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<\/p>\nIn personal injury cases, deliberately injecting the concept of insurance into a trial is off-limits. With our clients, we caution them never to bring up insurance at trial.<\/p>\n
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This is because any mention of the existence of insurance can be cause for a mistrial. This general rule \u2013 that evidence of insurance is not permitted at trial \u2013 is well-established.<\/p>\n
But personal injury attorneys take notice: Under certain circumstances, evidence of insurance can be introduced at trial. In two very important cases, the Supreme Court of Virginia has held that evidence of insurance is admissible upon cross-examination of a defense medical doctor for purposes of proving bias or prejudice.<\/p>\n
Evidence of insurance may be admissible during a plaintiff\u2019s cross-examination of a defense medical expert. Often, the defense in a personal injury case retains a medical expert to testify at trial and dispute the nature and extent of the plaintiff\u2019s injuries, their relatedness to the crash, or both.<\/p>\n
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Essentially, the defense has hired a doctor and is paying for their testimony. Under these circumstances, the fact that the doctor is being paid by the insurance company, including the amount, is relevant to the issue of whether the doctor\u2019s testimony is biased or prejudiced. In many cases, it would be impossible to fully explore this potential for bias without questioning the doctor on their relationship with the insurance company.<\/p>\n
Therefore, the Virginia Supreme Court has ruled that if a plaintiff can prove that a \u201csubstantial relationship\u201d exists between the defense medical doctor and the insurance company, evidence of insurance is admissible. A cross-examination of the medical expert may be able to prove the witness\u2019s potential for bias or prejudice.<\/p>\n
In practice, this issue is often litigated in a hearing that takes place before the trial itself. Oftentimes, counsel for the plaintiff or defendant will file a motion in limine<\/em>, which argues that evidence of insurance should be admitted at trial, or excluded, respectively. A motion in limine<\/em><\/a> is a pretrial request for the court to rule on the admissibility of certain evidence and determine whether it should be allowed at trial.<\/p>\n Whether a plaintiff should be allowed to inject the concept of insurance into the trial \u201cinvolves the tension between two established rules concerning admission of evidence.\u201d<\/p>\n The Supreme Court of Virginia has resolved this \u201ctension\u201d in favor of a party\u2019s right to properly cross-examine a witness regarding their potential bias, and it has permitted the introduction of evidence of insurance in cases where the plaintiff is able to demonstrate that a \u201csubstantial relationship\u201d exists between an expert witness and the insurance carrier that is paying him or her.<\/p>\n In cases where the plaintiff proves a \u201csubstantial relationship\u201d exists, the plaintiff is allowed to make reference to the payment from the insurance company during cross-examination of the defense medical expert. As the court has noted, this is not only \u201cconsistent with prior cases\u201d and the law of Virginia, but it is also \u201cthe majority view in the United States.\u201d<\/p>\n The Supreme Court of Virginia has outlined the following test:<\/p>\n \u201cThe \u2018crux of the issue’ in determining whether the evidence should be admitted is whether there is a substantial relationship between the witness and a particular insurance carrier that has a financial interest in the outcome of the case. If the plaintiff can demonstrate a substantial relationship, \u201cits probative value concerning potential bias or prejudice outweighs any prejudice to the defendant resulting from the jury\u2019s knowledge that the defendant carries liability insurance.\u201d<\/p>\n In short, the best way to determine whether a \u201csubstantial relationship\u201d exists is: Follow the money. This is because \u201cthe receipt of . . . a substantial amount by an expert [from an insurance company] is enough to create a potential for bias that outweighs any potential harm from the mention of insurance to a defendant.\u201d<\/p>\n The determination of whether a \u201csubstantial relationship\u201d exists has been tested on appeal in two important Virginia Supreme Court cases, Lombard v. Rohrbaugh<\/em>, and Graves v. Shoemaker<\/em>.<\/p>\n In Lombard v. Rohrbaugh<\/em>, the plaintiff proved a substantial relationship existed between the defense medical doctor and the liability insurance carrier. The plaintiff showed that Allstate Insurance Company had paid its expert, Dr. Ammerman, $104,971 in 1999, and $106,520 in 1998, for testifying and performing medical legal work on behalf of its insureds.<\/p>\n On cross-examination, plaintiff\u2019s counsel questioned Dr. Ammerman about past payments he received from Allstate, with specific reference to the existence of insurance. Ultimately, this form of cross-examination \u201cwas permitted over vigorous objection\u201d because \u201cthe payments of over $100,000 per year for the years 1998 and 1999\u201d served as proof of a substantial relationship between Dr. Ammerman and Allstate.<\/p>\n Further, \u201c[i]n closing argument . . . counsel was permitted to mention the relationship between Dr. Ammerman and Allstate Insurance Company for the purpose of arguing that Dr. Ammerman\u2019s testimony was biased.\u201d<\/p>\n Then, in Graves v. Shoemaker<\/em>, the court returned to deciding whether a \u201csubstantial relationship\u201d existed. This time, the plaintiff sought to prove that a \u201csubstantial relationship\u201d existed between the defense medical doctor, Dr. Andrews, and State Farm Insurance Company.<\/p>\n![\"insurance](\"https:\/\/www.allenandallen.com\/wp-content\/uploads\/2022\/11\/insurance-policy-2022-11-01-00-05-34-utc-min-300x201.jpg\")
<\/h3>\nWhat is the standard for allowing evidence of insurance?<\/h3>\n
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<\/h3>\nWhat constitutes a \u201csubstantial relationship\u201d?<\/h3>\n
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Case studies<\/h3>\nLombard v. Rohrbaugh<\/em><\/h4>\n
Graves v. Shoemaker<\/em><\/h4>\n
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