Gallagher v. Pennsylvania Liquor Control Board

DISSENTING OPINION

Justice BAER.

While I commend the majority for its thorough review of the record in this case and its summary of Pennsylvania’s precedent as well as that of our sister states, I respectfully disagree with the result reached. The divergence of our opinions results from fundamentally different views of the impact of collateral source evidence on the minds of jurors and the corresponding role of the trial court in determining whether to admit references to a plaintiffs prior collateral source recovery.

As aptly noted by the majority, our Court long has observed the prejudicial effect of collateral source information. See Maj. Op. at 373, n. 5, 883 A.2d at 556, n. 5 (quoting Boudwin v. Yellow Cab Co., 410 Pa. 31, 188 A.2d 259, 260 (1963) (plurality)); Lobalzo v. Varoli, 409 Pa. 15, 185 A.2d 557, 561 (1962); *379Lengle v. North Lebanon Twp., 274 Pa. 51, 117 A. 403, 404 (1922). When a juror hears that a plaintiff has previously-received compensation for his injuries, it is only natural for the juror to weigh that information, either consciously or not, in the calculation of damages due to the plaintiff and decrease the plaintiffs award, thereby allowing the tortfeasor to “ride to immunity from his wrong on the back of worker’s compensation paid by someone else.” Boudwin, 188 A.2d at 259. As a juror in a criminal trial may question why a defendant has failed to present her side of the story when a prosecutor highlights the defendant’s decision not to take the stand, so too may a juror in a civil trial question why a plaintiff should be double compensated for his injury when faced with evidence of collateral source recovery. Once introduced into evidence, “like a dash of ink in a can of milk, it cannot be strained out.” Lobalzo, 185 A.2d at 561; see also Eichel v. New York Cent. R.R. Co., 375 U.S. 253, 255, 84 S.Ct. 316, 11 L.Ed.2d 307 (1963) (“[W]e must recognize that the petitioner’s receipt of collateral social insurance benefits involves a substantial likelihood of prejudicial impact.”).

Consequently, this Court has tried to insulate our juries from references to collateral source information. The majority acknowledges the rationale for barring references to collateral sources but appropriately recognizes an exception to the rule: “although evidence of a plaintiffs recovery from collateral sources is generally inadmissible and improper references may warrant a mistrial, an exception exists if the evidence of such recovery is relevant to a material issue in the case.” Maj. Op. at 373-74, 883 A.2d at 557. I concur with the majority’s view that this exception may be appropriate in certain limited cases; the exception as implemented by the majority, however, has the potential to swallow the rule.

The majority affirms the trial court’s decision not to bifurcate the employer issue from the liability issues based on the conclusion that workers’ compensation “was a potentially relevant consideration” to the employer issue.1 Maj. Op. at 374-*38076, 883 A.2d at 558 (emphasis added). I cannot subscribe to the view that potential relevance justifies the extreme prejudice likely to result from the admission of collateral source evidence. Moreover, I cannot conclude, as does the majority, that the trial court’s order limiting references to premiums paid, as opposed to benefits received, sufficiently “diminish[ed] the prejudicial impact.” Maj. Op. at 376-78, 883 A.2d at 559. It is but a small leap of logic for a juror to conclude that if premiums were paid by the employer, so too were benefits paid to the injured employee.

While I acknowledge that bifurcation should be utilized sparingly2 and that such decision is within the sound discretion of the trial court, I believe that once the plaintiff raised the prejudicial effect of collateral source evidence in its motion to bifurcate, see R.R. at 55, the trial court should have heeded our suggestion that “Judges should be vigilant ... to keep out of trial all references to benefits collaterally received by the plaintiff.” Boudwin, 188 A.2d at 260. Rather than merely “balancing considerations of judicial economy and fairness,” Maj. Op. at 368-70, 883 A.2d at 554, the court should have considered fully and carefully the practicality of resolving the employer issue, in a brief, non-jury, pre-trial proceeding, obviating any need to adduce the tainted evidence before the jury. If the trial court had done so, it would have determined pre-trial what it determined at the conclusion of testimony: that the employer issue was a question of law to be resolved by the court itself without necessitating any findings by the jury because the facts in this regard were “largely undisputed.” Maj. Op. at 374-76, 883 A.2d at 558.3

*381While I do not endorse the view of those of our sister states who have forged a per se rule prohibiting reference to collateral source information,4 I would require more than mere relevance to the material issues of the case, and certainly more than potential relevance, given the extreme prejudice inherent in collateral source information. Only when a court determines that resolution of the material issues is either impossible or impractical without admission of the offending evidence should a court allow the jury to be exposed to collateral source evidence. Instead of a trial court determining whether bifurcation is “unnecessary,” see Maj. Op. at 868-70, 883 A.2d at 554, the question posed by the court should be whether the *382exposure of the collateral source information to the jury is necessary. If the answer is no, then the trial should be bifurcated and the jury insulated from the collateral source evidence.

Consequently, I would affirm the decision of the Superior Court because it was an abuse of discretion for the trial court to fail to determine whether it was possible to resolve the issue as a matter of law without exposing the jury to collateral source evidence.

Justice NEWMAN joins this Dissenting Opinion.

. Moreover, as noted by the majority, the payment of workers’ compensation premiums, in fact, was not determinative of the employer issue.

Maj. Op. at 368, n. 1, 883 A.2d at 553, n. 1.

. As we have previously stated, bifurcation "should be carefully and cautiously applied and be utilized only in a case and at a juncture where informed judgment impels the court to conclude that application of the rule will manifestly promote convenience and/or actually avoid prejudice. Piecemeal litigation is not to be encouraged.” Stevenson v. General Motors Corp., 513 Pa. 411, 521 A.2d 413, 419 (1987) (quoting Brown v. Gen. Motors Corp., 67 Wash.2d 278, 407 P.2d 461, 464 (1965)).

. The majority apparently would have required the plaintiff to file a partial summary judgment motion to gain a “global pre-trial disposition of the question” and therefore does not fault the trial court’s "apparent *381understanding that the facts may have been in dispute and, correspondingly, its decision to proceed with the fact finding process.” Maj. Op. at 374-76, 883 A.2d at 558. As I believe the bifurcation motion and the universally acknowledged proscription against placing collateral sources of recovery before a jury should have prompted the court to determine if the factual and legal issues relating to the employer issue required presentation to the jury, I conclude that the trial court abused its discretion in deferring determination of the issue until conclusion of the trial, when the damage was irreparable.

. See Proctor v. Castelletti, 112 Nev. 88, 911 P.2d 853, 854 (1996) (adopting "a per se rule barring the admission of a collateral source of payment for an injury into evidence for any purpose”); Reinan v. Pacific Motor Trucking Co., 270 Or. 208, 527 P.2d 256 (1974) (collecting cases and applying a strict exclusionary rule to collateral source evidence). Additionally, a number of other jurisdictions, while not adopting per se rules, have severely restricted the admission of such evidence. See Lund v. San Joaquin Valley R.R., 31 Cal.4th 1, 1 Cal.Rptr.3d 412, 71 P.3d 770, 777 (2003) (acknowledging California’s precedent that collateral source information will only be admitted upon "a persuasive showing that the evidence sought to be introduced is of substantive probative value’’); Gurliacci v. Mayer, 218 Conn. 531, 590 A.2d 914, 929 (1991) (collecting cases and adopting the standard that provides for an exception to the collateral source bar for evidence of malingering by the plaintiff where there is “corroborative evidence and a proper limiting instruction"); Sheffield v. Superior Ins. Co., 800 So.2d 197, 203 (Fla.2001) ("Although we did not announce a per se rule of reversal we recognized the inherently damaging effects of the jury hearing collateral source evidence both on the issues of liability and on issues of damages.); Haischer v. CSX Transp., Inc., 381 Md. 119, 848 A.2d 620 (2004) (permitting certain limited exceptions to the inadmissibility of collateral source evidence in cases under the Federal Employer’s Liabilities Act and the Boiler Inspection Act where the plaintiff claims financial distress due to the injury and such evidence is used for the limited purpose of testing plaintiff's credibility).