Altice, J.
Case Summary
In 2014, Dawn Manning and Levetta Tunstall were involved in a minor vehicle collision. Tunstall admitted fault and the parties litigated the issue of damages at a three-day jury trial in 2017. The jury awarded Manning $1.3 million for her pain and suffering resulting from on-going neck and back pain caused by the accident. Tunstall now appeals, arguing that she is entitled to a new trial for four reasons: (1) the verdict is excessive; (2) the trial court abused its discretion by refusing to allow Tunstall to cross-examine Manning’s expert witness about his disciplinary history with the Medical Licensing Board; (3) the trial court committed fundamental error by discharging a juror during deliberations without creating the appropriate record; and, (4) jury deliberations were improperly tainted by the comments of a juror.
We affirm. [Footnote omitted.]
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Tunstall argues that the trial court abused its discretion by refusing to admit evidence regarding Dr. Paschall’s disciplinary history with the Indiana Medical Licensing Board (the Board). On appeal, Tunstall expressly does not argue that the reasons for past discipline were admissible; she argues only that the fact Dr. Paschall had been disciplined in the past was admissible.
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The record establishes that throughout his more than 30-year medical career, Dr. Paschall has been disciplined by the Board twice. In November 2009, Dr. Paschall entered into a stipulated agreement with the 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. By the time of the instant trial in August 2017, Dr. Paschall’s license was back in good standing.
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.” Id. at 969. Thus, the Linton court affirmed the trial court’s 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. Id. at 967-69. Only the final action taken by the Board, however, was admissible. Id. at 969.
Unlike in Linton, Dr. Paschall was in good standing (i.e., not on probation) at the time he testified in this case. Tunstall argues that this is 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.
Further, we do not believe that admission of the following deposition testimony would have had any significant impact on the jury:
[Tunstall’s Counsel:] Okay. So during the course of your – your medical career, has your license ever been on probation, revoked, suspended?
[Dr. Paschall:] Yes, ma’am.
Appellee’s Appendix Vol. 2 at 2. [Footnote omitted.] The trial court’s redaction of this portion of the deposition, if erroneous, was harmless at best.
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Judgment affirmed.
Kirsch, J., concurs.
Baker, J., dissents with opinion.
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Baker, Judge, dissenting.
I respectfully dissent because I disagree with the majority’s conclusion regarding Dr. Paschall’s testimony.
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In this case, the Medical Licensing Board found that in the past, Dr. Paschall committed “fraud or material deception in order to obtain a license to practice.” Appellant’s App. Vol. II p. 43. At the time he examined Manning, he was facing another disciplinary complaint, which ultimately resulted in the indefinite probation of his medical license for a minimum of one year. I agree with Tunstall that she was entitled to ask about the status of his license when she examined Manning, “if not before and after then, and the jury was entitled to hear his answers and use them to evaluate the credibility of his opinions.” Appellant’s Br. p. 37. Precluding that line of questioning effectively precluded her from attacking his credibility, which is neither in line with Linton, nor, in my opinion, with the principle of fairness. Therefore, I believe the exclusion of this evidence was erroneous.
I part ways with my colleagues’ conclusion that, even if the exclusion was erroneous, it was harmless error. Dr. Paschall was the only medical expert presented by Manning, and his testimony squarely and profoundly disagreed with the multitude of experts presented by Tunstall. Even though Tunstall concedes that the specific acts underlying his disciplinary history would not be admissible, the mere fact that the Medical Licensing Board found that he had behaved in fraudulent or deceptive ways in the past would be material to the jury’s evaluation of his testimony. That, in turn, would have the potential to affect the ultimate verdict, inasmuch as he was Manning’s only medical expert.
I note that the only deposition testimony referred to by the majority was Dr. Paschall’s affirmative response to the question of whether his license had ever been on probation, revoked, or suspended. Slip op. p. 10. Tunstall’s attorney attempted to ask a series of follow-up questions at the deposition, which Dr. Paschall repeatedly refused to answer. After a series of refusals, Tunstall’s attorney concluded the deposition without further pursuing the line of questioning because it would have been futile to continue. Counsel indicated a plan to file a motion to compel the doctor’s response to questions regarding his disciplinary history. I believe that the trial court should have granted said motion to compel, meaning that there would have been more testimony regarding his disciplinary history for the jury to have considered.
In sum, I believe that the exclusion of this line of questioning was both erroneous and not harmless. Therefore, I would reverse on this basis and remand for a new trial.