The Court of Appeals published Barkman v. Overstreet, an appeal of a malpractice verdict in favor of the treating physician.  While several errors were alleged, the most interesting one involved the mention of insurance by Dr. Overstreet during his testimony.  The Appellant Barkman argued these mentions were in violation of evidence rule 411, which prohibits the mention of liability insurance to prove negligence.

The Court of Appeals noted that Overstreet mentioned insurance in his testimony on two occasions.  The first was in reference to the 23 hour admission of Barkman.  Overstreet noted that “insurance companies” prefer the limited admission to a full blown admission.  When questioned about fabricating facts to support the 23 hour admission, Dr. Overstreet responded in part that this was due to the insurance companies restrictions.

The  Court of Appeals noted that 411’s prohibition against the mention of insurance requires certain precepts before it is implicated.  First, it must be mentioned in the context of liability insurance, and second, it must be used to prove negligence of a party.  The Court of Appeals noted that in reviewing the context in which the statements were made it was clear that Overstreet was referring to health insurance and not liability insurance.  As such, the trial court did not abuse its discretion in overruling counsel’s motion for a mistrial or in refusing to admonish the jury on its use.

Editor’s note: This rule is often misunderstood and misapplied.  Contrary to popular opinion, the rule does not prohibit any mention of insurance at trial.  The rule is limited to liability insurance and only then if it is being admitted as evidence of negligence.  Even then, rule 411 allows the introduction of liability evidence if used for a different purpose such as agency, ownership, control, or bias or prejudice of a witness.  Of course, the mention of “health” insurance could be in violation of the collateral source rule if used to show receipt of payments of damages by a party from other sources.

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Interesting article in the Courier Journal today, titled Judge tells attorneys to zip it. The Courier reports statements attributed to Judge Sean R. Delantey, saying “that certain prosecutors were wasting court time by making “obnoxious, ridiculous, abundant and useless objections” during probable-cause hearings.” Apparently Judge Delantey has a written policy that prosecutors have a “standing objection to each and every question” that defense attorneys ask of witnesses during probable-cause hearings. Judge Delantey was quoted; “I believe I have the discretion to do this.”

County Attorney Irv Maze was quoted as saying; “I’m just shocked.” “I don’t know what’s going on in his mind. We all go by the same rules.” The County Attorney has requested his prosecutors abide by the Judge’s request until the issue can be decided by appeal.

Of course the problem with the Judge’s rule regarding standing objections, is that the objection must be made in the first place. Only if it is overruled and the objectionable questioning continues does a standing objection need to be placed. The way it appears in the article is Judge Delantey simply notes an objection by the prosecutors to “every” question asked, allowing them to argue later the evidence should not have been admitted.

The issue is obvious, who knows if the County Attorney’s office would have objected if they never voiced an objection in the first place. An unvoiced objection is considered waived. This creates a problem. The County Attorney’s office may later be considered to have waived any objection not specifically made at the time the question was posed, OR it essentially allows them to make objections to specific questions after the hearing.

The rule is procedurally improper and actually detrimental to defense attorneys and prosecutors who both may be bitten by it on appeal. The fact the Judge believes he has the discretion to set aside the rules of evidence and create his own exception is concerning. The threats of holding attorneys in contempt for violating the self imposed “policy” is simply wrong.