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by: Colin E. Flora
This, our second discussion of the day, returns us to our prior look at the case Tunstall v. Manning, previously ruled on by the Indiana Court of Appeals. The catalyst for revisiting the issue is because the Indiana Supreme Court has taken the case on transfer and provided a ruling that tackles the key question of whether it was error for the trial court to exclude evidence of the plaintiff’s expert witness’s prior disciplinary history.
The court of appeals ruled in a split decision that it was not error because the expert was not subject to discipline at the time of his testimony and that even if the evidence should have come in, it was harmless error. The dissent thought if the exclusion was error then it was most certainly not harmless.
On transfer, the court unanimously viewed the exclusion as error. In so doing, the court disapproved of the Linton v. Davis “holding that our rules of evidence generally prohibit admitting evidence—to impeach an expert witness—of the reasons for professional disciplinary action.” Specifically, the court found:
Both types of professional disciplinary history—limitations on professional licenses and the reasons underlying professional discipline—may be relevant to an expert's credibility. And an expert’s credibility goes to the weight a jury assigns to that witness’s testimony. That weight, in turn, may directly affect the outcome of the case. After all, the trial court allows expert testimony only if it will help the jury “to understand the evidence” presented or “to determine a fact in issue.”
So when a testifying expert has been subject to professional discipline, both an expert's professional licensure status and the reasons for professional discipline may be admissible to impeach that expert’s credibility. But the evidence's admissibility is subject to statutory restrictions and specific rules of evidence.
Despite the court finding that the exclusion had been error, four of the five justices thought the error harmless, thereby affirming the substantial $1.3M jury verdict. “An error excluding evidence is harmless if ‘its probable impact on the jury, in light of all of the evidence in the case, is sufficiently minor so as not to affect the defendant’s substantial rights.’”In determining whether the error was harmless, the reviewing courts considers the “the evidence’s likely impact on a reasonable, average jury.” The court majority found exclusion harmless for two reasons: “First, even without the excluded evidence, Tunstall throughout trial methodically attacked Dr. Paschall’s credibility and his diagnosis of Manning’s condition. Second, Manning presented substantial and consistent testimony about how her injury has had a significant, permanent impact on her life.”
Not every member of the court was certain the error was harmless. Justice Slaughter dissented and would have sent the case back for new trial:
Dr. Paschall’s testimony was the lynchpin of Manning’s case. The record shows that the doctor has twice received professional discipline from Indiana’s licensing authority since 2009—the more recent occurring only months after he examined Manning. Because of the trial court's evidentiary ruling, the jury never learned of the doctor’s troubled record. I do not take issue with the Court’s conclusion that Evidence Rule 608(b) prevented Tunstall from impeaching the doctor with "specific instances" of his prior misconduct. But that rule did not foreclose her from impeaching the doctor with the fact of his prior discipline. Even if the jury could not learn the "specific instances" of misconduct prompting the doctor’s discipline, a reasonable jury would diminish the weight it assigned to the testimony of a doctor sanctioned not once but twice, especially when considering his testimony against that of two other experts without such baggage.
The Court holds otherwise. It concludes that no reasonable jury would have been swayed by this evidence because Tunstall challenged Dr. Paschall’s testimony in other ways during the trial. True enough. But such challenges do not carry the same weight as official sanctions by a medical licensing board charged with deciding who is fit to practice medicine. The fact and recency of Dr. Paschall’s past professional discipline persuade me that this evidence likely would influence how a reasonable jury weighs his testimony. In my view, the exclusion of this evidence was not only erroneous but also prejudicial.
The end result, however, is that experts may be cross-examined as to their professional disciplinary history unless such evidence is otherwise inadmissible, and the jury verdict in Tunstall v. Manninghas been affirmed.
Join us again next time for further discussion of developments in the law.
Tunstall v. Manning, ---N.E.3d---, No. 19S-CT-18, 2019 Ind. LEXIS 452, 2019 WL 2610432 (Ind. June 26, 2019) (Rush, C.J.; Slaughter, J., dissenting).
Linton v. Davis, 887 N.E.2d 960 (Ind. Ct. App. 2008) (Riley, J.), trans. denied.
Colin E. Flora, 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, Hoosier Litig. Blog (Aug. 24, 2018).
*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.