dissenting, with whom LEHMAN, Justice, joins.
[148] I respectfully dissent from the majority's resolution of the second issue. I would also dissent from the resolution of the third issue, had the appellants not waived that issue in the district court.1 I would reverse.
[T49] This case is a perfect example of our judicial system's stated reverence for, but frequent distrust of, decision-making by juries. The second issue, in simple terms, is whether the district court abused its disceretion in deciding how much of the truth to tell the jury about Dr. Reckling. The scenario is not complicated. The appellants sued three doctors, one of whom settled before trial. If the jury were entitled to the whole truth, that would be it. However, because we want to encourage settlements, and because settlements may be irrelevant to liability, W.R.E. 408 forbids introduction of evidence of a settlement to prove the liability of the settling defendant. Haderlie v. Sondgeroth, 866 P.2d 703, 713 (Wyo.1993). If that is going to be the law, we should enforee it, rather than allowing one side to make contrary hints to the jury. The appellee doctors' meager plea that "it ain't fair" should not have outweighed the law.
[1 50] I would hold that it was not harmless error when the district court abused its discretion by allowing Dr. Kaufman's counsel to state in opening that "when [the appellants] filed this lawsuit against Dr. Kellam and Dr. Kaufman they also filed a lawsuit against Dr. Reckling, the orthopedic surgeon; and they sued Dr. Reckling." This error was compounded when, in answering the jury's question, the district court instructed it, in part, as follows: "You have heard evidence that Dr. Reckling was, but no longer is, a defendant. That evidence was admitted for a limited purpose-to show that plaintiffs and not the defendant physicians, Drs. Kaufman and Kellam, were initially critical of Dr. Reckling's care." I agree with the majority that this situation is sufficiently similar to that in Haderlie as to be indistinguishable for the purpose of applying the law. Under Haderhe, neither the settlement agreements nor the pleadings were admissible. Id. at 714. Neither are they here. And, as in Haderie, Dr. Kaufman's attorney's opening statement was nothing more than a poorly disguised attempt to tell the jury that the real culprit had settled out. Id.
[T51] The question of who first pointed the finger of liability at Dr. Reckling-the appellants or the other appellee doctors-was simply not relevant to any issue of fact to be determined by the jury. I might be able to agree with the majority that the error in allowing the appellee doctors to pursue this argument was harmless had it not led directly to admission of Dr. Alter's deposition testimony, the only purpose of which was to prove Dr. Reckling's liability. The final ef*1176fect of the erroneous ruling was to allow the jury to infer that Dr. Reckling had settled because he was liable.2 That is exactly the inference that we are trying to avoid by disallowing evidence of pleadings and settlements.
[152] Cases like the present one should give us pause to reconsider what we do and do not tell juries. We should recognize that jurors are not stupid, and when they are given only part of the truth, they are likely to ask questions.3 Not surprisingly, the jurors in the instant case wanted to know why Dr. Reckling was no longer a defendant.4 This problem could have been avoided had the judge given, at the outset of the trial, a pattern jury instruction along the lines of Wyo. Stat. Ann. $ 1-1-109(@)() (LexisNexis 2001), which defines "actor" to include anyone "whose fault is determined to be a proximate cause of the death, injury or damage, whether or not the actor is a party to the litigation|[.]J' Had such an instruction been given, and had the irrelevant evidence about the initial complaint not been admitted, any jury question about Dr. Reckling's status could have been answered with a simple "it does not matter so do not consider it." An alternative approach would be to advise the jury outright that Dr. Reckling had settled, but that a settlement may not be based on liability, and therefore may not be considered by the jury for any reason. Without debating the relative merits of either approach, it does seem safe to say that either is preferable to what happened in the present case.
. The jury could not agree to find any "failure," but then found "such failure" not to have caused injury to the appellants. That, of course, is a logical inconsistency, and it should have been more thoroughly explored before the jury was excused. We ask precise questions on verdicts because precise answers are required.
. There is the additional inference, of course, that Drs. Kaufman and Kellam did not settle because they were not negligent. If defendants are allowed to pursue such arguments, the inclination of plaintiffs to settle with fewer than all defendants will certainly be reduced, and the public policy favoring settlement of civil disputes will be violated.
. Or worse, they may fill in the blanks with their own suppositions.
. Needless to say, they would not have had to ask that question had they not been told that he had once been a defendant.