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Cervantes v. Rijlaarsdam11/18/1997
Honorable James E. Don, Judge
AFFIRMED
In this personal injury case, which arises from a two-vehicle accident in February 1990, defendants/appellants Rijlaarsdam appeal from the judgment entered on the jury's verdict for plaintiffs/appellees Cervantes and from the trial court's order denying defendants' motion for a new trial and/or remittitur. Although defendants raise a number of issues, the most significant one involves their unsuccessful attempts to introduce substantive, causation-related evidence through cross-examination of plaintiffs' experts. In order to clarify the applicable rules concerning examination of experts, we publish this opinion and affirm.
REFERENCES TO INSURANCE
Plaintiff Eugenio Cervantes's treating physician, Dr. Erickson, testified on direct examination that plaintiff did not undergo a CT scan until eighteen months after the accident because "he didn't have any insurance and couldn't afford to have the exam done." In discussing the decision to terminate physical therapy, Dr. Erickson later testified: "Certainly in situations in this day and age with insurance companies, if someone is not making steady progress, the insurance company is not particularly anxious to continue paying for therapy." At the Conclusion of Dr. Erickson's direct examination, defendants moved for a mistrial based on the doctor's references to insurance. Defendants contend the trial court erred in denying the motion.
We review the ruling on a motion for mistrial for an abuse of discretion. E. L. Jones Constr. Co. v. Noland, 105 Ariz. 446, 466 P.2d 740 (1970). Defendants contend Dr. Erickson's references to insurance were irrelevant and unfairly prejudicial. Relying on Rule 411, Ariz. R. Evid., 17A A.R.S., and their proposed corollary to the collateral source rule, defendants assert that "insurance, whether it exists or not, should not be a consideration for the jury." Although we agree with that general proposition, the challenged testimony does not warrant reversal here.First, Dr. Erickson's testimony was unresponsive and volunteered, not willfully elicited by plaintiff's counsel, as defendants suggest. Second, Evidence Rule 411 specifically applies to "insurance against liability" and does not mention health insurance; defendants' cited cases all involved a witness's reference to liability insurance, which is not the situation here. Third, even in that context, prejudice is not presumed from the improper admission of insurance-related evidence. See Muehlebach v. Mercer Mortuary & Chapel, 93 Ariz. 60, 378 P.2d 741 (1963). The mere mention of insurance is not automatically grounds for a mistrial. Id. Finally, we note that defendants did not move to strike the testimony. Cf. State v. Hudson, 87 Ariz. 162, 348 P.2d 928 (1960). That the jury's verdict was larger than defendants expected does not establish prejudice from Dr. Erickson's brief, uninvited remarks. Although his comments were unfortunate and arguably irrelevant, the trial court did not abuse its discretion in denying defendants' motion for mistrial.
In a related argument, defendants contend the trial court erred in denying them leave to cross-examine Dr. Erickson about "alternative funding mechanisms" or "other options that might be available to [plaintiff] to obtain health care treatment and to have such expenses paid." The trial court should have permitted such inquiry, defendants argue, to impeach and rebut Dr. Erickson's testimony. "A trial court's rulings on the exclusion or admission of evidence will not be disturbed on appeal unless a clear abuse of discretion appears and prejudice results." Selby v. Savard, 134 Ariz. 222, 227, 655 P.2d 342, 347 (1982). See also Ar
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