OPINIONS OF THE SUPREME COURT OF OHIO
     The full texts of the opinions of the Supreme Court of Ohio
are being transmitted electronically beginning May 27, 1992,
pursuant to a pilot project implemented by Chief Justice Thomas
J. Moyer.
     Please call any errors to the attention of the Reporter's
Office of the Supreme Court of Ohio. Attention: Walter S.
Kobalka, Reporter, or Deborah J. Barrett, Administrative
Assistant. Tel.: (614) 466-4961; in Ohio 1-800-826-9010. Your
comments on this pilot project are also welcome.
     NOTE: Corrections may be made by the Supreme Court to the
full texts of the opinions after they have been released
electronically to the public. The reader is therefore advised to
check the bound volumes of Ohio St.3d published by West
Publishing Company for the final versions of these opinions. The
advance sheets to Ohio St.3d will also contain the volume and
page numbers where the opinions will be found in the bound
volumes of the Ohio Official Reports.

Ede, Admr., Appellant, v. Atrium South OB-GYN, Inc. et al.,
Appellees.
[Cite as Ede v. Atrium S. OB-GYN, Inc. (1994),        Ohio
St.3d      .]
Medical malpractice -- Liability insurance -- Evidence --
      Commonality of insurance interests between defendant and
      expert witness outweighs any potential prejudice evidence of
      insurance might cause -- Evid.R. 411, applied.
In a medical malpractice action, evidence of a commonality of
      insurance interests between a defendant and an expert
      witness is sufficiently probative of the expert's bias as to
      clearly outweigh any potential prejudice evidence of
      insurance might cause. (Evid. R. 411, applied.)
      (No. 93-1367 -- Submitted September 14, 1994 -- Decided
December 14, 1994.)
      Appeal from the Court of Appeals for Stark County, No.
CA-9041.
      This is a medical malpractice/wrongful death action brought
by the plaintiff-appellant, Charles Ede, as administrator of the
estate of his wife, Sheri Ede, who died on August 28, 1989. The
defendants-appellees are George R. Dakoske, M.D., and the
corporation of which he is the president, Atrium South OB-GYN,
Inc. Dr. Dakoske performed surgery on Sheri Ede on August 24,
1989. Sheri had been scheduled to undergo an abdominal
hysterectomy, but during that procedure Dakoske discovered a
cancerous tumor on Sheri's right ovary which required further
surgery. Sheri died four days later. Appellant alleges that
Dakoske's negligent post-operative care caused Sheri's death.
      The focus of this appeal is whether the trial court properly
precluded appellant from eliciting testimony at trial regarding
the commonality of insurance interests between Dakoske and other
physicians testifying as experts on Dakoske's behalf. Before
trial, Dakoske's counsel had filed a motion in limine, seeking to
exclude from the trial any mention of liability insurance,
including reference to the fact that Dakoske and other testifying
physicians were insured by Physicians' Mutual Insurance Company
("PIE"). Appellant argued that since PIE is a mutual insurance
company, each insured's policy is evidence of some fractional
part ownership in PIE. Appellant argued that PIE-insured medical
experts have a built in bias -- less successful malpractice
claims means lower premiums charged for malpractice insurance.
     At the start of trial, the trial judge made an interim
ruling, granting Dakoske's motion in limine "with regard to the
specific issue of insurance.* * * I think that the dangers * * *
under Rule, ah, 404 and Rule 403 are such that shouldn't -- if
you feel that there is some, that it's developed that somehow
becomes relevant, I'd ask you to approach the bench and get a
ruling on it before you voice questions." During oral argument
on the motion, the trial judge asked Dakoske's counsel whether
PIE's insurance rates were related to whether an insured agreed
to testify on behalf of another insured. Dakoske's counsel,
reminding the court that he was "a lawyer, not an insurance man,"
stated that they were not. The trial judge did not, however,
seek to determine whether insurance rates for a particular
classification of doctor might be affected by the outcome of a
particular case.
     At trial, Dr. Martin Schneider, an
obstetrician/gynecologist, testified on behalf of Dakoske.
Appellant's cross-examination included questioning regarding
Schneider's possible bias. Appellant established that Dakoske's
counsel, Jacobson, Maynard, Tuschman & Kalur, previously had
defended Schneider in his own malpractice case, and that
Schneider had also testified as an expert in cases defended by
the same firm.
     Appellant's counsel then sought to establish that Schneider
and Dakoske were insured by the same malpractice insurer, PIE,
and asked Schneider the following question:
     "Have you ever entered into any contractual relationship
with any Ohio corporation for which the law firm of Jacobson,
Maynard, Tuschman & Kalur provided legal services?"
     Dakoske's counsel objected, which objection the trial judge
sustained, "for the same reason I grant[ed] the [motion in]
limine at the start of the trial." Appellant's counsel again
argued that Schneider had a potential bias and financial interest
in the outcome of the case due to the terms of his insurance
contract with PIE, and that the matter of insurance may be
brought up pursuant to Evid. R. 411 if used to show bias. The
trial judge responded:
     "I think that insurance always has some tendency to show
certain relevant factors.
     "The issue is more appropriately dealt with under Rule 403,
as to whether or not the prejudice substantially outweighs the
probative value.
     "And I, and just so the record is clear on the thing, we had
inquiry before and I was told and it was represented that the
premium rates for each of those physicians are determined
according to their classification and practice and that they
would not be affected by whether or not a physician, ah,
determined to testify on behalf of the insurance company or
didn't."
     The trial judge thus precluded appellant from embarking on
any questioning relevant to insurance. A jury returned a verdict
in favor of Dakoske and Atrium South, and Ede appealed. The
appellate court affirmed, finding that the trial court's
exclusion of the insurance evidence did not amount to an abuse of
discretion. The appellate court did make clear, however, that
admission of the evidence, coupled with a limiting instruction,
would likewise not have amounted to an abuse of discretion. The
appellate court noted that "[d]epending upon the directness and
scope of the potential pecuniary impact of an adverse award upon
the expert witness, admission of this type of evidence upon
cross-examination, coupled with the limiting instruction as to
its permitted use, would seem to be the preferred choice."
     The cause is now before this court pursuant to a motion to
certify the record.

     The Okey Law Firm, L.P.A., Steven P. Okey and Allen G.
Carter, Sr., for appellant.
     Fritz Byers; Jacobson, Maynard, Tuschman & Kalur, David M.
Best and Janis L. Small, for appellees.
     Maloon, Maloon & Barclay Co., L.P.A., and Jeffrey L. Maloon;
Zagula, Hill & Dittmar and Nick Dittmar, urging reversal for
amicus curiae, Ohio Academy of Trial Lawyers.

     Pfeifer, J. Evid. R. 411 states that while evidence of
insurance is not admissible upon the issue of liability, the rule
"does not require the exclusion of evidence of insurance against
liability when offered for another purpose, such as proof of
agency, ownership or control, if controverted, or bias or
prejudice of a witness."
     In Beck v. Cianchetti (1982), 

, 1 OBR 253,

, paragraph one of the syllabus, this court held
that Evid. R. 411 allows cross-examination on facts which may
show bias, interest, or prejudice of a witness, even though it
may disclose the existence of liability insurance in a personal
injury action.
     This court has also held that "the scope of
cross-examination of a medical expert on the questions of the
expert's bias and pecuniary interest and the admissibility of
evidence relating thereto are matters that rest in the sound
discretion of the trial court." Calderon v. Sharkey (1982), 

, 

, 

, syllabus. In
order to constitute reversible error, the limitation on
cross-examination by the trial court must be unreasonable,
arbitrary, or unconscionable. 

, 

, 

.
     The other relevant Rule of Evidence in this case is Evid. R.
403, which states:
     "(A) Exclusion mandatory. Although relevant, evidence is
not admissible if its probative value is substantially outweighed
by the danger of unfair prejudice, of confusion of the issues, or
of misleading the jury."
     The trial court in this case pointed to Evid. R. 403 in
determining that the issue of the commonality of interests
between Drs. Dakoske and Schneider could not be demonstrated
through evidence of a common insurance carrier. The trial court
ruled that the danger of prejudice outweighed the probative value
of such testimony. We find that determination to be
unreasonable, and therefore reversible error, for two reasons.
     First, the trial court did not appreciate the probative
value of establishing that Dakoske and Schneider were both
insured by PIE. The trial court focused its inquiry on only one
thing -- whether a doctor's premiums could be raised by PIE if
the doctor refused to testify on behalf of another PIE-insured
doctor. Thus, the trial court sought to determine whether PIE
coerced Schneider's testimony, but did not seem to consider
Schneider's personal bias resulting from his insurance
relationship. Satisfied by Dakoske's attorney's assurance that
Schneider was not being coerced by PIE, the trial court failed to
consider other possible biases created by Schneider's
relationship with PIE. The trial court was not responsive to
appellant's argument that as a fractional part-owner of PIE,
Schneider's own premiums might fluctuate due to the result of the
case. Such testimony would have been probative of bias.
     Second, the trial court erred by grossly overestimating to
what extent testimony that Dakoske was insured would prejudice
the jury. The second sentence of Evid. R. 411 exists for a
reason -- it recognizes that testimony regarding insurance is not
always prejudicial. However, too often courts have a Pavlovian
response to insurance testimony -- immediately assuming
prejudice. It is naive to believe that today's jurors, bombarded
for years with information about health care insurance, do not
already assume in a malpractice case that the defendant doctor is
covered by insurance. The legal charade protecting juries from
information they already know keeps hidden from them relevant
information that could assist them in making their
determinations. Our Rules of Evidence are designed with truth
and fairness in mind; they do not require that courts should be
blind to reality.
     Evid. R. 102 sets forth the purpose of the Ohio Rules of
Evidence:
     "The purpose of these rules is to provide procedures for the
adjudication of causes to the end that the truth may be
ascertained and proceedings justly determined. * * * "
     Given the sophistication of our juries, the first sentence
of Evid. R. 411 ("[e]vidence that a person was or was not insured
against liability is not admissible upon the issue of whether he
acted negligently or otherwise wrongfully") does not merit the
enhanced importance it has been given. Instead of juries knowing
the truth about the existence and extent of coverage, they are
forced to make assumptions which may have more prejudicial effect
than the truth.
     Thus, the second sentence of Evid. R. 411, which allows
courts to operate in a world free from truth-stifling legal
fictions, ought to be embraced. In such instances as the case at
hand, truth should win out over a naively inspired fear of
prejudice.
     Therefore, we hold that in a medical malpractice action,
evidence of a commonality of insurance interests between a
defendant and an expert witness is sufficiently probative of the
expert's bias as to clearly outweigh any potential prejudice
evidence of insurance might cause. Thus, in the present case,
the trial court acted unreasonably in excluding evidence
regarding the commonality of insurance interests of Drs. Dakoske
and Schneider. The judgment of the court of appeals is reversed
and the cause is remanded to the trial court for a new trial.
                                  Judgment reversed
                                  and cause remanded.
     A.W. Sweeney, Douglas, Resnick and F.E. Sweeney, JJ., concur.
     Moyer, C.J., concurs in the syllabus and judgment.
     Wright, J., dissents.
     Douglas, J., concurring.     I concur with the well-reasoned
opinion of the majority. I write separately to make just two
points. First, interested readers should compare the discussion
of Civ.R. 61, in fn. 1 of the dissent, with the discussion of
Civ.R. 61 in the dissent of Continental Ins. Co. v. Whittington
(1994), 71 Ohio St.3d    ,     N.E.2d    . One cannot have it
both ways.
     Second, Evid.R. 616 could also be cited in support of the
majority opinion. By its clear terms it would seem to apply.
     Wright, J., dissenting.    I would affirm the judgment of
the court of appeals because I do not believe that the trial
judge abused his discretion in this case. The trial judge
properly considered Evid. R. 403 and 411 in disallowing the line
of questioning at issue. The second sentence of Evid. R. 411
does not require the admission of evidence of insurance for the
purpose of showing bias. It merely states that the exclusion of
such evidence is not required. The trial judge, therefore,
properly turned to Evid. R. 403 and determined that the danger of
unfair prejudice arising from the jury's knowledge that the
defendant had medical malpractice insurance substantially
outweighed the probative value of informing the jury of a
commonality of insurance interests between the defendant and the
defendant's expert witness.
     In addition, as discussed below, I believe the majority
makes two fundamental errors. First, the majority's per se rule
in the syllabus effectively divests trial judges of their
discretion regarding "evidence of a commonality of insurance
interests between a defendant and an expert witness." This view
is in direct conflict with the express language of Evid. R. 403
and the syllabus in Calderon v. Sharkey (1982), 

, 

, 

. Second, the majority, in
essence, has improperly modified the language of Evid. R. 403 and
411 without following the rulemaking procedures required by the
Ohio Constitution.1
     In the text of the opinion, the majority quite properly
recognizes that "the scope of cross-examination of a medical
expert on the questions of the expert's bias and pecuniary
interest and the admissibility of evidence relating thereto are
matters that rest in the sound discretion of the trial court."
(Emphasis added.) 

 syllabus. However, the law
contained in 

 is at war with the syllabus law
announced in this case. The majority cannot have it both ways,
and this court should not indulge itself in an exercise of
confusion.
     It is well settled that an appellate court may not
substitute its judgment for that of a trial court. As we stated
in Calderon, "the question before this court is not whether the
trial court ruled as we would have ruled if confronted with these
questions, but whether the court abused its discretion so as to
prejudice [appellant]." 

, 

, 

. A trial court does not abuse its discretion unless its
decision is "unreasonable, arbitrary or unconscionable." 

, 

, 

.
     Although I might have ruled differently than the trial judge
(especially since the judge could have restricted the evidence to
its proper scope through a jury instruction under Evid. R. 105),
I cannot say that the trial judge acted unreasonably in this
case. We should not say that a trial judge abuses his discretion
merely because he "was not responsive" to all of appellant's
arguments. As Justice Oliver Wendell Holmes stated: "[M]any
honest and sensible judgments *** express an intuition of
experience which outruns analysis and sums up many unnamed and
tangled impressions; -- impressions which may lie beneath
consciousness without losing their worth." Chicago, B. & Q. Ry.
v. Babcock (1907), 

, 

, 

.
     In applying Evid. R. 403, a trial court must have broad
discretion because of the practical problems inherent in the
balancing of intangible and indefinable factors, such as unfair
prejudice and probative value. The task of assessing potential
prejudice is one for which a trial judge, in light of his
familiarity with all the evidence in a particular case, is well
suited. Unlike reviewing judges who must look at a cold record,
a trial judge is in a superior position to evaluate the impact of
the evidence because he sees the mannerisms and reactions of the
jurors, witnesses, parties, and attorneys.
     Although the majority opinion gives lip service to the
well-established rule that a reviewing court may not reverse the
decision of a trial judge regarding the admissibility of evidence
during cross-examination unless the trial judge abuses his
discretion, the per se rule found in the syllabus simply ignores
this standard. By stating that "evidence of a commonality of
insurance interests between a defendant and an expert witness is
sufficiently probative of the expert's bias as to clearly
outweigh any potential prejudice," the majority divests all trial
judges of the discretion conferred upon them by Evid. R. 403 and
611(A). This appears to be result-oriented law run amok.
     In essence, the majority has created a new evidence rule in
direct conflict with Evid. R. 403 and, in doing so, has
circumvented the proper rulemaking procedures required by the
Ohio Constitution. Section 5(B), Article IV of the Ohio
Constitution, in relevant part, provides: "The supreme court
shall prescribe rules governing practice and procedure in all
courts of the state ***. Proposed rules shall be filed by the
court, not later than the fifteenth day of January, with the
clerk of each house of the general assembly during a regular
session thereof ***. Such rules shall take effect on the
following first day of July, unless prior to such day the general
assembly adopts a concurrent resolution of disapproval."
(Emphasis added.) The majority's new procedure for changing the
evidence rules is contrary to law.
     For the foregoing reasons, I respectfully dissent.
FOOTNOTE:
     1 Perhaps inadvertently, the majority has reversed the
judgment of the court of appeals and remanded this cause in
violation of Civ. R. 61, which states:
     "No error in either the admission or the exclusion of
evidence and no error or defect in any ruling or order or in
anything done or omitted by the court or by any of the parties is
ground for granting a new trial or for setting aside a verdict or
for vacating, modifying or otherwise disturbing a judgment or
order, unless refusal to take such action appears to the court
inconsistent with substantial justice. The court at every stage
of the proceeding must disregard any error or defect in the
proceeding which does not affect the substantial rights of the
parties."
     This means that, in order for a reviewing court to reverse a
judgment concerning a matter within a court's discretion, the
reviewing court must find not only that an abuse of discretion
occurred below, but that such abuse of discretion actually
prejudiced the substantial rights of the party seeking reversal.
Assuming for the sake of argument that the trial court abused its
discretion in this case, I do not believe that the exclusion of
"evidence of a commonality of insurance interests" between
defendant and defendant's expert witness affected the ultimate
outcome of the case so as to prejudice the substantial rights of
Ede.
     I am puzzled by the suggestion in the concurring opinion
that my discussion of Civ.R. 61 in this footnote is somehow
inconsistent with the discussion of Civ.R. 61 in my dissent in
Continental Ins. Co. v. Whittington (1994), 71 Ohio St.3d
,      N.E.2d     . In both opinions I adhere to the principle
that an error must prejudice the substantial rights of the
parties in order to constitute reversible error. A finding of
reversible error obviously depends on the unique facts of each
case. In this case, the alleged error did not prejudice the
substantial rights of the parties. In Continental, supra, the
error did prejudice the substantial rights of the parties.