Insurance Mistrial: Lewis v. Romero

Kopec Law Firm

The Baltimore Medical Malpractice Lawyer Blog features Maryland appellate opinions on medical malpractice cases. It also includes other personal injury cases that involve issues that can also arise in medical malpractice litigation. In this post, I will discuss the issue of whether to grant a mistrial. Mistrial is a legal term referring to the termination of a trial before its natural conclusion, often due to a procedural error or a prejudicial event. This insurance mistrial issue arises from the case the Appellate Court of Maryland decided with an unreported opinion in Lewis v. Romero, No. 1932 (Oct. 10, 2023).

The case was in the Circuit Court for Frederick County. The case involved a car accident where a car hit a pedestrian. The jury found that the defendant was negligent but that the plaintiff was also contributorily negligent, a legal term meaning that the plaintiff’s own negligence contributed to the accident, thereby barring him from recovering damages. (Op. at 1, 6).

The Appellate Court discussed several issues in its opinion, but I am going to discuss the one involving a motion for mistrial. During the defendant’s closing argument, the plaintiff objected and moved for a mistrial based on improper reference to lack of insurance coverage, which the circuit court denied. (Id.).

Factual Background

In closing argument, the defense discussed the plaintiff’s claimed damages. Then the defense said, the plaintiff is asking you to award him a monetary figure for the choices he has made. He wants the defendant to pay him for some of these choices. (Id. at 8).

The plaintiff’s counsel swiftly moved for a mistrial. The plaintiff asserted that defense counsel had improperly suggested that the defendant, in his personal capacity, would be responsible for paying any verdict entered for the plaintiff. The plaintiff’s counsel also contended that the defense comment insinuated a lack of insurance coverage. (Id. at 8-9).

The circuit court denied the motion for mistrial, stating that it did not believe the word pay was a reference to insurance specifically. Upon the plaintiff’s request, the circuit court instructed the jury with a curative instruction, which is a statement made by the court to correct a mistake or to prevent a misunderstanding, that they should not consider how a verdict is paid in a case. (Id. at 9).

Insurance Mistrial
Insurance Mistrial

Appellate Court Analysis

The plaintiff argued that the defense’s comment was highly prejudicial. Despite the curative instruction, the plaintiff argued that the comment denied him a fair trial. (Id.).

The defense contended that the statements were not prejudicial because they did not present the lack of insurance to the jury. The defendant added that, in any event, the plaintiff received a fair trial because the circuit court used the curative instruction that the plaintiff had explicitly requested. (Id.).

The standard of review, a legal term referring to the level of scrutiny that an appellate court applies when reviewing a decision by a lower court, was an abuse of discretion and an insurance mistrial is an extraordinary remedy. (Id. at 10).

Maryland follows the majority rule, a legal term referring to a principle of law that is followed by the majority of courts in a particular jurisdiction, that evidence of insurance is generally inadmissible. Morris v. Weddington, 320 Md. 674, 680 (1990). The rule against admitting evidence regarding insurance is for the protection of both parties. Suppose the amount of insurance coverage is high. In that case, reference to it may prejudice the defendant because the jury may consider that the defendant will not be personally liable for any damages and, therefore, be overly generous in an award to the plaintiff. Conversely, suppose coverage limits are low or nonexistent. In that case, the award may be smaller than justified because the jury may limit the award to what it believes the defendant can personally afford regardless of the actual damages proved. Id. at 681.

However, “a mere inference that there may be insurance would not necessarily require a termination of the trial.” Bricker v. Graceffo, 236 Md. 558, 564 (1964).

Appellate Court Ruling on Insurance Mistrial

The Appellate Court found that the defense comment was ambiguous. There was no suggestion or reference to insurance or lack thereof. The mere reference to the plaintiff wanting the defendant to pay him for his choices did not prejudice the plaintiff. (Op. at 12).

The plaintiff next contended that the curative instruction called additional attention to the insurance issue, depriving him of a fair trial. Here, it becomes unclear who requested the instruction. On page 9, the Appellate Court said the plaintiff requested it. On page 13, the court stated that the defense counsel requested it, and the circuit court used the language requested by the plaintiff.

In either event, the Appellate Court found that the curative instruction was sufficient. Accordingly, the Appellate Court upheld the circuit court’s denial of the insurance mistrial.

Commentary by the Baltimore Medical Malpractice Lawyer on Insurance Mistrial

Medical malpractice lawyers need to make sure that the defense does not try to inject a suggestion that the defendant does not have insurance or has insufficient insurance. Rarely will this issue come head-on. In other words, it likely won’t involve the word insurance. As in Lewis, it most likely will be a comment that mentions the ramifications of the lack of insurance.

For instance, the medical malpractice lawyer should object to any comment that a verdict would have a negative financial effect on the defendant or the defendant’s ability to practice medicine. The objection must be immediate. In addition, it is wise to request curative instruction. Further, propose one that is well-crafted to address the specific comment at issue.

Courts view curative instructions favorably. The argument that it calls additional attention to the issue will likely be unsuccessful for proper curative instruction. Of course, if it is a poorly constructed one, this argument may have better prospects. In that instance, the medical malpractice lawyer should have proposed an appropriate instruction, which the court declined.

Consider a Motion in Limine

Last, if you are going up against a defense counsel who is known for injecting inappropriate insurance-related comments, file a motion in limine. Motion in limine is a legal term referring to a pre-trial motion that is made to exclude certain evidence from being presented by the other party at trial, in advance of trial. It can inform the trial judge of counsel’s tendency to inject these inappropriate comments that could warrant an insurance mistrial. That alone may make the defense counsel back off. Even if it doesn’t, it may make the judge more sympathetic to your objections and curative instructions.

You can read more about trials on the litigation process pages. You can also read a Blog post about another case involving closing arguments.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

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