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Justices consider admissibility of disciplinary history of medical expert

February 15, 2019

Indiana Supreme Court justices heard oral argument Thursday in a minor fender bender case that resulted in a $1.3 million verdict, considering whether questions regarding a medical expert witness’ disciplinary history and competence should have been admitted.

The case began when Levetta Tunstall struck the bumper of Dawn Manning’s vehicle, leaving Manning with permanent and chronic pain from injuries sustained to her neck and back. After years of little relief, medical expert Dr. Steven Paschall opined that Manning had reached maximum medical improvement. Due to her limited ability to function normally, a jury awarded Manning $1.3 million, and Tunstall’s motion to correct error was denied.

On appeal, Tunstall argued the Marion Superior Court abused its discretion by refusing to admit evidence regarding Paschall’s disciplinary history with the Indiana Medical Licensing Board. Paschall was disciplined twice in 30 years, but the Indiana Court of Appeals found the exclusion of that information was harmless. However, in a separate opinion, Judge John Baker dissented, writing that at the time Paschall examined Manning, he was facing a disciplinary complaint that ultimately resulted in the indefinite probation of his medical license for a minimum of one year.

Before the high court, Brian J. Paul, counsel for Tunstall, argued that he should have been able to ask when and why Paschall was placed on probation.

“‘Was your license ever revoked or suspended?’” Paul hypothetically asked the court. “‘Why did the licensing board conclude that you had violated your professional obligations?’ Those are the basic questions that we should been able to ask and get answers to.”

Paul argued against the competency and credibility of Paschall as a witness, but Justice Christopher Goff interjected that he had serious concerns with that contention.

“I’m really concerned about the risk of confusion to the fact-finder if we're to let in this information that you want us to let in,” Goff said. “For some reason, the licensing board imposed a $500 fine, allowed him to continue to practice and give his opinions - and if you want me to attribute something to do with his competency based on that, I really think that that's a leap.”

“We're asking that this evidence be treated like all other evidence and subject to (Evidence Rule) 403 balancing,” Paul explained. “The problem is the court didn't even get there. The court said it was categorically irrelevant.”

But counsel for Manning, Ronald S. Todd, argued Tunstall waived any argument regarding whether or not Paschall’s license had ever been on probation because Tunstall failed to preserve that question during trial.

“The trial court did not prevent Tunstall’s attorney from asking that question,” Todd wrote in his brief in response to Tunstall’s transfer petition. “Since the question was never asked, the trial court made no ruling on this question.”

Todd further argued that Tunstall’s question of Paschall’s disciplinary history was properly excluded under the circumstances of the case. Siding with the appellate court’s uncertainty with Tunstall’s reliance of Linton v. Davis, 887 N.E.2d 960 (Ind. Ct. App. 2008), Todd said that unlike the medical expert in Linton, Paschall was in good standing at the time he testified.

But counsel for Tunstall combatted that it made “no sense to say that a doctor's licensure history isn't relevant just because he happens to be in good standing today.”

“We repeatedly argued that his licensure history should be admitted,” Paul said. “I don’t know what else we could have done.”

The full oral arguments in the case, Levetta Tunstall v. Dawn Manning, 19S-CT-00018, can be watched here.

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