Indiana Court of Appeals: $1.3M Verdict Not Excessive for Rear-End Collision & Not Reversible Error to Exclude Evidence of Prior Discipline of Medical Expert

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by: Colin E. Flora

     This week, a split decision out of the Indiana Court of Appeals affirmed a $1.3 million verdict in a personal-injury case and gives us an excellent opportunity to discuss motions to set aside excessive verdicts, admission of information regarding an expert witness’s licensing, and what courts must do when there are issues during trial with jurors. 

     In Tunstall v. Manning, the plaintiff suffered a spinal injury as a result of a rear-end collision at an intersection. After a three-day trial, the jury returned a verdict in her favor for $1.3 million. The defendant “filed a motion to correct error, arguing that the verdict was excessive and alleging juror misconduct,” which was summarily denied after briefing and a hearing. On appeal, the defendant argued that the verdict was excessive, that it should have been permitted to enter evidence relating to disciplinary issues with the plaintiff’s medical expert, that the court erred in dismissing a juror during deliberations without making a sufficient record, and that the jury was tainted by comments from a juror.

     As to the verdict, the court affirmed with ease. The burden for reversing a damages verdict is extremely high: “To warrant reversal, ‘the award must appear to be so outrageous as to impress the Court at first blush with its enormity.’” It must appear to indicate that “the jury was motivated by passion, prejudice, partiality, or the consideration of improper evidence[.]” But it must be upheld “if it ‘can be explained on any reasonable ground.’” It is particularly difficult to obtain a reversal in personal injury cases “[b]ecause physical and mental pain are not readily susceptible to quantification and cannot be calculated with mathematical certainty, [and] the jury is given ‘very wide latitude’ in determining such damages.”

     In rejecting the challenge, the Court wrote:

Tunstall argues that the $1.3 million verdict in this case is excessive and urges us to engage in a comparative analysis of jury verdicts in other cases involving “a very common type of accident (a fender-bender) with very common alleged injuries (neck and back pain).” For the reasons thoroughly addressed in Ritter, we reject this approach. “The nature and extent of pain and suffering are seldom, if ever, alike in any two cases.”

* * * * *

Although the jury might have assessed higher damages than we would have, we are unpersuaded that the $1.3 million verdict in this case is great enough to be characterized as excessive. In other words, we cannot say as a matter of law that Manning’s pain and suffering since the accident and into the future is worth less than the jury’s award. The verdict fell within the bounds of the evidence, and Tunstall’s attempt to have us reweigh the evidence is improper.

     That took the court to the much more difficult question of whether it was reversible error for the trial court to exclude evidence of the plaintiff’s medical expert’s disciplinary history. The majority concluded that it was not; the dissent disagreed. Mind you, the argument was not that the reasons for the past discipline were admissible; all agreed that they would not be. Instead, the argument was whether the fact that the doctor had been disciplined in the past was admissible. More specifically, the issue turned on whether a portion of the deposition should be provided to the jury in which the doctor said answered “yes, ma’am” that in the course of his career his license had “been on probation, revoked, [or] suspended.”

     As a starting point, rulings on evidence are left to the sound discretion of trial judges. That discretion will only be found to have been abused if “the trial court’s ruling is against the logic and effect of the facts and circumstances before the trial court or the court misinterpreted the law. Moreover, evidentiary error requires reversal only if it is inconsistent with substantial justice. In determining whether to reverse, we assess the probable impact on the jury.”

     The doctor had been disciplined twice in his 30-year medical career. In 2009, he “entered into a stipulated agreement with the [Indiana Medical Licensing] Board pursuant to which he was fined $500. In January 2016, he was fined $1000 and his license was placed on indefinite probation for a minimum of 1 year with certain terms and conditions.” But his license was back in good standing by the time he testified at the trial.

     The dissent, which would have admitted the evidence, found guidance in two cases: Linton v. Davis, from the Indiana Court of Appeals, and Sneed v. Stovall, from Tennessee. Each decision held that licensure status of an expert was admissible for impeachment in that case. But the majority read Linton and Sneed differently than did the dissent:

In Linton, this court held that “the licensure status of a physician who gives an expert opinion is admissible to impeach the doctor’s opinion.”  Thus, the Linton court affirmed the . . . admission of evidence that the medical-malpractice defendant, who testified as an expert regarding his compliance with the standard of care, was currently on indefinite probation. Only the final action taken by the Board, however, was admissible.

Unlike in Linton, [plaintiff’s doctor] was in good standing (i.e., not on probation) at the time he testified in this case. Tunstall argues that thisis a distinction without a difference. We are not so sure. Clearly, an expert’s past disciplinary history is, if at all, not as relevant as the expert’s current probationary status.   

     The majority further found good reason to reject reliance on Sneed: “In Sneed, the restrictions on the expert witness’s medical license were still in place at the time of trial — he was just over three years into his five-year term of probation.Moreover, during the deposition, the witness was asked about the status of his medical license and whether he had been subject to any disciplinary proceedings. Unlike in the case at hand, the witness in Sneeduntruthfully responded that he had not.”

     To clarify, the majority found that Sneed did not apply because it spoke only to a doctor who was currently subjected to discipline and whose veracity was called into question by misrepresentation during the deposition. Accordingly, the majority concluded, “The trial court’s redaction of this portion of the deposition, if erroneous, was harmless at best.”

     That left the issues relating to the jury. At issue was the discharge of a juror during deliberations who sent a note to the court indicating that she desired to be excused due to suffering leg pain. The court addressed the matter with the respective attorneys and none objected to her removal and replacement by the alternate juror. The issue turned on application of the Indiana Supreme Court decision Riggs v. State:

Tunstall argues that the trial court committed fundamental error by discharging [the juror] without creating the appropriate record. Relying on Riggs v. State, she notes that once deliberations have begun, “the discharge of a juror is warranted only in the most extreme situations where it can be shown that the removal of the juror is necessary for the integrity of the process, does not prejudice the deliberations of the rest of the panel, and does not impair the parties [sic] right to a trial by jury.” Riggs requires a “carefully developed record as to the grounds for removal and also requires precautions to avoid inappropriate consequences from the removal.”

There are several important differences between Riggs and this case. [The juror] — not the trial court — requested that the alternate replace her. Thus, the trial court did not remove a willing juror. Further, unlike in Riggs, [her] replacement was not based on her being “a dissenting juror” or due to any misconduct. [She] was dismissed because she was experiencing pain in her legs during deliberations, and the trial court informed the remaining jurors that this was the reason for her removal. The most notable distinction is that Tunstall affirmatively agreed to the removal . . . while in Riggs, the defendant vehemently and repeatedly objected.

The court concluded that even if there was a procedural failing, it was governed by the doctrine of invited error, which precluded argument by the defendant because “her counsel affirmatively agreed to the removal.”

     Finally, the court turned to the allegation of jury misconduct. One month after the trial, the juror who had been excused “sought out defense counsel after learning of the verdict and expressed her disagreement with the amount of the verdict.” The allegation from the juror was that another juror had “shared during deliberations  that she had been treated by Dr. Sasso, one of Manning’s physicians, for similar back injuries. Based on her own experience with that doctor, Michelle maintained that the doctor would not have ‘ordered the MRI or prescribed injections unless he saw something.’”

     The burden for obtaining a new trial based on juror misconduct is extremely onerous:

A defendant who seeks a new trial based on alleged juror misconduct generally must demonstrate that the conduct was gross and that it probably harmed the defendant. For juror misconduct cases not involving out-of-court communications with unauthorized persons, prejudice must be affirmatively demonstrated; it will not be presumed.

In this instance, the court did not find enough to reverse. The “statements were based on [the juror’s] own knowledge and common sense. That is, she had been treated by Dr. Sasso in the past and her experience and common sense indicated that Dr. Sasso would not order an MRI and spinal injections if his patient was entirely healthy. Further, Dr. Sasso was not a testifying witness, and his credibility was not at issue. In fact, Tunstall's own medical expert relied on the records and MRI from Dr. Sasso’s treatment of Manning.” As such, the court could not “say that there was a substantial possibility that [the] statements prejudiced the verdict.” 

     Because each challenge against the verdict failed, at least in the eyes of two of the three judges, the verdict was upheld. Barring the Indiana Supreme Court granting transfer, the verdict for Miss Manning should remain undisturbed.

     Join us again next time for further discussion of developments in the law.

Sources

  • Tunstall v. Manning, ---N.E.3d---, No. 49A04-1711-CT-2572, 2018 Ind. App. LEXIS 287(Ind. Ct. App. Aug. 20, 2018) (Altice, J.; Baker, J., dissenting).
  • Ritter v. Stanton, 745 N.E.2d 828 (Ind. Ct. App. 2001) (Barnes, J.),trans. denied.
  • Linton v. Davis, 887 N.E.2d 960 (Ind. Ct. App. 2008) (Riley, J.), trans. denied.
  • Sneed v. Stovall, 22 S.W.3d 277 (Tenn. Ct. App. 1999).
  • Riggs v. State, 809 N.E.2d 322 (Ind. 2004) (Boehm, J.).

*Disclaimer: The author is licensed to practice in the state of Indiana. The information contained above is provided for informational purposes only and should not be construed as legal advice on any subject matter. Laws vary by state and region. Furthermore, the law is constantly changing. Thus, the information above may no longer be accurate at this time. No reader of this content, clients or otherwise, should act or refrain from acting on the basis of any content included herein without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue.