Robinson Property Group, Limited Partnership v. Mary S. Mitchell ( 2008 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2008-CA-00256-SCT
ROBINSON PROPERTY GROUP, L.P.,
A MISSISSIPPI LIMITED PARTNERSHIP d/b/a
HORSESHOE CASINO AND HOTEL
v.
MARY S. MITCHELL
DATE OF JUDGMENT: 01/14/2008
TRIAL JUDGE: HON. CHARLES E. WEBSTER
COURT FROM WHICH APPEALED: TUNICA COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: JOEANNA CHANDLEY CRAWFORD
ROBERT LEWIS MOORE
DAWN DAVIS CARSON
ATTORNEY FOR APPELLEE: ROBERT Q. WHITWELL
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: AFFIRMED - 04/23/2009
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
RANDOLPH, JUSTICE, FOR THE COURT:
¶1. Mary S. Mitchell filed a personal-injury suit against Robinson Property Group
(“Robinson Property”), a Mississippi Limited Partnership, stemming from a trip-and-fall
accident at the Horseshoe Casino in Robinsonville, Mississippi. A jury determined the value
of Mitchell’s damages at $80,000, but deemed her thirty percent at fault. Thus, final
judgment was entered in her favor for $56,000. Finding no error, this Court affirms.
FACTS
¶2. On March 29, 2006, Mitchell, a seventy-two-year-old resident of Memphis,
Tennessee, and a group of her friends visited the Horseshoe Casino in Robinsonville,
Mississippi. After playing the slot machines, Mitchell walked over to the snack bar and
ordered a sandwich. While awaiting her order, Mitchell decided to play her one remaining
“fifty-cent coupon” on a nearby slot machine. As Mitchell approached the machine, the heel
of her shoe caught on a metal plate, causing her to fall. This metal plate had a two-inch lip
and formed the base for attaching a slot-machine seat to the floor.
¶3. The parties dispute whether the area in which the accident occurred was barricaded.
Mitchell stated that several aisles were roped off, but she did not see any barricades around
this particular area. A companion, Bettie Jolly, testified that she did not see any barricades.
Both women, however, did notice that the seats in this area were in some disarray. Robinson
Property insisted that the area had been roped off, and that Mitchell had failed to notice, or
had blatantly ignored, the barricade.
¶4. Mitchell was transported to the emergency room at Baptist Memorial Hospital-DeSoto
in Southaven, Mississippi, and then transferred to Methodist Le Bonheur Germantown
Hospital in Germantown, Tennessee. She suffered a broken ankle and underwent orthopedic
surgery several days later.
¶5. Mitchell experienced additional complications from the injury. While hospitalized
following her surgery, Mitchell contracted a staph infection in one eye and one arm.
Thereafter, she was confined to a wheelchair for nearly six weeks. She described the pain
as unbearable. Mitchell testified that she also had difficulty breathing and consulted both a
2
lung specialist and a heart specialist for treatment. Additionally, she received psychological
treatment for depression. Mitchell also testified that she missed a substantial period of work,
and that when she returned to work, her hours at a local gift shop were reduced from eight
hours a day, three days a week, to four hours a day, three days a week, due to her inability
to stand for prolonged periods of time.
¶6. Mitchell filed suit against Robinson Property in the Circuit Court of Tunica County,
Mississippi, which culminated in a jury verdict in her favor. Contested issues at trial
included, inter alia, whether the area was barricaded and the accuracy of Mitchell’s
purported medical expenses. Rather than submitting separate bills and records associated
with her medical expenses, Mitchell offered a summary as evidence, thereby excluding
documents which revealed Medicare payments. Attached to the summary was some
supporting documentation. On cross-examination, Robinson Property confronted Mitchell
regarding discrepancies between the summary and the attached bills. Robinson Property also
pointed out that some of the bills failed to reflect the amount shown in the summary.
Robinson Property contested whether attached bills for treatment of a urinary-tract infection,
cholesterol check, routine blood work, and a $10,198 bill from the Sutherland Clinic which
dated back to June 18, 1996, were related to the 2006 fall. Mitchell testified that she did not
know how the inclusion of the Sutherland Clinic bill had occurred, as she had not seen the
summary prior to taking the witness stand. Mitchell testified someone had made a mistake 1
1
At post-trial motion hearings, Mitchell’s counsel explained that his office had
flooded just prior to trial, and in his haste to obtain replacement copies of Mitchell’s medical
bills, he inadvertently included the entire bill from the Sutherland Clinic.
3
to include the entire bill, but that she had incurred some medical expenses at Sutherland
Clinic attributable to the 2006 fall. On redirect, it was established that Mitchell’s counsel
had prepared the summary, and Mitchell testified that any expense incurred at the Sutherland
Clinic before her fall should be taken off her claim. Mitchell sought special damages,
including lost wages, of $43,383.
¶7. After hearing all the evidence, the jury established Mitchell’s total damages at
$80,000 and deemed her thirty percent at fault. Accordingly, the circuit court entered a final
judgment in the amount of $56,000. Mitchell then filed a motion for additur, which the
circuit court denied. Robinson Property filed a motion for new trial, asserting that the circuit
court had erred in denying its motion for directed verdict and in refusing to allow
impeachment of Mitchell regarding her assertion of financial devastation, relying on
evidence it proffered during trial that a large portion of her medical expenses were paid by
insurance. After a post-trial hearing, the circuit judge entered an order denying Robinson
Property’s motion for new trial.
¶8. Robinson Property now appeals to this Court, raising the following assignments of
error: (1) whether the circuit court erred in refusing to recognize an impeachment exception
to the collateral-source rule, and (2) whether the circuit court abused its discretion in failing
to grant Robinson Property’s motion for new trial.
4
DISCUSSION
I. Whether the circuit court erred in refusing to recognize an
impeachment exception to the collateral-source rule.
¶9. This Court reviews a trial judge’s decision to admit or deny evidence under an abuse-
of-discretion standard. See Whitten v. Cox, 799 So. 2d 1, 13 (Miss. 2000) (quoting Floyd
v. City of Crystal Springs, 749 So. 2d 110, 113 (Miss. 1999)). If an error involves the
admission or exclusion of evidence, this Court “‘will not reverse unless the error adversely
affects a substantial right of a party.’” Id.
¶10. During the direct examination of Mitchell, the following exchange occurred:
[Mitchell’s attorney]: You have told the jury what expenses you have incurred.
What are you asking the jury to give you in the way of compensation to
compensate you for this injury?
[Mitchell]: Well, I just want the jury to determine that, except I would like to
have the medical bills and my expenses, and, of course, that's really just partial
expenses. I couldn't even think of everything that I have spent and the gas and
the cost of everything, the going back and forth to physical therapy and all of
that, but I think the jury would be fair in awarding whatever they feel would
be right for something as serious as this.
[Mitchell’s attorney]: Do you think that ought to be a substantial sum of
money, more than the $50,000 medical expenses you have?
[Mitchell]: Well, I would hope so. I had to -- I borrowed money to live on. I
refinanced my house. I know that's probably not a problem I'm supposed to
bring up, but it has -- it's devastated me financially, too.
(Emphasis added). Additionally, the following exchange addressed Mitchell’s lost wages:
[Mitchell’s attorney]: As a result of this, did you lose some time from work
while you were off with all of this surgery and so forth?
[Mitchell]: Oh, yes. I didn’t work again until – several months ago, I started
back part-time . . . . I work four hours three days a week, and that’s about all
I can stand on this ankle still, and it’s been a year and a half . . . .
5
[Mitchell’s attorney]: Are you able to work a full eight-hour day now?
[Mitchell]: No, not yet.
¶11. Robinson Property argues that it sought to introduce evidence that the medical bills
incurred by Mitchell were substantially paid by insurance for the purpose of impeaching her
testimony, not to mitigate or reduce her damages. Robinson Property contends that Busick
v. St. John, 856 So. 2d 304 (Miss. 2003), and Geske v. Williamson, 945 So. 2d 429 (Miss.
Ct. App. 2006), both recognized an impeachment exception to the collateral-source rule. The
circuit judge, however, denied Robinson Property’s request, relying upon McCary v.
Caperton, 601 So. 2d 866 (Miss. 1992), and held that there was no impeachment exception
to the collateral-source rule.
¶12. It has long been established in our state that, under the collateral-source rule, “a
defendant tortfeasor is not entitled to have damages for which he is liable reduced by reason
of the fact that the plaintiff has received compensation for his injury by and through a totally
independent source, separate and apart from the defendant tortfeasor.” Cent. Bank of Miss.
v. Butler, 517 So. 2d 507, 511-12 (Miss. 1987) (citations omitted). Compensation or
indemnity received by the plaintiff from a collateral source such as insurance:
cannot be set up by the [defendant] in mitigation or reduction of damages . .
..
The wrongdoer is not entitled to have the damages to which he is liable
reduced by proving that plaintiff has received or will receive compensation or
indemnity for the loss from a collateral source, wholly independent of him.
Under this general rule, insurance in behalf of the injured person cannot be set
up the wrongdoer in mitigation of the loss.
6
Coker v. Five-Two Taxi Serv., 211 Miss. 820, 826, 52 So. 2d 356, 357 (1951) (quoting 25
C.J.S. Damages, § 99) (emphasis added). See also Burr v. Miss. Baptist Med. Ctr., 909 So.
2d 721, 728 (Miss. 2005).
¶13. Prior to Busick, this Court had not recognized an impeachment exception to the
collateral-source doctrine. See Busick, 856 So. 2d at 309 (citing, e.g., McCollum v.
Franklin, 608 So. 2d 692, 695 (Miss. 1992); Eaton v. Gilliland, 537 So. 2d 405, 408 (Miss.
1989); Cent. Bank of Miss., 517 So. 2d at 511; Star Chevrolet Co. v. Green by Green, 473
So. 2d 157, 162 (Miss. 1985); Preferred Risk Mut. Ins. Co. v. Courtney, 393 So. 2d 1328,
1332-33 (Miss. 1981)). In Busick, this Court noted that several states have recognized a
limited impeachment exception to the collateral-source rule. See Busick, 856 So. 2d at 309-
10 (citing, e.g., Warren v. Ballard, 266 Ga. 408, 467 S.E.2d 891, 893 (1996); Corsetti v.
Stone Co., 396 Mass. 1, 483 N.E.2d 793, 801 (1985); Evans v. Wilson, 279 Ark. 224, 650
S.W.2d 569, 570 (1983); Hack v. State Farm Mut. Auto. Ins. Co., 37 Wis. 2d 1, 154 N.W.2d
320, 325 (1967)). There, the:
evidence related to Busick’s health insurance was admitted to impeach her
testimony that she suffered permanent injuries as a result of the accident.
Busick testified that she ceased physical therapy because she could no longer
afford it. The fact that she spent only $45 on that therapy discredited her
testimony.
Busick, 856 So. 2d at 310 (emphasis added). This Court held that “[t]he testimony was not
solicited for the purposes of mitigating her loss or reducing damages owed to Busick.” Id.
Therefore, this Court held there was “no reversible error . . . in allowing this testimony with
an appropriate limiting instruction.” Id.
7
¶14. While “impeachment exception to the collateral-source rule” has been the terminology
used by some courts, that phrase is a bit misleading and may cause confusion. An
“exception” is defined as “[o]ne that is excepted, esp. a case not conforming to normal rules.”
Webster’s II New College Dictionary 390 (3d ed. 2001). The “collateral-source rule” is in
no way excepted or excluded by the impeachment of testimony. The rule remains
unchanged, and a defendant may not use payments received from a third party to mitigate or
reduce a plaintiff’s damages. See Coker, 52 So. 2d at 357. The misnomered “exception”
pertains to impeachment of false testimony by evidence of collateral-source payments.
Therefore, correctly stated, the issue is whether a defendant may cross-examine the plaintiff
regarding collateral-source payments, for the narrow purpose of impeaching false testimony,
as approved by the 2003 Busick Court. See Busick, 856 So. 2d at 310.
¶15. It is a given, requiring no citation, that courts should never condone false testimony.
When a witness falsely swears that he or she paid, as opposed to incurred, medical expenses
when, in fact, the medical expenses were paid by a third party, the aforementioned principle
is violated. Therefore, to the extent that courts of this state have held that evidence of
collateral-source payments may not be introduced for the purpose of impeaching false or
misleading testimony, those decisions are expressly overruled. See Corsetti, 396 Mass. at
17 (quoting Goldstein v. Gontarz, 364 Mass. 800, 812 (1974)) (“in some circumstances,
evidence of collateral source income may be admissible, in the discretion of the trial judge,
‘as probative of a relevant proposition, say ‘control’ or credibility of a particular witness.’”)
(emphasis in original). Permitting evidence of collateral-source payments for the narrow
purpose of impeaching false or misleading testimony is consistent with the Mississippi Rules
8
of Evidence. Rule 607 provides that “[t]he credibility of a witness may be attacked by any
party . . . .” Miss. R. Evid. 607. Therefore, an attack upon the credibility of a witness
through the impeachment of false or misleading testimony is permissible. However, any
evidence to be admitted under Rule 607 must always first be deemed relevant, see
Mississippi Rule of Evidence 401-402, and then filtered through Rule 403.2 Moreover, as
in Busick, granting a limiting instruction may be appropriate, so as to avoid jurors being led
“to consider plaintiffs’ claims unimportant or trivial or to refuse plaintiffs’ verdicts or reduce
them, believing that otherwise there would be unjust double recovery.” Corsetti, 396 Mass.
at 17 (quoting Goldstein, 364 Mass. at 809).
¶16. Today’s decision also comports with the mandate articulated in our rules of evidence.
Rule 102 provides that our rules of evidence shall promote the “growth and development of
the law of evidence to the end that the truth may be ascertained and proceedings justly
determined.” Miss. R. Evid. 102. The benefits derived from permitting such inquiry are
minimally two-fold. First, it eliminates the judicial conundrum of allowing known false
testimony to be considered by a jury. Second, it eliminates jury consideration of an illusory
element of damages premised on false testimony.
¶17. We can agree with the separate opinion of Justice Kitchens that evidence of collateral-
source payments “is not relevant upon the inquiry as to whether one party has wronged
another.” (Concurring-In-Result-Only Opinion at ¶ 32). No less true, however, is that the
2
Justice Kitchens’s lack of confidence in our trial judges to control the admission of
evidence and fears of their “heap[ing] heretofore forbidden evidence” into trial (Concurring-
In-Result-Only Opinion at ¶39), is misplaced. Our system of justice is dependent upon trial
judges properly applying evidentiary rules.
9
veracity of any party is relevant, which is the crux of this Court’s decision, i.e., the
condemnation of false testimony. Justice Kitchens’s suggestion that today’s decision
abrogates the rule is unclear, as the Busick Court decided this issue six years ago. See
Busick, 856 So. 2d at 310. The cases relied upon by Justice Kitchens predate Busick.
Moreover, Vance v. Hervey, 253 Miss. 751, 179 So. 2d 1 (1965), cited in Justice Kitchens’s
separate opinion, provides additional rationale for permitting evidence of collateral-source
payments for the narrow purpose of impeaching false or misleading testimony in Busick-type
cases. In Vance, “[t]he plaintiff was permitted to testify on cross-examination, over the
objection of his attorney, that he had received weekly insurance benefits from January 1963
through July 1964 for the first injury, and this is assigned as error.” Id. at 754. While
acknowledging that Coker and Ethridge v. Goyer Company, 241 Miss. 333, 131 So. 2d 188(1961), “pronounce sound law,” this Court held that:
they have no application to the case at bar for the reason the plaintiff opened
the subject of the industrial or first injury by introducing evidence in regard
thereto. He cannot now complain of cross examination on the very matter he
has introduced and which extends the evidence to show that compensation
payments were made.
Vance, 253 Miss. at 755 (citations omitted). See also Crosby v. Keen, 200 Miss. 590, 593-
94, 28 So. 2d 322, 323 (1946) (quoting 31 C.J.S. Evidence, § 190) (“[t]he party who first
introduces improper evidence cannot object to the admission of evidence from the adverse
party relating to the same matter. However, the admission of such evidence is not a matter
of absolute right, but rests in the sound discretion of the court . . . .”) (emphasis added). False
testimony is always improper evidence.
10
¶18. In the case sub judice, the learned circuit judge conducted a very thorough analysis
regarding Mitchell’s testimony, its putative prejudicial effect upon Robinson Property, and
the applicable law. The circuit judge found that, although Mitchell had testified about
medical bills, she also had testified about nonmedical expenses. He concluded that he could
not “say with confidence that the plaintiff was attributing her financial difficulties directly
to her medical bills.” As such, the circuit court “did not believe the plaintiff’s comment was
unduly prejudicial toward the defendant.” Additionally, the circuit judge expressed some
uncertainty following his analysis of the caselaw on whether to allow impeachment of
Mitchell, “find[ing] [him]self without clear guidance.” 3 If Busick’s failure to overrule prior
contrary holdings created any uncertainty, today’s decision should make it clear that a
witness may, under very limited circumstances, be cross-examined on collateral-source
payments. Each case involves a fact-specific inquiry. Under these particular facts, this Court
concludes that the circuit court correctly applied the law when it refused to admit evidence
of Mitchell’s health insurance and Medicare coverage.
II. Whether the circuit court abused its discretion in failing to grant
Robinson Property’s motion for new trial.
¶19. This Court reviews the denial of a motion for new trial for abuse of discretion. See
Poole v. Avara, 908 So. 2d 716, 726 (Miss. 2005). This Court “will not set aside a jury’s
verdict and order a new trial unless we are convinced that the verdict was contrary to the
3
Specifically, the circuit judge stated, “[h]istorical precedence suggest[s] that there
is no impeachment exception to the collateral source rule. However, more recent cases
contain language seemingly suggesting that evidence introduced for purposes other than to
reduce the monetary award for the plaintiff, such as impeachment, is properly admitted.”
11
substantial weight of the evidence so that justice requires that a new trial be granted.” Id. at
727 (citing Jesco, Inc. v. Whitehead, 451 So. 2d 706, 714 (Miss. 1984) (Robertson, J.,
specially concurring)).
¶20. In considering a motion for new trial, this Court has set forth the following list of
factors that a trial court should weigh and consider:
(1) Has the search for the true facts proceeded as far as it reasonably may
under the peculiar facts and circumstances of the case?
(2) To what extent would it be unfair to the party in whose favor the verdict
was returned in effect to give that party's adversary a second bite at the apple?
(3) Considering the evidence, is there a substantial basis for believing that the
jury disregarded their oaths and failed to follow the instructions of the Court
in reaching its verdict? Put another way, is it substantially apparent that the
jury’s verdict is the product of passion, prejudice or any other arbitrary factor?
(4) Assuming arguendo that the verdict is unjust (by reference to the
underlying facts of the transaction or occurrence, the complete truth of which
we will never know), what is the impact of that "injustice" upon the party
against whom the verdict has been returned?
(5) If a new trial is ordered, will the party in whose favor the verdict has been
returned be deprived of some fair advantage he enjoyed in the first trial?
(6) Are there any other factors present, peculiar to the particular case or the
parties, that would render just or unjust the grant or denial of a new trial?
Janssen Pharmaceutica, Inc. v. Bailey, 878 So. 2d 31, 60-61 (Miss. 2004) (citing Jesco,
Inc., 451 So. 2d at 715-16)).
¶21. Robinson Property argues that the circuit judge failed to weigh these factors as a
whole. Primarily, it asserts that, by refusing to admit the evidence of Mitchell’s insurance
coverage, the circuit court did not permit the “true facts” to proceed as far as reasonably
necessary. See id.
12
¶22. The circuit judge entered a thorough order denying Robinson Property’s motion for
new trial. After examining the relevant caselaw and noting the lack of clear guidance, the
circuit judge acknowledged that he could not state with confidence that he was correct in
refusing to admit the proposed impeachment evidence.4 But he added that even if he had
erred, a new trial was not required. He found that Mitchell’s credibility was substantially
impeached by Robinson Property’s “vigorous attack” surrounding the “debacle involving the
errant $10,000 [in] medical expenses appearing in the plaintiff’s medical expense summary
. . . .” He also was of the opinion that the size of the verdict compared to the requested
medical expenses suggested that Mitchell’s credibility had been called into question.
¶23. This Court finds that the circuit court did not abuse its discretion in denying a new
trial.
CONCLUSION
¶24. The circuit court did not err in excluding evidence of Mitchell’s insurance payments,
nor did it abuse its discretion in denying a new trial. Therefore, this Court affirms the Circuit
Court of Tunica County’s final judgment and denial of Robinson Property’s motion for new
trial.
¶25. AFFIRMED.
WALLER, C.J., CARLSON, P.J., DICKINSON, LAMAR, CHANDLER AND
PIERCE, JJ., CONCUR. GRAVES, P.J., CONCURS IN RESULT ONLY.
DICKINSON, J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY
CARLSON, P.J., RANDOLPH AND LAMAR, JJ. KITCHENS, J., CONCURS IN
RESULT ONLY WITH SEPARATE WRITTEN OPINION JOINED IN PART BY
WALLER, C.J.
4
See footnote 3 supra.
13
DICKINSON, JUSTICE, CONCURRING:
¶26. I have attempted without success to understand the concern voiced by my learned
colleague, Justice Kitchens, who opines that today’s majority opinion “makes access to
previously forbidden evidence of collateral-source payments exceedingly effortless.” I agree
with my friend on the point, but hasten to state that, in my judgment, access to such evidence
should, indeed, be effortless. After all, it comes into play only where the plaintiff has lied
on the witness stand. Our rules – whether of ancient5 or more recent6 vintage – should never
protect a liar.
¶27. The subject of my friend’s concurring opinion is the following issue as framed by
Justice Randolph: “Whether a defendant may cross-examine the plaintiff regarding collateral-
source payments, for the narrow purpose of impeaching false testimony.” One would hope
the issue is rarely presented but, when it is, my firm view is that neither rule nor statute nor
this Court’s precedent should prevent the lie from being exposed.
¶28. Furthermore, I question my friend’s prognostication that today’s decision will savage
cases where plaintiffs make “benign references to financial hardship.” That is precisely what
happened in the case before us today, and the majority correctly concludes that the plaintiff’s
testimony was acceptable, and that the trial judge’s exclusion of the collateral-source
payments was eminently correct.
5
“Ye shall know the truth, and the truth shall make you free.” John 8:32.
6
“These rules [of evidence] shall be construed . . . to the end that the truth may be
ascertained and proceedings justly determined.” Maj. Op. at ¶16 (citing Miss. R. Evid. 102).
14
CARLSON, P.J., RANDOLPH AND LAMAR, JJ., JOIN THIS OPINION.
KITCHENS, JUSTICE, CONCURRING IN RESULT ONLY:
¶29. I agree with the majority that “the circuit court correctly applied the law when it
refused to admit evidence of Mitchell’s health insurance and Medicare coverage.” Maj. Op.
at ¶18. But in my judgment, that correct application stemmed from our long-held principle
that parties may not adduce evidence that damages have been mitigated by collateral-source
payments. I can endorse neither the abrogation nor the weakening of that wise rule.
Therefore, I join today’s judgment in result only.
¶30. Let us be under no illusions regarding the impact of today’s pronouncement. The
majority opinion’s aim is no “narrow purpose,” Maj. Op. at ¶14, and Mississippi’s
longstanding collateral-source rule does not “remain[ ] unchanged” by today’s judgment. Id.
This decision makes access to previously forbidden evidence of collateral-source payments
exceedingly effortless and overlooks major implications that may open the door to the rule’s
demise.
¶31. As early as 1854, the U.S. Supreme Court recognized the principle, long ago crafted
of necessity by English courts, see Yates v. Whyte, 4 Bing. N.C. 272 (1838), as “a doctrine
well established . . . .” Monticello v. Mollison, 58 U.S. 152, 155, 15 L. Ed. 68, 17 How. 152(1854). “The contract with the insurer is in the nature of a wager between third parties, with
which the trespasser has no concern.” Id.
¶32. The policy considerations girding the collateral-source rule are legion, but perhaps
chiefly ranked among them all is the recognition that such evidence simply is not relevant
upon the inquiry as to whether one party has wronged another. Until recently, this Court has
15
held consistently that the collateral-source rule does not yield even to considerations of a
witness’s veracity. See Ethridge v. Goyer Co., 241 Miss. 333, 338 (1961) (evidence of
collateral-source payments not permitted even “to contradict testimony that the plaintiff gave
in the trial . . .”). See also Vance v. Hervey, 253 Miss. 751, 755 (1965) (rule of Ethridge is
“sound law”).
¶33. To the credit of my colleagues with whose judgment I part ways today, the decision
in the instant case does not automatically allow admission of such evidence. Rather, today’s
judgment purports to grant its blessing only upon “evidence of collateral source payments
. . . introduced for the purpose of impeaching false or misleading testimony . . . .” Maj. Op.
at ¶17. Were such evidence admissible in a vacuum, then I would concur fully. But any
contention that such evidence will not be procured with the intent and effect of informing
jurors that a plaintiff’s damages were covered by insurance is not rooted in reality. Indeed,
one would find impossible the task of suggesting with sincerity that some attorneys will not
assiduously ferret out such evidence at every opportunity for precisely that purpose. The
majority makes available an outright circumvention of the collateral-source rule with the
simple, possibly pretextual, question of whether the plaintiff in any given case has suffered
personal financial hardship. If the answer is yes, as it almost always would be, then the
examining attorney has positioned his or her client to offer proof of collateral-source
payments.
¶34. I find the majority’s reliance on our decision in Busick v. St. John, 856 So. 2d 304(Miss. 2003), to be misplaced. In Busick, this Court noted the existence of an impeachment
exception in some jurisdictions but ultimately avoided the collateral-source issue by correctly
16
noting that the issue had not been preserved for appellate review by way of a timely objection
at trial.7 Id. at 309-310. Busick did not, either explicitly or implicitly, create the rule of law
to which the majority purportedly adheres. If Busick stands for any broadly applicable
principle of law at all, it is that evidence of collateral-source payments survives appellate
review only when the aggrieved party did not lodge a timely objection thereto. Id. at 310.
¶35. One of the central policy foundations supporting the collateral-source rule is that any
alternative would punish parties with the foresight and care to protect themselves and others
by carrying health coverage. Today’s decision has great potential to punish such foresight.
7
By arguing, on one hand, that today’s judgment is rooted firmly in prior precedent
but, feeling, on the other hand, the need to overrule prior case law expressly, the majority
appears to concede, at the very least, that the relevant language in Busick on which today’s
decision rests is not emphatic. I agree. However, whatever direction can be gleaned from the
ambiguity strongly suggests that, ultimately, the Busick Court rejected the encroachment
upon the collateral-source rule adopted today. Paragraph 16, in which the Busick Court
spoke its final words regarding the issue now before us, finds no error in the impeachment
evidence presented in that case, but that paragraph does not indicate clearly whether the
conclusion is reached because of a procedural bar or because of a newly recognized
exception. See id. at 310. Paragraph 15 is clearer, though. It begins by reiterating
Mississippi’s long-held recognition that the collateral-source rule stands without exception.
Then-Presiding Justice Smith briefly, almost casually, mentioned that some states have
recognized this single exception. Id. at 309-310. And then, as quickly as it mentioned this
point, the majority dropped the issue from its discussion. The Busick opinion did not suggest
that the exception was being adopted, that it should be adopted, or even that existing
Mississippi law appeared to support its adoption. Indeed, the only pronouncement of
Mississippi law therein was the recognition that this Court has never permitted any exception
to the collateral-source rule. Id. at 309. Also, to the extent that the Busick Court found
permissible evidence of collateral-source payments, it so found only under the unusual set
of facts of that case, in which the plaintiff’s attorney asked for a limiting instruction in lieu
of requesting a mistrial. Id. at 308-09. For these reasons, my view is that the portion of
Busick on which today’s majority opinion depends is dictum and limited to that case’s facts.
I concede that this conclusion alone does not foreclose the Court from proceeding down the
trail embarked upon today, but we should at least recognize that we do so without regard for
the principles of stare decisis.
17
¶36. This decision also ignores the implications presented by subrogation, which is
contractually required by most contemporary health insurance policies and plans, as well as
by government programs such as Medicare and Medicaid, and by our state’s workers’
compensation statute. When all or some portion of a plaintiff’s claim-related medical costs
have been paid by third parties such as these, a plaintiff who is awarded money damages in
civil litigation must reimburse that third party from his or her recovery of those same
components of claim-related damages.
¶37. In a trial, it likely would benefit the tortfeasor for jurors to get the impression that the
plaintiff was attempting to “double dip” by asking for a verdict that included medical costs
already paid on the plaintiff’s behalf by a third party, such as the plaintiff’s health insurance
carrier. For jurors to be so misled, whether unintentionally or otherwise, would be patently
unfair, and the prevention of this sort of injustice provides another compelling reason to
maintain inviolate Mississippi’s well-established collateral-source rule. Justice would best
be served by retention, without exception, of this wisely conceived, time-tested rule that
precludes jurors from being informed that a plaintiff’s medical costs had been defrayed, in
whole or in part, through third-party payments, unless, of course, we also should hold that,
if a jury were given such information, a plaintiff would then be allowed to make the jurors
privy to the realities of subrogation.
¶38. Similarly, it would seem only fair, in the interest of full disclosure, to inform jurors
of defendants’ applicable liability insurance so that they would know that a defendant would
not be caused to suffer personal financial hardship by an adverse verdict. By analogy to
today’s decision, a plaintiff’s attorney could ask a defendant, “Would you suffer personal
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financial hardship if you had to pay the plaintiff’s medical bills, lost income, and other
proven damages?” This would open the door to the plaintiff’s being able to reveal to the jury
that the defendant would be relieved of personally paying those damages because they would
be paid by funds from a collateral source, namely the defendant’s liability insurance carrier,
up to the limits of the defendant’s applicable coverage. It is apparent that the majority’s
tinkering with this venerable old rule may have ramifications far beyond its application to
the instant case.
¶39. Even without the policy concerns that support my conclusion, I still would not be
comfortable joining this decision because the majority does little to explain how and when
evidence of collateral-source payments may be adduced. Notwithstanding the majority’s
contention that the collateral-source rule “remains unchanged” by its decision, Maj. Op. at
¶14, “the purpose of impeaching false or misleading testimony” at which today’s judgment
is aimed is an exceedingly vague standard. Id. Undoubtedly, some trial courts will apply this
new rule narrowly and allow evidence of collateral-source payments only when the plaintiff
has stepped squarely in a hole of its own digging. Conversely, other trial judges will
enthusiastically leap astride the horse loosed from its stable by today’s majority and heap
heretofore forbidden evidence upon a plaintiff’s most benign references to financial hardship.
¶40. To the extent that my friends in the majority contend that my conclusion violates
evidentiary concerns and Biblical concerns alike, see Conc. Op. at ¶26, n.1-2 (Dickinson, J.),
my colleagues, for whom I have the deepest respect, have reached their conclusion by way
of an oversimplified view of the real-world effects today’s decision will have. The Court
reaches its conclusion with insufficient consideration of the practical implications thereof,
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the inevitable real-world effects thereof in this state’s trial courts, and the unfair disadvantage
at which plaintiffs are placed thereby. The fullness of today’s judgment is a slippery slope
upon which I am compelled not to step. Therefore, I concur in its result but nothing more.
WALLER, C.J., JOINS THIS OPINION IN PART.
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