwartz instructed the jury that they were not to consider such issues as medical or other insurance or attorney’s fees.  She further told them that they were not to consider what might happen to the physician’s malpractice premiums as a result of a verdict against him (which is probably nothing).  Predictably, as whenever there is any mention of insurance at trial, the defendant doctor’s lawyer objected vociferously, and when there was an adverse verdict, appealed.

In striking a blow for common sense, the Rhode Island Supreme Court held that it was entirely proper for the trial judge to address issues that are often in the minds of jurors, and to tell them–accurately–that these are not proper considerations in their deliberations.  The Court noted that the trial judge “simply addressed the reality that jurors often wonder about liability coverage, especially in instances where there is typically an insured risk, such as medical malpractice.”

The Rhode Island court is entirely correct.  We all know from our own experience on juries and from hearing comments by jurors after trial that they are well aware that doctors carry malpractice coverage.  They also assume that their verdict might impact the doctor’s premiums–even though this is not usually the case.  They usually suspect that large medical bills are or will be paid by health insurance, and expect that the plaintiff will have to pay his attorney a contingent fee.  Yet none of these factors is a proper consideration in the jury’s deliberations.

These issues are the elephant in the corner of the courtroom.  They are a natural part of a juror’s thought process–yet the rules of evidence forbid any mention of these issues.   The approach chosen by the trial court and approved by the appellate court is sensible, because it confronts the elephant head on, and attempts to explain the absence of any mention of logically related issues by telling the jurors that they are not proper considerations.

If anything, it would make sense for trial judges to go even further: to explain to jurors that their verdict depends on whether a defendant is legally responsible, and not whether he is insured, or that most health care insurers can recover what they’ve paid from the plaintiff if the plaintiff gets a verdict that includes medical expenses, so the plaintiff will not receive a windfall.  The best way to prevent jurors from improperly taking these factors into account, or from making incorrect assumptions, is to be frank, to name the elephant in the corner and explain why it must be ignored.

Read the Rhode Island court’s opinion in Oden v. Schwartz here.


Common Sense and Elephants | Crowe & Mulvey, LLP