DTCI: Cross-Examining an Expert Witness; Attack of the Discipline

Beth A. Behrens

In medical malpractice cases, as in other specialties that involve complicated medical, technical or scientific evidence, expert witness testimony is typically required and is often a crucial component of the jury trial. In these cases, jurors are often faced with conflicting presentations of expert testimony from more than one medical expert. Therefore, cross-examination of an expert witness is often a pivotal point of the trial. See, e.g., Ind. T.R. 702. Unlike TV dramas that portray tense and highly climatic scenes where a counselor’s cross-examination results in total and utter destruction of a medical expert’s credibility through scenes involving eye-grabbing headlines (such as a revelation that a “fake doctor duped hospitals, universities, and the American Medical Association”), most battle-of-the-expert cases hinge on a minor evidentiary score that casts your opposing party’s expert in an unfavorable light.

Common strategies and tactics

There are various strategies and tactics that counsel can use to impeach an expert witness. The most common approaches are the “hired gun” attack (where counsel elicits testimony that implies that the expert is being compensated to give a specific opinion, and the amount paid to an expert is used to cast doubt in the jurors’ minds about the integrity of that expert’s opinion); the “CV attack” (where counsel exposes weaknesses or lies in witnesses’ credentials or qualifications, or discredits their education, training, and experience); and/or, the “knowledge test” (where counsel’s questions expose a lack of knowledge about certain pieces of evidence to undercut the expert’s overall knowledge on a particular point). Recently, the Indiana Supreme Court in Tunstall v. Manning, 124 N.E.3d 1193 (Ind. 2019), shed light on another useful cross-examination strategy — one we will call the “disciplinary attack,” where counsel exposes an expert’s licensure status and disciplinary history to cast doubt in the jurors’ minds regarding the credibility of that expert’s standard of care testimony. In Tunstall, the Indiana Supreme Court held that an expert witness’s professional-licensure status and the reasons for professional discipline may be admissible to challenge the expert’s credibility. Id. However, a review of Tunstall and two prior Indiana Court of Appeals cases on this topic illustrates that questions remain about how this holding will be used in the future inside and outside the medical malpractice arena. A review of this evidentiary tool, and what we currently know, follows.

Indiana caselaw addressing licensure status and disciplinary history

In general, once an expert is qualified and an expert testifies, “the accuracy, consistency, and credibility of the expert’s opinions may properly be left to vigorous cross-examination, presentation of contrary evidence, argument of counsel, and resolution by the trier of fact.” Id. (citing Bennett v. Richmond, 960 N.E.2d 782, 786-87 (Ind. 2012) (quoting Sears Roebuck & Co. v. Manuilov, 742 N.E.2d 453, 461 (Ind. 2001)). The Indiana Court of Appeals and the Indiana Supreme Court have consistently held that evidence concerning an expert witness’s professional-licensure status (i.e., modification, restriction, or termination of staff privileges and/or medical licensure) is admissible to impeach the credibility of an expert witness offering standard of care testimony if it also meets the standard evidentiary burden demonstrating the evidence is relevant and its probative value outweighs its prejudicial effect. See Fridono v. Chuman, 747 N.E.2d 610 (Ind. Ct. App. 2001); Linton v. Davis, 887 N.E.2d 960 (Ind. Ct. App. 2008); Tunstall v. Manning, 124 N.E.3d at 1193; see also Evid. R. 401, 402, and 403.

In Fridono v. Chuman, the Indiana Court of Appeals held that an expert who denied that his staff privileges were ever modified or restricted in any fashion could be cross-examined based on a peer review final action letter that merely outlined the specific restrictions that were imposed on the expert’s privileges (modification, restriction, or termination of privileges), and all references to the peer review committee and process were redacted. Id. Similarly, in Linton v. Davis, the Indiana Court of Appeals held that evidence pertaining to a testifying expert’s licensure status (namely, that the expert was presently on indefinite probation), was admissible for impeachment purposes but also considered an issue of first impression at that time — whether specific determinations made by the Indiana Medical Licensing Board (i.e., the reasons for professional discipline) that addressed Dr. Linton’s care and treatment of plaintiff were admissible. The Court of Appeals ultimately held that the Indiana Medical Licensing Board’s specific findings were inadmissible because (similar to the peer review process) the Medical Licensing Board proceedings were “part of an internal method used by the medical community to ensure proper and effective medical care” and it should therefore be protected from disclosure on public policy grounds. Notably, the Indiana Supreme Court subsequently disagreed with this holding in Tunstall v. Manning. In Tunstall, the court differentiated Fridono from Linton and stated that the reasons for the disciplinary action in Fridono were inadmissible because of the peer review statute; however, that statute did not apply to the board’s findings in Linton. Id.

As noted above, the Indiana Supreme Court in Tunstall v. Manning re-evaluated whether an expert’s disciplinary history and the reasons for professional discipline are admissible to attack the credibility of an expert witness. In Tunstall, the plaintiff’s treating physician admitted during a deposition that his medical license had previously been under probation but refused to answer questions about the reasons underlying his professional discipline. The trial court denied Tunstall’s motion to compel and refused to admit any evidence about the expert’s licensure probation or the reasons for his past professional discipline at trial. On appeal, the Indiana Supreme Court held that the trial court abused its discretion when it excluded evidence that the expert-physician’s medical license had been under probation but did not abuse its discretion when it excluded the reasons for the expert’s professional discipline. The reasons for the discipline included two prior misdemeanor convictions and two other acts of misconduct. More specifically, the physician-expert had entered into a settlement agreement with the Indiana Medical Licensing Board stipulating that he had “engaged in fraud or material deception” by failing to disclose a pending criminal violation on his medical-license renewal application. He was also disciplined for violations of the standards of professional practice due to two misdemeanor convictions and failure to maintain controlled-substance dispensing records. Id.; see also Tunstall v. Manning, 107 N.E.3d 1093, 1098 (Ind. Ct. App. 2018). The Indiana Supreme Court concluded that the reasons underlying the physician’s disciplinary history were inadmissible because (1) misdemeanor convictions are inadmissible under Evid. R. 609(a); and (2) the doctor’s fraud or material deception conducted to receive his license was inadmissible pursuant to Evid. R. 608(b) because “[e]xcept 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.” Tunstall, 124 N.E.3d at 1193.

What we currently know about “disciplinary attack” evidence and its admissibility

Although Tunstall clarified that an expert witness’s professional-licensure status and the reasons for professional discipline may be admissible to challenge the expert’s credibility, the Supreme Court’s decision also illustrates that the admissibility of “disciplinary attack” evidence requires a thorough review of the Indiana Rules of Evidence and any pertinent statutory restrictions. The Supreme Court in Tunstall addressed both the Linton and Fridono cases, infra, and provided the following examples of when or if the reasons underlying an expert’s disciplinary action may be used during cross-examination of an expert witness.

• Past professional discipline history based on misdemeanor convictions is inadmissible pursuant to Evid. R. 609, which allows impeachment by certain criminal convictions but does not apply to misdemeanor convictions. See Tunstall, 124 N.E.3d at 1199.

• Past professional discipline history based on evidence from a stipulated agreement that a physician engaged in “fraud or material deception” by failing to disclose a pending criminal violation on his online medical-license renewal application was inadmissible because it required the use of extrinsic evidence. The Supreme Court in Tunstall opined that Evid. R. 609 makes extrinsic evidence, apart from criminal convictions permitted under Rule 609, inadmissible “to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness.” Tunstall, 124 N.E.3d at 1199 (citing Evid. R. 608(b); Stonebraker v. State, 505 N.E.2d 55, 59 (Ind. 1987) (“It is a well-established rule that a witness cannot be impeached by specific acts of misconduct which have not resulted in criminal convictions.”)).

• Past professional discipline history resulting from restricted hospital privileges is inadmissible if the discipline is the result of the peer-review process because other than evidence of the final action taken, it is statutorily protected information. See Fridono, 747 N.E.2d at 620; Ind. Code 34-30-15-9 (2019).

• Past professional discipline based on findings and an order from the Indiana Medical Licensing Board may be admissible because, unlike Fridono (which involved the peer-review statute), no statute barred the Indiana Medical Licensing Board’s findings from a judicial proceeding. Tunstall, 124 N.E.3d at 1197, disapproving of Linton v. Davis, 887 N.E.2d 960 (Ind. Ct. App. 2008).

Where does this leave us and what questions remain?

In Tunstall, the admissibility of the reasons underlying the expert’s past discipline was not expressly argued by Tunstall on appeal. It is unclear from the Tunstall facts why the court opined that evidence pertaining to the expert’s stipulation that he engaged in “fraud or material deception” in a licensing renewal application was inadmissible. Arguably, this evidence falls within Evid. R. 608(b), which specifically carves out an exception, subject to the court’s discretion, to permit cross-examination questions pertaining to a witness’s character for truthfulness or untruthfulness, not to prove propensity, but rather to assess the witness’s honesty and credibility. Evid. R. 608(b). Indiana courts have held that “[t]he general rule regarding the admissibility of facts in connection with impeachment is that any fact which tends to reflect upon the veracity of the testimony may be introduced to impeach the witness” and “whenever expert testimony is admitted its opponent is free to challenge both the credibility of the expert and the weight to be given his testimony by the jury.” Ford Motor Co. v. Ammerman, 705 N.E.2d 539, 550 (Ind. Ct. App. 1999). It thus appears that if introduced and offered for the correct purpose — to show that the expert may try to deceive the jury with his opinions — this type of underlying reason should be admissible to attack the credibility of an expert. Furthermore, although Tunstall clarified that reasons underlying a Medical Licensing Board’s restriction may be admissible, how a court will treat this specific type of evidence or what limitations and/or parameters will be imposed is yet to be seen. These cases are, however, a good reminder to “do your homework” and be “better safe than sorry” when it comes to expert witness preparation before trial. Additionally, it is pertinent to consider the Rules of Evidence when you are evaluating whether specific instances of prior professional discipline and the reasons for the disciplinary history can be used to attack the expert witness’s credibility.

Conclusion

As noted above, complex litigation often boils down to a battle of experts, and jurors are frequently left to decipher which expert they find more credible. Expert witnesses, by their very nature, are typically impressive: they will highlight their accomplishments (such as professional certifications and licenses, and awards they have received), their educational background, prior testifying experience, and publications to convey their position of credibility and qualifications as an expert to lay jurors. A study conducted by a group of psychologists proposed that when jurors are confronted with difficult expert testimony from a number of highly qualified medical witnesses, jurors typically shift from central processing to peripheral processing and rely more heavily on shortcuts, such as credentials, to assess the validity of the expert’s testimony. Seee.g., Joel Cooper, et al., Complex Scientific Testimony: How do Jurors Make Decisions?, 20(4) Law and Human Behavior (1996). Thus, researching expert witnesses is crucial, and understanding when and if the reasons underlying an expert’s prior disciplinary history is admissible is important and should be considered before trial. The extent to which one can successfully undercut the credibility of the opposing expert in the eyes of the jurors can often go a long way in obtaining a favorable outcome.•

Beth A. Behrens is an associate in the Indianapolis firm of Schultz & Pogue and a member of the Health Law Litigation Section of the DTCI. Opinions expressed in this article are those of the author.

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