Disciplinary History of Expert Witnesses Admissible: Ind. Sup. Ct.

Professional disciplinary actions against an expert witness and the reasons for them may be admissible in challenging an expert's credibility, the Indiana Supreme Court has ruled, reversing the Court of Appeals.

The Supreme Court found that Indiana evidentiary rules do not necessarily bar the admission of evidence that a professional disciplinary actions, or the reasons for those actions, although other statutes, such as the peer-review statute may bar such evidence.

In Levetta Tunstall v. Dawn Manning, 19S-CT-18, the state high court upheld a $1.3 million award to a woman in a minor vehicle accident whose only medical expert witness had been disciplined twice before by the Indiana Medical Licensing Board and had been under indefinite probation at the time he examined the plaintiff, Dawn Manning.

Manning had been waiting at a stop sign in her vehicle when it was rear-ended by Levetta Tunstall, an accident causing minor damage to both vehicles. While Manning declined an ambulance at the scene, she did testify that she began experiencing head and neck pain immediately after the accident. Later, Manning did go to an emergency room where she was prescribed pain medication and a neck brace.

Over the coming months, Manning received various treatments, but continued to experience pain. X-rays and MRIs of her spine came back normal.

Nearly a year after the accident, Manning saw Dr. Steven,1 complaining of a “constant ache in her neck and regular back spasms that lasted up to thirty seconds.” A medical examinations expert witness, Dr. Paschall took x-rays of Manning's cervical spine and found that, as a result of the auto accident, she had “a significant loss of motion segment integrity in her spine,” with 28% impairment of her whole body.

Manning sued Tunstall, naming Dr. Paschall as her only medical expert witness. During the deposition of Dr. Paschall, Tunstall's counsel asked him whether his license had ever been on probation, revoked or suspended. Dr. Paschall admitted that his medical license had previously been on probation, but when asked why, he refused to answer.

Before trial Tunstall moved to compel Dr. Paschall to answer questions regarding past professional discipline. The trial court denied Tunstall's motion, reasoning that his disciplinary history was irrelevant because his medical license was in good standing at the time of trial, in the end disallowing as well any evidence about Dr. Paschall's probation.

At trial, Manning and her parents, best friend and boy friend testified about the “negative changes in her disposition and lifestyle” since the accident. Tunstall called two medical expert witnesses, both of whom disagreed with Dr. Pashcall's assessment of Manning's condition.

The jury awarded Manning $1.3 million for her pain and suffering from on going neck and back pain.

Tunstall appealed, arguing that the trial court abused its discretion in denying testimony about Dr. Paschall's past probation and the reasons for his past professional disicipline. The state Court of Appeals, in a split decision, rejected Tunstall's arguments, affirming the jury verdict.

Tunstall then petitioned the Indiana Supreme Court.

While the state Supreme Court did agree that the trial court abused its discretion in excluding evidence of Dr. Paschall's license being on probation, it did find that the court correctly barred evidence of the reasons for the past discipline.

The first disciplinary actions imposed on Dr. Pascall were the result of him failing to disclose a pending criminal violation in his medical license renewal application. The second disciplinary action arose when the Medical Board found him in violation of the standards of professional practice in three ways, two for unnamed misdemeanor convictions, the third for failure to maintain controlled-substance dispensing records.

The state Supreme Court found that the trial court correctly excluded the evidence of the reasons for Dr. Paschall's professional discipline because those specific convictions were excluded under Indiana Evidence Rules 608, Evidence of Character and Conduct of Witness and 609, Impeachment by Evidence of Conviction of Crime.

While it might seem significant to bring into evidence the existence of disciplinary actions without evidence as to the reasons for those actions, the state Supreme Court found the error harmless.  Tunstall's counsel had cast doubt on the physician's testimony by highlighting that he had failed part of his board certification exam twice, never became board certified, was in the business of performing medical examinations, that he failed to review all the pertinent medical records, etc.

As well, the Supreme Court noted that Manning's testimony and other supporting testimony was quite persuasive, including that of Manning having given up her modeling career due to the injury.

In affirming the jury's verdict, the state Supreme Court upheld one of the largest verdicts recently awarded in the state for a minor traffic accident.