                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2008-CA-00256-SCT

ROBINSON PROPERTY GROUP, L.P.,
A MISSISSIPPI LIMITED PARTNERSHIP d/b/a
HORSESHOE CASINO AND HOTEL

v.

MARY S. MITCHELL

DATE OF JUDGMENT:                         01/14/2008
TRIAL JUDGE:                              HON. CHARLES E. WEBSTER
COURT FROM WHICH APPEALED:                TUNICA COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  JOEANNA CHANDLEY CRAWFORD
                                          ROBERT LEWIS MOORE
                                          DAWN DAVIS CARSON
ATTORNEY FOR APPELLEE:                    ROBERT Q. WHITWELL
NATURE OF THE CASE:                       CIVIL - PERSONAL INJURY
DISPOSITION:                              AFFIRMED - 04/23/2009
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       RANDOLPH, JUSTICE, FOR THE COURT:

¶1.    Mary S. Mitchell filed a personal-injury suit against Robinson Property Group

(“Robinson Property”), a Mississippi Limited Partnership, stemming from a trip-and-fall

accident at the Horseshoe Casino in Robinsonville, Mississippi. A jury determined the value

of Mitchell’s damages at $80,000, but deemed her thirty percent at fault. Thus, final

judgment was entered in her favor for $56,000. Finding no error, this Court affirms.
                                           FACTS

¶2.    On March 29, 2006, Mitchell, a seventy-two-year-old resident of Memphis,

Tennessee, and a group of her friends visited the Horseshoe Casino in Robinsonville,

Mississippi. After playing the slot machines, Mitchell walked over to the snack bar and

ordered a sandwich. While awaiting her order, Mitchell decided to play her one remaining

“fifty-cent coupon” on a nearby slot machine. As Mitchell approached the machine, the heel

of her shoe caught on a metal plate, causing her to fall. This metal plate had a two-inch lip

and formed the base for attaching a slot-machine seat to the floor.

¶3.    The parties dispute whether the area in which the accident occurred was barricaded.

Mitchell stated that several aisles were roped off, but she did not see any barricades around

this particular area. A companion, Bettie Jolly, testified that she did not see any barricades.

Both women, however, did notice that the seats in this area were in some disarray. Robinson

Property insisted that the area had been roped off, and that Mitchell had failed to notice, or

had blatantly ignored, the barricade.

¶4.    Mitchell was transported to the emergency room at Baptist Memorial Hospital-DeSoto

in Southaven, Mississippi, and then transferred to Methodist Le Bonheur Germantown

Hospital in Germantown, Tennessee. She suffered a broken ankle and underwent orthopedic

surgery several days later.

¶5.    Mitchell experienced additional complications from the injury. While hospitalized

following her surgery, Mitchell contracted a staph infection in one eye and one arm.

Thereafter, she was confined to a wheelchair for nearly six weeks. She described the pain

as unbearable. Mitchell testified that she also had difficulty breathing and consulted both a


                                              2
lung specialist and a heart specialist for treatment. Additionally, she received psychological

treatment for depression. Mitchell also testified that she missed a substantial period of work,

and that when she returned to work, her hours at a local gift shop were reduced from eight

hours a day, three days a week, to four hours a day, three days a week, due to her inability

to stand for prolonged periods of time.

¶6.    Mitchell filed suit against Robinson Property in the Circuit Court of Tunica County,

Mississippi, which culminated in a jury verdict in her favor. Contested issues at trial

included, inter alia, whether the area was barricaded and the accuracy of Mitchell’s

purported medical expenses. Rather than submitting separate bills and records associated

with her medical expenses, Mitchell offered a summary as evidence, thereby excluding

documents which revealed Medicare payments.            Attached to the summary was some

supporting documentation. On cross-examination, Robinson Property confronted Mitchell

regarding discrepancies between the summary and the attached bills. Robinson Property also

pointed out that some of the bills failed to reflect the amount shown in the summary.

Robinson Property contested whether attached bills for treatment of a urinary-tract infection,

cholesterol check, routine blood work, and a $10,198 bill from the Sutherland Clinic which

dated back to June 18, 1996, were related to the 2006 fall. Mitchell testified that she did not

know how the inclusion of the Sutherland Clinic bill had occurred, as she had not seen the

summary prior to taking the witness stand. Mitchell testified someone had made a mistake 1




       1
         At post-trial motion hearings, Mitchell’s counsel explained that his office had
flooded just prior to trial, and in his haste to obtain replacement copies of Mitchell’s medical
bills, he inadvertently included the entire bill from the Sutherland Clinic.

                                               3
to include the entire bill, but that she had incurred some medical expenses at Sutherland

Clinic attributable to the 2006 fall. On redirect, it was established that Mitchell’s counsel

had prepared the summary, and Mitchell testified that any expense incurred at the Sutherland

Clinic before her fall should be taken off her claim. Mitchell sought special damages,

including lost wages, of $43,383.

¶7.    After hearing all the evidence, the jury established Mitchell’s total damages at

$80,000 and deemed her thirty percent at fault. Accordingly, the circuit court entered a final

judgment in the amount of $56,000. Mitchell then filed a motion for additur, which the

circuit court denied. Robinson Property filed a motion for new trial, asserting that the circuit

court had erred in denying its motion for directed verdict and in refusing to allow

impeachment of Mitchell regarding her assertion of financial devastation, relying on

evidence it proffered during trial that a large portion of her medical expenses were paid by

insurance. After a post-trial hearing, the circuit judge entered an order denying Robinson

Property’s motion for new trial.

¶8.    Robinson Property now appeals to this Court, raising the following assignments of

error: (1) whether the circuit court erred in refusing to recognize an impeachment exception

to the collateral-source rule, and (2) whether the circuit court abused its discretion in failing

to grant Robinson Property’s motion for new trial.




                                               4
                                        DISCUSSION

       I.     Whether the circuit court erred in refusing to recognize an
              impeachment exception to the collateral-source rule.

¶9.    This Court reviews a trial judge’s decision to admit or deny evidence under an abuse-

of-discretion standard. See Whitten v. Cox, 799 So. 2d 1, 13 (Miss. 2000) (quoting Floyd

v. City of Crystal Springs, 749 So. 2d 110, 113 (Miss. 1999)). If an error involves the

admission or exclusion of evidence, this Court “‘will not reverse unless the error adversely

affects a substantial right of a party.’” Id.

¶10.   During the direct examination of Mitchell, the following exchange occurred:

       [Mitchell’s attorney]: You have told the jury what expenses you have incurred.
       What are you asking the jury to give you in the way of compensation to
       compensate you for this injury?

       [Mitchell]: Well, I just want the jury to determine that, except I would like to
       have the medical bills and my expenses, and, of course, that's really just partial
       expenses. I couldn't even think of everything that I have spent and the gas and
       the cost of everything, the going back and forth to physical therapy and all of
       that, but I think the jury would be fair in awarding whatever they feel would
       be right for something as serious as this.

       [Mitchell’s attorney]: Do you think that ought to be a substantial sum of
       money, more than the $50,000 medical expenses you have?

       [Mitchell]: Well, I would hope so. I had to -- I borrowed money to live on. I
       refinanced my house. I know that's probably not a problem I'm supposed to
       bring up, but it has -- it's devastated me financially, too.

(Emphasis added). Additionally, the following exchange addressed Mitchell’s lost wages:

       [Mitchell’s attorney]: As a result of this, did you lose some time from work
       while you were off with all of this surgery and so forth?

       [Mitchell]: Oh, yes. I didn’t work again until – several months ago, I started
       back part-time . . . . I work four hours three days a week, and that’s about all
       I can stand on this ankle still, and it’s been a year and a half . . . .

                                                5
       [Mitchell’s attorney]: Are you able to work a full eight-hour day now?

       [Mitchell]: No, not yet.

¶11.   Robinson Property argues that it sought to introduce evidence that the medical bills

incurred by Mitchell were substantially paid by insurance for the purpose of impeaching her

testimony, not to mitigate or reduce her damages. Robinson Property contends that Busick

v. St. John, 856 So. 2d 304 (Miss. 2003), and Geske v. Williamson, 945 So. 2d 429 (Miss.

Ct. App. 2006), both recognized an impeachment exception to the collateral-source rule. The

circuit judge, however, denied Robinson Property’s request, relying upon McCary v.

Caperton, 601 So. 2d 866 (Miss. 1992), and held that there was no impeachment exception

to the collateral-source rule.

¶12.   It has long been established in our state that, under the collateral-source rule, “a

defendant tortfeasor is not entitled to have damages for which he is liable reduced by reason

of the fact that the plaintiff has received compensation for his injury by and through a totally

independent source, separate and apart from the defendant tortfeasor.” Cent. Bank of Miss.

v. Butler, 517 So. 2d 507, 511-12 (Miss. 1987) (citations omitted). Compensation or

indemnity received by the plaintiff from a collateral source such as insurance:

       cannot be set up by the [defendant] in mitigation or reduction of damages . .
       ..

       The wrongdoer is not entitled to have the damages to which he is liable
       reduced by proving that plaintiff has received or will receive compensation or
       indemnity for the loss from a collateral source, wholly independent of him.
       Under this general rule, insurance in behalf of the injured person cannot be set
       up the wrongdoer in mitigation of the loss.




                                               6
Coker v. Five-Two Taxi Serv., 211 Miss. 820, 826, 52 So. 2d 356, 357 (1951) (quoting 25

C.J.S. Damages, § 99) (emphasis added). See also Burr v. Miss. Baptist Med. Ctr., 909 So.

2d 721, 728 (Miss. 2005).

¶13.   Prior to Busick, this Court had not recognized an impeachment exception to the

collateral-source doctrine. See Busick, 856 So. 2d at 309 (citing, e.g., McCollum v.

Franklin, 608 So. 2d 692, 695 (Miss. 1992); Eaton v. Gilliland, 537 So. 2d 405, 408 (Miss.

1989); Cent. Bank of Miss., 517 So. 2d at 511; Star Chevrolet Co. v. Green by Green, 473

So. 2d 157, 162 (Miss. 1985); Preferred Risk Mut. Ins. Co. v. Courtney, 393 So. 2d 1328,

1332-33 (Miss. 1981)). In Busick, this Court noted that several states have recognized a

limited impeachment exception to the collateral-source rule. See Busick, 856 So. 2d at 309-

10 (citing, e.g., Warren v. Ballard, 266 Ga. 408, 467 S.E.2d 891, 893 (1996); Corsetti v.

Stone Co., 396 Mass. 1, 483 N.E.2d 793, 801 (1985); Evans v. Wilson, 279 Ark. 224, 650

S.W.2d 569, 570 (1983); Hack v. State Farm Mut. Auto. Ins. Co., 37 Wis. 2d 1, 154 N.W.2d

320, 325 (1967)). There, the:

       evidence related to Busick’s health insurance was admitted to impeach her
       testimony that she suffered permanent injuries as a result of the accident.
       Busick testified that she ceased physical therapy because she could no longer
       afford it. The fact that she spent only $45 on that therapy discredited her
       testimony.

Busick, 856 So. 2d at 310 (emphasis added). This Court held that “[t]he testimony was not

solicited for the purposes of mitigating her loss or reducing damages owed to Busick.” Id.

Therefore, this Court held there was “no reversible error . . . in allowing this testimony with

an appropriate limiting instruction.” Id.




                                              7
¶14.   While “impeachment exception to the collateral-source rule” has been the terminology

used by some courts, that phrase is a bit misleading and may cause confusion.                An

“exception” is defined as “[o]ne that is excepted, esp. a case not conforming to normal rules.”

Webster’s II New College Dictionary 390 (3d ed. 2001). The “collateral-source rule” is in

no way excepted or excluded by the impeachment of testimony.                 The rule remains

unchanged, and a defendant may not use payments received from a third party to mitigate or

reduce a plaintiff’s damages. See Coker, 52 So. 2d at 357. The misnomered “exception”

pertains to impeachment of false testimony by evidence of collateral-source payments.

Therefore, correctly stated, the issue is whether a defendant may cross-examine the plaintiff

regarding collateral-source payments, for the narrow purpose of impeaching false testimony,

as approved by the 2003 Busick Court. See Busick, 856 So. 2d at 310.

¶15.   It is a given, requiring no citation, that courts should never condone false testimony.

When a witness falsely swears that he or she paid, as opposed to incurred, medical expenses

when, in fact, the medical expenses were paid by a third party, the aforementioned principle

is violated. Therefore, to the extent that courts of this state have held that evidence of

collateral-source payments may not be introduced for the purpose of impeaching false or

misleading testimony, those decisions are expressly overruled. See Corsetti, 396 Mass. at

17 (quoting Goldstein v. Gontarz, 364 Mass. 800, 812 (1974)) (“in some circumstances,

evidence of collateral source income may be admissible, in the discretion of the trial judge,

‘as probative of a relevant proposition, say ‘control’ or credibility of a particular witness.’”)

(emphasis in original). Permitting evidence of collateral-source payments for the narrow

purpose of impeaching false or misleading testimony is consistent with the Mississippi Rules

                                               8
of Evidence. Rule 607 provides that “[t]he credibility of a witness may be attacked by any

party . . . .” Miss. R. Evid. 607. Therefore, an attack upon the credibility of a witness

through the impeachment of false or misleading testimony is permissible. However, any

evidence to be admitted under Rule 607 must always first be deemed relevant, see

Mississippi Rule of Evidence 401-402, and then filtered through Rule 403.2 Moreover, as

in Busick, granting a limiting instruction may be appropriate, so as to avoid jurors being led

“to consider plaintiffs’ claims unimportant or trivial or to refuse plaintiffs’ verdicts or reduce

them, believing that otherwise there would be unjust double recovery.” Corsetti, 396 Mass.

at 17 (quoting Goldstein, 364 Mass. at 809).

¶16.   Today’s decision also comports with the mandate articulated in our rules of evidence.

Rule 102 provides that our rules of evidence shall promote the “growth and development of

the law of evidence to the end that the truth may be ascertained and proceedings justly

determined.” Miss. R. Evid. 102. The benefits derived from permitting such inquiry are

minimally two-fold. First, it eliminates the judicial conundrum of allowing known false

testimony to be considered by a jury. Second, it eliminates jury consideration of an illusory

element of damages premised on false testimony.

¶17.   We can agree with the separate opinion of Justice Kitchens that evidence of collateral-

source payments “is not relevant upon the inquiry as to whether one party has wronged

another.” (Concurring-In-Result-Only Opinion at ¶ 32). No less true, however, is that the



       2
       Justice Kitchens’s lack of confidence in our trial judges to control the admission of
evidence and fears of their “heap[ing] heretofore forbidden evidence” into trial (Concurring-
In-Result-Only Opinion at ¶39), is misplaced. Our system of justice is dependent upon trial
judges properly applying evidentiary rules.

                                                9
veracity of any party is relevant, which is the crux of this Court’s decision, i.e., the

condemnation of false testimony. Justice Kitchens’s suggestion that today’s decision

abrogates the rule is unclear, as the Busick Court decided this issue six years ago. See

Busick, 856 So. 2d at 310. The cases relied upon by Justice Kitchens predate Busick.

Moreover, Vance v. Hervey, 253 Miss. 751, 179 So. 2d 1 (1965), cited in Justice Kitchens’s

separate opinion, provides additional rationale for permitting evidence of collateral-source

payments for the narrow purpose of impeaching false or misleading testimony in Busick-type

cases. In Vance, “[t]he plaintiff was permitted to testify on cross-examination, over the

objection of his attorney, that he had received weekly insurance benefits from January 1963

through July 1964 for the first injury, and this is assigned as error.” Id. at 754. While

acknowledging that Coker and Ethridge v. Goyer Company, 241 Miss. 333, 131 So. 2d 188

(1961), “pronounce sound law,” this Court held that:

       they have no application to the case at bar for the reason the plaintiff opened
       the subject of the industrial or first injury by introducing evidence in regard
       thereto. He cannot now complain of cross examination on the very matter he
       has introduced and which extends the evidence to show that compensation
       payments were made.

Vance, 253 Miss. at 755 (citations omitted). See also Crosby v. Keen, 200 Miss. 590, 593-

94, 28 So. 2d 322, 323 (1946) (quoting 31 C.J.S. Evidence, § 190) (“[t]he party who first

introduces improper evidence cannot object to the admission of evidence from the adverse

party relating to the same matter. However, the admission of such evidence is not a matter

of absolute right, but rests in the sound discretion of the court . . . .”) (emphasis added). False

testimony is always improper evidence.




                                                10
¶18.   In the case sub judice, the learned circuit judge conducted a very thorough analysis

regarding Mitchell’s testimony, its putative prejudicial effect upon Robinson Property, and

the applicable law. The circuit judge found that, although Mitchell had testified about

medical bills, she also had testified about nonmedical expenses. He concluded that he could

not “say with confidence that the plaintiff was attributing her financial difficulties directly

to her medical bills.” As such, the circuit court “did not believe the plaintiff’s comment was

unduly prejudicial toward the defendant.” Additionally, the circuit judge expressed some

uncertainty following his analysis of the caselaw on whether to allow impeachment of

Mitchell, “find[ing] [him]self without clear guidance.” 3 If Busick’s failure to overrule prior

contrary holdings created any uncertainty, today’s decision should make it clear that a

witness may, under very limited circumstances, be cross-examined on collateral-source

payments. Each case involves a fact-specific inquiry. Under these particular facts, this Court

concludes that the circuit court correctly applied the law when it refused to admit evidence

of Mitchell’s health insurance and Medicare coverage.

       II.    Whether the circuit court abused its discretion in failing to grant
              Robinson Property’s motion for new trial.

¶19.   This Court reviews the denial of a motion for new trial for abuse of discretion. See

Poole v. Avara, 908 So. 2d 716, 726 (Miss. 2005). This Court “will not set aside a jury’s

verdict and order a new trial unless we are convinced that the verdict was contrary to the




       3
        Specifically, the circuit judge stated, “[h]istorical precedence suggest[s] that there
is no impeachment exception to the collateral source rule. However, more recent cases
contain language seemingly suggesting that evidence introduced for purposes other than to
reduce the monetary award for the plaintiff, such as impeachment, is properly admitted.”

                                              11
substantial weight of the evidence so that justice requires that a new trial be granted.” Id. at

727 (citing Jesco, Inc. v. Whitehead, 451 So. 2d 706, 714 (Miss. 1984) (Robertson, J.,

specially concurring)).

¶20.   In considering a motion for new trial, this Court has set forth the following list of

factors that a trial court should weigh and consider:

       (1) Has the search for the true facts proceeded as far as it reasonably may
       under the peculiar facts and circumstances of the case?

       (2) To what extent would it be unfair to the party in whose favor the verdict
       was returned in effect to give that party's adversary a second bite at the apple?

       (3) Considering the evidence, is there a substantial basis for believing that the
       jury disregarded their oaths and failed to follow the instructions of the Court
       in reaching its verdict? Put another way, is it substantially apparent that the
       jury’s verdict is the product of passion, prejudice or any other arbitrary factor?

       (4) Assuming arguendo that the verdict is unjust (by reference to the
       underlying facts of the transaction or occurrence, the complete truth of which
       we will never know), what is the impact of that "injustice" upon the party
       against whom the verdict has been returned?

       (5) If a new trial is ordered, will the party in whose favor the verdict has been
       returned be deprived of some fair advantage he enjoyed in the first trial?

       (6) Are there any other factors present, peculiar to the particular case or the
       parties, that would render just or unjust the grant or denial of a new trial?

Janssen Pharmaceutica, Inc. v. Bailey, 878 So. 2d 31, 60-61 (Miss. 2004) (citing Jesco,

Inc., 451 So. 2d at 715-16)).

¶21.   Robinson Property argues that the circuit judge failed to weigh these factors as a

whole. Primarily, it asserts that, by refusing to admit the evidence of Mitchell’s insurance

coverage, the circuit court did not permit the “true facts” to proceed as far as reasonably

necessary. See id.

                                              12
¶22.     The circuit judge entered a thorough order denying Robinson Property’s motion for

new trial. After examining the relevant caselaw and noting the lack of clear guidance, the

circuit judge acknowledged that he could not state with confidence that he was correct in

refusing to admit the proposed impeachment evidence.4 But he added that even if he had

erred, a new trial was not required. He found that Mitchell’s credibility was substantially

impeached by Robinson Property’s “vigorous attack” surrounding the “debacle involving the

errant $10,000 [in] medical expenses appearing in the plaintiff’s medical expense summary

. . . .” He also was of the opinion that the size of the verdict compared to the requested

medical expenses suggested that Mitchell’s credibility had been called into question.

¶23.     This Court finds that the circuit court did not abuse its discretion in denying a new

trial.

                                       CONCLUSION

¶24.     The circuit court did not err in excluding evidence of Mitchell’s insurance payments,

nor did it abuse its discretion in denying a new trial. Therefore, this Court affirms the Circuit

Court of Tunica County’s final judgment and denial of Robinson Property’s motion for new

trial.

¶25.     AFFIRMED.

     WALLER, C.J., CARLSON, P.J., DICKINSON, LAMAR, CHANDLER AND
PIERCE, JJ., CONCUR. GRAVES, P.J., CONCURS IN RESULT ONLY.
DICKINSON, J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY
CARLSON, P.J., RANDOLPH AND LAMAR, JJ. KITCHENS, J., CONCURS IN
RESULT ONLY WITH SEPARATE WRITTEN OPINION JOINED IN PART BY
WALLER, C.J.


         4
             See footnote 3 supra.

                                               13
       DICKINSON, JUSTICE, CONCURRING:

¶26.   I have attempted without success to understand the concern voiced by my learned

colleague, Justice Kitchens, who opines that today’s majority opinion “makes access to

previously forbidden evidence of collateral-source payments exceedingly effortless.” I agree

with my friend on the point, but hasten to state that, in my judgment, access to such evidence

should, indeed, be effortless. After all, it comes into play only where the plaintiff has lied

on the witness stand. Our rules – whether of ancient5 or more recent6 vintage – should never

protect a liar.

¶27.   The subject of my friend’s concurring opinion is the following issue as framed by

Justice Randolph: “Whether a defendant may cross-examine the plaintiff regarding collateral-

source payments, for the narrow purpose of impeaching false testimony.” One would hope

the issue is rarely presented but, when it is, my firm view is that neither rule nor statute nor

this Court’s precedent should prevent the lie from being exposed.

¶28.   Furthermore, I question my friend’s prognostication that today’s decision will savage

cases where plaintiffs make “benign references to financial hardship.” That is precisely what

happened in the case before us today, and the majority correctly concludes that the plaintiff’s

testimony was acceptable, and that the trial judge’s exclusion of the collateral-source

payments was eminently correct.



       5
           “Ye shall know the truth, and the truth shall make you free.” John 8:32.
       6
        “These rules [of evidence] shall be construed . . . to the end that the truth may be
ascertained and proceedings justly determined.” Maj. Op. at ¶16 (citing Miss. R. Evid. 102).

                                              14
       CARLSON, P.J., RANDOLPH AND LAMAR, JJ., JOIN THIS OPINION.

       KITCHENS, JUSTICE, CONCURRING IN RESULT ONLY:

¶29.   I agree with the majority that “the circuit court correctly applied the law when it

refused to admit evidence of Mitchell’s health insurance and Medicare coverage.” Maj. Op.

at ¶18. But in my judgment, that correct application stemmed from our long-held principle

that parties may not adduce evidence that damages have been mitigated by collateral-source

payments. I can endorse neither the abrogation nor the weakening of that wise rule.

Therefore, I join today’s judgment in result only.

¶30.   Let us be under no illusions regarding the impact of today’s pronouncement. The

majority opinion’s aim is no “narrow purpose,” Maj. Op. at ¶14, and Mississippi’s

longstanding collateral-source rule does not “remain[ ] unchanged” by today’s judgment. Id.

This decision makes access to previously forbidden evidence of collateral-source payments

exceedingly effortless and overlooks major implications that may open the door to the rule’s

demise.

¶31.   As early as 1854, the U.S. Supreme Court recognized the principle, long ago crafted

of necessity by English courts, see Yates v. Whyte, 4 Bing. N.C. 272 (1838), as “a doctrine

well established . . . .” Monticello v. Mollison, 58 U.S. 152, 155, 15 L. Ed. 68, 17 How. 152

(1854). “The contract with the insurer is in the nature of a wager between third parties, with

which the trespasser has no concern.” Id.

¶32.   The policy considerations girding the collateral-source rule are legion, but perhaps

chiefly ranked among them all is the recognition that such evidence simply is not relevant

upon the inquiry as to whether one party has wronged another. Until recently, this Court has

                                             15
held consistently that the collateral-source rule does not yield even to considerations of a

witness’s veracity. See Ethridge v. Goyer Co., 241 Miss. 333, 338 (1961) (evidence of

collateral-source payments not permitted even “to contradict testimony that the plaintiff gave

in the trial . . .”). See also Vance v. Hervey, 253 Miss. 751, 755 (1965) (rule of Ethridge is

“sound law”).

¶33.   To the credit of my colleagues with whose judgment I part ways today, the decision

in the instant case does not automatically allow admission of such evidence. Rather, today’s

judgment purports to grant its blessing only upon “evidence of collateral source payments

. . . introduced for the purpose of impeaching false or misleading testimony . . . .” Maj. Op.

at ¶17. Were such evidence admissible in a vacuum, then I would concur fully. But any

contention that such evidence will not be procured with the intent and effect of informing

jurors that a plaintiff’s damages were covered by insurance is not rooted in reality. Indeed,

one would find impossible the task of suggesting with sincerity that some attorneys will not

assiduously ferret out such evidence at every opportunity for precisely that purpose. The

majority makes available an outright circumvention of the collateral-source rule with the

simple, possibly pretextual, question of whether the plaintiff in any given case has suffered

personal financial hardship. If the answer is yes, as it almost always would be, then the

examining attorney has positioned his or her client to offer proof of collateral-source

payments.

¶34.   I find the majority’s reliance on our decision in Busick v. St. John, 856 So. 2d 304

(Miss. 2003), to be misplaced. In Busick, this Court noted the existence of an impeachment

exception in some jurisdictions but ultimately avoided the collateral-source issue by correctly

                                              16
noting that the issue had not been preserved for appellate review by way of a timely objection

at trial.7 Id. at 309-310. Busick did not, either explicitly or implicitly, create the rule of law

to which the majority purportedly adheres. If Busick stands for any broadly applicable

principle of law at all, it is that evidence of collateral-source payments survives appellate

review only when the aggrieved party did not lodge a timely objection thereto. Id. at 310.

¶35.   One of the central policy foundations supporting the collateral-source rule is that any

alternative would punish parties with the foresight and care to protect themselves and others

by carrying health coverage. Today’s decision has great potential to punish such foresight.




       7
         By arguing, on one hand, that today’s judgment is rooted firmly in prior precedent
but, feeling, on the other hand, the need to overrule prior case law expressly, the majority
appears to concede, at the very least, that the relevant language in Busick on which today’s
decision rests is not emphatic. I agree. However, whatever direction can be gleaned from the
ambiguity strongly suggests that, ultimately, the Busick Court rejected the encroachment
upon the collateral-source rule adopted today. Paragraph 16, in which the Busick Court
spoke its final words regarding the issue now before us, finds no error in the impeachment
evidence presented in that case, but that paragraph does not indicate clearly whether the
conclusion is reached because of a procedural bar or because of a newly recognized
exception. See id. at 310. Paragraph 15 is clearer, though. It begins by reiterating
Mississippi’s long-held recognition that the collateral-source rule stands without exception.
Then-Presiding Justice Smith briefly, almost casually, mentioned that some states have
recognized this single exception. Id. at 309-310. And then, as quickly as it mentioned this
point, the majority dropped the issue from its discussion. The Busick opinion did not suggest
that the exception was being adopted, that it should be adopted, or even that existing
Mississippi law appeared to support its adoption. Indeed, the only pronouncement of
Mississippi law therein was the recognition that this Court has never permitted any exception
to the collateral-source rule. Id. at 309. Also, to the extent that the Busick Court found
permissible evidence of collateral-source payments, it so found only under the unusual set
of facts of that case, in which the plaintiff’s attorney asked for a limiting instruction in lieu
of requesting a mistrial. Id. at 308-09. For these reasons, my view is that the portion of
Busick on which today’s majority opinion depends is dictum and limited to that case’s facts.
I concede that this conclusion alone does not foreclose the Court from proceeding down the
trail embarked upon today, but we should at least recognize that we do so without regard for
the principles of stare decisis.

                                               17
¶36.   This decision also ignores the implications presented by subrogation, which is

contractually required by most contemporary health insurance policies and plans, as well as

by government programs such as Medicare and Medicaid, and by our state’s workers’

compensation statute. When all or some portion of a plaintiff’s claim-related medical costs

have been paid by third parties such as these, a plaintiff who is awarded money damages in

civil litigation must reimburse that third party from his or her recovery of those same

components of claim-related damages.

¶37.   In a trial, it likely would benefit the tortfeasor for jurors to get the impression that the

plaintiff was attempting to “double dip” by asking for a verdict that included medical costs

already paid on the plaintiff’s behalf by a third party, such as the plaintiff’s health insurance

carrier. For jurors to be so misled, whether unintentionally or otherwise, would be patently

unfair, and the prevention of this sort of injustice provides another compelling reason to

maintain inviolate Mississippi’s well-established collateral-source rule. Justice would best

be served by retention, without exception, of this wisely conceived, time-tested rule that

precludes jurors from being informed that a plaintiff’s medical costs had been defrayed, in

whole or in part, through third-party payments, unless, of course, we also should hold that,

if a jury were given such information, a plaintiff would then be allowed to make the jurors

privy to the realities of subrogation.

¶38.   Similarly, it would seem only fair, in the interest of full disclosure, to inform jurors

of defendants’ applicable liability insurance so that they would know that a defendant would

not be caused to suffer personal financial hardship by an adverse verdict. By analogy to

today’s decision, a plaintiff’s attorney could ask a defendant, “Would you suffer personal


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financial hardship if you had to pay the plaintiff’s medical bills, lost income, and other

proven damages?” This would open the door to the plaintiff’s being able to reveal to the jury

that the defendant would be relieved of personally paying those damages because they would

be paid by funds from a collateral source, namely the defendant’s liability insurance carrier,

up to the limits of the defendant’s applicable coverage. It is apparent that the majority’s

tinkering with this venerable old rule may have ramifications far beyond its application to

the instant case.

¶39.   Even without the policy concerns that support my conclusion, I still would not be

comfortable joining this decision because the majority does little to explain how and when

evidence of collateral-source payments may be adduced. Notwithstanding the majority’s

contention that the collateral-source rule “remains unchanged” by its decision, Maj. Op. at

¶14, “the purpose of impeaching false or misleading testimony” at which today’s judgment

is aimed is an exceedingly vague standard. Id. Undoubtedly, some trial courts will apply this

new rule narrowly and allow evidence of collateral-source payments only when the plaintiff

has stepped squarely in a hole of its own digging. Conversely, other trial judges will

enthusiastically leap astride the horse loosed from its stable by today’s majority and heap

heretofore forbidden evidence upon a plaintiff’s most benign references to financial hardship.

¶40.   To the extent that my friends in the majority contend that my conclusion violates

evidentiary concerns and Biblical concerns alike, see Conc. Op. at ¶26, n.1-2 (Dickinson, J.),

my colleagues, for whom I have the deepest respect, have reached their conclusion by way

of an oversimplified view of the real-world effects today’s decision will have. The Court

reaches its conclusion with insufficient consideration of the practical implications thereof,


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the inevitable real-world effects thereof in this state’s trial courts, and the unfair disadvantage

at which plaintiffs are placed thereby. The fullness of today’s judgment is a slippery slope

upon which I am compelled not to step. Therefore, I concur in its result but nothing more.

       WALLER, C.J., JOINS THIS OPINION IN PART.




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