Argument: Permissible and Impermissible argument referencing financial ability of party strongly addressed in dissent

Additionally, the court’s admonition to the jury was emphatic and clear. It instructed the jury not to consider the financial condition of any party. It then asked the members of the jury if they understood; it did not permit counsel to resume until the jury had responded. Therefore, the court’s denial of the Gossetts’ motion for a new trial was based on substantial evidence and was not clearly erroneous.

DISSENT BY JUDGE NICKELL:

NICKELL, JUDGE, DISSENTING: Respectfully, I dissent.
In his closing statement to the jury, Crockett’s trial counsel expressed sympathy for the Gossetts, but argued “this trial is not a measure of sympathy.” Yet, in asserting that the Gossetts’ lawsuit “has held the prospect of financial ruin over [Crockett’s] head for over two years,” he attempted to enlist the jury’s sympathy on behalf of his own client’s financial status, and strongly inferred that Crockett’s finances were in peril, that Crockett was too poor to pay likely damages should he be found liable for the Gossetts’ injuries, and that Crockett had no liability insurance to cover any portion of a damage award in the event liability was found. All three implications were legally improper, and the significant prejudice arising from trial counsel’s erroneous argument was compounded by his knowledge that the latter inference was entirely false. Crockett was, in fact, covered by a policy of liability insurance. It is reasonable, therefore, to conclude that trial counsel’s improper argument to the jury, and the strong inferences capable of being drawn from it, was intended to gain an illegitimate trial advantage. The resulting verdict in Crockett’s favor tends to indicate that the strategy was effective and calls into question whether the jury considered extraneous matters in reaching its deliberations concerning the merits of causation, liability, and damages.

The trial court correctly chastised trial counsel and characterized his “financial ruin” argument as “a serious misstep.” However, rather than sustaining the Gossetts’ objections and motions for a more pronounced, specific, and corrective admonition or a new trial, the trial court chose merely to provide the jury with the very general admonition that it was to consider neither party’s financial condition when reaching its verdict. Though the majority recognizes that trial counsel’s improper trial tactic of referencing his client’s dire financial condition and falsely implying the absence of liability insurance has been “universally condemned” by our courts, Murphy, it deems the trial court’s generalized admonition presumptively adequate to cure the significant prejudice arising from trial counsel’s devastating singular utterance. Price; Combs. I disagree.

In Combs, a criminal case in which the defendant objected to improper prosecutorial testimony, our Supreme Court upheld the trial court’s denial of a motion for a mistrial, holding that the particular erroneous testimony was “the type of error that is easily cured by an admonition,” that “[a] jury is
presumed to follow an admonition to disregard evidence,” and concluding that “the admonition cure[d] any error.” The Supreme Court stated:Whether to grant a mistrial is within the sound discretion of the trial court, and such a ruling will not be disturbed absent an abuse of that discretion. A mistrial is an extreme remedy and should be resorted to only when there appears in the record a manifest necessity for such an action or an urgent or real necessity. The error must be of such character and magnitude that a litigant will be denied a fair and impartial trial and the prejudicial effect can be removed no other way.

Id., at 581. Even so, the Supreme Court also recognized two exceptions to the general rule that admonitions are presumptively curative:There are only two circumstances in which the presumptive efficacy of an admonition falters: (1) when there is an overwhelming probability that the jury will be unable to follow the court’s admonition and there is a strong likelihood that the effect of the inadmissible evidence would be devastating to the defendant; or (2) when the question was asked without a factual basis and was “inflammatory” or “highly prejudicial.” Id., at 581-82. Both circumstances are present here, thus negating the presumptive cure claimed by the majority and requiring a new trial.

In tort litigation, Kentucky courts have consistently held “parties may not present evidence or otherwise advise the jury of the financial condition of either side of the litigation,” Hardaway Management Co. v. Southerland, 977 S.W.2d 910, 916 (Ky. 1998), and have recognized that “[e]vidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully.” Kentucky Rules of Evidence (KRE) 411.
Kentucky courts have further held that “[a] defendant’s ability or inability to pay a judgment is no more relevant to the issue of liability than is the fact of insurance,” that “[a] case should be tried on the merits without reference to the wealth or poverty of the parties,” and that the presence or absence of liability insurance is irrelevant to the issues of fault and liability.  White v. Piles, 589 S.W.2d 220, 222 (Ky. App. 1979) (citing Southern-Harlan Coal Co. v. Gallaier, 240 Ky. 106, 41 S.W.2d 661 (1931)). In a tort action, evidence or argument concerning a party’s financial status or the availability of liability insurance is irrelevant to the merits concerning causation, liability, and damages. Even indirect references to these matters have been condemned. Id. (citing Randle v. Mitchell, 142 S.W.2d 124 (1940)); and Earle v. Cobb, 156 S.W.3d 257, 265 (Ky. 2004) (citing Bybee v. Shanks, 253 S.W.2d 257, 260 (Ky. 1952)).

Such evidence or argument, even if singular, isolated, and inadvertent, is capable of being inflammatory and prejudicial because of the likelihood that jurors will be tempted to find causation and liability regardless of fault and award excessive damages if they believe the defendant to possess extensive financial resources or liability insurance, or find no causation or liability and award little or no damages if they believe the defendant has limited financial resources or no liability insurance.  Turpin v. Scrivner, 178 S.W.2d 971, 974 (Ky. 1944). Thus, introduction of evidence or argument concerning a party’s financial status or the availability or absence of liability insurance is presumed to be prejudicial, and, absent a showing of non-prejudice to the complaining party or legal excuse, represents reversible error requiring a mistrial.  White, at 222; Finch v. Conley, All S.W.2d 128, 130 (Ky. 1967); Struetkerv. Neiser. 290 S.W.2d 781. 782 (Ky. 1956): and Maddox v. Grauman, 265 S.W.2d 939, 942 (Ky. 1954) (citing Star Furniture Co. v. Holland, 273 Ky. 617, 117 S.W.2d 603 (1938)).

While it may be generally presumed that a jury admonition will cure any prejudice arising from many less egregious improper arguments, introduction of improper evidence or argument referencing either party’s financial status or the availability or absence of liability insurance is presumptively prejudicial and reversible error which no admonition will likely cure. After trial counsel has fired an improper and harmful, though solitary, isolated, and inadvertent, argumentative bullet, it is highly unlikely that a jury will be able to follow the trial court’s admonition that it simply forget the wound. This is especially true in “close” or circumstantial cases, such as the one before us, where the testimony is evenly balanced or contradictory, and where it can fairly be said that “the question as to the proximate cause of the injury is so close that the slightest suggestion in the closing argument of any matter extraneous to the record might have been sufficient to tip the scales in favor of the offending party.” Walden v. Jones, 289 Ky. 395, 158 S.W.2d 609, 612-13 (1942).

In short, there are erroneous argumentative matters so serious in nature that no admonition may reasonably be expected to cure the harm. In such cases, as here, the only reliable remedy is to declare a mistrial. In the present case, the presumptive prejudice arising from trial counsel’s improper argument was prone to distract the jury’s deliberations from the merits concerning causation, liability, and damages, and thereby tainted its ultimate verdict. Even if one were to accept the majority’s opinion that an admonition could have cured such a devastatingly inflammatory and prejudicial argument, to be truly remedial the admonition would have needed to have been so emphatic as to leave no doubt in juror’s minds as to the unequivocal repudiation of the erroneous matter, and any false inference that Crockett possessed no liability insurance should have been specifically and forcefully addressed “to clear up any confusion in the minds of the jury.” White, at 222.
Here, by “injecting the issue of his client’s ability to pay into his closing argument,” and thereby strongly inferring the absence of liability insurance, trial counsel “opened the door” for the trial court to have interposed an unequivocal and direct admonition, advising the jury to disregard the financial status of the parties in its deliberations and specifically correcting the false implication that Crockett had no liability insurance. Id. Only then would the admonition have truly re-leveled the playing field. Contrary to any legal fiction the majority may lend to the presumptively curative nature of jury admonitions under Combs, it is impossible to “unring the bell” and it is unreasonable to expect a juror to forget what has already been heard, or to remove from his or her mind a strong impression once firmly imprinted.

The proper legal analysis pertaining to the present case is on all fours with the holding in Walden, though that case involved the opposite situation wherein a plaintiffs trial counsel had made a singular improper comment in closing argument referencing the defendant’s sound financial status and inferring the availability of liability insurance. In Walden, our former Court of Appeals
held:

Id., 158 S.W.2d at 612-13 (emphases added). Likewise, in Star Furniture Co., IllS.W.2d at 606-607, our former Court of Appeals held the trial court’s admonitionineffectual, concluding:It would be difficult – even beyond the power of overcoming – to conclude that such reference to the question of insurance did not have the desired effect to give the case an “insurance ” coating, and to sprinkle it with an “insurance” perfume – all of which we have said in numerous cases was calculated to influence the jury in arriving at its verdict, both upon the issue of culpable negligence, as well as the amount of remuneration.■12-[W]e, as well as all courts, have held that the average juror is either unconsciously or otherwise influenced by the fact that the alleged negligent actor carries insurance. Such average juror, it has been found, is frequently led astray and returns an unauthorized verdict because he concludes that the defendant against whom it is rendered will not be required to pay it out of his individual funds because of indemnity insurance carried by him. Knowing that fact counsel representing injured plaintiffs frequently seek to get before the jury the fact of such indemnity insurance being carried by the defendant in such tort actions, and we, as well as other courts, have never failed to condemn it. In a few cases we declined to reverse the judgment for such practices, but in each instance where we did so there were qualifying facts furnishing a legal excuse for the interjection of the insurance issue complained of. In all other cases we have not hesitated to reverse the judgment containing the error, in the absence of the record showing a legitimate excuse therefor. … In the last (Helton) case we approved and copied from the case of Blue Bar Taxicab & Transfer Company v. Hudspeth, 25 Ariz. 287, 216 P. 246, this excerpt (page 1124): ‘The consequence of such information is well known, and is sufficient to require a new trial. It is useless for counsel to talk of the innocuous character of this evidence, when they at the same time, in order to get the information before the jury, are willing to imperil any verdict which might be rendered. All lawyers know the rule in regard to such evidence, and they must not expect the court to establish a rule, and then wink at its violation.Id., at 606-07 (emphases added). Trial counsel “should not need to be told that thescope of argument does not include matters outside the cause tried[,]” Strother v.McClave, 264 Ky. 121, 94 S.W.2d 310, 311 (1936), and those who embark onargumentative expeditions outside the record and beyond the merits exceed the■13-strict boundaries of allowable trial strategy and risk reversal of any tainted jury verdict.This most basic rule of tort litigation, cited in Walden and Star Furniture Co., protects and limits plaintiffs and defendants, alike. It is reciprocal in nature, and “[i]n cases which involve personal injury or wrongful death, it is generally improper for plaintiff to mention that the defendant is insured against liability or for the defendant to mention that he is not insured.” 2 Lane Goldstein Trial Technique §11:194 (3d ed.).

In laymen’s terms, “what is fair for the goose is fair for the gander,” and if plaintiffs are strictly precluded from mentioning or inferring the availability of liability insurance, defendants must likewise be strictly precluded from implying its absence.In the present case, it cannot be fairly said that the jury’s verdict did not at least partially rest upon the prejudice arising from trial counsel’s improper argument and the inappropriate and false inferences likely to be drawn therefrom. Our caselaw clearly establishes that a trial counsel’s improper injection of a party’s financial status or access to liability insurance in tort litigation: is considered “a serious misstep” and a significant breach of our rules of trial practice; is presumed to be prejudicial absent a showing of non-prejudice by the offending party; and should, with few exceptions, result in a mistrial.  White. It was, therefore, “manifestly improper” for Crockett’s trial counsel to attempt to impact the jury’s verdict by seeking sympathy for Crockett’s alleged looming “financial ruin” and by falsely implying the unavailability of liability insurance; and the Gossetts were-14-entitled to have their case tried without the taint of passion and prejudice arising from such an improper argument and its false implications. Southern-Harlan Coal Co. Because Crockett has failed to cite any legal excuse for the improper argument or to clearly show non-prejudice to the Gossetts, his trial counsel’s improper argument was presumptively prejudicial, the jury’s verdict was incurably tainted, and the trial court erred by not declaring a mistrial.

Thus, I believe the matter should be reversed and remanded with instructions that the trial court set aside the judgment and schedule a new trial.