An Expert’s Licensure Status and Disciplinary History Are Admissible; Tunstall v. Manning

A critical piece of many cases is the credibility of expert testimony. This means that litigants will go to great lengths to discredit an opposing expert. This January, we told you of the Indiana Court of Appeals’ decision in this case. Since then, the Indiana Supreme Court has clarified what is and is not allowed when attacking an expert’s credibility.

On a clear, dry day, Manning was stopped at a stop sign in her vehicle when she was rear-ended by Tunstall. Manning immediately began experiencing head and neck pain. She went to the emergency room later that evening. She left with a neck brace and pain medication. Manning continued to experience pain. Eventually, Dr. Steven Paschall 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, and the parties deposed Dr. Paschall. During that deposition, 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. Tunstall moved to compel answers to these questions the day before trial, but the trial court denied that motion.

At trial, the only medical testimony Manning presented was from Dr. Paschall’s deposition. Tunstall called two doctors, both of whom disagreed with Dr. Paschall. The jury entered a $1.3 million verdict for Manning. Tunstall appealed, and a split panel affirmed the trial court’s decision. The Court granted transfer.

The issue before the Court was not whether Dr. Paschall’s testimony was properly admitted under Evidence Rule 702 (this was uncontested). Rather, the dispute was whether the credibility of his expert opinion could be attacked by evidence of his professional disciplinary history.

The Court first addressed the admissibility of an expert’s licensure status and disciplinary history in general. And the Court concluded that each of these “may be relevant to an expert’s credibility.” But this is not the end of the inquiry, as “the evidence’s admissibility is subject to statutory restrictions and specific rules of evidence.” And the two types of evidence in this case provide a good example of this principle in action.

The Court found that Dr. Paschall’s past licensure status was relevant and probative, and that it should have been admitted.

Manning presented Dr. Paschall’s testimony to establish his diagnosis of her injury. Thus, the doctor’s professional qualifications—including that his medical license had previously been on probation—were relevant to the credibility of his medical opinion. … Here, the probative value of the licensure-probation evidence outweighed any of Rule 403’s dangers. Dr. Paschall was the only medical expert to testify on Manning’s behalf, and his medical license was placed on probation only a few months after he first examined Manning.

In contrast, the reasons for Dr. Paschall’s professional discipline were not admissible under Evidence Rules 608 and 609. One of those reasons was related to a misdemeanor conviction (inadmissible under Rule 609(a)). And the other (that he omitted a criminal conviction when obtaining his license and failed to maintain required records) required extrinsic evidence to attack his credibility, so it was inadmissible under Rule 608(b) (“Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness.”)

The Court then turned to the question of whether the trial court’s error in excluding evidence of Dr. Paschall’s past licensure status was harmful, and it concluded that it was not.

On this record, we conclude that the trial court’s error was 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.

Thus, using this additional piece of evidence to attack Dr. Pachall’s credibility was “a small drop in the large bucket” of evidence on the issue of his credibility and Manning’s injury.

Justice Slaughter dissented. He found that “Dr. Paschall’s testimony was the lynchpin of Manning’s case.” And the other ways that Tunstall used to challenge Dr. Pachall’s credibility “do not carry the same weight as official sanctions by a medical licensing board charged with deciding who is fit to practice medicine.” Thus, he found that there was prejudicial error, and would have reversed.

In the Court of Appeals, the majority found the admission of this evidence was, “if erroneous, harmless at best.” Judge Baker dissented, finding it erroneous (like the Supreme Court majority) and prejudicial (like Justice Slaughter).

Lessons:

  1. An expert’s past licensure status is relevant, probative and may be admissible.
  2. The reasons for an expert’s past professional discipline may be inadmissible.
  3. Success on appeal of a ruling excluding evidence at trial depends not only on convincing the appellate court of legal error but also that the exclusion was prejudicial.

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