Warren v. Ballard
Warren v. Ballard
Opinion of the Court
Although these two cases were not tried together in the tried court and were not heard together in the Court of Appeals, we granted certiorari in both to consider the same question, namely, when may a tort defendant elicit testimony regarding insurance coverage for purposes of impeachment. Ballard v. Warren, 217 Ga. App. 23 (1) (456 SE2d 589) (1995); Luke v. Suber, 217 Ga. App. 84 (1) (456 SE2d 598) (1995).
1. We begin with a discussion of the facts of each case, as well as the Court of Appeals’ holdings.
(a) Warren v. Ballard centers around a three-vehicle accident which occurred on June 11, 1990, on 1-24 in Dade County, between a car driven by Warren, a van driven by Ballard and a tractor-trailer owned by defendant Foster Trucking Company and operated by defendant Walls. At trial, Ballard admitted that he caused the accident by pulling from a road shoulder onto 1-24 into the path of the other vehicles. Thus, the main issue at trial was that of damages, and the jury awarded Warren a verdict of $78,500 from Ballard.
During the course of the trial, Warren testified concerning the amount of her physical therapy costs: “I don’t know the exact total. I’d have to look at figures to remember. I just know that I have a total of medical bills that is around $7,000. ... I had to pay for my medical bills. And just to be driving down the road one day and all of a sudden my life turned upside down and have to face these medical bills and . . . .” She also stated: “And I’m still paying for these medical bills on a payment plan right now because I can’t, of course, pay
Although recognizing that a trial court has the discretion to balance the probative value of collateral source evidence against its prejudicial impact, the Court of Appeals held that the trial judge should have allowed cross-examination concerning collateral source evidence because Warren and her husband had given the jury a false impression that they incurred harm and hardship which they had not and in doing so had implied that they had no insurance coverage. Ballard v. Warren, 217 Ga. App. at 24-25.
(b) In Suber v. Luke, a medical malpractice case, Marcus Luke testified on direct examination about medical bills in excess of $80,000 incurred as a result of Dr. Suber’s alleged negligence in perforating Karen Luke’s colon during a cesarean section delivery. Luke later testified that the baby, who was unharmed, had stayed in the hospital with his wife during her recovery period. In response to the question, “And what was your understanding of that?,” Luke replied: “Well whenever I talked to a couple of doctors and nurses, they told me don’t worry about it,. . . it’s best that the baby stays here,... I told them, I said, T don’t think I can afford to keep the baby in the hospital for a month.’ And they said don’t worry about it.” Luke was then asked whether he had received a bill for the baby’s stay in the hospital. He responded, “Yes, sir. And like I started to say, I didn’t worry about it until they sent me a bill on it.” Suber did not object to this testimony, but on cross-examination, sought to impeach it by establishing that Luke had medical insurance which paid the bills to which he referred. Suber’s attorney contended that Luke’s testimony had “opened the door” for proof of health insurance coverage. After discussion with counsel, the trial judge concluded that Luke’s testimony could be impeached by proof of insurance coverage. The trial resulted in a jury verdict for Suber.
The Court of Appeals reversed and granted a new trial, holding that Luke’s testimony did not “open the door” and that the prejudicial effect of admitting the evidence outweighed its relevancy for purposes of impeachment.
2. We turn now to a consideration of the general proposition
In neither of these appeals did the testimony relate to a material issue. Therefore, the defendant in neither case was entitled to impeach the testimony with collateral source evidence. The defendant is required in such circumstances to object to testimony regarding concern about payments of medical bills. Upon such objection, the trial court is obliged to exclude the testimony and, if requested, give curative instructions. In appropriate cases, other sanctions are available, such as rebuke of counsel, contempt of court, or even a mistrial with appropriate costs cast upon the plaintiff. The failure of the defendants in these cases to object constitutes waiver of the inadmissibility of the testimony. Seabrooks v. State, 251 Ga. 564, 567 (308 SE2d 160) (1983); Pulliam v. State, 236 Ga. 460 (224 SE2d 8) (1976). It follows that the Court of Appeals erred in ruling that the collateral source evidence was admissible in Warren, but was correct in ruling, albeit for an incorrect reason, that the evidence was not admissible in Luke.
Judgment reversed in Case No. S95G1171.
Judgment affirmed in Case No. S95G1212.
Concurring in Part
concurring specially in part and dissenting in part.
Today, the majority holds that neither defendant in these cases was entitled to offer evidence that the plaintiffs had received collateral source payments. The majority premises this holding on its conclusion that testimony regarding financial anxiety or distress created by the injuries inflicted upon a plaintiff is never admissible. I would
1. The majority errs in concluding that testimony of a plaintiff’s financial hardship is never admissible in a personal injury action. Such evidence can be relevant to a plaintiff’s claim for mental pain and suffering.
In a claim for mental pain and suffering, “[ajnxiety or worry proximately attributable to an injury is recoverable.”
Further, numerous courts have recognized the relevance of a plaintiff’s testimony that the injuries he has suffered have led to penurious circumstances, and have recognized that such evidence tends
The rule that I would adopt for determining whether evidence of collateral source payments is admissible for impeachment in a personal injury action would necessitate an evaluation of the circumstances of each particular case. I would hold that if a plaintiff offers evidence as to a material issue in a case, and evidence of collateral source payments tends to impeach the plaintiff on that issue, then the defendant should have the right to present that evidence,
2. I turn now to my analysis of the present cases.
(a) In Warren, the Warrens’ testimony of financial hardship related to a material issue — their mental pain and suffering — and Ballard thus had no valid ground to object to it. Further, because evidence that they received insurance payments tends to impeach their testimony on that material issue, the collateral source evidence may not be excluded based upon the rule that a witness may not be impeached with regard to a discrepancy on an immaterial matter.
Finally, because the Warrens expressly testified that the expenses
3. In sum, I dissent to the reversal in Case No. S95G1171, and concur specially in the affirmance in Case No. S95G1212.
I am authorized to state that Presiding Justice Fletcher joins in this special concurrence in part and dissent in part.
Valdosta Housing Auth. v. Finnessee, 160 Ga. App. 552 (1) (287 SE2d 569) (1981).
See Wilburn, Ga. Law of Damages (4th ed.), § 2B-3; Wilson & Bro. v. White, 71 Ga. 506, 514 (2) (1883). For examples of the wide-ranging type of evidence that is admissible on a claim for pain and suffering, see Underwood v. Atlanta &c. R. Co., 105 Ga. App. 340, 350-351 (2) (a) (124 SE2d 758) (1962), aff'd Atlanta &c. R. Co. v. Underwood, 218 Ga. 193, 198 (3) (126 SE2d 785) (1962) (holding that while a plaintiff’s domestic circumstances generally are irrelevant and immaterial in a personal injury action, when a plaintiff’s inability to care for his invalid wife and five children is caused by the bodily injury in question, evidence that that inability has caused the plaintiff mental distress is relevant to the plaintiff’s claim for pain and suffering), and Gilbert v. Parks, 140 Ga. App. 550 (1) (b) (231 SE2d 391) (1976) (holding it is not “error to charge that the loss or impairment of ability to work may cause grief, distress or worry and may be considered by the jury in determining damages for the pain and suffering”).
E.g., Baystate Moving Systems v. Bowman, 590 A2d 462, 464 (2) (Conn. App. 1991); Corsetti v. Stone Co., 483 NE2d 793, 803-804 (8) (Mass. 1985); Moore v. Missouri Pacific R. Co., 825 SW2d 839, 842 (Mo. 1992); Gladden v. P. Henderson &c., 385 F2d 480 (3rd Cir. 1967); Lange v. Missouri Pacific R. Co., 703 F2d 322, 324 (4) (8th Cir. 1983); Hack v. State Farm Mut. Auto. Ins. Co., 154 NW2d 320, 325 (8) (Wis. 1967).
See Morris v. State Farm Mut. Auto. Ins. Co., 203 Ga. App. 839, 842 (418 SE2d 119) (1992) (evidence that tends to prove or disprove any material fact which is at issue in the case is relevant for impeachment, and a party may show anything which may, in the slightest degree, affect the credit of an opposing witness).
Given the “inherently prejudicial” nature of evidence that a plaintiff has received insurance payments, see Denton v. Con-Way Southern Express, 261 Ga. 41, 43 (402 SE2d 269) (1991), a trial court should always give careful consideration to whether the prejudicial effect of collateral source evidence outweighs its probative value.
E.g., Waits v. Hardy, 214 Ga. 495, 496 (105 SE2d 719) (1958). For example, if a plaintiff testified that he had been a poor person all his life and currently had no money, and the plaintiff did not in any way contend that his financial distress resulted from the injuries he had suffered, the plaintiff’s financial condition would be irrelevant and immaterial. The defendant could thus object to that testimony, but could not seek to impeach it by showing that the defendant had in fact received money from collateral source payments.
Other courts have reached the same conclusion when a plaintiff testifies that the injuries that he has suffered have led to penurious circumstances. See the cases cited in n. 6, supra.
Reference
- Full Case Name
- WARREN v. BALLARD Et Al.; SUBER v. LUKE Et Al.
- Cited By
- 34 cases
- Status
- Published