Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. 

Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 

corrections@akcourts.us. 

THE SUPREME COURT OF THE STATE OF ALASKA 

KIMBER RAY, 

Petitioner, 

v. 

MEGAN DRAEGER, 

Respondent. 

) 

) Supreme Court No. S-15347 

Superior Court No. 3AN-12-11421 CI 

District Court No. 3AN-11-08969 CI 

O P I N I O N 

No. 7020 – July 17, 2015 

) 

) 

) 

) 

) 

) 

) 

) 

Petition for Hearing from the Superior Court of the State of 

Alaska, Third Judicial District, Anchorage, John Suddock, 

Judge, on appeal from the District Court of the State of 

Alaska, Anchorage, David Wallace, Judge. 

Appearances: Michael J. Hanson and Barry Kell, Call & 

Hanson, P.C., Anchorage, for Petitioner. Jeff Barber, 

Barber & Banker, LLC, Anchorage, for Respondent. 

Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and 

Bolger, Justices. 

FABE, Chief Justice. 

I. INTRODUCTION 

In a personal injury trial resulting from a car accident, the plaintiff sought 

to cross-examine the defendant’s medical expert about his substantial connection to the 

insurance industry in an effort to prove bias. But in response to defense counsel’s 

motion in limine, the district court ruled that the plaintiff could not refer to the fact that 
 

 

 

 

the defendant was insured or that her insurance company and others had hired the expert 

witness numerous times. The trial court did permit the plaintiff to cross-examine the 

expert witness about his financial interest in continuing to work for “defendants” and 

“defense attorneys.” 

On appeal from the district court judgment, the superior court concluded 

that the district court had abused its discretion by excluding evidence of the expert’s 

connections to the insurance industry, reasoning that the expert witness and the company 

which hired him had extensive dealings with the defendant’s insurance company and the 

insurance industry more broadly and that this information was relevant to the question 

of bias. We agree with the superior court that the district court erred in ruling that 

relevant evidence of the expert witness’s substantial connection to the insurance industry 

should be excluded. But the district court’s error was harmless because at trial the 

plaintiff was able to elicit testimony about the witness’s connection to the insurance 

industry. We therefore vacate the superior court’s remand order and reinstate the district 

court’s judgment. 

II. FACTS AND PROCEEDINGS 

A. Facts 

In July 2009 Kimber Ray rear-ended an automobile in which Megan 

Draeger was a passenger. There was no serious physical damage to either car, and at 

trial the accident was described as a low speed, low impact collision. 

Draeger did not complain of any injuries at the accident scene. But soon 

afterward, she experienced pain in her neck and shoulders, and she made an appointment 

to see a chiropractor six days after the accident. Draeger had a total of 24 chiropractic 

treatments between July and November 2009 at a total cost of $5,160. Nine months 

later, in August 2010, Draeger sought treatment from a physical therapist for neck pain 

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and headaches. The physical therapist treated Draeger over nine sessions between 

August and September 2010. 

B. Proceedings 

Draeger filed suit against Ray in the district court in July 2011. Ray 

admitted liability for the accident, so the trial focused on the extent of Draeger’s injuries 

and other damages related to the accident. Ray’s insurer, Government Employees 

Insurance Company (GEICO), paid for her defense. 

Ray filed a motion in limine based on Alaska Evidence Rule 4111

 seeking 

to preclude reference at trial to the fact that Ray was covered by liability insurance with 

respect to Draeger’s claims. Draeger partially opposed the motion, arguing that she 

wished to cross-examine Dr. John Ballard, an orthopedic surgeon hired by Ray’s counsel 

to give expert testimony at trial, regarding potential bias. In particular, Draeger sought 

to examine Dr. Ballard about the fact that a substantial portion of his work as a medical 

expert is derived from referrals from insurance companies and that he had been hired 

many times by GEICO in particular. 

District Court Judge David Wallace granted Ray’s motion. Judge Wallace 

concluded that under the required Alaska Evidence Rule 403 balancing,2

 the “minimal 

relevance” of the insurance evidence being offered to show bias, which is allowed under 

Rule 411, was outweighed by “the prejudicial nature and confusion of issues” that would 

more likely result if Draeger impeached Dr. Ballard by referencing GEICO or the fact 

1 See Alaska R. Evid. 411 (excluding “[e]vidence that a person was or was 

not insured against liability” to prove negligence or other wrongdoing, but allowing 

courts to admit evidence of liability insurance to prove “bias or prejudice of a witness”). 

2 See Alaska R. Evid. 403 (providing that “relevant[] evidence may be 

excluded if its probative value is outweighed by the danger of unfair prejudice, confusion 

of the issues, or misleading the jury,” among other factors). 

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that Ray was insured. The order stated that “witnesses and parties shall be instructed that 

no reference should be made to the fact that defendant has liability insurance” or to “the 

fact that persons investigating this matter may have been employed by defendant’s 

liability insurance.” However, the order noted that “this ruling does not preclude 

plaintiff’s counsel’s ability to cross examine any witness on the issue of bias that relates 

to the nature of their work for defendants and/or the fact [that] there may be . . . financial 

reasons for the continuation of wanting to work for defendants.” 

Dr. Ballard frequently performs independent medical evaluations and 

medical record reviews for insurance companies. GEICO retained Dr. Ballard to 

evaluate medical records or conduct independent medical examinations 20 to 30 times 

in 2011 alone, though Dr. Ballard stated in a deposition that less than 5% of his work in 

Alaska comes from GEICO. Dr. Ballard does about 50 to 60 record reviews and 200 to 

300 independent medical evaluations per year; 40% of those evaluations are for claims 

of injury arising out of automobile collisions. He also co-founded a medical evaluation 

company called The Independent Medical Evaluators (T.I.M.E.), which provides 

medical evaluations. More than 98% of T.I.M.E.’s clients are insurance companies or 

defense attorneys. Although Dr. Ballard was no longer a co-owner of the company when 

he conducted the evaluation for this case, Ray’s counsel hired and paid him through 

T.I.M.E for this case. Dr. Ballard made over $100,000 per year from insurance defense 

referrals and between $300,000 to $350,000 per year from his insurance-related medical 

exam work. His total annual income is between $700,000 and $800,000, which includes 

his private orthopedic practice. Dr. Ballard testified that his income and the prospect of 

future employment by Ray’s counsel’s office were irrelevant to the opinions he offered 

regarding Draeger’s injuries and treatment. 

Dr. Ballard testified that, in his opinion, Draeger’s chiropractic treatments 

in 2009 were reasonable and related to her cervical, thoracic, and lumbar strains resulting 

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from the accident. However, he testified that Draeger’s later physical therapy in 2010 

was not related to the accident and that, in his opinion, Draeger had recovered from the 

accident no later than November 2009. 

During cross-examination, Dr. Ballard confirmed that he was hired for 

evaluation in this case through T.I.M.E., and when asked by Draeger’s counsel whether 

“more than 98% of [his evaluations through T.I.M.E] are for insurance companies or 

defense attorneys,” Dr. Ballard answered, “Correct.” Ray’s attorney objected. At a 

bench conference Judge Wallace reiterated his order regarding testimony about 

insurance: “I thought I made it clear in my decision not to mention insurance. You can 

say ‘defense attorneys,’ you can say ‘defense.’ ” Neither party requested a curative 

instruction. There were no further references to insurance during trial.3 

The jury awarded Draeger $5,160 for past economic loss, equal to the full 

amount of her chiropractic treatments from July to November 2009. It also awarded her 

$775 for past non-economic damages. The jury did not award Draeger any damages for 

future economic loss or future non-economic loss. 

Draeger appealed to the superior court. She argued that it was improper for 

the district court to preclude her from questioning Dr. Ballard about the extent to which 

he was paid for his work as an expert witness by insurance companies. Judge John 

Suddock issued an opinion reversing the district court’s order limiting Draeger’s 

cross-examination of Dr. Ballard and remanding the case to the district court for a new 

trial. The superior court concluded that the district court had erred in preventing Draeger 

from cross-examining Dr. Ballard regarding his “relationship with the insurance industry 

3 At the end of trial, the jury submitted a question regarding whether either 

party contacted their insurance company after the accident. The court responded: 

“[W]hether or not there was insurance in this matter is not for you to consider. You are 

to decide this matter on the evidence presented.” 

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in general and GEICO in particular,” despite the fact that the district court’s ruling 

allowed Draeger to impeach Dr. Ballard regarding his near-exclusive work for 

“defendants” and “defense lawyers.” Ray filed a petition for review, which we granted. 

III.	 STANDARD OF REVIEW 

“In an appeal from a judgment of a superior court acting as an intermediate 

court of appeal, we independently review the judgment of the district court.”4 “We 

review a trial court’s decision to admit or exclude evidence for an abuse of discretion.”5 

We review a trial court’s Rule 403 ruling for abuse of discretion by “balanc[ing] the 

danger of unfair prejudice against the probative value of the evidence to determine 

whether the potential danger predominated so greatly as to leave us firmly convinced that 

admitting the challenged evidence amounted to a clear abuse of discretion.”6

 We reverse 

only if “the error affected the substantial rights of a party.”7 

IV.	 DISCUSSION 

A.	 The District Court Abused Its Discretion By Not Admitting Evidence 

Of Dr. Ballard’s Substantial Connection To The Insurance Industry. 

1.	 Evidence of a witness’s connection to the insurance industry is 

admissible to show bias if its probative value outweighs the 

danger of unfair prejudice. 

Alaska Evidence Rule 411 provides that “[e]vidence that a person was or 

was not insured against liability is not admissible” to prove “whether the person acted 

4 Pouzanova v. Morton, 327 P.3d 865, 867 (Alaska 2014). 

5 Jones v. Bowie Indus., Inc., 282 P.3d 316, 324 (Alaska 2012). 

6 Conley v. Alaska Commc’ns Sys., 323 P.3d 1131, 1136 n.11 (Alaska 2014) 

(alteration in original) (quoting Brandner v. Hudson, 171 P.3d 83, 87 (Alaska 2007)). 

7 Kingery v. Barrett, 249 P.3d 275, 281 (Alaska 2011) (quoting Bylers Alaska 

Wilderness Adventures, Inc. v. City of Kodiak, 197 P.3d 199, 205 (Alaska 2008)). 

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negligently or otherwise wrongfully.”8 But the rule allows courts to admit this evidence 

when offered for another purpose, such as to show “bias or prejudice of a witness.”9 

When Rule 411 does not bar evidence, it may still be excluded under Alaska Evidence 

Rule 403.10 Rule 403 provides that relevant evidence “may be excluded if its probative 

value is outweighed by the danger of unfair prejudice, confusion of the issues, or 

misleading the jury,” among other factors. Alaska Evidence Rules 411 and 403 thus 

work in conjunction: If the trial court decides that evidence of liability insurance can be 

admitted despite Rule 411, the court must then perform a Rule 403 balancing analysis 

to determine whether the evidence’s probative value outweighs the danger of unfair 

prejudice.11 “Under Evidence Rule 403, the trial court bears primary responsibility for 

determining admissibility of evidence.”12 As we have held previously, trial courts 

generally “have broad discretion in applying [the Evidence Rule 403] balancing test.”13 

8 Alaska R. Evid. 411. 

9 Id. 

10 See Kingery, 249 P.3d at 285 (recognizing and upholding the trial court’s 

exclusion of liability insurance evidence under Rule 403 rather than 411); Gibson v. 

GEICO Gen. Ins. Co., 153 P.3d 312, 317 (Alaska 2007) (affirming exclusion of 

testimony about an insurance contract and an insurance settlement under Rule 403 rather 

than Rule 411). 

11 Accord Todd v. Joyner, 685 S.E.2d 595, 596-97 (S.C. 2009) (“[I]f Rule 411 

does not require the exclusion of evidence of insurance, the court should then proceed 

to perform Rule 403 analysis and consider whether the probative value of the evidence 

is substantially outweighed by the prejudicial effect and potential for confusing the 

jury.”). 

12 Marsingill v. O’Malley, 58 P.3d 495, 502 (Alaska 2002). 

13 Schofield v. City of St. Paul, 238 P.3d 603, 608 (Alaska 2010) (citing Bluel 

v. State, 153 P.3d 982, 986 (Alaska 2007)). 

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“When reviewing the exclusion of evidence under Evidence Rule 403 as 

unfairly prejudicial, we first consider the relevance of the [excluded evidence] and then 

determine whether . . . [the superior court’s exclusion of it] constitutes a clear abuse of 

discretion.”14 “The credibility of witnesses is always a material issue, so the only 

question of materiality or relevance when evidence is offered to impeach for bias is 

whether the evidence tends in reason to demonstrate the existence of some fact, state of 

mind or condition that a reasonable person would take into account in assessing the 

credibility of the witness under attack.”15 

Although evidence of bias is relevant and probative, courts sometimes view 

evidence of liability insurance as prejudicial. Rule 411 “is designed to prevent a jury 

from deciding a close case on an improper basis — i.e., whether or not a party is 

insured.”16 Courts can exclude evidence of a defendant’s insurance “to avoid prejudice 

in the verdict, which might result from the jury’s knowledge that insurance, and not the 

defendant, would be responsible for paying any resulting award of damages.”17 

14 Kingery, 249 P.3d at 285 (alterations and omission in original) (internal 

quotation marks omitted) (quoting Liimatta v. Vest, 45 P.3d 310, 313 (Alaska 2002)). 

15 Hutchings v. State, 518 P.2d 767, 769 (Alaska 1974). 

16 Shane v. Rhines, 672 P.2d 895, 900 n.6 (Alaska 1983) (quoting 

Commentary to Alaska R. Evid. 411); see also id. (“There is a danger that insurance 

evidence might skew the decision-making process of the jury by making it regret a 

possibly wrong decision against an uninsured person much more than a similar decision 

under identical facts against a person whose insurance status is unknown, or by making 

the jury regret any erroneous decision against an insured party less than it would an 

erroneous decision against a person whose insurance status is unknown.”). 

17 Todd v. Joyner, 685 S.E.2d 613, 616 (S.C. App. 2007); see also Vasquez 

v. Rocco, 836 A.2d 1158, 1163 (Conn. 2003) (“[T]he exclusion of evidence of a 

defendant’s insurance coverage ‘prevents the jury from improperly rendering a decision 

(continued...) 

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However, we have yet to consider whether the danger of unfair prejudice can outweigh 

the probative value of evidence offered to show an expert’s bias in favor of the insurance 

industry in an automobile injury case.18 We turn next to that question. 

2.	 The probative value of evidence of a witness’s connection to the 

insurance industry is likely to outweigh the danger of unfair 

prejudice if the connection is substantial. 

We have not previously articulated a steadfast rule to guide the trial court’s 

determination of whether the probative value of a witness’s connection to the insurance 

industry offered to show bias outweighs the danger of unfair prejudice under Rule 403. 

The majority of jurisdictions that have considered this question allow insurance evidence 

to show bias only in cases where a “substantial connection” exists between a witness and 

the insurance industry.19 “The substantial connection analysis looks to whether a witness 

17(...continued) 

or award based upon the existence or nonexistence of liability coverage rather than upon 

the merits of the case.’ ” (quoting Conn. Code Evid. § 4-10(a), commentary)); Strain v. 

Heinssen, 434 N.W.2d 640, 642 (Iowa 1989) (“The prejudice stems from concern that 

a jury’s verdict may be increased or decreased depending on the availability of sums 

from which to pay an award, rather than the merits of a plaintiff’s case.”). 

18 Though Rule 411 only excludes “[e]vidence that a person was or was not 

insured against liability,” it is implicated in evidence regarding an expert witness’s 

connection to the insurance industry to the extent that such evidence indicates that the 

party on whose behalf the witness is testifying is “insured against liability.” That is, an 

expert witness who has a relationship with an insurance company presumably testifies 

on behalf of a party who is insured and whose insurance carrier is providing 

representation in the case. Thus, Rule 411can be triggered by references to insurance 

that are not directly about whether a party is insured. 

19 See, e.g., Bonser v. Shainholtz, 3 P.3d 422, 425 (Colo. 2000) (“A majority 

of jurisdictions addressing this issue have applied a ‘substantial connection’ analysis in 

order to balance the probative value and potential prejudice on the facts of each case.”); 

Vasquez, 836 A.2d at 1163-64 (“The majority of courts that have addressed this issue 

(continued...) 

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has a sufficient degree of connection with the liability insurance carrier to justify 

allowing proof of this relationship as a means of attacking the credibility of the 

witness.”20 

Some jurisdictions define what constitutes a substantial connection between 

a witness and an insurer in terms of an ownership, agency, or employment relationship 

— that is, a relationship in which a witness has a “direct interest in the outcome of the 

litigation.”21 These jurisdictions often limit when a witness’s pecuniary interest can be 

used to establish a substantial connection by requiring something “[b]eyond mere 

payment in exchange for testimony [at] trial.”22 Courts have found a substantial 

19(...continued) 

apply a ‘substantial connection’ test to determine whether evidence of an expert witness’ 

relationship to the defendant’s insurer is more probative of potential bias than it is 

prejudicial.”); Todd, 685 S.E.2d at 597 (“In considering whether an expert’s connection 

to a defendant’s insurer is sufficiently probative to outweigh the prejudice to the 

defendant resulting from the jury’s knowledge that the defendant carries liability 

insurance, this Court adopted the ‘substantial connection’ analysis employed in a 

majority of jurisdictions.”); Lombard v. Rohrbaugh, 551 S.E.2d 349, 355 (Va. 2001) (“A 

majority of jurisdictions addressing this issue apply a ‘substantial connection’ analysis 

to determine whether the relationship between a party and a witness, particularly an 

expert witness, is such as to make proof of their financial dealings sufficiently probative 

to outweigh prejudice that arises from knowledge that the party carries liability 

insurance.”). 

20 Bonser, 3 P.3d at 425 (internal quotation marks omitted) (quoting Otwell 

v. Bryant, 497 So. 2d 111, 115 (Ala. 1986)); see also Vasquez, 836 A.2d at 1164 

(“Underlying this analysis is the premise that only some relationships between a 

defendant’s expert witness and the defendant’s insurance carrier give rise to an inference 

of bias that outweighs the countervailing risk that jurors might use the evidence for an 

improper purpose.”). 

21 Mendoza v. Varon, 563 S.W.2d 646, 649 (Tex. Civ. App. 1978). 

22 Strain v. Heinssen, 434 N.W.2d 640, 643 (Iowa 1989) (holding that, absent 

(continued...) 

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connection where an expert witness was employed by and consulted for an insurance 

company and 10-20% of the expert’s practice consisted of reviewing records for 

insurance companies,23 and where an expert was employed by a consulting firm that 

derived roughly 30% of its income from insurance companies.24 

Importantly, courts have recognized a substantial connection in the absence 

of a formal employment relationship between an expert witness and an insurer. For 

example, in Lombard v. Rohrbaugh, the Virginia Supreme Court upheld a trial court’s 

decision to admit evidence of a medical expert’s relationship with an insurance company 

in an automobile accident case because the medical expert had received over $100,000 

annually from the insurance company for at least two years.25 The defendant argued that 

opposing counsel should not have been permitted to mention insurance because the 

witness was not an employee of the insurance company.26 The Lombard court held that 

“[a] witness’[s] status as an employee of an insurance company providing coverage to 

a party is evidence of potential bias, but the absence of an employer-employee 

relationship does not define the limits of cross-examination. At issue is the potential for 

22(...continued) 

an agency or employment relationship, payment by an insurance company in exchange 

for an expert’s testimony at trial was not probative enough to outweigh prejudice). 

23 See Yoho v. Thompson, 548 S.E.2d 584, 586 (S.C. 2001). 

24 See Mitchell v. Glimm, 819 So. 2d 548, 553 (Miss. App. 2002). Though the 

Mississippi Court of Appeals did not use the term “substantial connection,” its reasoning 

aligns with the analysis employed under the substantial connection test. 

25 551 S.E.2d 349, 355 (Va. 2001). 

26 Id. 

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bias because of the witness’[s] interests in the case, not artificial labels.”27 We agree. 

This is particularly true given the modern corporate structure where employment and 

consulting relationships are often created ad hoc or through an intermediary and do not 

conform to traditional direct employment relationships. 

The Virginia Supreme Court has addressed a fact pattern that is similar to 

the one in this case. In Henning v. Thomas, a plaintiff in a medical malpractice case 

hired an expert witness through a company that “identifies other physicians throughout 

the country who are willing to review medical records and provide medical testimony.”28 

The witness signed an agreement with the company to assess cases and was to receive 

a set fee for reviewing depositions or transcripts and testifying; the company kept a 

portion of the overall fee paid to it by the plaintiff.29 The defendant sought to 

cross-examine the witness as to who retained him to testify, but the trial court did not 

permit “any question other than whether [the witness] was being paid to come to court 

to give his testimony.”30 The Virginia Supreme Court reversed, reasoning: 

The trial court’s ruling prevented defendants from doing 

precisely what defendants had a right to do. The defendant 

doctors were entitled to attempt to persuade the jury that [the 

plaintiff’s witness] was a “doctor for hire,” who was part of 

a nationwide group that offered themselves as witnesses, on 

behalf of medical malpractice plaintiffs. Once the jury was 

made aware of this information it was for the jury to decide 

what weight, if any, to give to [the witness’s] testimony. This 

27 Id.
 

28
 366 S.E.2d 109, 112 (Va. 1988). Though Henning did not use the label 

“substantial connection,” it applied a similar analysis. 

29 Id.
 

30 Id.
 

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was a classic case of an effort to establish bias, prejudice, or 

relationship. 

The trial court went too far when it limited defendants’ 

cross examination to the bare question whether [the witness] 

[ ] was being paid to testify. 31

We similarly do not think a party’s cross-examination should be limited solely to 

questions regarding whether a witness is being paid to testify. 

The trial court’s substantial connection analysis should look primarily to 

“whether a witness has a sufficient degree of connection with [a] liability insurance 

carrier to justify allowing proof of this relationship as a means of attacking the credibility 

of the witness.”32 Where an expert witness has significant ties to the insurance industry 

as indicated by receiving a sizable portion of his or her income from insurance work, 

being hired by a firm that derives a large portion of its income from insurance 

companies, or facts that otherwise suggest an interest in the outcome of the litigation, the 

probative value of that substantial connection is likely to outweigh the danger of unfair 

prejudice, and is thus likely admissible to show bias under Rule 411 and Rule 403. 

3.	 To establish a substantial connection, a party may present 

evidence about a witness’s ties to the insurance industry without 

necessarily eliciting evidence about the other party’s individual 

insurance coverage. 

There are two types of testimony regarding insurance that may be at issue 

in this type of case. The first is whether the defendant was insured against liability, and 

if so, by which company. The second is whether an expert witness hired by the defense 

may have a substantial connection to the insurance industry and possibly a small number 

31 Id. at 113. 

32 Bonser v. Shainholtz, 3 P.3d 422, 425 (Colo. 2000) (internal quotation 

marks omitted) (quoting Otwell v. Bryant, 497 So. 2d 111, 115 (Ala. 1986)). 

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of companies in particular, which may be evidence of bias. At trial Draeger focused 

primarily on this second category: Dr. Ballard’s connection to the insurance industry. 

Her opposition to Ray’s motion in limine argued that “[s]tating merely that these experts 

do most of their work for the defense, or for defense attorneys, only exposes the tip of 

the iceberg. Working for a particular entity with a singular incentive to minimize the 

harm resulting from auto collisions implies a stronger incentive for bias than working for 

different defense attorneys or ‘the defense.’ ” Because Draeger’s primary interest was 

to explore Dr. Ballard’s connection to the insurance industry, admission of such evidence 

as how often Dr. Ballard worked for insurance companies or firms that serve the 

insurance industry and what percentage of his income was from his insurance work33 — 

without revealing details about Ray’s coverage — would have satisfied Draeger’s goal 

of attempting to demonstrate Dr. Ballard’s potential bias. 

The district court, however, only allowed Draeger to probe the expert’s 

potential bias with a limited set of terms revolving around “the defense”: Its order stated 

that “this ruling does not preclude plaintiff’s counsel’s ability to cross examine any 

witness on the issue of bias that relates to the nature of their work for defendants and/or 

the fact [that] there may be . . . financial reasons for the continuation of wanting to work 

for defendants.” This ruling excluded the use of the word “insurance” in any regard. But 

restricting cross-examination to the use of the terms “defendants,” “defense counsel,” or 

“defense expert” may not convey the witness’s potential bias to a juror who may assume 

that attorneys represent both personal injury plaintiffs and defendants. The South 

Carolina Supreme Court addressed this specific question in Yoho v. Thompson, when the 

trial court had “informed [the plaintiff] that she could discuss [the expert witness’s] bias 

33 See Noffke v. Perez, 178 P.3d 1141, 1150-51 (Alaska 2008) (upholding trial 

court’s ruling requiring an expert witness employed by T.I.M.E. to produce his tax 

returns in order to ascertain the witness’s income from his insurance work). 

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by using generic terms such as ‘defense,’ ‘defendants,’ and ‘defense lawyer,’ but that she 

could not discuss his possible bias by using the word ‘insurance.’ ”34 The Yoho court 

rejected this approach, reasoning that references to insurance work are “qualitatively 

different from showing [that the witness] works for ‘the defense’ generally, and [are] 

much more indicative of possible bias.”35 

Parties should not have to couch a witness’s relationship with the insurance 

industry in code by referencing only “defense attorneys” or “defense work” when 

presenting evidence of an expert witness’s bias. Jurors may not understand this 

reference. And the point is that an expert witness with a substantial connection to 

insurance companies is working for the side with an interest in minimizing claims, and 

describing the witness’s relationship with insurers in clear terms is the most direct way 

to relay the entirety of that message to the jury. 36 Though a jury may infer from this 

evidence that a party is insured, this inference presents a low risk of unfair prejudice 

because jurors will be aware that Alaska law requires drivers to carry automobile 

insurance.37 The opposing attorney should be able to elicit evidence about the witness’s 

34 548 S.E.2d 584, 585 (S.C. 2001). 

35 Id. at 586. 

36 See Myers v. Robertson, 891 P.2d 199, 208 (Alaska 1995) (“[T]he jury 

should be provided with some context in order to fully and fairly evaluate the case and 

the testimony before it. Here, the fact of insurance could have been admitted consistent 

with Evidence Rule 411 because that information would tend to show the potential bias 

or prejudice of the . . . witnesses.”). 

37 See AS 28.22.011 (“The operator or owner of a motor vehicle . . . shall be 

insured under a motor vehicle liability policy.”); Nelson v. Progressive Cas. Ins. Co., 162 

P.3d 1228, 1231 (Alaska 2007) (“Alaska law generally requires Alaska drivers to carry 

automobile insurance.”); see also Mitchell v. Glimm, 819 So. 2d 548, 553 (Miss. App. 

2002) (“[I]n today’s society given the new mandates from our state legislature requiring 

(continued...) 

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connection to an institutional set of insurance clients and to argue that the expert witness 

may wish to ensure repeat business. 

But a party may not need to specify any insurance company by name in 

order to establish a substantial connection to insurance clients. In many cases, evidence 

of a witness’s frequency of work for the insurance industry more broadly and the 

percentage of the witness’s income derived from insurance work sufficiently 

demonstrates the potential bias. Thus, in many cases, the trial court will not need to 

admit details of a party’s individual insurance coverage or information about any 

insurance company by name. The opposing party can often adequately expose the 

potential bias of an expert witness by showing that he has a close connection to the 

insurance industry.38 

37(...continued) 

mandatory insurance[,] . . . juries in many personal injury cases are aware that insurance 

companies are involved in the litigation. Otherwise, the jury is to assume that a 

defendant is breaking the law by not having insurance coverage.”). To mitigate any 

prejudice that might result from the jury knowing that a party is insured, the trial court 

can give a jury limiting instructions as to how to consider or not consider evidence of 

insurance. See Alaska R. Evid. 105 (“When evidence which is admissible as to one party 

or for one purpose but not admissible as to another party or for another purpose is 

admitted, the court, upon request, shall restrict the evidence to its proper scope and 

instruct the jury accordingly.”). 

38 We do not decide the question whether a particular insurance company’s 

identity may be probative where an expert works primarily for a certain insurer, raising 

an inference that the witness would wish to please that primary client to secure repeat 

business. Here, Dr. Ballard stated in his deposition that “less than five percent” of his 

insurance work in Alaska is for Ray’s insurer, GEICO. 

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4.	 Dr. Ballard has a substantial connection to the insurance 

industry and the district court abused its discretion by not 

admitting evidence of that connection. 

There is a substantial connection between Dr. Ballard and the insurance 

industry. Like the expert in Lombard v. Rohrbaugh, 

39 Dr. Ballard is highly compensated 

by the industry; he receives between $300,000 to $350,000 a year for his insurance 

reviews. This represents a large percentage of his total yearly income of up to $800,000, 

which includes his private orthopedic practice. And like the expert witness in Mitchell 

v. Glimm who was hired by a consulting firm that derives a sizable portion of its income 

from insurance companies,40 Dr. Ballard was hired for this case by a company that does 

98% of its work for insurance companies or defense attorneys. The financial 

entanglements of both Dr. Ballard and the consultancy through which he was hired create 

a substantial connection to the insurance industry. 

Here, the district court excluded all reference to insurance as more 

prejudicial than probative, ordering that “witnesses and parties shall be instructed that 

no reference should be made to the fact that persons investigating this matter may have 

been employed by defendant’s liability insurance.” On appeal the superior court 

reversed the district court’s exclusion of insurance evidence and suggested that evidence 

of a substantial connection is invariably more probative than prejudicial. The trial court 

has broad discretion under Rule 403 balancing to determine whether the probative value 

of evidence outweighs its potential to create unfair prejudice. 41 But if evidence of an 

expert witness’s substantial connection to the insurance industry is available, the weight 

39 See 551 S.E.2d 349, 355 (Va. 2001). 

40 See 819 So. 2d at 553. 

41 See Marsingill v. O’Malley, 58 P.3d 495, 502 (Alaska 2002). 

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of factors that the trial court must balance will generally be static because the potential 

for unfair prejudice will probably not vary and thus should tilt in favor of admission, 

absent unusual factual circumstances. Because evidence of Dr. Ballard’s substantial 

connection to the insurance industry was available and was probative of bias, and there 

were no unusual factual circumstances in this case to suggest that the risk of unfair 

prejudice outweighs its probative value, the district court abused its discretion by 

excluding direct evidence of the connection. 

B.	 Because The Jury Heard Evidence Of Dr. Ballard’s Substantial 

Connection To The Insurance Industry, The District Court’s Error 

Was Harmless. 

Although it was an abuse of discretion for the district court to attempt to 

exclude direct evidence of Dr. Ballard’s substantial connection to the insurance industry, 

the error was harmless. “When the trial court has erroneously excluded evidence, a party 

must show that the error was harmful or prejudicial before we will reverse the trial court. 

The test for determining whether an error was harmless is whether on the whole record 

the error would have had a substantial influence on the verdict of a jury of reasonable lay 

people.”42 Thus, “[a]n erroneous ruling requires reversal only if our review of the record 

convinces us that it probably had a substantial effect on the jury.”43 

Though the district court aimed to exclude all evidence about insurance 

through its order granting Ray’s motion in limine, the jury ultimately did hear evidence 

42 Barton v. N. Slope Borough Sch. Dist., 268 P.3d 346, 353 (Alaska 2012) 

(alteration and internal quotation marks omitted) (quoting Noffke v. Perez, 178 P.3d 

1141, 1147-48 (Alaska 2008)). 

43 Crosby v. Hummell, 63 P.3d 1022, 1028 n.23 (Alaska 2003); see also id. 

at 1028 (“[W]e find no reasonable likelihood that [the] exclusion . . . had any appreciable 

effect on the verdict. Even if error, then, exclusion of this evidence would have been 

harmless at most and would not warrant reversal.”). 

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about Dr. Ballard’s substantial connection to the insurance industry. During 

cross-examination Draeger’s counsel established that Dr. Ballard was hired for 

evaluation in this case through T.I.M.E. and that he performs more than 100 medical 

examinations per year through T.I.M.E. in auto injury cases. When Draeger’s lawyer 

asked Dr. Ballard to confirm that nearly all “evaluations through T.I.M.E.[,] like what 

[he] did in this case, more than 98% of [evaluations] are for insurance companies or 

defense attorneys,” Dr. Ballard answered, “Correct.” Though Ray’s attorney objected 

and during a bench conference the district court instructed the parties not to mention 

insurance again, the trial court did not strike the testimony or give any curative or 

limiting instruction to the jury after Dr. Ballard’s testimony regarding T.I.M.E.’s 

primarily insurance-based clientele. Thus, the jury did hear some of the evidence that 

Draeger’s attorney advocates for here. Because the district court’s attempted exclusion 

of all insurance evidence was unsuccessful, it could not have had a substantial effect on 

the jury. And because Dr. Ballard provided an answer to a question that should have 

been allowed, the district court’s error was harmless. 

V. CONCLUSION 

Although it was error to fail to admit evidence of the expert witness’s 

substantial connection to the insurance industry, which was not unfairly prejudicial, this 

error was harmless because the jury ultimately did hear some testimony about that 

connection. We thus AFFIRM in part the superior court’s reasoning but REVERSE and 

VACATE the superior court’s order remanding for new trial and REINSTATE the 

district court’s judgment. 

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