DA 22-0554

IN THE SUPREME COURT OF THE STATE OF MONTANA

2023 MT 137

CHERYL VOEGEL,

 Plaintiff and Appellant,

 v.

DEVYN SALSBERY,

 Defendant and Appellee.

APPEAL FROM: District Court of the Seventeenth Judicial District,

In and For the County of Phillips, Cause No. DV-2021-07

Honorable Yvonne Laird, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Samir F. Aarab, Caitlin Boland Aarab, Boland Aarab PLLP, Great Falls, 

Montana

For Appellee:

Amanda Z. Duman, Williams Law Firm, Missoula, Montana

For Amicus Montana Trial Lawyers Association:

Justin P. Stalpes, Beck Amsden & Stalpes, PLLC, Bozeman, Montana

Submitted on Briefs: April 26, 2023

 Decided: July 18, 2023

Filed:

__________________________________________

Clerk

07/18/2023

Case Number: DA 22-0554
2

Justice Beth Baker delivered the Opinion of the Court.

¶1 Cheryl Voegel appeals the Seventeenth Judicial District Court’s order granting a 

new trial and vacating judgment on a $168,500 jury verdict in her favor in an admittedliability automobile accident case. The District Court determined that two statements by 

Voegel’s counsel referred to liability insurance in violation of its rulings and thus 

constituted an irregularity preventing a fair trial under § 25-11-102(1), MCA. Based on 

our review of the two statements—neither of which used the word “insurance”—and the 

lack of demonstrated prejudice, we conclude that the court abused its discretion. We 

reverse and remand with instructions to reinstate the verdict and judgment.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 On June 18, 2018, Voegel was in a motor vehicle collision with 17-year-old Devyn 

Salsbery in Malta, Montana. Voegel was driving a Jeep Grand Cherokee and Salsbery a 

Ford F-150 truck behind her. As Voegel slowed to stop for a child waiting to cross the 

street, Salsbery ran into the back of Voegel’s Jeep. Voegel sued for personal injuries,

alleging that she had been unable to resolve pain issues from the collision. Salsbery 

admitted that she was negligent in rear-ending Voegel’s Jeep. The case went to trial in 

May 2022 on contested issues of causation, damages, and Voegel’s contributory 

negligence.

¶3 Both parties filed motions in limine. Citing M. R. Evid. 411, Salsbery sought to 

exclude any reference to State Farm Insurance (Salsbery’s insurer), the fact that Salsbery 

had liability insurance at all, and “mention of insurance or the insurance industry during 

voir dire.” Voegel did not contest the exclusion of testimony in citing Rule 411 but did 
3

contest a blanket exclusion of the topic of insurance during voir dire. In its order, the 

District Court agreed that questions about the insurance industry during voir dire would be 

prejudicial and constitute reversible error but described “two narrow exceptions” to avoid

prejudice. Voegel could ask prospective jurors whether they had an interest in or 

connection to the insurance industry and whether they had been exposed to any insurance 

company propaganda. The court informed Voegel that she would be required to give notice

and establish a good faith basis if she intended to proceed with such questioning. The court 

also granted Voegel’s motion to exclude testimony and argument that Salsbery could not 

afford to pay a judgment rendered in Voegel’s favor and Salsbery’s motion to exclude 

evidence about the parties’ financial statuses. 

¶4 At the final pretrial conference on the morning of the first day of trial, Voegel 

withdrew her claim for special damages (medical care and lost wages), leaving only her 

claim for general damages (pain and suffering and loss of enjoyment of life). Voegel 

informed the court and counsel that she would not be introducing her medical bills, which 

totaled less than $10,000, into evidence. Prompted by this withdrawal, Salsbery sought to 

introduce Voegel’s medical bills herself. Salsbery argued that the bills revealed Voegel’s

exaggerated claim for general damages; Voegel responded that the bills were irrelevant 

because she no longer sought special damages. The District Court allowed the parties to

brief the issue and stated that it would decide the matter the next morning before the parties’ 

presentation of evidence.

¶5 Voir dire then began. In response to questioning by Samir Aarab, Voegel’s counsel, 

a prospective juror offered that the preponderance-of-the-evidence standard felt low to him 
4

because a civil judgment, despite not sending a defendant to prison, would still cost a 

defendant money. Another prospective juror agreed and shared his concern that a 

defendant “has to pay for the rest of their life” based on just over fifty percent certainty by 

the jury. “What happens if they get injured and they can’t come up with money, you 

know?” the prospective juror asked. Aarab responded:

Yeah, and that’s not part of this case. We are not here to decide how this 

gets paid. We’re not here to decide who pays what. Well, we’re here to 

decide that, but it’s not our concern or your concern as jurors where the 

money’s coming from, okay? So but you think that standard, the burden of 

proof in a civil case in awarding money damages is too low?

Salsbery made no objection. After several more questions about the standard of proof, 

Aarab moved on to questions about the prospective jurors’ willingness to compensate for 

pain and suffering while not compensating for medical bills or lost wages. Both parties 

made their opening statements.

¶6 The following morning, the District Court ruled that Voegel’s medical bills were 

relevant and Salsbery could introduce them. Addressing Voegel’s concerns about the 

conflation of specific and general damages, the court stated, “How you argue that to the 

jury and what you present to counter that is a separate -- that’s a separate issue.” Aarab

shared that he had advised Voegel not to mention “State Farm” or “insurance” in response 

to cross-examination about her medical bills but stated that if Salsbery persisted with

questioning about payment, he would treat it as an invited error. The court responded, “If 

you feel that [an] answer would necessitate mentioning insurance, you need to ask the 

Court for a moment and I’ll discuss it with counsel.” All witnesses testified without 

mentioning or implicating insurance.
5

¶7 After settling the jury instructions, verdict form, and exhibits for the jury, but before 

making closing arguments, Salsbery’s counsel made the following request in chambers:

I would request please that the Court caution plaintiff from referencing in 

closing argument as to who will be ultimately paying a judgment or who will 

be the source of payment or that the jury should or shouldn’t consider who’s 

been paying. That came up briefly during Voir Dire. I think that suggests 

there’s insurance. I think that let’s [sic] the jury know someone else is going 

to be paying. I don’t think that issue should be brought up at all to the jury. 

I would ask the Court to caution the plaintiff on making that reference. 

Aarab responded:

It is improper for the jury to consider, and we had a Motion in Limine on 

this. It’s improper for the jury to consider the Defendant’s economic status 

as part of the case. They should decide what the damages are depending on 

the merits of the case, and that’s -- that is the purpose of saying that. It’s 

lawful to say it isn’t proper for you to consider who will be paying this or 

where the money is going to come from, and I have a right to say that in 

closing. 

Salsbery’s counsel replied:

I think that’s a significantly different argument than saying you should not 

consider someone’s economic status. I think saying who is going to be 

paying shows there’s another payer. 

The court instructed Aarab that he could tell the jury not to consider Salsbery’s economic 

status but that he could not make any reference to any other payer. The court warned, “If 

you cross that line I am sure [Salsbery’s counsel] will request a mistrial, and you should be 

aware this Court would be inclined to grant it.” 

¶8 Aarab began his closing argument by describing Voegel as a hard worker and the 

toll her injuries had taken on her. He challenged opposing counsel’s representation that 

Voegel sought “big dollars,” stating that Voegel instead asked for accountability, fairness, 
6

and reasonableness. Aarab let the jury know that Salsbery’s counsel would emphasize

Voegel’s medical bills and their small amounts in her closing. He continued:

Remember, I told you from the very beginning, we’re not asking for that. 

We’re not asking for the costs of medical bills. They are a very small part of 

this case. They are a minimal part of this case. Medical bills aren’t for 

Cheryl. You can see that when she shows them to you. Physical therapy, 

massage therapy, chiropractor, it’s for the medical providers, it’s not for her. 

It’s not to compensate her. It’s for other people and other providers so the 

burden of taking care of Cheryl doesn’t fall on someone else, doesn’t fall on 

the state. 

At this point, Salsbery’s counsel objected. The District Court cautioned, “Mr. Aarab, if 

you would be very careful.” Aarab moved on, saying, “The biggest part of this case is 

what Cheryl has lost . . . as a coworker, as a friend, as a mother . . . . We have shown you 

what she has gone through the last four years.” 

¶9 After Aarab’s closing statement, Salsbery’s counsel requested a conference in 

chambers. There, she moved for a mistrial based on Aarab’s comment that “referred to 

other payers,” which was “clearly in direct contradiction to the warning the court 

gave . . . .” Aarab denied using the words “other payer” and repeated back the relevant 

paragraph from his closing. He stated, “And the point I was trying to make to the jury is 

that the medical bills, they are for the chiropractors, they are for those people that are being 

paid . . . .” Salsbery’s counsel clarified that her issue was with Aarab’s comment, “so the 

burden doesn’t fall to others or the state.” Aarab maintained that he adhered to the court’s 

caution, did not use the words “other payer” or “insurance,” and did not otherwise implicate 

insurance. The court stated that Aarab had “been playing very fast and loose with the 

direction of the Court” and had put a spin on the prohibited terms “insurers” or “other 
7

payers” with his reference to “the state or others.” The court believed a curative instruction 

would not be effective. It went on to analyze the effect of Aarab’s comment:

That said, I do not know how much emphasis the jurors will put on that 

portion of your closing at this time . . . . I’m hesitant after three days, we’re 

now at 2:00 on the third day, to declare a mistrial. I’m not certain the jury 

even took great note of that particular portion of the Plaintiff’s closing 

argument.

The court denied the motion. The court, however, cautioned Aarab to be careful in rebuttal 

and stated that, if not, it would consider a second motion for mistrial and sanctions. 

Salsbery’s counsel gave her closing argument and Aarab his rebuttal without further 

objection.

¶10 The jury returned a verdict that Voegel was not contributorily negligent, she was 

injured by the collision, and the general damages she sustained totaled $168,500. Soon

after, Salsbery renewed her motion for mistrial based on Voegel’s improper introduction 

of liability insurance evidence. Voegel responded to the motion and, six weeks later,

introduced an affidavit of the jury foreperson stating that he did not recall insurance being 

mentioned or implied in the case and that the topic had not been a part of the jury’s 

deliberations. 

¶11 In September 2022, the District Court ordered a new trial and vacated the judgment. 

The court stated that Aarab’s comments to the venire about not being there “to decide who 

pays what” and not to be concerned “where the money’s coming from” clearly referenced

Salsbery’s insurance in violation of the court’s order in limine. The court determined, 

however, that these initial comments, given their brevity and placement during voir dire, 

“were not sufficiently prejudicial to impact Salsbery’s substantial rights.” The court, 
8

however, took issue with Aarab’s statement in closing that the burden of taking care of 

Voegel might “fall on someone else” or “the state.” The court determined that this 

statement flouted the court’s warning to Aarab not to indicate the existence of other payers

in his closing statement—a warning generated by Aarab’s comments during voir dire. The 

court determined that this “improper reference, while brief, was highly prejudicial” because 

it came during closing argument. Citing cases where repeated improper comments by 

counsel in violation of court orders had created cumulative prejudice, the court concluded

that Salsbery was entitled to a new trial pursuant to § 25-11-102(1), MCA. The court 

disregarded the juror’s affidavit pursuant to M. R. Evid. 606(b). 

STANDARDS OF REVIEW

¶12 “The decision whether to grant a new trial is committed to the sound discretion of 

the district court and will not be disturbed absent a showing of manifest abuse of 

discretion.” Dias v. Healthy Mothers, Healthy Babies, Inc., 2002 MT 323, ¶ 13, 313 Mont. 

172, 60 P.3d 986. We similarly review a trial court’s evidentiary rulings for abuse of 

discretion. State v. Derbyshire, 2009 MT 27, ¶ 19, 349 Mont. 114, 201 P.3d 811. Courts, 

nevertheless, are bound by the Rules of Evidence and applicable statutes. “Thus, to the 

extent the court’s ruling is based on an interpretation of an evidentiary rule or statute, our 

review is de novo.” Derbyshire, ¶ 19. 

DISCUSSION

¶13 The basis for Salsbery’s motion in limine to exclude all mention of insurance, 

including during voir dire, was Rule 411 of the Montana Rules of Evidence. Rule 411 

prohibits evidence that a person was or was not insured against liability “upon the issue of 
9

whether the person acted negligently or otherwise wrongfully.” M. R. Evid. 411; Dill v. 

Mont. Thirteenth Judicial Dist. Court, 1999 MT 85, ¶ 21, 294 Mont. 134, 979 P.2d 188

(“The rule only prohibits the introduction of insurance when it is offered for the purpose 

of showing negligence or liability.”). Evidence that a party is insured may be admitted for 

another purpose, such as to prove “agency, ownership, or control, or bias or prejudice of a 

witness.” M. R. Evid. 411.

¶14 The Montana Commission on Rules of Evidence noted that the “primary reasons for 

exclusion of evidence of insurance are its irrelevance, prejudicial effect, and potential 

misuse by the jury.” M. R. Evid. 411, Comm’n Comments (1976). The driving concern 

behind the rule and its federal equivalent is that “if the jury were to learn of the party’s 

coverage or lack of coverage by liability insurance, it would relax its standards in 

determining both fault and damages.” David P. Leonard, The New Wigmore: Selected 

Rules of Limited Admissibility § 6.1 (2002) [hereinafter The New Wigmore]. In particular, 

courts fear that “if the fact finder is informed of the existence of liability insurance, it will 

be inclined to return a large verdict against the insured party because it will assume that 

party will not have to pay a judgment rendered upon the verdict.” The New Wigmore § 6.4.

1

1 Attorney statements during voir dire and closing argument are not evidence, and the jury was 

instructed not to regard them as such. M. R. Evid. 411 nevertheless guides our analysis of Aarab’s 

statements because attorneys may not circumvent the rule by injecting prejudicial comments about 

insurance during their argument. Allowing otherwise would render Rule 411 meaningless. 

See The New Wigmore § 6.7.4 (“[T]he jury voir dire process is not technically governed by the 

evidentiary rules . . . . Nevertheless, whether the exclusionary rule serves its purposes hardly 

depends on the method by which jurors are informed of the fact [a] defendant is insured.”).
10

¶15 Before granting a new trial, courts must examine the case-specific effect of the 

introduction of insurance into the trial. Jenks v. Bertelsen, 2004 MT 50, ¶ 25, 320 Mont. 

139, 86 P.3d 24. “A district court is not required to grant a new trial simply because the 

word insurance is spoken during trial.” Dias, ¶ 17. Instead, the controlling question is, 

“How and under what circumstances was [the topic of insurance] brought into the case?” 

Dias, ¶ 17 (citation omitted). The mention of insurance must “stand on its own particular 

facts” as sufficiently prejudicial to warrant a reversal. Jenks, ¶ 25 (citation omitted); 

see also The New Wigmore § 6.7.7 (“Vague or highly indefinite references to insurance do 

not necessarily create the kinds of prejudice against which the exclusionary rule is intended 

to protect. It is the task of the court to determine whether the reference is sufficiently 

serious to require action; that task must be performed on a case-by-case basis.” (footnotes 

omitted)).2 

¶16 For example, in Dias v. Healthy Mothers, Healthy Babies, we concluded that an 

attorney’s mention of insurance during voir dire was not prejudicial. Dias, ¶ 19. In that 

case, a prospective juror commented that she would have difficulty returning a verdict for 

the employee-plaintiff because it could limit the nonprofit-defendant’s ability to continue 

2 Amici cast doubt on the purported rationale for Rule 411, especially the broader the rule is read. 

Our caselaw and various treatises also have questioned a broad reading of the rule. Dias, ¶ 17 

(“The notion that the mere mention of insurance can move a jury to ignore the law and award a 

windfall to the plaintiff is an ancient myth unsupported by any empirical data which has been 

brought to this Court’s attention.”); Robert P. Mosteller, McCormick on Evidence § 201 (8th ed. 

2020) (suggesting that the policy of secrecy around any and all insurance evidence creates 

immense costs through “extensive and unnecessary arguments, reversals, and retrials stemming 

from elusive questions of prejudice and good faith” when “most jurors probably presuppose the 

existence of liability insurance anyway . . . .”). We find it unnecessary to further probe the 

discussion in this case.
11

its programs. Dias, ¶ 6. The employee’s counsel told the prospective juror that she would 

need to decide the case based on the evidence, of which a defendant’s ability to pay was 

not a part. Counsel continued, “So the general instruction -- the trials that I’ve participated 

in, when jurors are concerned about whether or not there may be insurance or some other 

--.” Dias, ¶ 7. At that point the nonprofit objected, the court sustained the objection, and 

the employee’s counsel continued, “Well, you’re not supposed to concern yourself with 

the source of the payment for any judgment.” Dias, ¶ 7. We affirmed the denial of the 

nonprofit’s motion for a new trial because there had been only one reference to insurance 

during voir dire and it was made in an effort to avoid prejudice to the employee. Moreover, 

counsel never stated directly that the nonprofit was insured. Dias, ¶¶ 18-21. 

¶17 We have examined on several other occasions the case-specific effect of injection 

of the topic of insurance into a trial and concluded it was not prejudicial. See, e.g., State 

ex rel. Gadbaw v. Eighth Judicial Dist. Court, 2003 MT 127, ¶ 28, 316 Mont. 25, 75 P.3d 

1238 (reversing decision to bifurcate a trial and dismiss an insurance company defendant 

because the introduction of evidence that plaintiffs were insured was not convincingly 

prejudicial); Newbauer v. Hinebauch, 1998 MT 115, ¶ 18, 288 Mont. 482, 958 P.2d 705

(affirming denial of the victim’s motion for new trial where the victim inadvertently and 

innocuously mentioned on cross-examination that the driver told her he had insurance); 

Massman v. Helena, 237 Mont. 234, 244-45, 773 P.2d 1206, 1212-13 (1989) (upholding 

denial of new trial where two questions about insurance either fell under an exception to 

Rule 411, were general in nature, or did not indicate to the jury that the plaintiff had 

insurance); Haynes v. Cty. of Missoula, 163 Mont. 270, 287-88, 517 P.2d 370, 380-81
12

(1973) (reversing grant of new trial because two broad questions about the venire’s 

connections to the casualty insurance industry were asked in good faith to look for bias and 

were not prejudicial).

¶18 On the other hand, we have concluded on occasion that the injection of the topic of 

insurance into a trial was prejudicial and constituted reversible error. See, e.g., Sioux v. 

Powell, 199 Mont. 148, 153-54, 647 P.2d 861, 864 (1982) (vacating a jury’s verdict where

the plaintiff was allowed to testify that he did not have collision or liability insurance 

because the jury may have inferred that he was unable to purchase a new truck or that he 

would not be able to pay a judgment if he lost on the defendant’s counterclaim); Avery v. 

City of Anaconda, 149 Mont. 495, 498, 428 P.2d 465, 467 (1967) (reversing denial of a 

new trial because plaintiff’s counsel asked the entire venire whether they invested in 

Glacier Insurance Company and asked each prospective juror individually whether they 

invested in any insurance company, clearly intending to convey that the City of Anaconda 

was insured); Wilson v. Thurston Co., 82 Mont. 492, 495-96, 267 P. 801, 801-02 (1928)

(reversing decision to allow the plaintiff to “interrogate” eight prospective jurors about 

whether they had any immediate relatives employed by any insurance company in Butte

because the questioning created an inference that the defendant was insured and attempted

to prejudice the jury against the defendant). 

¶19 In this case, the District Court ordered a new trial under § 25-11-102(1), MCA. That 

statute allows a trial court to vacate a jury’s verdict and grant a new trial for any 

“irregularity in the proceedings” that materially affected the substantial rights of a party. 

The court relied on two cases where we concluded that attorney statements made in 
13

violation of a court order were prejudicial, warranting a new trial: Anderson v. BNSF 

Railway, 2015 MT 240, 380 Mont. 319, 354 P.3d 1248, and Willing v. Quebedeaux, 2009 

MT 102, 350 Mont. 119, 204 P.3d 1248. 

¶20 In Anderson, BNSF ignored a court’s order in limine to refrain from commenting 

that lawsuits should not improve a plaintiff’s standard of living or make him a millionaire. 

Anderson, ¶ 74. During closing, BNSF repeatedly referenced made-up claims, conspiring 

union attorneys, and collateral sources, which revealed “a consistent tactic to characterize 

Anderson’s case as little more than an attempt to get rich off of non-existent injuries . . . .” 

Anderson, ¶ 79. We concluded that the statements as a whole “were simply too prejudicial 

for us to retain confidence that the jury’s verdict was based on the evidence and not 

prejudice.” Anderson, ¶ 80. In Willing, a court abused its discretion in not granting a new 

trial after defense counsel referred in closing to techniques described in the plaintiff’s 

expert’s textbook in direct contradiction to the court’s order barring such reference because 

the defense had not disclosed the textbook. Willing, ¶¶ 26-27. The comment, although 

brief, was well-placed in the closing argument and secured the exact advantage for the 

defense the District Court had sought to prevent with its order. Willing, ¶ 26. In reversing 

and remanding for a new trial, we explained that “[c]ontradicting an expert’s testimony, 

not by another’s opinion, but by the expert’s own writings, is a significant trial 

development with potentially devastating impact to the side offering that expert’s opinion.” 

Willing, ¶ 26. See also Cooper v. Hanson, 2010 MT 113, ¶ 39, 356 Mont. 309, 234 P.3d 

59 (defense counsel’s statement during closing argument that a verdict for the plaintiff 

would put a “black mark” on the defendant, in combination with prospective juror 
14

statements during voir dire that a malpractice verdict was like a “life sentence,” constituted 

irregularities that prevented a fair trial); Lopez v. Josephson, 2001 MT 133, ¶ 46, 305 Mont. 

446, 30 P.3d 326 (pervasive misconduct of the victims’ counsel in violation of the court’s 

orders prevented the neighbor from receiving a fair trial on the merits).

¶21 Reviewing the District Court’s order for new trial in this case, we examine Aarab’s

comments in light of Rule 411 and its purpose, our caselaw interpreting the rule, and the 

scenarios previously determined to be sufficiently prejudicial to warrant a new trial under 

§ 25-11-102(1), MCA. 

Counsel’s Comments During Voir Dire

¶22 In its order granting a new trial, the District Court first determined that Aarab’s

comments during voir dire instructing prospective jurors not to be concerned about “who 

pays what” or “where the money’s coming from” were brief and not, on their own, 

sufficiently prejudicial to impact Salsbery’s substantial rights. We agree. These comments 

differ from other cases where the repeated mention of insurance and interrogation on the 

same during voir dire was reversible error. See Avery, 149 Mont. at 498, 428 P.2d at 467; 

Wilson, 82 Mont. at 495-96, 267 P. at 801-02. Aarab’s comments were more like the brief 

comment made in Dias as counsel attempted to address potential bias in a prospective juror. 

See Dias, ¶ 19. Aarab made the comments in response to two prospective jurors’ stated 

reluctance to apply a preponderance standard of liability. He never stated that Salsbery 

was insured or—unlike in Dias—even used the word “insurance.” It is appropriate, as 

Aarab pointed out, for counsel to clarify with prospective jurors that they are not to consider 

a defendant’s economic status in reaching their verdict. Though his comments also could 
15

have implied an alternate source of funds to pay a verdict, they advised the jury not to 

consider it. We agree with the District Court’s interpretation of Rule 411 on this point and 

its conclusion that Aarab’s comments during voir dire were not sufficiently prejudicial to 

impact Salsbery’s substantial rights. 

Counsel’s Statement During Closing Argument 

¶23 In granting a new trial, the District Court took primary issue with Aarab’s single

statement in closing that Voegel’s medical bills were not to compensate Voegel, but “for 

other people and other providers so the burden of taking care of [Voegel] doesn’t fall on 

someone else, doesn’t fall on the state.” The court concluded that the statement was made 

in direct contradiction to its warning not to reference another payer and was highly 

prejudicial given its placement in closing argument.

¶24 Our review of the statement, its context in the full argument of counsel, and the 

District Court’s contemporaneous reaction to its prejudicial effect, compels us to conclude 

that the court abused its discretion in granting a new trial. As in voir dire, Aarab’s

statement in closing argument did not use the word “insurance” or refer to Salsbery. 

Indeed, Aarab’s statement did not refer to any other payer of a potential verdict and thus 

did not violate the court’s order. Rather, Aarab’s statement addressed the medical bills that 

were not a part of the requested verdict and that Aarab tried unsuccessfully to exclude. In 

making his case for an award of general damages, Aarab explained that payments for 

Voegel’s medical bills would go to her medical providers but not to Voegel herself. His

statement did not create an inference that Salsbery was insured and that her insurer would 

pay any award for general damages. To the extent it could be interpreted to refer to other 
16

payers, Aarab’s statement was directed to items of damage Voegel was not asking this jury 

to award, not to any verdict the jury may reach. Aarab’s statement thus was unlike those 

in Anderson or Willing, where attorneys introduced the exact topic prohibited by the court 

in order to gain the trial advantage the court wished to prevent. See Anderson, ¶ 79; Willing, 

¶ 26. The court here wanted to prevent the jury from considering any other payer of a 

verdict it might award in Voegel’s favor. Aarab’s passing statement about “someone else” 

or “the state” possibly paying Voegel’s medical providers did not achieve this advantage 

for Voegel and thus cannot be said to have prevented a fair trial. Aarab’s comment thus is 

distinguishable from the pervasive conduct in Anderson and the singular but “devastating” 

comment in Willing.

¶25 Aarab’s statement, at worst, was an ambiguous reference to the general topic of 

insurance. If so construed, it just as likely could have been a reference to Voegel’s own 

health insurance as to Salsbery’s liability insurance. If inferred to raise the topic of 

insurance generally, we reiterate our conclusion in Dias that the mere mention of insurance 

is not sufficiently prejudicial to warrant a new trial. See Dias, ¶ 17. To the extent that the 

court interpreted mention of the words “the state” or “someone else” to raise the subject of 

insurance in violation of Rule 411, the court’s interpretation of the rule was overbroad. 

¶26 Moreover, in the context of the closing arguments as a whole, Aarab’s statement

was brief and isolated. In the main, his closing argument focused on justifying a request 

for a $275,000 verdict, describing how the presented evidence demonstrated the impact of 

Voegel’s injuries on her day-to-day life. Salsbery focused her closing argument on the 

unreasonableness of a $275,000 verdict and, using Voegel’s medical bills, suggested a 
17

verdict between $10,000 and $15,000. Salsbery described a slow-speed collision and 

Voegel’s delayed actions after the accident. She also disputed the extent of Voegel’s 

injuries and causation, suggesting that Voegel’s manual labor was the true cause of her 

injuries. Aarab, in rebuttal, argued again that the evidence supported his client’s claims 

for general damages: “Where are the bills for her . . . lack of sleep? Where are the bills for 

her lack of when they took away everything that she enjoys in life? There are no bills. 

You have to decide what that’s worth.” These arguments—not Aarab’s statement about 

the burden of unclaimed medical bills falling on someone else or the state—were the focus 

of attention in his closing presentation.

¶27 Finally, the District Court’s contemporaneous analysis of the statement’s prejudicial 

effect supports our conclusion. In chambers directly after the statement, the court shared 

that the jury may not have taken great note of it and denied a motion for mistrial. Upon 

review of the record in its entirety, we conclude that Salsbery has not demonstrated an 

“irregularity in the proceedings” that materially affected her substantial rights. 

See § 25-11-102(1), MCA. An isolated comment in the middle of an otherwise appropriate 

closing argument after a three-day trial, in context, did not inject substantial prejudice into 

what otherwise appears to have been a well-tried case on both sides. At the end of the day, 

the jury awarded less than two-thirds of the amount Voegel requested. 

Juror Affidavit

¶28 We agree with the District Court’s decision not to consider the affidavit of the jury 

foreperson in deciding Voegel’s motion for a new trial. M. R. Evid. 606(b) provides that

jurors may not provide, upon inquiry into the validity of a verdict, affidavits as to the effect 
18

of any matter occurring during deliberations. The juror’s affidavit stating that the jury did 

not consider insurance in their deliberations did not meet one of the three narrow 

exceptions to that rule, and the District Court properly disregarded it. M. R. Evid. 606(b). 

CONCLUSION

¶29 Our review of Rule 411, relevant caselaw, the statements at issue, and their context 

leads us to conclude that the District Court misapplied the rule and abused its discretion 

when it ordered a new trial. Aarab’s comments during voir dire and closing argument do 

not “stand on [their] own particular facts” as sufficiently prejudicial to warrant a new trial. 

See Jenks, ¶ 25. There was ample evidence to support the jury’s verdict, the comments 

were brief and ambiguous, and counsel did not suggest Salsbery had insurance to pay the 

damages Voegel asked the jury to award. We reverse the court’s order and remand with 

instructions to reinstate the verdict and judgment.

/S/ BETH BAKER

We Concur: 

/S/ MIKE McGRATH

/S/ JAMES JEREMIAH SHEA

/S/ INGRID GUSTAFSON

/S/ DIRK M. SANDEFUR

Justice Jim Rice, dissenting. 

¶30 I would conclude from a review of the record that the District Court correctly 

assessed what occurred in the courtroom and that its granting of a new trial was not a 
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“manifest abuse of discretion.” Steffensmier v. Huebner, 2018 MT 173, ¶ 8, 392 Mont. 80, 

422 P.3d 95.

¶31 Prior to trial, the District Court entered a detailed order in response to Defendant’s 

motion in limine that required Plaintiff’s counsel to notify the court in advance of proposed 

inquiries that could implicate insurance, outside of the presence of the jury. In response to 

a juror’s comment during voir dire about the financial burden for paying damages, 

Plaintiff’s counsel stated:

We are not here to decide how this gets paid. We’re not here to decide who 

pays what. Well, we’re here to decide that, but it’s not our concern or your 

concern as jurors where the money’s coming from, okay?

Later, in chambers, Defendant’s counsel raised a concern about this exchange and asked 

the District Court to caution Plaintiff’s counsel about the issue. In response, Plaintiff’s 

counsel summarized his understanding of the contours of the limine order, to which the 

District Court expressly disagreed, stating Plaintiff’s counsel had “cross[ed] the line”:

Defense: [W]ho will be ultimately paying a judgment or who will be the 

source of payment, or that the jury should or shouldn’t consider who’s been 

paying . . . I think that suggests insurance. I think that lets the jury know 

someone else is going to be paying. I don’t think that issue should be brought 

up at all to the jury. . . .

Plaintiff: . . . It is improper for the jury to consider . . . the Defendant’s 

economic status as part of the case. They should decide what the damages 

are depending on the merits of the case, and that’s—that’s the purpose of 

saying that. It’s lawful to say it isn’t proper for you to consider who will be 

paying this or where the money is going to come from, and I have a right to 

say that in closing.

Defense: I think that’s a significantly different argument than saying you 

should not consider someone’s economic status. I think saying who is going 

to be paying shows there’s another payer.
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The Court: I agree. That crosses the line.

Plaintiff: May I be permitted to say it’s not proper for you to consider Miss 

Salsbery’s economic status?

The Court: You may say that, but you may not make any reference that would 

infer to anyone any other payer.

Plaintiff: I wouldn’t do that. Your Honor. This is a tight rope we have to 

walk, but I think it’s important for the jury to know that when they consider 

the calculation of damages in this case, they should do so simply based on 

the merits of the case, not based on anything else, and that’s what I will be 

saying.

The Court: And that you are allowed to say. If you cross that line I am sure 

[Defense counsel] will request a mistrial, and you should be aware this Court 

would be inclined to grant it. 

(Emphasis added.)

¶32 Thus, after a specific discussion in chambers, the District Court ruled that Plaintiff 

“may not make any reference that would infer to anyone any other payer,” at the risk of 

mistrial. (Emphasis added.) It should be noted that, on appeal, Plaintiff does not directly 

challenge as error the District Court’s constraint upon counsel making any reference that 

would “infer . . . any other payer,” and indeed, counsel told the District Court he “wouldn’t 

do that.” However, despite this ruling and counsel’s assurance, he shortly thereafter argued 

to the jury:

Plaintiff: Medical bills aren’t for Cheryl. You can see that when she shows 

them to you. Physical therapy, massage therapy, chiropractor, it’s for the 

medical providers, it’s not for her. It’s for other people and other providers 

so the burden of taking care of Cheryl doesn’t fall on someone else, doesn’t 

fall on the state.

Defense: Your Honor, I’ll object to this.
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At the conclusion of Plaintiff’s counsel’s closing, the Defendant moved for mistrial, citing 

Plaintiff’s comments about the medical bills being “not for her,” but for “other people and 

other providers” so that the burden would not fall “on someone else, doesn’t fall on the 

state,” arguing that “there can be no doubt with the jury at this point that there is another 

payer, which is exactly what the Court warned him not to do.” Plaintiff’s counsel 

responded that he had not mentioned “insurance” and was merely trying to make the point 

that medical bills “are for those people that are being paid, and the reason—the reason 

that’s the case is so she can be taken care of.” The District Court rejected counsel’s 

explanation, stating “the issue is with when you said so the burden doesn’t fall to others or 

the state.” When Plaintiff’s counsel offered that he had not violated the court’s ruling, the 

court pointedly disagreed, stating, “Mr. [Counsel], the Court disagrees with that. You have 

been playing very fast and loose with the direction of the Court. The Court specifically 

said insurers and other payers, so you put a spin on that to say the state or other – or others.”

¶33 While Plaintiff’s counsel avoided the precise terms the District Court had used to 

limit the argument—“insurance” and “payer”—counsel nonetheless used a “few words that 

were well placed,” Willing v. Quebedeaux, 2009 MT 102, ¶ 26, 350 Mont. 119, 204 P.3d 

1248, to reach the prohibited topic and make to the jury a reference or inference of other 

responsible parties. As demonstrated above, Plaintiff’s counsel had specifically asked the 

District Court to be able to argue: 1) “it’s not proper for you to consider Miss Salsbery’s 

economic status,” and 2) when the jurors “consider the calculation of damages in this case, 

they should do so simply based on the merits of the case, not based on anything else.” In 

response to these requests, the District Court ruled, “You may say that, but you may not 
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make any reference that would infer to anyone any other payer.” However, Plaintiff’s 

counsel did so. 

¶34 In my view, the issue here is not the scope of Rule 411. Rather, the issue is ensuring 

compliance with a district court’s ruling and its ability to control the proceeding. Counsel 

may disagree with a ruling, and certainly has the right to appeal it, but he may not 

contravene it, which makes this case remarkably similar to Willing. There, the district court 

prohibited defense counsel from making any reference in closing argument to an 

undisclosed textbook. Willing, ¶ 15. Counsel, similar to what occurred here, did not use 

the district court’s precise term “textbook,” or make any direct reference to the textbook, 

but rather referred to testimony regarding a technique described within the textbook, 

drawing an objection, like here, from opposing counsel. Willing, ¶ 16. Despite the indirect 

language used by defense counsel in what we described as “a brief comment,” we 

nonetheless reversed, reasoning that defense counsel had violated “the court’s order 

prohibiting further references.” Willing, ¶¶ 26, 28.

¶35 I believe what was wrong in Willing is wrong here. And, despite any differences 

between these cases, the question is whether the District Court manifestly abused its 

discretion. District courts must be able to control the proceeding, and when counsel 

circumvents an order, the court should be supported. The District Court provided specific 

direction, and later found, in its new trial ruling, that Plaintiff’s counsel “chose not to 

comply with this order.” It further concluded the comment was “highly prejudicial,” 

because it resulted in the jury hearing that other payers may be engaged in the case. I find 
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it of no moment that the District Court reached this conclusion during post-verdict 

consideration of the proceeding upon a timely filed motion for new trial. 

¶36 I would conclude that the District Court did not manifestly abuse its discretion by 

granting a new trial, and affirm. 

/S/ JIM RICE

Justice Laurie McKinnon joins in the dissenting Opinion of Justice Rice. 

/S/ LAURIE McKINNON