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Barsema v. Susong3/10/1988
FELDMAN, Vice Chief Justice
James and Debra Barsema (plaintiffs) petition us to review a decision of the court of appeals. We granted review to determine whether A.R.S. § 12-569 can be constitutionally applied to limit the cross-examination of an expert witness on issues pertaining to possible bias and prejudice. See Rule 23, Ariz.R.Civ.App.P., 17A A.R.S. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. § 12-120.24.
FACTS
Plaintiffs brought a malpractice action against William Susong, M.D. (defendant). Mutual Insurance Company of Arizona (MICA) provided malpractice coverage for the claim. One of defendant's expert witnesses was William Crisp, M.D., allegedly a MICA shareholder and insured. Dr. Crisp was a vice president and member of MICA's board of directors. Although he was not salaried, Dr. Crisp was compensated for the duties he performed for MICA. According to Dr. Crisp, his duties as a board member included trying to keep premiums low. Basing his ruling on A.R.S. § 12-569, the trial judge granted defendant's motion in limine to preclude plaintiffs from mentioning MICA or the fact that Dr. Crisp was involved with MICA and/or any of its committees. So far as the jury knew, Dr. Crisp was an impartial, independent expert testifying that defendant had not fallen below the applicable standard of care in treating plaintiff Debra Barsema.
The trial judge entered judgment on a verdict for defendant and plaintiffs appealed. The court of appeals held A.R.S. § 12-569 unconstitutional and found the trial judge erred in prohibiting plaintiffs from cross-examining Dr. Crisp regarding his employment relationship with MICA. Barsema v. Susong, 2 CA-CIV 5794 (Ariz.Ct.App. Oct. 9, 1986), at 7, 11. Nevertheless, the court affirmed the judgment for defendant, holding that plaintiffs had failed to demonstrate that the error was prejudicial. Id. at 11.
THE STATUTE
1. Scope
The relevant portions of § 12-569 provide:
During the trial of a medical malpractice action . . . evidence that . . . any witness . . . has been or is covered by a professional liability insurance policy issued by a health care insurer established pursuant to [A.R.S. §§ 20-1721 to -1724] or that such . . . witness has a financial interest in the operation of such a health care insurer arising as a result of the ownership of stock, a policy or policies of insurance, notes, including contributed surplus notes, any other evidence of indebtedness,
or otherwise, shall not be received in evidence for any purpose.
(Emphasis added.)
In holding that the trial court erred, the court of appeals found " vidence of Dr. Crisp's bias, interest, and agency would clearly have been admissible under Rule 411," Ariz.R.Evid., 17A A.R.S. Slip op. at 6. Because the court determined the evidence was "clearly inadmissible under [A.R.S. § 12-569]," it found, inter alia, that the statute could not be reconciled with Rule 411 and therefore was unconstitutional. Slip op. at 6-7.
In oral argument before this court, defendant all but conceded that the statute would be unconstitutional if interpreted to forbid the admission of Dr. Crisp's employment relationship with MICA. Were such a prohibition explicit in the statute, we would not hesitate to agree with the court of appeals that it was facially invalid for the reasons set forth in that court's opinion.
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