concurring specially.
Of the many issues raised on the appeal, it is my view that one in particular is deserving of special attention and that a proper resolution of this assigned error even were it not coupled with what Justice Huntley has written requires a new trial. The issue is one of inserting prejudice by a highly improper question.
Did defense counsel’s statement to the jury that plaintiffs had sued a former co-defendant for $5,000,000 — the prayer of the Complaint — require that the trial court grant a mistrial (1) on grounds of *636unfair prejudice or (2) pursuant to Idaho Code § 10-111, which prohibits anyone from telling the jury the amount of general damages “sued for” and states that a violation “shall be grounds for mistrial? ” Plaintiffs’ Appeal Brief, p. 55.
In the recent Rojas1 case we were present-. ed with a similar issue. There one of the defendants settled with the plaintiff at the beginning of the second day of trial. The trial court informed the jury:
... As you probably have noticed, ladies and gentlemen, Mr. Marshall is no longer at the counsel table. And I can advise you that Mr. Marshall and Mr. Rojas have compromised their difficulties and have settled their portion of this case. Therefore, Mr. Marshall is no longer a party defendant.
In final summation defense counsel utilized the court’s statement as a means of persuading the jury of that defendant’s negligence being the cause of the minor plaintiff’s severe injuries:
Now, you will be asked on the verdict form whether Mr. Marshall was negligent; and I submit to you that he was negligent. And I submit to you that his, his action was what caused this accident. Otherwise why would he have settled?
# * * * * *
Anything can hurt you if used improperly. And we submit that the cause of the accident was the improper use of the machine by Kenneth Marshall; and Kenneth Marshall recognized the use of the machine when he injured Pedro Rojas becF'ise he settled this case. He got out.
The opinion for this Court held that failure to object or move for a mistrial did not preserve the issue for appeal, and showed little interest in the earlier views of Justice Bakes2 which were brought forth in my dissenting opinion.
Counsel for Mrs. Robertson did preserve the issue by a timely objection, and by a motion for mistrial. Unlike the Rojas case, the objectionable question came early in the trial, and it would not have worked an inconvenience to select a new jury and commence anew. Instead the trial proceeded on to a duration of four weeks — all because the trial judge entertained a philosophy against granting mistrials in favor of his producing an instruction which would cure the prejudice already instilled in the minds of the jurors.
Counsel for the plaintiffs in their opening appellate brief fairly and accurately report the question, and succeeding events. Before setting it out, it is best to first examine plaintiffs’ cause of action for alleged medical malpractice, which was not filed until long after the vehicle collision, and the long period of hospitalization of Mrs. Robertson, her near death and long convalescence.
Named as defendants were Dr. Richards, Dr. Richardson, Dr. Amick, Dr. Hansen, and Dr. Bjornson, who were thereafter referred to in the complaint, and in the verdict form also, collectively as Health Care Providers, as were the corporations owning and operating the Riverview Hospital and the Parkview Hospital. The Health Care Providers were alleged to be responsible for Mrs. Robertson’s diagnosis, treatment, and care of her injuries, she allegedly becoming a patient of all on her admission as an emergency patient.
The complaint alleged that:
Defendant Health Care Providers, or one or more of them, failed to diagnose the broken neck until May 23,1981, eight weeks from the date of admission, through such injury was of a type well-known medically to result from the type of head-on collision which had occurred.
Defendant Health Care Providers, or one or more of them, failed to ever diagnose the broken right hip joint, though such injury was of a type well-known medically to result from the type of motor vehicle collision which had occurred.
At all times material defendant Health Care Providers, or one or more of them, breached their duties and were negligent *637in their diagnosis, treatment, and care of Leah Robertson in that they failed to rule out a broken neck and a broken hip joint and therefore failed to provide proper and timely medical, hospital, doctor, and nursing diagnosis, treatment, precautions, and care for her injuries, including, but not limited to, the injuries related to her broken neck and broken right hip joint.
Defendant Health Care Providers, or one or more of them, breached their duties and were negligent in that the treatment and care which they provided resulted in additional injuries to Leah Robertson-besides those she had received in the collision, as well as aggravation of the injuries she received in the collision.
In such circumstances, neither the plaintiffs themselves, nor counsel who undertook their representation could be expected to know or learn who of the Health Care Providers was responsible for the near-fatal diagnosis. Nor could counsel learn the underlying facts until after the lawsuit was filed and discovery was utilized. Depositions were taken of all doctors, including Dr. Bjornson, and there was an abundance of interrogatories. Thereafter there were various dismissals entered of record, presumably upon the basis of the results of discovery.
Returning to the issue of alleged prejudicial misconduct on the part of defense counsel, as portrayed in the plaintiffs’ brief:
Plaintiffs called Dr. Bjornson as a fact witness and he gave the same testimony at trial that he did in his deposition. Tr. II, 416-418, 420, 435, 449-451, 460-461.
On cross-examination of Dr. Bjornson by Mr. Quane, the following occurred:
Q: To your knowledge, did your treatment of the fractures turn out okay, of her lower leg fractures?
A: I believe the fracture united, but that was after she left the hospital.
Q: But as far as you understand, she had a good recovery from the fracture?
A: The fracture united. I don’t know about her function.
Q: You haven’t seen her since she was transported to the Salt Lake City, have you?
A: No, sir.
Q: Do you have any reason to believe that your reduction of the fractures was in any way inappropriate?
A: No.
Q: Do you feel that your care of her fractures was appropriate?
A: Yes, sir.
Tr. II, 471:7-25.
At this point, Mr. Quane, raised out of his seat to his full posture and with as much drama, emphasis, and accusatory power as could be mustered, he forcefully declared:
Q: If that’s the case, Dr. Bjornson, can you explain to the ladies and gentlemen on the jury why Mr. and Mrs. Leah Robertson sued you for 5 million dollars in this case ? Tr. II, 472:1-4. (Emphasis added.)
It was as if a wave of emotional accusation swept over the countenance of the jury. A loud bell of prejudice had intentionally been rung and the jury had heard.
Mr. Quane’s statement would obviously cause a multitude of questions to arise in any juror’s mind, including:
1. Why did the Robertsons sue Dr. Bjornson for $5,000,000?
2. Why isn’t Dr. Bjornson still a defendant in this case?
3. How many other lawsuits against doctors have the Robertsons filed?
4. How much money have the Robert-sons already received from other doctors, including Dr. Bjornson?
It is also foreseeable that jurors unfamiliar with civil lawsuits and settlements would reach the following prejudicial conclusions:
1. If Dr. Bjornson is no longer a defendant, the Robertsons must have either received $5,000,000 to settle his case or received a jury verdict against him for $5,000,000.
2. If the Robertsons sued Dr. Bjom-son for $5,000,000 and received it, that *638must indicate the failure to diagnose the broken neck was Dr. Bjorns on’s fault and not Dr. Richards’ fault.
3. The Robertsons are greedily trying to make as much money from this case as possible. They already have $5,000,-000 from Dr. Bjornson and now they are trying to get more money from Dr. Richards.
Mr. Quane obviously wanted to raise those questions and conclusions in the minds of the jury and that is why he intentionally inserted the $5,000,000 figure into his question.
All of the speculation triggered by such a prejudicial question was detrimental to Plaintiffs and a fair trial; but all speculation benefitted the defense.
Accordingly, Plaintiffs objected and immediately moved for a mistrial, costs and attorney fees on grounds of extreme unfair prejudice and pursuant to Idaho Code § 10-111. Tr. II, 473, 478, 491. The statute provides in part:
In any civil action for damages, the amount of general damages sued for shall not be disclosed to the jury by court, counsel, or any party, and it shall be grounds for mistrial for any person to violate the prohibition of this act whether by specific statements or generalized argument. Idaho Code § 10-111.
When plaintiffs stated to the lower court that Mr. Quane’s question was not a fluke or mistake, but was planned and calculated to cause prejudice for whatever advantage could be gained, Mr. Quane, without apology for flagrant violation of the statute, admitted:
I planned it, your Honor, because it was legitimate as impeachment of the plaintiffs in my opinion, and I intend to impeach the plaintiffs by the Complaint if I can get to that point in the trial. Tr. II, 485:23. (Emphasis added.)
Brushing aside the statute’s prohibition, defense counsel justified his misconduct by claiming that according to “Bells Handbook” he was entitled to prove Dr. Bjom-son’s negligence and impeach the Robert sons by showing the jury that the Robert-sons had previously alleged Dr. Bjornson was negligent in the Complaint. Tr. II, 474:20, 477:5, 479:21.
Mr. Quane also argued the mere fact Dr. Bjornson had been sued was relevant to show his bias against Dr. Richards. Tr. II, 475:7, 21. He never even attempted to explain that non sequitur.
Ultimately, the court sustained the objection to the question and stated that the question was improper. Tr. II, 489:21-24. However, notwithstanding the clear language of Idaho Code § 10-111, the court erroneously ruled it did not control the decision on whether to grant a mistrial! Tr. II, 484:16. The Court denied the motion for a mistrial, and said it would attempt to correct the prejudice with an instruction to the jury, although it recognized there was a substantial risk the instruction would make things worse. Tr. II, 489:12-18. After the lengthy recess, the court stated:
I am going to give you an instruction at this time, and I’ll state it to you, ladies and gentlemen of the jury, a question has been asked this doctor why he had been sued by the plaintiffs. The Court must be cautious in making any statement as to the procedures or approaches of a party who brings a lawsuit. But it is a fact that multiple parties may be named in a lawsuit, but at trial the claim may be only against part of any parties originally named. At this point of the trial it’s extremely immaterial that Dr. Bjornson may have been named as a party.
Therefore, I instruct you that the statement in its entirety should be disregarded by you. You need to cast it from your minds and not let it play any part in your deliberations in this case, and not have any bearing on your decision in the case. It should not be given any weight.
I hope, with that instruction that you will be able to decide this case on its merits, and we’ll go ahead with the trial. Tr. II, 491:23-492:17. (Emphasis added.)
After Plaintiffs’ request for mistrial was denied, it was hoped that the length of the *639trial would have a healing effect and that the $5,000,000 question would fade with the weeks of intermittent testimony. However, on the following morning, defense counsel once again argued in chambers that he was entitled to ask Dr. Bjornson whether he was a defendant at the time of his deposition and at the time of trial, in order to show bias and prejudice by Dr. Bjornson against Dr. Richards and inconsistency in Bjornson’s testimony. This conference was not reported but it is recalled by all counsel. R. II, 343 It 7, Tr. XVII, 3507:9-17, Memorandum in Opposition to Plaintiffs’ Motion for Judgment Notwithstanding the Verdict or for New Trial, p. 9, Exhibit to Appeal Record.
Plaintiffs agreed that such testimony under some circumstances might be relevant to show bias or inconsistency. However, plaintiffs argued that there was nothing to even hint at actual bias or inconsistency by Dr. Bjornson, and even if there were, admission of the evidence would be outweighed by the unfair prejudicial effect of indirectly disclosing to the jury that Dr. Bjornson had settled. The court ruled in chambers that defense counsel would be permitted to ask Dr. Bjornson if he had been a defendant at the time of his deposition and if he was still a defendant. Tr. XVII, 3507:9-17; Affidavit of DaLon Esp-lín 1112.
Because of the chambers ruling, no objection was made when the evidence came in, in order to call less attention to it. Tr. Ill, 565:7-17. However, to prevent improper argument and similar testimony by other former defendant doctors, plaintiffs subsequently filed a Motion in Limine. R. I, 269; Tr. 810-813.
Throughout the rest of the trial, Mr. Quane sought to prove the negligence of Dr. Bjornson by circumventing the expert testimony requirements of Idaho Code § 6-1013 and introducing the opinions, statements, and conduct of the Robertsons and their counsel set forth in the Complaint and Answers to Interrogatories. Tr. VIII, 1702-1703; Tr. X, 2075-2081; Tr. XV, 3078-3080. That prompted another Motion in Limine. R. I, 225. Argument on these issues reveals the real reason defense counsel wanted to get Dr. Bjornson’s status as a former defendant before the jury was to create the improper impression that Dr. Bjornson was negligent simply because he had been sued by the Robertsons.
[I]’m certainly entitled to prove what they [Robertsons] contend he [Dr. Bjorn-son] did, that he came to the emergency room and didn’t diagnose her neck fracture. They have said that. And I’m entitled to prove that. Tr. X, 2081:19-23.
The trial court correctly ruled that allegations in the pleadings were improper evidence in a medical malpractice case since negligence of any doctor could only be established by expert testimony, and the Rob-ertsons’ allegations were not authoritative. Tr. X, 2078-2080; Tr. XV, 3080:13-23.
As the trial came to a close, Mr. Quane’s deliberate effort to once again get the $5,000,000 before the jury was revealed by Defendant’s Requested Jury Instruction Number 32. That instruction would have again specifically called the jury’s attention to the $5,000,000 prayer in the Complaint. The instruction even asked the jury to disregard the court’s prior instruction:
I previously instructed you to disregard in your determinations the question propounded to Dr. Bjornson, Plaintiffs’ witness, by Defendant’s Counsel, which stated: “Explain to the jury, then, why George and Leah Robertson sued you for over $5,000,000 for failing to diagnose the fractured odontoid process.” This instruction is withdrawn. You may consider in your determinations that the fact that Dr. Bjornson was at one time a defendant in this matter, and gave certain testimony in his deposition that may be interpreted to be inconsistent with the testimony he gave at trial. This evidence has been admitted.
R. Ill, 38. (Emphasis added.)
The court properly refused the instruction. However, during closing, Mr. Quane again brought the pleadings before the jury by arguing that Dr. Bjornson must be negligent because the Robertsons sued him and he settled:
*640Well, I think the proof in the pudding, the real proof in the pudding, regardless of what Mr. Peck says, relates to the fact that Dr. Donald Bjomson was a defendant. And he was sued by Leah and George Robertson.
Why would they sue him? If, as they claim now, now, that he came to the emergency room only for the purpose of fixing a fractured leg and he had absolutely nothing to do with the treatment of her neck. To me that’s the acid proof of why Dr. Bjomson was in the emergency room.
******
But really don’t actions speak louder than words?
Tr. XVIII, 3503:8-3504:12. (Emphasis added.)
The trial transcript shows Mr. Quane continued to belabor the point until the trial court sensed the prejudice and the court interrupted. The following argument ensued in front of the jury:
THE COURT: Mr. Quane, I guess I am going to have to interrupt at this point. Early in this trial the Court made a— gave an instruction from the bench, and it was in regard to the questions propounded to Dr. Bjornson in regard to him having been sued. And I told the jury at that time to disregard that question and the answer in its entirety. I told them that it was not to have any bearing on their decision in the case, and it should not be given any weight. And I think to bring it up now takes away from that instruction.
MR. QUANE: Your Honor, the next day, though, you allowed me, and counsel agreed, that I could ask him if he was a defendant when he testified in his deposition and he wasn’t when he testified in court. And that’s why I am basing this—
THE COURT: I mean, I would have to remind the jury that that was my instruction. That ...
MR. QUANE: Well—
THE COURT: Does not have any bearing in this case, and I told them to no — well, not to consider it.
MR. QUANE: Well, your Honor, it came in the next day without objection from them and by agreement of everybody including the Court. You said I could ask that question if you recall.
THE COURT: No, I don’t recall that.
MR. QUANE: Well ... Your Honor, you said I could ask him on the witness stand if he was a defendant when he testified in his deposition, and that he wasn’t a defendant in the case when he testified in court. And that came without objection, your Honor, and this is damaging to me to have this come up like this.
And I represent to the Court that that was the ruling.
THE COURT: I don’t know if we can find it in the record. We might take a search.
MR. QUANE: They didn’t object.
MR. PECK: Your Honor, the reason I am not responding is because I don’t think it’s proper in front of the jury to argue my case or argue the motion.
MR. QUANE: I am sorry, but it just startled me.
MR. PECK: It is okay. I am just not going to talk about what was discussed in chambers.
MR. QUANE: It came in without objection. You will agree with that, Mr. Peck?
MR. PECK: I am not going to comment on it in front of the jury.
MR. QUANE: Your Honor, I think — I think I’m entitled because you brought this up in this fashion, and I would like to have a recess and take it out of the record because it did.
THE COURT: Well, let’s take a short recess at this time, ladies and gentlemen of the jury; remember the admonition previously given; go ahead and file out. Tr. XVII, 3506-3508. (Emphasis added.)
The jury was once again ushered out of the courtroom and on their return, the court instructed the jury that they had previously been told to disregard the improper question, but now they could consider Dr. Bjornson’s defendant status in their *641deliberations since that evidence had come in subsequently. The court did not limit the argument to the purpose of showing bias or inconsistency by Dr. Bjornson, but allowed it to be used for the improper inference that Dr. Bjornson was negligent because he had been sued and settled:
THE COURT: Jury is back in place after a short recess.
The Court needs to make a short explanation to you. It’s become necessary for the Court to make some check on the record as to some of the procedures that took place in initial court proceedings. And I apologize to Mr. Quane. I interrupted him and stopped the flow of his argument. But the Court did give you an earlier instruction in this case when a question was directed by Dr. Bjornson about why he had been sued by the Rob-ertsons. The Court feels that it must make some additional remarks from the bench.
I told you at that time that it was entirely immaterial that Dr. Bjornson may have been sued. The next day the Doctor was asked whether he was a defendant in the suit when he gave his deposition, and that was allowed. Since that evidence did come in and was allowed, Counsel is entitled to discuss it in his closing arguments.
“So I apologize. My apologies to you Mr. Quane, and the Court did feel it necessary to do some checking in the record on that. But it did come in the next day.” Tr. XVIII, 3508:18-3509:16. (Emphasis added.)
The incident thus graphically re-emphasized in the jury’s mind Mr. Quane’s improper $5,000,000 question just before the jury’s deliberations.
Defense counsel ended with another powerful yet prejudicial and improper inference of Dr. Bjornson’s “guilt” because he had settled and was no longer “fighting” the case:
And I think it would be an unequivocal distortion of justice and an absolute fal-sery to say on that verdict form that Jim Richards was negligent and to condemn him. All he has is his practice and his pride, and this man has sat here for four weeks fighting this case and fighting. He can’t even practice medicine, but he’s here and he’s fighting.
Dr. Donald Bjornson isn’t fighting. He isn’t here in this court, and he isn’t defending. I think his [Richards’] willingness to do this emphasizes his sincere and unabiding belief in his innocence. And if he’s guilty of anything, he’s guilty of saving her life.
Tr. XVIII, 3550:24-3551:12. (Emphasis added.)
The jury returned a verdict attributing no liability to Dr. Richards.
A. The combination of defense counsel telling the jury that the Robertsons had sued a former co-defendant, Dr. Bjom-son, for $5,000,000, and its re-emphasis by defense counsel and the court during closing argument, resulted in a violation of Idaho Code § 10-111 and incurable prejudice.
There was no legitimate reason for defense counsel to tell the jury that $5,000,-000 was the amount for which the Robert-sons had sued Dr. Bjornson. During the arguments on plaintiffs’ Motions for mistrial and for a new trial, counsel for defendant was unable to articulate a justification for revealing the $5,000,000 amount, although he readily admitted he had planned the question in advance. Tr. II, 485:23.
Once the jury heard the $5,000,000 figure, the prejudicial questions and conclusions that naturally arose in their minds were so fixed that they could not be cast aside or ignored based on any instruction by the Court.
Plaintiffs were unfairly prejudiced because they were in the awkward position of not being able to correct the jury’s improper conclusions by telling the whole story. Complete disclosure of the settlements with the other doctors, which were made for nominal amounts early in the litigation, would have had an equally powerful prejudicial influence upon the jury to either absolve Dr. Richards of all liability or adjust the damage award to be in line with the earlier settlements, when in fact, those set*642tlements did not accurately reflect the true damages. As other courts note:
A jury might conclude that the settling Defendant was the party primarily responsible for the injury, and that the remaining Defendants should therefore be exonerated. De Lude v. Rimek, 351 Ill.App. 466, 473, 115 N.E.2d 561, 565 (1953). It might take the amount of a settlement as a measure of the Plaintiff's damages. Orr v. Coleman, supra, 455 S.W.2d at 61. It might consider one Defendant’s settlement to be an admission of negligence, and then impute this negligence to a non-settling defendant. Azure v. City of Billings, [182 Mont. 234] 596 P.2d 460, 466 (1979). Slayton v. Ford Motor Company, [140 Vt. 27] 435 A.2d 946, 947 (1981).
In Young v. Verson All Steel Press Company, 539 F.Supp. 193 (E.D.Penn.1982), the Court refused to allow a settlement to go before the jury, noting that:
“Implicit in Federal’s position must be the belief that a jury will be less likely to render a large damage award if they are aware that plaintiff has already been compensated by former Co-Defendant, viz Verson". 539 F.Supp. at 194.
The trial court’s attempt to cure the prejudice in this case actually emphasized it. The objection, the lengthy recess, and the initial instruction by the court to disregard the question, naturally raised in the minds of the jury the feeling that they had not heard the whole story and that Plaintiffs were keeping from them something important related to the $5,000,000 question. This is the very quality that requires reversal:
It seems to be the invariable quality of questions the asking of which may require a reversal that in themselves, and without any answers made, they call to the attention of, or suggest to, the jury some fact or claim prejudicial to the opposite party and concerning which counsel has no right to inquire, and in almost every instance of such misconduct, opposing counsel is necessarily placed in the false light of suppressing significant circumstances and attempting to deceive the jury into rendering an unjust verdict.
75 Am.Jur.2d, “Trial,” § 194, p. 277 (1974); See also, Thomas v. Byron Tp., 168 Michigan 593, 134 N.W. 1021, 1023 (1912); Myers v. Moffett, 312 S.W.2d 59, 64 (Mo.1958).
This case illustrates why a violation of Idaho Code § 10-111 is mandatory grounds for mistrial; it creates prejudice not capable of being corrected. The court’s initial instruction only addressed the issue of Dr. Bjornson’s status as a former defendant. It did nothing to disspell counsel’s inferrence that $5,000,000 had been obtained from Dr. Bjornson. When the whole issue was brought up again in closing argument, the court revoked its initial instruction, leaving the jury with the impression they could consider the improper question for purposes of liability and negating any cure that may have existed.
Idaho Code § 10-111 prohibits anyone from disclosing to the jury the amount of damages sued for in a civil case so the amount will not have an influence on the jury in resolving the factual issues, including liability. Once the statute has been violated, attempts to correct it only re-emphasize the improper influences raised in the jurors’ minds, so a mistrial is the only remedy. Idaho Code § 10-111 states:
In any civil action for damages, the amount of general damages sued for shall not be disclosed to the jury by court, counsel, or any party, and it shall be grounds for mistrial for any person to violate the prohibition of this act whether by specific statements or generalized argument. In furtherance of the provisions of this act, it is declared that it is the exclusive province of the jury in a civil action for money damages involving allegations of general damages to resolve such issues of fact and it is against the policy of the state of Idaho for the jurors required to make such determinations to be informed of the particulars of allegations of damages in the pleadings on file with the court, by the arguments of counsel or otherwise, the dollar amount *643appraisal or evaluation of such damages being the exclusive province of the trier of fact; provided, this act shall not be construed to prohibit proof of damages or presentation of arguments which are legally relevant and proper in view of the record and issues before the court in any action for money damagés.
Idaho Code § 10-111. (Emphasis added.)
Although this statute has previously been referred to by the Idaho Supreme Court, it has not yet been interpreted. This is a case of first impression. Leliefeld v. Johnson, 104 Idaho 357, 659 P.2d 111 (1983); Yacht Club Sales and Service, Inc. v. First National Bank of Idaho, 101 Idaho 852, 623 P.2d 464 (1980).
Idaho Code § 10-111 originated as House Bill 474 in 1976 with a package of House bills related to medical malpractice backed by the Idaho Medical Association and the Idaho Hospital Association. It is interesting that Dr. Donald Bjornson, as President-elect of the IMA, addressed a Joint Meeting of House Committees in support of the bills as short-term solutions to the “malpractice crisis.” At the same hearing, Eugene Thomas, attorney for the IMA explained the bills were designed to speak to the “sky-rocketing cost of insurance to doctors and hospitals” and create a “climate conducive to competition in the insurance field which will result in insurance at a fair price.” He also discussed the reason for House Bill 474:
Mr. Thomas explained that this bill would provide the means whereby a jury could render a verdict on the basis of the evidence rather than being influenced by the amount of the damages being sued for. Minutes of the Joint Meeting of the Idaho House Judiciary, Rules and Administration Committee, and Health and Welfare Committee, p. 2 (February 5, 1976). (Emphasis added.) ******
Mr. Thomas explained that this restriction provides that the portion of the complaint setting forth the dollar amount (the “ad damnum” portion) will not be allowed in the trial. The reason is that the insurance industry feels it distorts the jury’s view of the case.
Minutes of Idaho House Health and Welfare Committee, p. 1 (January 30, 1976).
The statute also protects the policy of Idaho law to encourage settlements. Rojas v. Lindsay Manufacturing Co., 108 Idaho 590, 592, 701 P.2d 210 (1985). One-sided application of the statute would discourage settlements in cases with multiple defendants and, thus, be contrary to the statute’s purpose for reducing medical malpractice insurance costs.
Mr. Quane’s intentional, inflammatory, and unfair tactic to violate the statute and confuse and unfairly prejudice the jury should not be tolerated. It must be controlled by the swift and firm application of Idaho Code § 10-111, which requires a mistrial and leaves no discretion to the trial court judge. A new trial is required pursuant to Idaho Rules of Civil Procedure 59(a)(1) because this “irregularity in the preceedings” prevented the Robertsons “from having a fair trial.”
In addition, since the Plaintiffs have been required to try the case to completion and incur tremendous expenses and costs, the court should award costs and attorney’s fees against defendant pursuant to Idaho Code § 12-121 and Idaho Rule of Civil Procedure 54(e). The intentional violation of Idaho Code § 10-111 was an unreasonable bad faith defense of this case and justifies an award of attorney’s fees both at the trial level and on this appeal.
B. Evidence that Dr. Bjornson had been sued and had settled was unfairly prejudicial and was used for the improper purpose of establishing Bjomson’s liability and Richard’s freedom from fault.
According to défense counsel, the evidence that Dr. Bjornson had been sued by Robertsons and had settled prior to trial was relevant for three reasons: (1) to show that the Robertsons had changed their position concerning Dr. Bjomson’s responsibility for failure to diagnose Leah’s injuries, Tr. II, 477:5; (2) to show that because Dr. Bjornson had also been a defendant his testimony was biased, Tr. II, 475:7; and (3) *644to show that inconsistency between Dr. Bjomson’s deposition testimony and his trial testimony was the result of his having settled the case. Tr. XVII, 2504:13-18.
The first reason was nothing more than an attempt to prove Dr. Bjornson’s liability and Dr. Richards’ lack of liability by inference from the Robertsons’ conduct in bringing suit and later settling. As such, the evidence was clearly inadmissible under the approach of Federal Rule of Evidence 408 adopted by Idaho in Hatfield v. Max Rouse & Sons N.W., 100 Idaho 840, 606 P.2d 944 (1980). Since the trial, an identical rule has been promulgated as Idaho Rule of Evidence 408.
The rule prohibits admission of the conduct of the parties in compromise negotiations for the purpose of proving liability. This modern approach was adopted because it encourages negotiations and settlement.
Idaho Code §§ 6-1012 and 6-1013 also prohibit proof of liability in a medical malpractice case by statements, conduct, or opinions of lay-persons and require that liability be established by experts possessing knowledge of the applicable standard of care.
The trial court correctly ruled throughout the trial that the fact that Robertsons had sued Dr. Bjornson and set forth their claims concerning his negligence in the Complaint, Answers to Interrogatories, and other pleadings was inadmissible for the purpose of proving Bjomson’s liability. Tr. X, 2078-2080; Tr. XV, 3080:13-23.
Even though the fact that Dr. Bjornson had been a defendant was not admissible to prove liability, it was admissible under Rule 408 if “offered for another purpose” such as proving bias or prejudice of a witness. However, the trial court should have exercised its discretion to exclude such evidence because the probative value was nil and thus was outweighed by its prejudicial effect. State v. Abel, 104 Idaho 865, 870, 664 P.2d 772, 777 (1983); State v. Sharp, 101 Idaho 498, 501, 616 P.2d 1034 (1980); Idaho Rule of Evidence 403.
Prior to allowing the testimony to show bias or inconsistency in Bjomson’s testimony, the Court should have required defense counsel to establish some prima facie basis that an actual bias against Dr. Richards existed, and that Dr. Bjornson’s trial testimony was actually inconsistent with his deposition. Rynar v. Lincoln Transit, Co., 129 N.J.L. 525, 30 A.2d 406 (N.J.App.1943). But the trial court required neither. In truth, the fact that the Robertsons had sued Dr. Bjornson would be expected to establish bias by Dr. Bjornson against the Robertsons and in favor of Dr. Richards, and no material change in Dr. Bjornson’s testimony was ever demonstrated at trial.
However, prejudice became evident when the evidence which had been introduced to show bias or inconsistency was used in closing argument for the improper purpose of establishing Bjornson’s liability. When the Court interrupted the closing and challenged the propriety of the improper argument, defense counsel claimed that since the evidence had come in he was entitled to use if for any purpose. The Court agreed and withdrew its previous instruction which had attempted to cure the prejudice of the $5,000,000 question. Tr. XVII, 3503-3508. This was clear error:
Where the evidence is stated to be introduced for á certain purpose, it should be restricted to that purpose, for it is manifest that any other rule would result in surprise and injustice.
Advance-Rumley [Rumely] Thresher Co., Inc. v. Jacobs, 51 Idaho 160, 169, 4 P.2d 657 (1931).
* * * * * *
Where evidence is introduced and received for a stated purpose, it is improper for counsel to argue that such evidence is competent to show other facts. 75 Am.Jur.2d, “Trial,” § 234, p. 314 (1974).
Argument by defense counsel should have been limited to showing bias or inconsistency by Dr. Bjornson. Plaintiffs could not have argued that the mere fact they had sued Dr. Richards established his negligence, and it was unfair for Dr. Richards’ counsel to use the same argument to estab*645lish Bjornson’s negligence. The unfairness multiplied when the court apparently agreed the evidence could be used for any purpose and specifically revoked its previous instruction.
The recognized importance of this issue became self evident at oral argument. Mr. Quane consumed all of his allotted 30 minutes, and beyond that, in attempting to persuade this Court that he was on safe and proper ground in directing the $5 million question to Dr. Bjomson. Those members of the Court who do not join this separate opinion were persuaded. To Judge George’s credit, when that same argument was made to him at trial, he did not succumb to it, and had the right answers and made the correct ruling. Finding myself firmly convinced that the asking of the question was knowingly and intentionally done to discredit the witness, it is only fair to Mr. Quane that his contentions be fully laid out.
THE COURT: Response, Mr. Quane?
MR. QUANE: Yes. I think it’s absolutely totally proper and relevant and admissible for these reasons: Dr. Bjom-son was called as a witness by the plaintiffs. He was cooperative. And he gave detrimental opinions regarding the standard of care against the defendant.
He was not in one sense hostile. He— the net effect of his testimony is that he did not violate any standard of care; that Dr. Richards did; that he was not involved with the diagnosis or treatment of a fracture of the neck; that his only involvement was the treatment of a tibia and fibula fracture. He’s called by the plaintiffs as an expert witness as well as a medical fact witness against the defendant. They therefore vouch for his credibility, his opinions, and they’re bound by them.
The fact that they took a contrary position — I’m talking about the plaintiffs— they took a contrary position in this suit and they alleged and charged him with negligence for failure to diagnose a fracture of the neck, and they sued him. That shows that they don’t believe in the veracity of their own witness who they vouch for in the person of this witness. And I’m entitled to prove an inconsistent position taken by the plaintiff as respect Dr. Bjornson’s involvement.
The Complaint alleges, and it’s reasonable to infer from it that he was summoned to diagnose the neck fracture, and it shows bias on his part. And it shows an inconsistent position by the plaintiffs.
And, furthermore, I didn’t ask him if he had settled. I only asked him about being sued by the plaintiffs who now take the position that he did nothing wrong; his opinions are worthy of consideration by the jury. And they are vouching for his testimony under oath that he was only asked to consult regarding the tibia fracture.
We take the opposite position. We are going to call witnesses who are going to say that Dr. Bjomson was contacted to conduct a complete, full orthopedic evaluation of this woman, including an examination of her neck and to treat the neck injury if one existed. And I’m entitled to show a biased position the part of the witness and an inconsistent position by the plaintiffs. And that’s the validity of my question.
* * * * * *
Well, I can put in the — a Complaint is a judicial admission that they filed against Dr. Bjornson. It alleges that he was negligent in his duty to diagnose the odontoid fracture. They have alleged that. That is a judicial admission that I think impeaches his testimony on this witness stand and the vouching for him that occurs implicitly when they call him as an expert witness against the defendant.
You see, your Honor, he’s claiming that he only was concerned with the fractures of the leg, but there’s going to be evidence that that’s not true. And how can the plaintiffs sue him one day and allege that he was involved with the diagnosis of the neck, and then call him as a witness and have him testify that he wasn’t, and vouch for him? That is an inconsistent position by the plaintiff by *646virtue of a complaint that was filed. And that’s a judicial position that I'm entitled to develop in front of the jury.
How can they call a witness and say, “Well, gee, you didn’t have anything to do with his neck, with the patient’s neck. You weren’t concerned with the treatment of the neck.” Yet they sued him, and they said he was. I’m entitled to prove that. And that’s the theory for my asking the question.
And the reason I asked about the repairs done to the tibia and the fibula and if he thought that that mended well and that there was no residual injury was to eliminate the basis for a suit against him for the repair of the tibia, and it must, therefore, relate to the failure to diagnose the odontoid fracture. And I think my question was totally legitimate.
Mr. Quane paused, and plaintiff’s counsel read to the trial court the provisions of I.C. § 10-111. Mr. Quane responded:
MR. QUANE: That refers to this case between the Robertsons and Dr. Richards. I asked him about a suit between the Robertsons and this Doctor. That prohibition only relates to this case.
******
I can show you, I think, if I may speak to the Court, excerpts from Bell’s Handbook on Evidence and other evidentiary cases in Idaho where pleadings constitute judicial admissions if they’re contrary to the position taken at trial. They are judicial admissions, and the fact that they sued this doctor is inconsistent with the testimony he gave for the plaintiffs in this case. It’s inconsistent, and I can prove that and impeach, not only the plaintiffs, but the doctor with it. ******
THE COURT: 7 take it, from your last remarks, that at least part of your position is that you can impeach this doctor?
MR. QUANE: Yes.
THE COURT: And ... I’m just really having a hard time seeing how this impeaches him in that — how do you impeach him by asking him if he has been sued? What’s the — tell me the formula, or whatever it is, by you asking him if he’s been sued, how that impeaches him.
MR. QUANE: It also impeaches the plaintiffs.
THE COURT: Let’s stick to the doctor, first. 7 don’t see how it does.
MR. QUANE: Pardon?
THE COURT: I don’t see how it goes toward impeaching the doctor by asking that question.
MR. QUANE: He testified he didn’t concern himself with the neck, diagnosis of the fracture or anything else.
THE COURT: The suit against him doesn’t change that.
MR. QUANE: Pardon?
THE COURT: The suit against him doesn’t change that opinion on his part.
MR. QUANE: They vouched for him when they called him as a witness, your Honor. They vouched for his credibility and the truthfulness and the authenticity of his testimony. The fact that he was sued and something totally contrary was alleged against him impeaches this doctor’s position as a plaintiff's witness. The plaintiff vouched for him.
THE COURT: That’s a different— that’s a different aspect of it. I just wanted to go on the fact that you indicated that you could impeach this doctor, and I don’t think that’s a proper question to impeach this doctor. It’s a different question, whether you impeach the position of the plaintiffs or not. I don’t know if the same rulings apply there.
MR. QUANE: Well, isn’t the impeachment of the doctor the impeachment of the plaintiffs’ case?
THE COURT: No.
MR. QUANE: I think that it is.
THE COURT: I mean, if this doctor makes some statement and you wanted to show that what he has stated is not right or it is contrary to something he said before, you can impeach him.
MR. QUANE: Right.
THE COURT: You haven’t done that, Mr. Quane.
*647MR. QUANE: I realize that.
THE COURT: It’s far from that.
MR. QUANE: Well, I realize that. But that isn’t the only method of impeaching a witness who is called for by the plaintiffs and vouched for by the plaintiffs. It’s the position of the witness who’s an expert called by the plaintiffs, and they’re trying to convince the jury that he did not treat the neck fracture or have anything to do with it. And the plaintiff’s position is contrary to that in the sense of the complaint.
******
MR. QUANE: Well, I can call Mrs. Robertson and prove it.
THE COURT: Well, but the question has been asked, and the Court has to deal with it. I — I mean, the fact that you might have gotten it in later on doesn’t help me now.
MR. QUANE: Let me ask you this, your Honor: If it would be relevant later on, what harm is it if you feel it was not property at this juncture, because I will ask it. I intend to. I intend to call in my case, or ask either plaintiff when on the witness stand if, in fact, they didn’t sue Dr. Bjornson and allege that he failed to diagnose the odontoid fracture.
MR. PECK: That is a different question.
MR. QUANE: And that impeaches him and them.
THE COURT: It doesn’t impeach him. He takes the position that he wasn’t asked to do that, and that his procedures were not in any way negligent under all the circumstances. And there’s no way that you can impeach him on that point of view by the fact that he’s been sued. That doesn’t impeach him.
MR. QUANE: What I am getting at, your Honor, is if it would be permissible for me to ask the plaintiffs if they alleged against this doctor a position contrary to his testimony, if that would be admissible? If that would be permissible impeachment of the plaintiffs. And it’s going to come in because I intended to do that.
THE COURT: I figured that you probably would.
MR. QUANE: If that’s relevant, what difference does it make if I ask him a question?
MR. PECK: The statute—
MR. QUANE: That applies to that suit, not this suit.
THE COURT: I don’t think that that’s the statute that is controlling for the Judge’s decision in this case.
MR. QUANE: I don’t either.
THE COURT: If you put something in unfairly or at the wrong time, I don’t think that it’s justified by the fact that you might have got it in later by another witness.
At this juncture one of plaintiffs’ counsel entered into the discussion.
MR. HAWKES: Only whether knowingly this was done, or whether it was a fluke. It is not a fluke, your Honor. It was planned and calculated for the very purpose and problem that it has caused.
MR. QUANE: I planned it, your Honor, because it was legitimate as impeachment of the plaintiffs in my opinion, and I intend to impeach the plaintiffs by their Complaint if I can get to that point in the trial.
THE COURT: I think the only way you could have been justified in asking that question of Dr. Bjornson if it was tended or if it was available to you to impeach him. And I don’t think that that has any relevance or anything at all in impeaching him as to his testimony that was given. It wasn’t directed toward that.
******
THE COURT: No, that won’t help me. I’m saying that the question is improper at this point. All I’ve gotten to do is decide whether or not I will deny a motion for a mistrial, and try to collect it with the jury. That’s the point that I’ve got to decide upon.
*648THE COURT: Fine. The Court’s going to propose a couple of methods of making some statement to the jury to avoid a mistrial. I may take a minute here and write something out and maybe get some suggestions if counsel has any questions. I’m going to be inclined to see if I can cure it. I want you to know that’s my position.
If you wanted to aid the Court in handing me something that you think might help cure the problems in front of the jury. I think the question as of right now is improper.
MR. QUANE: May I suggest this?
THE COURT: I’ll sustain the objection.
It cannot be seriously argued that defense counsel did not use the improper $5 million question to his client’s great advantage. Nor can it be gainsaid that the “curing” instruction which told the jurors to cast it out of their mind only served to emphasize it at the time. Then later when the court after having ruled that defense counsel could ask of Dr. Bjornson if he had been a named defendant when his deposition was taken, but at time of trial was not — which took place — and then by a slip of memory forgot that had taken place, and interrupted Mr. Quane in the midst of his peroration, and then had to take a recess after which he would publicly apologize to Mr. Quane, in the presence of the jury, that was the end of the ball game for the plaintiffs. In short, the judge on the second day of trial in a dramatic confrontation ruled over and over that Mr. Quane’s question was wrong, gave an instruction directing the jurors to forget it, and at the end of the trial apologetically retracted the instruction and was sorry for the lapse of memory. Mr. Quane was given free rein to explain to the jury that Dr. Bjornson was the culprit: “Why would they (plaintiffs) sue him?”
It is not a point which defense counsel can refute. It was Mr. Quane who reminded the trial judge, “You said I could ask that question if you recall.” It cannot be discovered anywhere in the record, and necessarily had to have taken place in the court chambers, as stated in the brief of the plaintiffs, and not denied. The court might just as well have given defendant’s written Requested Instruction No. 32. Clearly the defendant thought he was entitled to it in view of what was taking place. An order declaring a mistrial entered on the second day of trial would have prevented a trial which became incurably prejudicial to the plaintiffs.
One other error adding to the unfairness of the trial needs to be addressed, namely the use of the “golden rule” argument to the jury, of which plaintiff’s brief states:
Mr. Quane asked the jury to think about the evidence as if they were Dr. Richards. Although plaintiffs objected to this tactic, the Court made no ruling and no comment, leaving the jury with the impression that the argument was proper.
Now, let me ask you a question, if I might. And don’t answer it. But just going to post it: Would it be fair, would it be just, would it be honest, to hold that surgeon accountable based upon the opinion of a doctor from Salt Lake who said that he failed to comply with the standard of care based entirely upon the written word and not having been given the opportunity to even know or assume or take into account that Dr. Bjornson was called to the emergency room by Dr. Hansen or by Dr. Richards for the purpose of managing and handling and taking care of Leah Robertson in regard to her neck?
What if you were the doctor—
MR. PECK: Your Honor, I am going to object to that. Mr. Quane raised that very point in the room. The Court gave us specific instructions on that. I object to it. I am going to ask the Court to instruct Mr. Quane accordingly.
THE COURT: (No audible response.)
MR. QUANE: Think about — think about, if you will, think about the inherent fairness; just the fairness of holding him legally responsible and accountable because some doctor from *649Salt Lake — and it’s not the Salt Lake doctors that he asked to assume all these facts. Think of the inherent inequity of making that fine doctor liable.
Tr. XVII, 3519:6-3520:6 (Emphasis added.)
It is generally recognized that the “golden rule” argument, by which counsel suggests the jurors place themselves in the position of the party, is reversibly improper because it is an invitation to ignore jury instructions and decide the case by sympathy. 75 Am.Jur.2d, “Trial,” § 282, p. 357 (1974).
In Klotz v. Sears & Roebuck Company, 267 F.2d 53 (7th Cir.1959), plaintiffs counsel repeatedly asked the jury to “do unto others as you would have them do unto you” and to “give us the kind of deal that you would want to get.”
The court explained how such remarks were improper because they invoke sympathy in the jury.
These remarks made by plaintiffs counsel were in effect pleas that the jury permit sympathy, rather than the facts in evidence to determine the issues. This type of appeal to sympathy or charitable considerations falls within the class of argument condemned in F.W. Woolworth Co. v. Wilson, 5 Cir., 1934, 74 F.2d 439, 98 A.L.R. 581, where plaintiffs counsel asked the jurors if they would be willing to put themselves in plaintiffs position for a few paltry thousand dollars. The court stated at pages 442-443:
“The appeal to the jury to put themselves in plaintiffs place was improper. One doing that would be no fairer judge of the case than would the plaintiff herself. * * *
“Sympathy for suffering and indignation at wrong are worthy sentiments, but they are not safe visitors in the courtroom, for they may blind the eyes of Justice. They may not enter the jury box, nor be heard on the witness stand, nor speak too loudly through the voice of counsel. In judicial inquiry the cold clear truth is to be sought and dispassionately analyzed under the colorless lenses of the law.” 267 F.2d at 55 (Emphasis added.)
The court went on to state that such argument is grounds for reversal of a judgment even though the trial court may have attempted to correct the problem by directing the jury to disregard the remarks:
Prejudicial argument of counsel of the character here indulged in is sufficient cause for reversing a judgment even though the trial court has sustained objections to the statements and directed the jury to disregard them, Westbrook v. Chicago & N.W. Ry. Co., 248 Ill.App. 446, 451.
The nature of the remarks, their number and repetition, when considered in connection with the record as a whole, evidences a deliberate appeal to the jury to substitute sympathy for judgment and impels us to reverse and remand for a new trial.
267 F.2d at 55 (Emphasis added.)
In this case there was a similar successful attempt by defense counsel to appeal to the sympathy of the jury. However, the court gave no instruction to disregard the appeal to sympathy even though Plaintiffs counsel objected and requested an instruction. The Court ignored plaintiffs objection and allowed Mr. Quane to continue his argument as if it were totally proper. Tr. XVII, 3519. On Motion for New Trial, the trial court even incorrectly denied there had been an objection. R. II, 387:7-9.
Plaintiffs argument to invoke the “golden rule” and the Court’s refusal to correct the argument resulted in an adverse verdict in a case where the clear weight of the evidence indicated that Dr. Richards was negligent. Therefore, a new trial should be granted.
In the Rojas case, this Court did have the option, perhaps, to turn away an otherwise winning appeal by reason of counsel’s failure to register an.objection. But there was no such failure here, and this Court is squarely forced with condemning such trial *650tactics, or tacitly affixing the Court’s stamp of approval.
The statute in question, I.C. § 10-111, is clear enough, but I for one, having always wondered at its source, am grateful for the history of its enactment which is provided in plaintiffs’ opening brief, supra. With the history of the statute’s origin, it is not difficult to comprehend what it is intended to do and does do. Contained within its language it declares the policy of the state of Idaho which is “that it is the exclusive province of the jury in a civil action for money damages involving allegations of general damages to resolve such issues of fact.” The statute not only sets policy for the state, but is emphatic that that policy not be violated: It shall be grounds for a mistrial for any person to violate the prohibition of this act whether by specific statement or generalized argument. The first sentence of the statute is strongly worded: “In any civil action for damages, the amount of damages sued for shall not be disclosed by court, counsel, or any party.” It is because the trial court is also interdicted from making any disclosure, that I have said “strongly worded.”
Should the trial judge himself by a slip of the tongue disclose the amount sued for,3 then, upon it being called to his attention, should he cure the transgression by giving a curing instruction? One would think not. Otherwise a legislative enactment declaring that state of Idaho policy prohibits such conduct, and declares but a single method of relief from the prejudice which it deemed inherent in the violation, is wholly nullified. Judicial nullification of validly declared public policy and nullification of a statute declaring a mistrial as the remedy for violating proscribed conduct is violative of the doctrine of separation of powers, and intolerable.
With the purposes and policy of the statute well in mind, it is in order to examine its application to the instant circumstances. Do we have a civil action? Yes. Is it for damages including general damages? Yes. Was there a violation of the prohibition by a specific statement? Yes. The question of defense counsel, i.e., “If that’s the case [A yes answer to the question which asked if you feel that your care of her fractures was appropriate], Dr. Bjornson, can you explain to the ladies and gentlemen on the jury why Mr. and Mrs. Leah Robertson sued you for five million dollars in this case?,” although in question form, was a disclosure to the jury of the amount of damages, including general, which was the basis of the only lawsuit that had been filed and was being tried? Yes. Was it within the prohibition of the act? Yes. Was it in violation of the public policy of the state of Idaho? Yes. Was it an intentional violation? Yes, admittedly so, and done improperly as noted by the trial court’s own comments and ruling. Is it necessary to show actual prejudice under the provisions of the act? No, absolutely not. That the act presumes prejudice from a violation is implicit in the remedy therein provided. Was there, as well as the specific statement contained in the question, also generalized argument which was in violation of the prohibition of the statute? Yes.
(Aside from the statute, was the question unfair and prejudicial? Yes.)
This Court in the eleven years since I.C. § 10-111 became law has never before been required to discuss its remedial provision of a mistrial. In Leliefeld v. Johnson, 104 Idaho 357, 659 P.2d 111 (1983) and again in Quick v. Crane, 111 Idaho 759, 727 P.2d 1187 (1986), violations of the statute were claimed on appeal, but not passed upon because in both instances the issue had not been preserved for appeal by objection at trial (including final arguments) or by motion for mistrial after final arguments or before submitting the cause to the jury.4
*651The question is squarely before the Court. It is a question of great moment. But it is a question easily answered, provided that we justices remember, as declared scores of times, declaration of public policy belongs to the legislature. In no uncertain language the legislature has said that no jury shall be retired to deliberate liability and damages if it has been tainted by the prohibited disclosure of the amount of damages being sued. The trial court, upon being made aware of a prohibited disclosure (as for certain happened in this case) is afforded no other alternative but to declare a mistrial in such event as provided in the statute. It may be readily surmised that the drafters and promoters of I.C. § 10-111 well knew what they were doing and undoubtedly considered and rejected other possible remedies — such as a curing instruction. Such being the state of affairs, the trial courts of this state have no authority to violate a clear statutory provision which is based upon the legislative perception of public policy.
It may seem to some lawyers and judges a bit on the harsh side to declare a mistrial and, where a jury has been utilized, to dismiss it, select a new jury, and begin the trial anew. But it is a matter of public policy, and not open to legal or judicial philosophy. And, of course, not to be forgotten, there will be no mistrials where there occurs no violation of the statute.
In this particular case, as earlier seen herein, there was a violation of the statute, by incorporating an offensive statement into a question, and the question itself, even had it been purged of the reference to the amount being sued for, was itself improper. The trial judge so ruled in both respects, but assumed that he had the power to remedy the situation by a curing instruction. Possibly that was so as to the question being asked at an improper time— as to the doctor having been sued — but certainly not where the legislative statute had been violated. Not just being inadvertently violated, but deliberately and with calculation, said to be justified so as to impeach Dr. Bjornson, which the trial court correctly ruled it did not, and observed that other and acceptable means of attempting to do so were readily available.
The only conclusion to be reached is that the legislative policy is that the trial ends with an order declaring a mistrial. Thereby the legislature accomplishes its goal of preventing jurors from learning of the amount of damages, including general, for which the complaint prayed and the action was brought. The statute was enacted at the behest of the IMA as a means of securing more fair trials. Interestingly, in this particular instance the statute was violated by counsel defending a doctor.
Being that it was a deliberate violation, my vote is that, as I said also in Rojas, the defendant be assessed all of the costs of trial and appeal, including a reasonable hourly compensation to the plaintiffs for their attorney fees to date — other than hours spent in discovery. Those hours will be recoverable costs on the second trial, should the plaintiffs prevail. Otherwise no.
. 108 Idaho 590, 701 P.2d 210 (1985).
. Bakes, "Appellate Procedure," 10 Idaho Law Review 131 (1974).
. The drafters of the statute must have seen this as a possibility, else the court would not have been included in the prohibition.
. The Court continues to avoid the question— notwithstanding the issue was fairly presented, and all of Mr. Quane’s argument devoted to arguing it. The Court apparently would rather once again "put it off for another day.” Who knows? — eventually Judge George’s views may be adopted.