dissenting.
Because I believe that the trial court erred by excluding evidence that two defense experts had financial interests in the outcome of the case as policyholders in defendant’s liability carrier, a mutual insurance company, I respectfully dissent.
In this medical malpractice action, Wenonah Chambers brought suit against Gwinnett Community Hospital, Inc. and Dr. Kamlesh Gandhi for the misdiagnosis of a subdural hematoma in her brain. During the ensuing trial, Gandhi called Dr. Joseph Brantwain and Dr. Cassandra Evans as expert witnesses to testify on his behalf. Gandhi, Brantwain, and Evans were all insured at the time by MAG Mutual Insurance Company. On cross-examination, the plaintiff wished to disclose the witnesses’ financial interest in the outcome of the case to the jury. The trial court ruled that she could not do so, as it would inject the fact of insurance into the trial. This ruling was erroneous under the facts of this case.
The defense witnesses’ financial interest in the case, based upon their also being an insured with defendant’s liability carrier, a mutual insurance company, triggers two competing rules of evidence. The first, OCGA § 24-4-4, provides: “In determining where the preponderance of the evidence lies, the jury may consider . . . the witnesses’ . . . interest or want of interest.” The second, a common law *31rule, provides that, in general, evidence of a litigant’s insurance is inadmissible. Goins v. Glisson.2 In light of these competing principles, the ultimate consideration concerns whether the evidence regarding insurance is of such a material nature as to outweigh any prejudicial value it may have in any given case. Conley v. Gallup.3
With a mutual insurance company like MAG Mutual, “each policy-holder looks for indemnity against loss to the payments of each of the other policy-holders.” Carlton v. Southern Mut. Ins. Co. 4 Unlike policyholders in nonmutual insurance companies, a policyholder in a mutual insurance company has a significant financial stake in the company itself, and, due to the nature of mutual insurance, each policyholder would have a direct financial interest in the outcome of litigation brought against any other policyholder.
A mutual insurance company is one that does not issue capital stock, so that “the policyholder has an interest in the assets of the company, usually realized by the way of dividends reducing the policy premium.” Weatherbee v. Hutcheson.5 See also Patterson v. Lauderback,6 overruled on other grounds, Warren v. Ballard,7 Black’s Law Dictionary (6th ed.), p. 1021. However, these policyholders also may be liable for any judgment against the insurance company. Patterson v. Lauderback, supra.
Wallace v. Swift Spinning Mills. 8
Because Gandhi’s expert witnesses had a vested interest in the outcome of litigation against their fellow policyholder, the trial court should have allowed Chambers to inform the jury of this financial interest. Under Georgia law, we have previously determined that being a policyholder in a mutual insurance company creates a financial interest in common with any other policyholder in such company. See Swift Spinning Mills, supra.
Recognition of the special impartiality problems raised by the nature of mutual insurance is not new to Georgia jurisprudence. We have held that “|j]ury panelists with a relationship to an insurance company that has a demonstrable, direct financial interest as an insurer in the case, such as . . . policyholders of mutual insurance companies . . . may not be impartial and should be removed from the *32panel for cause.” (Footnote omitted.) Swift Spinning Mills, supra at 614 (1). Based on the same rationale, defense experts who are policyholders in the mutual insurance company insuring a defendant may not be impartial, and if they testify, the disclosure of their financial interest should not be barred.
We note that the defendant freely chose these experts with knowledge of their financial interest. Indeed, their financial interest might well have been a factor in their selection. These witnesses were opinion witnesses, not treating physicians or fact witnesses, and defendant could have selected disinterested experts. Plaintiffs general right to disclose the bias of a witness should not be affected by defendant’s voluntary decision to select expert witnesses with a financial interest in the outcome of the case. This is so for the same reason that mutual policyholders would be excused for cause from any jury which would try the case. The reality in this case is that facts bearing on the credibility of the experts who testified on Gandhi’s behalf were kept from the jury. Any prejudicial effect that the disclosure of the witnesses’ interest might have was the result of defendant’s choice of witnesses, and the materiality of this interest outweighs any prejudice that defendant has elected to inject into the trial.
General arguments that evidence of insurance coverage would unfairly prejudice the jury do not apply to freely selected expert witnesses who have a financial interest in the outcome of the case.
[T]he trial court erred by grossly overestimating to what extent testimony that [Gandhi] was insured would prejudice the jury. . . . [Testimony regarding insurance is not always prejudicial. However, too often courts have a Pavlovian response to insurance testimony — immediately assuming prejudice. It is naive to believe that today’s jurors, bombarded for years with information about health care insurance, do not already assume in a malpractice case that the defendant doctor is covered by insurance. The legal charade protecting juries from information they already know keeps hidden from them relevant information that could assist them in making their determinations. Our Rules of Evidence are designed with truth and fairness in mind; they do not require that courts should be blind to reality.
Ede v. Atrium South OB-GYN. 9
The majority’s reliance on Conley v. Gallup, supra, for its determination that the financial interest of the defense experts need not *33be disclosed, is misplaced, as such case is not binding here. A reading of that opinion reveals that although MAG Mutual was involved, the court based its opinion on the general common law exclusion of insurance. That case did not address the insurance issue as it applies to mutual insurance, and, as such, it does not control the issue in this case. We note that cases from other jurisdictions are persuasive authority only and do not bind this court. While the majority opinion reflects the view of a majority of other jurisdictions, it is inconsistent with Georgia case law. Under current Georgia law, a witness would be struck from a jury for cause, because of his financial interest in the case, but could, under the majority’s holding, testify before a jury without the disclosure thereof. The position outlined in this dissent would not allow such an incongruent result.
Decided November 28, 2001 Reconsideration denied December 14, 2001 Joseph H. King, Jr., for appellant. Weinberg, Wheeler, Hudgins, Gunn & Dial, Earl W. Gunn, Ashley P. Nichols, Christopher H. Smith, Owen, Gleaton, Egan, Jones & Sweeney, Rolfe M. Martin, Amy J. Kolczak, for appellees. Love, Willingham, Peters, Gilleland & Monyak, Robert P. Monyak, Ashley R. House, Mark L. Stuckey, amici curiae.The majority points out that the record is silent as to whether the mutual insurance policy in this case is assessable or nonassessable, and it contends that the record contains insufficient evidence regarding the expert witnesses’ financial interest in the outcome of Chambers’ case. These deficiencies in the record result from the trial court’s decision not to review the policy.
During the hearing regarding the experts’ possible bias, the trial court stated that it might favor admissibility if it had more information regarding the experts’ potential liability. Then, when Chambers offered to gather such evidence, the trial court refused, deciding instead to rule against admissibility without further fact gathering. While the trial court recognized the need to review the policy, it elected to rule without such review. Under these circumstances, the failure of the court to review the policy, at best, supports a remand of this case for further hearings. It also makes it clear that an affirmance of the trial court’s ruling is inappropriate.
I would reverse the trial court’s ruling.
I am authorized to state that Judge Ruffin and Judge Eldridge join in this dissent.
Goins v. Glisson, 163 Ga. App. 290, 292 (1) (292 SE2d 917) (1982).
Conley v. Gallup, 213 Ga. App. 487 (445 SE2d 275) (1994).
Carlton v. Southern Mut. Ins. Co., 72 Ga. 371, 389 (1884).
Weatherbee v. Hutcheson, 114 Ga. App. 761, 765 (1) (a) (152 SE2d 715) (1966).
Patterson v. Lauderback, 211 Ga. App. 891, 895 (3) (440 SE2d 673) (1994).
Warren v. Ballard, 266 Ga. 408, 410 (467 SE2d 891) (1996).
Wallace v. Swift Spinning Mills, 236 Ga. App. 613, 614 (1), n. 2 (511 SE2d 904) (1999).
Ede a Atrium South OB-GYN, 71 Ohio St.3d 124, 127 (642 NE2d 365) (1994).