O.C.G.A. § 24-9-64 allows for a thorough and sifting cross-examination of any witness, expert or otherwise. This statute allows for questioning on a number of matters including, inter alia, any interest the witness may have in the outcome of the case: ". . . a witness's financial interest in the outcome of a trial is always a proper subject for cross-examination." Cunningham v. State, 240 Ga.App. 92, 93, 522 S.E.2d 684, 687 (1999), citing Claxton Poultry Co. v. City of Claxton, 155 Ga.App. 308, 312, 271 S.E.2d 227, 233 (1980). GTLA files this brief because the parties have raised the issue of whether one should be allowed to point out during cross-examination that an expert witness is a member of the same mutual insurance company as the defendant physician. This matter is of utmost importance to any medical malpractice case at trial, in that a ruling limiting or disallowing such testimony would affect the right of any party to show the direct financial interest of a witness in the litigation.

A. Financial Interest of a Witness is Always Relevant

It has long been the law of Georgia that a witness may be cross-examined about his or her financial interest in the case:

Each party to a cause has the right to make a thorough and sifting cross- examination of any witness called against him, and great latitude should be allowed by the court where the purpose of the interrogation is to impeach or discredit the witness by showing his bias and interest in the case.

Griffin v. State, 18 Ga.App. 462(2), 89 S.E. 537 (1916) (citations omitted; emphasis added).

The basis for this rule is that any facts showing an interest or bias of the witness should be brought to light for consideration by the jury, to be given whatever weight the jury wishes in considering the credibility of the testimony of the witness. Georgia favors the submission of evidence of even doubtful admissibility because the fundamental purpose of all legal investigation is the discovery of truth. O.C.G.A. § 24-1-2:

The policy of Georgia law is to admit evidence, even if its admissibility is doubtful, because it is more dangerous to suppress the truth than to allow a loophole for falsehood.

Gibbons v. Maryland Cas. Co., 114 Ga.App. 788, 796, 152 S.E.2d 815, 820 (1966).

• The Mention of Liability Insurance is not for Irrelevant Purposes but to Show the Direct Financial Interest of the Expert Witnesses

in the Outcome Of The Litigation

The general rule is that the existence of liability insurance is irrelevant and unfairly prejudicial, and that such evidence if admitted for no other purpose warrants a new trial; however, the mere allusion to insurance does not necessarily demand such an outcome. Pruitt v. Pierce, 100 Ga.App. 808, 810, 112 S.E.2d 327, 330 (1959); Getz Exterminators of Georgia v. Towe, 193 Ga.App. 268, 270, 387 S.E.2d 338, 341 (1989).

Of course, the appellant is not seeking to mention insurance so as to inject irrelevant and immaterial issues into the case. Rather, appellant seeks to point out the biases of the expert witnesses because they have a direct financial interest in the case of appellee Gandhi. The financial interest of these witnesses is not speculative; the experts' insurance premiums will rise or fall based upon the outcome of the case against appellee Gandhi. Wallace v. Swift Spinning Mills, 236 Ga.App. 613, 614, 511 S.E.2d 904, 906 (1999).

If the expert witnesses were shareholders in the same professional corporation as Appellee Gandhi, there would not be any issue as to whether Appellant could question about their financial interest in the case. Appellant would be allowed to show that the fortunes of the professional corporation (and its shareholders) would be affected by an adverse judgment.

But the "problem" in this case is that the financial interest is due to the experts and Appellee Gandhi being members of the same mutual liability insurance company. While GTLA certainly understands that Georgia's courts must tread carefully on this topic, GTLA remains firmly of the position that the direct financial interest of these experts must be shown so that the jury will have all the facts needed to weigh the credibility of these experts. In a medical malpractice action where the facts and the standard of care can be technical, complicated and oftentimes confusing to the jury panel, the credibility of the expert witnesses is often a key factor in whether a party prevails. Given the importance of an expert's credibility, as well as the high stakes that are often involved in medical malpractice litigation, such examination should be allowed. Any possible harm caused by a brief allusion to liability insurance could be limited by an appropriate instruction at the time of cross-examination.

• Knowledge of Liability Insurance Will Not Bias the Jury Against Appellee Gandhi

While mention of liability insurance should be minimized whenever possible, the simple fact is that jurors in the 21^st century are acclimated to the fact that most persons and entities have liability insurance:

Any juror who doesn't know that there is liability insurance in the case by this time should probably be excused by virtue of the fact he or she is an idiot.

Young v. Carter, 121 Ga.App. 191, 192, 173 S.E.2d 259, 260 (1970)(Hall, concurring); cited in Smith v. Crump, 223 Ga.App. 52, 54, 476 S.E.2d 817, 819 (1997).

The Young case is especially instructive here. In that case, which involved a motor vehicle collision, the defendant told the plaintiff at the scene that "it was his fault - that his insurance company would take care of it for her". Young, 121 Ga.App. at 192, 173 S.E.2d at 259. This Court found that the fact that this admission was mentioned to the jury in opening statements did not warrant a mistrial and reversed the trial court. This Court noted that the fact that liability insurance was inextricably bound up in the admission did not require its exclusion. Id.

From time to time, this Court has found mistrials unwarranted when insurance is mentioned for legitimate purposes or unintentionally. In Dubose v. Ross, 222 Ga.App. 99, 473 S.E.2d 179 (1996), this Court found that the mention of insurance was part of the res gestae and approved the denial of the defendant's motion for mistrial. 222 Ga.App. at 100, 473 S.E.2d at 181; see also, McDuffie v. Rogers, 124 Ga.App. 442, 184 S.E.2d 46 (1971); and Smith v. Crump, 223 Ga.App. 52, 54, 476 S.E.2d 817, 819 (1997), and cases cited therein. Indeed, as noted by Judge Eldridge in Crump, jurors have been qualified about liability insurance since 1921, and no systemwide failure of justice has occurred in the past eighty years because of such qualification. Crump, 223 Ga.App. at 54, 476 S.E.2d at 819.

Indeed, any juror who even remotely paid attention to the 2000 presidential election was well aware of President George W. Bush's tort reform in Texas that supposedly lowered liability insurance premiums for physicians and other corporate policyholders. It would be surprising indeed for any juror today not to know that his or her physician carried liability insurance. If anything, a juror would likely be surprised by a professional who chose not to carry liability insurance for those professional errors that inevitably occur from time to time.

As has already been addressed in Appellant's oral argument and Post Argument Brief, other jurisdictions have used balancing tests when faced with this same question, and have found the minimal connection to liability insurance was outweighed by the jury's need to know regarding the direct financial interest of the witness in the outcome of the case in assessing credibility. See, e.g., Ede v. Atrium South OB-GYN, Inc., 642 N.E.2d 365 (Ohio 1994). While other jurisdictions have disagreed in this respect, the quality of the analysis is the critical factor. The Ede case is directly on point in that it considered the direct financial relationship of mutual company policyholders, as opposed to the analysis of other jurisdictions who mainly considered the much more attenuated "commonality of insurance" relationship.

The fact that Oklahoma and North Carolina drew different conclusions from Ohio is remarkable, given that they recognized the potential for bias caused by the mutual company policyholder relationship. However, these jurisdictions found the bias too attenuated to affect the testimony of the witness.

Georgia clearly recognizes the bias between and among mutual policyholders and unequivocally states that all jurors should be qualified (and subsequently removed) should they be members of the same mutual company as any of the parties, without any examination or determination regarding the extent of bias caused by the relationship. Byrd v. Daus, 218 Ga.App. 145, 146, 460 S.E.2d 819, 820-821 (1995); Atlanta Coach Co. v. Cobb, 178 Ga. 544, 549-551, 174 S.E. 131 (1934).

The Federal Rules of Evidence also recognize and support the position of Appellant and GTLA that liability insurance can be mentioned in appropriate circumstances in order to show bias of the witness:

Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This 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, or bias or prejudice of a witness.

Federal Rule of Evidence 411 (emphasis added).

Federal Rule 411 simply recognizes that the knee-jerk reaction to exclude all mention of insurance at all times is inappropriate. Under certain factual scenarios where the existence of the liability insurance is inextricably bound up into a critical issue in the case (such as direct financial interest of the witness), the mere mentioning of liability insurance in context with other facts will not unfairly prejudice the jury against the defendant healthcare provider.

• Appellee Gandhi's Arguments Regarding Availability of Expert Witnesses Are Meritless

Appellee Gandhi's arguments that defendants everywhere will be sorely limited in their choice of experts is nonsense. Initially, it should be pointed out that an expert who is a member of the same mutual company as a defendant is not prohibited from testifying; he or she must only admit that they have a direct financial interest in the case. Should MAG Mutual find a persuasive, well-credentialed expert that opines that the Defendant did nothing wrong, then the jury, following the law and the evidence, will find for the Defendant regardless of the fact that the expert has a financial interest in the case.

Secondly, while MAG Mutual does have a substantial presence in Georgia, there are many other professional liability companies in existence, including St. Paul and others. Of course, defendants are also free to look outside Georgia to find their experts.

If anything, the so-called "exclusion" of MAG Mutual insureds as experts will actually level the playing field in the area of medical expert witnesses. For years, plaintiffs have intelligently chosen not to use experts insured by MAG Mutual in cases involving a MAG Mutual insured, given the clear financial conflict of interest. As such, plaintiffs have sought experts insured by other companies for appropriate, unbiased testimony. That health care defendants insured by MAG Mutual may have similar considerations in the future as plaintiffs is not an injustice but simply a recognition of the bias caused by an expert having a direct financial interest in the litigation.

Respectfully submitted, this ____ day of July, 2001.

/s/ Mark L. Stuckey