Experts who are licensed in a profession sometimes face professional discipline for breaching professional standards. When accusations are unproven, courts are unlikely to admit evidence of the alleged transgression to impeach the expert. When the expert is disciplined, however, whether disciplinary findings may be raised in cross-examination of the expert presents a more difficult question.
The Indiana Supreme Court confronted that question in Turnstall v. Manning. The court determined that discipline affecting the status of a professional’s license may be admissible evidence, while the reasons for the discipline might not be.
Facts of the Case
Dawn Manning was rear-ended by Levetta Turnstall while Manning was stopped at a stop sign. Manning went to an emergency room and was given a neck brace. Her neck pain did not resolve, despite twice-weekly visits to a chiropractor.
Manning’s family doctor took X-rays and administered an MRI that revealed no abnormalities. A spine specialist suggested the possibility of injections for pain relief, but Manning did not want to engage in treatment that might last the rest of her life.
Manning was evaluated by Dr. Stephen Paschall, who testified at trial as her medical expert. Manning explained to Dr. Paschall that she suffered from constant back pain and regular back spasms. Dr. Paschall concluded that Manning suffered from a cervical spine injury that significantly limited the full range of her head motion. He also testified that the injury was permanent.
During a deposition, Dr. Paschall testified that his medical license had been placed on probation at some point in the past. Dr. Paschall refused to discuss the underlying facts that caused the discipline.
Turnstall asked the court to compel Dr. Paschall to answer the questions. The court determined that Dr. Paschall was placed on probation because he had been convicted of two misdemeanors, failed to disclose the charges or convictions to the licensing authority, and failed to keep adequate records of the drugs he dispensed.
The court ruled that the discipline was not relevant because Dr. Paschall no longer had a probationary license at the time of the trial. The court therefore disallowed testimony about the discipline or the reasons for which it was imposed.
The jury ruled in favor of Manning and awarded her $1.3 million in damages. Turstall appealed and the verdict was affirmed. The Indiana Supreme Court agreed to review the Court of Appeals’ decision to determine whether experts can be impeached with evidence of professional discipline.
Past misconduct may or may not bear on credibility. For example, different states have adopted different rules about the use of prior criminal convictions to impeach the credibility of a witness. Some states allow evidence of the number of convictions but not the nature of the convictions. Some states allow the jury to hear about past convictions but only if they are relevant to the witness’ character for truthfulness (such as a fraud or perjury conviction). Some states disallow evidence of criminal convictions under nearly all circumstances. Others regard older convictions as inadmissible.
An expert’s past professional discipline might be seen as akin to a criminal conviction. Like a criminal punishment, professional discipline punishes a violation of rules. Just as states have differing standards for impeachment by evidence of convictions, they also differ in their approaches to impeaching experts with evidence of misconduct. The Indiana Supreme Court noted that the admissibility of evidence of professional discipline to impeach an expert had not been definitively determined in Indiana.
Evidence of Probationary License Held Admissible
The court’s analysis begins with the words: “Expert testimony is a valuable litigation tool.” The court also recognized the prevailing rule that if an expert’s opinion is based on a reliable methodology and adequate facts, it is up to the jury to decide whether the expert is credible.
The court held that discipline and the reasons for it may be relevant to an expert’s credibility if the discipline limits professional licensure. The devil is in the details — in this case, the standard that separates cases in which discipline is relevant from those in which it is not.
The court held that evidence of Dr. Paschall’s licensure probation was relevant to his credibility because placing the license on probation affected Dr. Paschall’s “professional qualifications.” The court did not explain why a limitation on a license that does not exist at the time services are provided or testimony is given should affect an expert’s qualifications to render an opinion. Nor did the court decide whether discipline that does not affect license status, such as a censure or caution, would also be relevant.
The court seemed to suggest a blanket rule that professional discipline affecting the status of a professional license is relevant. The next question is whether the relevance is outweighed by the prejudicial impact it might have on a party’s case.
The court noted that Dr. Paschall was placed on probation shortly after he first examined Manning, although the probation ended before he testified. The court determined that the evidence was not unduly prejudicial under those circumstances. Perhaps the passage of a longer time between the imposition of discipline and the expert’s professional services would reduce the probative value of the discipline, changing the balance of relevance and prejudice.
Reasons for Probationary License Held Inadmissible
The court held, without explaining why, that the reasons for a licensing authority’s actions may be admissible. In this case, however, the reasons for placing Dr. Paschall on probation could not be admitted.
Only convictions for specified crimes may be used to impeach a witness in Indiana. Dr. Paschall was not convicted of any of those crimes, so the convictions could not be used to impeach him.
The failure to disclose the convictions was arguably fraudulent conduct that affected Dr. Paschall’s credibility. Indiana law, however, does not permit specific instances of misconduct to be used to attack “character for truthfulness” unless another witness has given an opinion about the witness’ character. Since no witness vouched for Dr. Paschall’s truthfulness, evidence of misconduct was not admissible to attack his credibility.
The trial court erred by disallowing testimony that Dr. Paschall was given a probationary license after he examined Manning. The court concluded, however, that the error did not have a significant effect on the verdict.
The insurance company attorney attacked Dr. Paschall’s credibility in other ways. Dr. Paschall admitted that he failed part of a board certification exam twice before passing it, that he had been hired by Manning’s attorney in the past, and that he did not review all medical records that the insurance company lawyer deemed relevant to Manning’s condition. The majority concluded that impeaching Dr. Paschall with evidence that he was once placed on probation would have added little to that attack.
The insurance company attorney also present two expert witnesses who disagreed with Dr. Paschall, including a forensics biomechanical engineer and a neurosurgeon. If the jury found in Manning’s favor in the face of all that conflicting evidence, it would likely have done so even if it knew about Dr. Paschall’s professional discipline.
Finally, the jury heard testimony from other witnesses about the impact of the injuries on Manning’s life. The jury thus had a basis for awarding substantial damages apart from Dr. Paschall’s testimony.
A dissenting judge concluded that the impeachment evidence might have affected the verdict. That judge would have remanded the case for a new trial. The case serves as a reminder that counsel should be prepared to address any sanctions that a licensing body has imposed upon an expert and should consider those sanctions when deciding whether the expert is appropriate for the case.