Rule 411: Permitting Evidence of Insurance to Show Witness Bias

• Publication year: 2001
• Pages: 41
• Citation: Vol. 30 No. 1 Pg. 41

30 Colo.Law. 1 Colorado Lawyer 2001.

2001, January, Pg. 41. Rule 411: Permitting Evidence of Insurance to Show Witness Bias

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41

Vol. 30, No. 1, Pg. 1

The Colorado Lawyer
January 2001
Vol. 30, No. 1 [Page 41]

Specialty Law Columns
Civil Evidence
Rule 411: Permitting Evidence of Insurance to Show Witness Bias
by Elizabeth A. González

Q: In a lawsuit alleging negligence, is evidence that a defendant and expert witness share a common insurance carrier admissible to prove bias

A: Probably no, unless there is evidence of an additional connection between the expert and the insurance carrier Where evidence exists of a "substantial

connection" between the expert and the insurance carrier, evidence of commonality of insurance may be admissible to establish bias under Colorado Rules of

Evidence 403 and

Assumed Facts

Drake Q. Law sued his dentist, Drew Payne, alleging that the treatment he received caused temporal mandibular joint disorder ("TMJ"). Drake originally visited Dr Payne for a dental checkup and cleaning. Two months later, Drake returned to have new fillings placed and complained to Dr. Payne about jaw pain that he was experiencing. Dr. Payne questioned Drake about his symptoms and ultimately determined that his jaw pain was muscle soreness due to a tooth that was hitting improperly when Drake bit down. Dr. Payne filed the offending tooth and placed the fillings that day. Two weeks later, Drake returned to Dr. Payne's office, accusing Dr. Payne of causing TMJ. Drake sued Dr. Payne, alleging that Dr. Payne negligently placed the fillings despite Drake's jaw pain and failed to appreciate signs that he was predisposed to TMJ.

Before trial, Dr. Payne filed a motion in limine, seeking to exclude evidence that he had liability insurance and that a common insurance trust insured Dr. Payne and his expert witness, Ness Whitney. The trial court deferred ruling on the motion in limine until trial.

At trial, Drake seeks to introduce evidence that Dr. Payne's expert is biased from a financial perspective and that she has a prejudgment regarding dentists that belong to the insurance trust. Dr. Payne objects to introduction of this evidence under Colorado Rules of Evidence ("C.R.E.") 411. Should the court admit this evidence?

Discussion

In negligence cases, courts traditionally have refused to allow parties to inform a jury that...