Insuring Bias: Does Evidence of Common Insurance Demonstrate Relevant Expert Witness Bias in Medical Negligence Litigation?

Abstract

Does "common insurance" shared by the defendant-physician and the medical expert-witness establish an expert bias? In the past ten to fifteen years, the common insurance question has received attention by the state courts. It has been well understood that "evidence" of the presence or absence of liability insurance is simply inadmissible to prove fault pursuant to the Federal Rule of Evidence 411. Rule 411, however, is not a complete bar to admissibility and allows the trial court to admit evidence of liability insurance to prove a witness's bias or prejudice. This paper explores the various "models" of common insurance evidence, the theory of common insurance "bias" and the professional risk potentially assumed by expert witnesses who give false testimony.

Keywords: Evidence, Insurance, Medicine, Torts, Expert Witnesses, Federal Rule of Evidence 411, Federal Rule of Evidence 609