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Tunstall v. Manning

Supreme Court of Indiana

June 26, 2019

Levetta Tunstall, Appellant (Defendant)
v.
Dawn Manning, Appellee (Plaintiff)

          Argued: February 14, 2019

          Appeal from the Marion Superior Court No. 49D14-1602-CT-7366 The Honorable James B. Osborn, Judge

          On Petition to Transfer from the Indiana Court of Appeals No. 49A04-1711-CT-2572

          ATTORNEYS FOR APPELLANT Brian J. Paul Harmony A. Mappes Jason M. Rauch Faegre Baker Daniels LLP Indianapolis, Indiana

          ATTORNEY FOR APPELLEE Ronald S. Todd Ronald S. Todd, P.C. Noblesville, Indiana

          ATTORNEYS FOR AMICUS CURIAE INDIANA TRIAL LAWYERS ASSOCIATION Daniel J. Buba Thomas C. Doehrman Doehrman•Buba Indianapolis, Indiana

          OPINION

          Rush, Chief Justice.

         This case presents an issue of first impression for this Court: may a party use evidence of an expert witness's professional disciplinary history to challenge the expert's credibility? Here, an expert-doctor testified that the plaintiff suffered permanent injury from an auto accident. And the defendant was not permitted to introduce evidence that the expert's medical license had previously been on probation or evidence of the reasons underlying the expert's past professional discipline.

         Today, we hold that both types of evidence-an expert witness's professional-licensure status and the reasons for professional discipline- may be admissible to challenge the expert's credibility. Under the facts of this case, the trial court abused its discretion when it excluded evidence that the expert-doctor's medical license had been on probation-though the error was harmless. And the trial court properly excluded evidence of the reasons for the doctor's professional discipline, as that evidence was inadmissible under certain evidentiary rules. We thus affirm the jury's verdict in the plaintiff's favor.

         Facts and Procedural History

         On a clear, dry afternoon, Dawn Manning was waiting at a stop sign in her vehicle when she was rear-ended by Levetta Tunstall. Manning pulled over and immediately began experiencing head and neck pain. Although she declined an ambulance, Manning later went to the emergency room- leaving the hospital that evening with a neck brace and pain medication.

         Over the next several months, Manning tried various treatments for her ongoing pain. Months of twice-weekly chiropractor appointments yielded little improvement, so Manning stopped going and turned to other doctors. A family doctor's x-rays, and a spine specialist's MRIs, of her spine came back normal. The spine specialist offered injections, but Manning declined them because they could be ongoing for the rest of her life.

         Then, nearly a year after the accident, Manning went to see Dr. Stephen Paschall. Manning reported a constant ache in her neck and regular back spasms that lasted up to thirty seconds. Dr. Paschall observed a reduced range of motion in Manning's cervical spine and took x-rays that indicated a significant loss of motion segment integrity in her spine. Based on the medical exam, the doctor concluded that Manning had reached "maximum medical improvement" with 28% impairment of her whole body, and that the injury resulted from the auto accident.

         Manning sued Tunstall. Before trial, Manning's counsel deposed Dr. Paschall. Toward the end, Tunstall's counsel asked the doctor about his professional disciplinary history-starting with whether his license had ever been on probation, revoked, or suspended.

         Dr. Paschall admitted that his medical license had previously been on probation, but he would not answer questions about reasons underlying his past professional discipline.

         The day before trial, Tunstall moved to compel Dr. Paschall to answer those unanswered deposition questions and reasonable follow-up questions. The trial court denied Tunstall's motion, reasoning that Dr. Paschall's professional disciplinary history was not relevant because his medical license was in good standing at the time of trial. Ultimately, this meant the trial court would not admit any evidence about Dr. Paschall's licensure probation or the reasons for his past professional discipline.

         At the jury trial, Manning testified-as did her parents, best friend, and boyfriend-about the negative changes in her disposition and lifestyle since the accident. The only medical testimony Manning presented was from Dr. Paschall's deposition. Tunstall, on the other hand, called two expert witnesses, both of whom disagreed with Dr. Paschall's assessment of Manning's condition.

         In the end, the jury found in Manning's favor and awarded $1.3 million in damages.

         Tunstall appealed, arguing in part that the trial court abused its discretion by not allowing the jury to hear testimony that Dr. Paschall's license was, at one time, placed on probation and testimony about the reasons for the doctor's past professional discipline. A split panel of the Court of Appeals disagreed and affirmed the jury's verdict. Tunstall v. Manning, 107 N.E.3d 1093, 1098-99, 1102 (Ind.Ct.App. 2018). Judge Baker dissented, believing that excluding evidence of Dr. Paschall's professional disciplinary history was reversible error. Id. at 1102-03 (Baker, J., dissenting).

         Tunstall petitioned for transfer, which we granted, vacating the Court of Appeals opinion. Ind. Appellate Rule 58(A).

         Standard of Review

         This case involves the admissibility of two related, but distinct, types of evidence to impeach an expert witness. The first is evidence of an expert witness's professional licensure status-that is, evidence that an expert's professional license has ever been, or is currently, limited in some way. The second is evidence of the reasons for past professional discipline.

         Here, the trial court excluded both types of evidence. To the extent the court's ruling depended on a legal question-whether certain evidence is generally admissible for impeachment-we review the ruling de novo. See Fairbanks v. State, 119 N.E.3d 564, 567 (Ind. 2019). But to the degree ...


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