Salm v. Moses

Defendant, Dentist, moved in limine to prevent plaintiff-patient, from cross-examining his expert witness about the expert's ownership interest in the dentist's insurance carrier. The trial judge granted the motion finding that the expert's monetary interest was minimal and the potential for bias attenuated.  The Appellate Division affirmed the trial court and the Court of Appeals, finding no abuse of discretion in the trial court's ruling, affirmed the Appellate Division.

In reaching its decision, the Court of Appeals stated:

1) While cross-examination is a right, the trial judge has discretion to determine the scope and manner of the cross.  Absent an abuse of discretion, the determination of the trial court is beyond the Court's review.

2) Evidence that a defendant has liability insurance is generally inadmissible because jurors could be more likely to find for plaintiff if they knew an insurance company would have to pay the verdict and because that evidence is not relevant to whether a defendant acted negligently.  However, when evidence about insurance bears on relevant issue in the case, it may be admitted even though it can have a prejudicial effect on the defendant.  For example, evidence of insurance may be introduced to prove ownership or control over a building. 

Judge Pigott, in a concurring opinion, expressed his opinion that trial courts should no longer treat evidence of insurance as the "third rail" of trial practice so as to preclude it to establish a possible  bias.  Judge Pigott observed that it is common knowledge that most defendants have insurance and that during selection, jurors themselves are asked if they have an interest in a insurance company that may bias them in favor of a defendant and subject them to challenge.  Along similar lines, Judge Pigot reasoned that a jury should be aware of potential bias of a witness arising from owning stock in the company required to pay the verdict.

While not suggesting that evidence of insurance be admitted as a mater of course, Judge Piggot stated that a legitimate basis for admission exists, there are appropriate circumstance where evidence should be admitted to show party or witness bias.

Salm v Moses, 2009 NY Slip Op 07479 (Full Text)