                                                                             FILED
                                                                      Aug 20 2018, 8:34 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Brian J. Paul                                              Ronald S. Todd
Harmony A. Mappes                                          Noblesville, Indiana
Jason M. Rauch
Indianapolis, Indiana                                      ATTORNEYS FOR AMICUS
                                                           CURIAE INDIANA TRIAL
                                                           LAWYERS ASSOCIATION
                                                           Thomas C. Doehrman
                                                           Daniel J. Buba
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Levetta Tunstall,                                          August 20, 2018
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           49A04-1711-CT-2572
        v.                                                 Appeal from the Marion Superior
                                                           Court
Dawn Manning,                                              The Honorable James B. Osborn,
Appellee-Plaintiff                                         Judge
                                                           Trial Court Cause No.
                                                           49D14-1602-CT-7366



Altice, Judge.




                                           Case Summary

Court of Appeals of Indiana | Opinion 49A04-1711-CT-2572 | August 20, 2018                    Page 1 of 21
[1]   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.


[2]   We affirm.1


                                          Facts & Procedural History


[3]   On the afternoon of October 24, 2014, Manning – age thirty-one – was stopped

      at a stop sign preparing to turn right out of her apartment complex onto

      Georgetown Road in Indianapolis. Tunstall approached from behind, did not

      realize that Manning was still at the intersection, and hit her brakes and

      swerved just before colliding with Manning’s vehicle. The right front of

      Tunstall’s vehicle struck the left corner of Manning’s rear bumper, pushing

      Manning’s vehicle into Georgetown Road. Fortunately, no on-coming traffic



      1
          We held oral argument in Indianapolis on July 10, 2018.


      Court of Appeals of Indiana | Opinion 49A04-1711-CT-2572 | August 20, 2018   Page 2 of 21
      was present. The low-speed collision caused damage to Manning’s bumper and

      misalignment of Tunstall’s vehicle. After moving her vehicle out of traffic,

      Manning called 911 and her mother.


[4]   Manning began experiencing a headache and neck pain at the scene. She

      refused an ambulance but had her boyfriend drive her to the emergency room

      that same day. The emergency room physician treated Manning for whiplash,

      prescribing pain medicine and a muscle relaxant. When the pain did not

      subside over the next couple days, Manning returned to the emergency room

      and was told to seek chiropractic treatment. On November 14, 2014, she went

      to a chiropractor, complaining of bilateral posterior neck pain that radiated to

      her head and shoulders, headaches, and mid-back pain. After months of bi-

      weekly treatments, Manning experienced little relief from her pain.


[5]   In June 2015, Manning saw another doctor for her on-going neck and back

      pain. X-rays taken of her cervical and thoracic spine were normal. The doctor

      prescribed pain medication and a muscle relaxant and referred her to a spine

      specialist, Dr. Rick Sasso of the Indiana Spine Group. Manning was treated at

      Dr. Sasso’s office in July 2015. The impressions contained in the medical

      record of that visit indicate that Manning was suffering from significant cervical

      sprain, as well as an upper thoracic sprain. Dr. Sasso ordered an MRI, which

      returned unremarkable. Dr. Sasso recommended that Manning’s pain be

      managed with injections, but Manning was unwilling – at least at that point – to

      start regular injections that would potentially last the rest of her life. Dr. Sasso

      also recommended physical therapy and prescribed a muscle relaxant.

      Court of Appeals of Indiana | Opinion 49A04-1711-CT-2572 | August 20, 2018   Page 3 of 21
[6]   On September 22, 2015, Manning met with Dr. Steven Paschall – the medical

      expert she later retained for trial2 – for an independent medical examination.

      Manning complained of a constant ache in her neck, multiple daily neck

      spasms, and mid-back pain. Dr. Paschall inquired about the effects that her

      condition had on her activities of daily living. After a physical examination,

      which demonstrated a limited range of motion in her cervical spine, Dr.

      Paschall took several x-rays, including x-rays in flexion and in extension.3 The

      x-rays in flexion demonstrated “a significant angular motion segment integrity

      change at C4/5” with a loss of motion integrity of over twenty degrees. Id.

      Based on his independent examination of Manning, Dr. Paschall diagnosed her

      with “cervical spine ligament laxity, with alteration of motion segment

      integrity; thoracic strain, and limited cervical range of motion.” Id. at 11. Dr.

      Paschall opined that Manning had reached maximum medical improvement

      and suffered from a permanent injury/chronic pain as a result of the collision.

      He gave her a permanent partial impairment rating of twenty-eight percent.


[7]   Manning filed her complaint for damages on February 29, 2016. At the three-

      day trial in August 2017, in addition to Dr. Paschall’s video deposition,

      Manning presented the testimony of her mother and father, her best friend, her




      2
        Dr. Paschall is board certified in emergency medicine, which he practiced for about thirty years before
      retiring in 2012. Upon his retirement, he started a business called Medical Legal Consultants of Indiana.
      3
        “These are the types of x-rays that one obtains if one suspects someone has some type of motion segment
      integrity violation in their neck, which is commonly found in patients that have cervical ligament or muscle
      injury.” Transcript Vol. III at 10. Manning’s previous doctors had not performed x-rays in flexion and in
      extension.

      Court of Appeals of Indiana | Opinion 49A04-1711-CT-2572 | August 20, 2018                        Page 4 of 21
      boyfriend, and herself to establish the effect her chronic pain has had on her life

      since the accident. The pain limits her ability to stand or sit for extended

      periods of time, lift objects overhead or off the floor, wear heels, and participate

      fully in activities that she previously enjoyed, such as dancing, shopping, taking

      long walks, traveling, and high-adventure activities. Manning has become

      isolated and unable to enjoy her once-active lifestyle. Since the accident, she

      has become moody, depressed, and not her vivacious, outgoing self.

      Particularly devastating to Manning, she has been unable to continue her

      previously-active modeling career, and has gained a significant amount of

      weight due to her inability to work out and her mood. Although she has been

      able to continue working in her father’s seasonal tax business and as a real

      estate agent, her pain has limited the number of hours she can work.

      Manning’s long-term boyfriend emphasized that even three years after the

      accident, her quality of life was still negatively affected. He also noted the

      drastic change to their intimate relations since the accident, which has had an

      effect on their relationship.


[8]   Tunstall presented opposing expert testimony. Ana Barbir, a forensic

      biochemical engineer, testified that Manning’s alleged long-term injuries were

      not “consistent…with what’s known for biomechanical tests.” Id. at 175.

      Manning subjected Barbir to vigorous cross-examination. Dr. David Steinman,

      a neurosurgeon specializing in the cervical and lumbar spine, testified regarding

      his own independent medical examination of Manning and his review of her




      Court of Appeals of Indiana | Opinion 49A04-1711-CT-2572 | August 20, 2018   Page 5 of 21
       past medical records. In Dr. Steinman’s opinion, Manning had no permanent

       injuries and was a malingerer.


[9]    As set forth above, the jury returned a verdict in favor of Manning in the

       amount of $1.3 million. Tunstall filed a motion to correct error, arguing that

       the verdict was excessive and alleging juror misconduct. The trial court held a

       hearing on the motion to correct error on October 25, 2017, and then took the

       motion under advisement. On November 2, 2017, the trial court issued an

       order summarily denying the motion to correct error. Tunstall now appeals.

       Additional facts will be provided below as needed.


                                            Discussion & Decision


                                              1. Excessive Verdict


[10]   In considering whether a jury verdict is excessive, we do not reweigh the

       evidence and look only to the evidence and reasonable inferences that may be

       drawn therefrom that support the verdict. West v. J. Greg Allen Builder, Inc., 92

       N.E.3d 634, 643 (Ind. Ct. App. 2017), trans. denied. “If there is any evidence to

       support the amount of the award, even if it is conflicting, this court will not

       reverse.” Ritter v. Stanton, 745 N.E.2d 828, 843 (Ind. Ct. App. 2001), trans.

       denied. To warrant reversal, “the award must appear to be so outrageous as to

       impress the Court at first blush with its enormity.” Id. at 644 (internal

       quotation marks omitted). Where the award is so outrageous that it indicates

       the jury was motivated by passion, prejudice, partiality, or the consideration of

       improper evidence, we will find the award excessive. Groves v. First Nat’l Bank of

       Court of Appeals of Indiana | Opinion 49A04-1711-CT-2572 | August 20, 2018   Page 6 of 21
       Valparaiso, 518 N.E.2d 819, 831 (Ind. Ct. App. 1988), trans. denied. We will

       uphold a verdict if it “can be explained on any reasonable ground.” Berman v.

       Cannon, 878 N.E.2d 836, 840 (Ind. Ct. App. 2007), trans. denied.


[11]   “[A]wards for pain, suffering, fright, humiliation, and mental anguish are

       particularly within the province of the jury because they involve the weighing of

       evidence and credibility of witnesses.” Ritter, 745 N.E.2d at 845. Because

       physical and mental pain are not readily susceptible to quantification and

       cannot be calculated with mathematical certainty, the jury is given “very wide

       latitude” in determining such damages. Id. “Our inability to look into the

       minds of jurors and determine how they computed an award is, to a large

       extent, the reason behind the rule that a verdict will be upheld if the award falls

       within the bounds of the evidence.” Id.


[12]   Tunstall argues that the $1.3 million verdict in this case is excessive and urges

       us to engage in a comparative analysis of jury verdicts in other cases involving

       “a very common type of accident (a fender-bender) with very common alleged

       injuries (neck and back pain).” Appellant’s Brief at 29. For the reasons

       thoroughly addressed in Ritter, we reject this approach. See Ritter, 745 N.E.2d

       at 845-49. “The nature and extent of pain and suffering are seldom, if ever,

       alike in any two cases.” Id. at 849.


[13]   Here, the evidence favorable to the verdict reveals that although the collision in

       question was relatively minor, it resulted in painful injury to Manning and left

       her with a twenty-eight percent whole person permanent impairment.


       Court of Appeals of Indiana | Opinion 49A04-1711-CT-2572 | August 20, 2018   Page 7 of 21
       Manning, a young woman, now has chronic neck/back pain and neck spasms

       that limit her daily activities and have substantially affected her life. Before the

       accident, she was a successful model with several agencies and was extremely

       fit, working out at the gym on a near daily basis. She was extroverted, full of

       life, and had “energy…through the roof”. Transcript Vol. II at 221. She enjoyed

       being active, traveling, all-day shopping trips, long walks, dancing, and

       adventure. All this changed, when at the age of thirty-one, she was struck from

       behind by Tunstall. In the months after the accident, Manning suffered

       headaches and significant neck/back pain, which caused her to stay in bed and

       become despondent. She pursued various treatments and took prescribed

       medication, but she experienced little relief. She learned to limit her daily

       activities and made other changes to her life in attempts to reduce the pain and

       frequent neck spasms. Manning could no longer model or workout. She

       experienced significant weight gain, changes in her mood, and bouts of

       depression and anxiety. Her intimate relationship with her long-term boyfriend

       has also suffered. Years after the accident, Manning continues to live with

       pain, has substantial, daily limitations on regular life activities, and in many

       ways, cannot live the life she enjoyed before the accident.


[14]   Although the jury might have assessed higher damages than we would have, we

       are unpersuaded that the $1.3 million verdict in this case is great enough to be

       characterized as excessive. In other words, we cannot say as a matter of law

       that Manning’s pain and suffering since the accident and into the future is




       Court of Appeals of Indiana | Opinion 49A04-1711-CT-2572 | August 20, 2018   Page 8 of 21
       worth less than the jury’s award. The verdict fell within the bounds of the

       evidence, and Tunstall’s attempt to have us reweigh the evidence is improper.


                                 2. Dr. Paschall’s Disciplinary History


[15]   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.


[16]   A trial court’s determination regarding the admissibility of evidence is afforded

       great discretion. Linton v. Davis, 887 N.E.2d 960, 965 (Ind. Ct. App. 2008),

       trans. denied. We will find an abuse of discretion where the trial court’s ruling is

       against the logic and effect of the facts and circumstances before the trial court

       or the court misinterpreted the law. Id. Moreover, evidentiary error requires

       reversal only if it is inconsistent with substantial justice. Id. In determining

       whether to reverse, we assess the probable impact on the jury. Id.


[17]   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.

       Court of Appeals of Indiana | Opinion 49A04-1711-CT-2572 | August 20, 2018   Page 9 of 21
[18]   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.


[19]   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.


[20]   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 2.4 The trial court’s redaction of this portion of the

       deposition, if erroneous, was harmless at best.




       4
        During the deposition, rather than address the timing of Dr. Paschall’s one instance of probation, defense
       counsel attempted to ask a series of questions exploring the reasons for the discipline. Dr. Paschall refused to
       answer these questions. Tunstall openly acknowledges on appeal that testimony regarding the reasons for the
       discipline would not have been admissible at trial. Despite this, the dissent references the last-minute motion

       Court of Appeals of Indiana | Opinion 49A04-1711-CT-2572 | August 20, 2018                        Page 10 of 21
                                                3. Discharge of Juror


[21]   Less than an hour and one-half into deliberations, regular juror Mary Staton

       sent a note to the trial court. Staton indicated, “I don’t feel as we are close to a

       decision. I need to leave to pick up my grandson. Can I be excused?”

       Transcript Vol. IV at 146. After discussing the matter with counsel, the court

       refused the request and directed the jury to continue deliberating.


[22]   Over an hour later, the jury sent the court a note that said, “Your Honor, the

       jury cannot reach a verdict at this point due to the award amount. We find for

       the plaintiff, but can’t agree on the award. We are one million dollars apart

       with one juror unable, or unwilling to budge.” Id. at 148. Again, the court

       addressed the note with counsel and then instructed the jury to continue

       deliberating.


[23]   Forty-nine minutes later, the court received another note from juror Staton,

       who wrote, “I would like to be excused due to pain in my legs. Can the




       to compel that Tunstall filed on the eve of trial and eleven days after the deposition. In the motion, which
       was denied, Tunstall asked the trial court to compel Dr. Paschall to answer the unanswered questions from
       the deposition, as well as reasonable follow-up. Tunstall did not submit additional questions for the witness
       or request another deposition. A review of the unanswered questions reveals that the answers to these
       questions would not have been admissible, and the questions themselves were permeated with inadmissible
       references to criminal convictions.
       Additionally, we find the dissent’s reliance on Sneed v. Stovall, 22 S.W.3d 277 (Tenn. Ct. App. 1999) to be
       curious. In Sneed, the restrictions on the expert witness’s medical license were still in place at the time of trial
       – he was just over three years into his five-year term of probation. See id. at 278. Moreover, during the
       deposition, the witness was asked about the status of his medical license and whether he had been subject to
       any disciplinary proceedings. Unlike in the case at hand, the witness in Sneed untruthfully responded that he
       had not. See id. at 281 (defendants sought to impeach expert’s credibility “because of his untruthful answers
       under oath concerning prior disciplinary proceedings, and they [sought] to show his current status as a
       practicing physician”).

       Court of Appeals of Indiana | Opinion 49A04-1711-CT-2572 | August 20, 2018                            Page 11 of 21
       alternate take over in my absence? I hate to ask but I’m in pain and can’t take it

       any longer.” Id. at 149-50. Once again, the court spoke with counsel.

       Manning’s counsel stated that he did not have a problem with granting the

       juror’s request. Tunstall’s counsel then expressly indicated that she had no

       objection to the request either. The court brought the jury back into the

       courtroom, along with counsel (Tunstall’s counsel on the phone) and stated:


               I’ve received a note from Ms. Staton indicating that she’s having
               some problems, and I’ve discussed your request with the parties,
               and I think there’s an agreement that you can be released from
               your service, uh, based upon your having pain and experiencing
               it, and not being able to take it any longer. So, Ms. Staton you
               will be excused from the jury, and that means, Mr. Hill, you are
               now a juror as opposed to an alternate juror, and you could
               participate in the deliberations….


       Id. at 50-51. The jury deliberated for about forty more minutes and then issued

       its $1.3 million verdict.


[24]   Tunstall argues that the trial court committed fundamental error by discharging

       Staton without creating the appropriate record. Relying on Riggs v. State, she

       notes that once deliberations have begun, “the discharge of a juror is warranted

       only in the most extreme situations where it can be shown that the removal of

       the juror is necessary for the integrity of the process, does not prejudice the

       deliberations of the rest of the panel, and does not impair the parties [sic] right

       to a trial by jury.” 809 N.E.2d 322, 327-28 (Ind. 2004). Riggs requires a

       “carefully developed record as to the grounds for removal and also requires

       precautions to avoid inappropriate consequences from the removal.” Id. at 327.

       Court of Appeals of Indiana | Opinion 49A04-1711-CT-2572 | August 20, 2018   Page 12 of 21
[25]   There are several important differences between Riggs and this case. Staton –

       not the trial court – requested that the alternate replace her. Thus, the trial

       court did not remove a willing juror. Further, unlike in Riggs, Staton’s

       replacement was not based on her being “a dissenting juror” or due to any

       misconduct.5 Id. at 327. Staton was dismissed because she was experiencing

       pain in her legs during deliberations, and the trial court informed the remaining

       jurors that this was the reason for her removal. The most notable distinction is

       that Tunstall affirmatively agreed to the removal of Staton, while in Riggs, the

       defendant vehemently and repeatedly objected.


[26]   We assume, arguendo, that the trial court’s failure to fully comply with the

       developed-record requirements set forth in Riggs amounted to structural error.

       See Durden v. State, 99 N.E.3d 645, 654 (Ind. 2018). The record, nevertheless,

       establishes that Tunstall invited the error when her counsel affirmatively agreed

       to the removal of Staton. See id. at 655-56 (invited-error doctrine precluded a

       remedy for the defendant’s claim of structural error); see also Brewington v. State,

       7 N.E.3d 946, 975 (Ind. 2014) (“fundamental error gives us leeway to mitigate

       the consequences of counsel’s oversights, but invited error precludes relief from

       counsel’s strategic decisions gone awry”). Tunstall’s counsel was in the best

       position to observe Staton throughout trial and to make a reasoned decision




       5
         In Riggs, “the actions leading to the dismissal arose from the deliberations.” Id. at 328. Our Supreme Court
       found dismissal unwarranted in that case, explaining: “Removal of a juror for misconduct requires more than
       a refusal to negotiate further. If there were a showing of physical confrontation, or attempts to intimidate
       other jurors, then removal may be permissible. But this record does not establish these extreme modes of
       conduct.” Id. (internal citation omitted).

       Court of Appeals of Indiana | Opinion 49A04-1711-CT-2572 | August 20, 2018                      Page 13 of 21
       whether to keep her on the jury. Further, counsel knew that one juror –

       possibly Staton – was $1 million away from the verdict proposed by the rest of

       the jury. Based on the record, we conclude that Tunstall engaged in a rational,

       albeit unsuccessful, trial strategy. She cannot now be heard to complain.


                                              4. Juror Misconduct


[27]   Finally, Tunstall argues that she is entitled to a new trial due to juror

       misconduct. She directs our attention to an affidavit made by Staton (and

       prepared by Tunstall’s counsel) just shy of a month after the trial. Staton

       sought out defense counsel after learning of the verdict and expressed her

       disagreement with the amount of the verdict. According to Staton’s affidavit, a

       juror named Michelle shared during deliberations that she had been treated by

       Dr. Sasso, one of Manning’s physicians, for similar back injuries. Based on her

       own experience with that doctor, Michelle maintained that the doctor would

       not have “ordered the MRI or prescribed injections unless he saw something.”

       Appellant’s Appendix Vol. 2 at 81. The trial court denied Tunstall’s motion to

       correct error in which she alleged juror misconduct.


[28]   A trial court’s ruling with respect to a motion to correct error carries a strong

       presumption of correctness and will be reversed only for an abuse of discretion.

       S. Bend Clinic, Inc. v. Kistner, 769 N.E.2d 591, 592 (Ind. Ct. App. 2002). A

       defendant who seeks a new trial based on alleged juror misconduct generally

       must demonstrate that the conduct was gross and that it probably harmed the

       defendant. Id. For juror misconduct cases not involving out-of-court


       Court of Appeals of Indiana | Opinion 49A04-1711-CT-2572 | August 20, 2018   Page 14 of 21
       communications with unauthorized persons, prejudice must be affirmatively

       demonstrated; it will not be presumed. Id.; see also Ramirez v. State, 7 N.E.3d

       933, 938 (Ind. 2014) (“the ‘probable harm’ standard [is] reserved for juror

       misconduct cases not involving out-of-court communications with

       unauthorized persons—that is, that the misconduct is “gross” and “probably

       harmed the defendant”).


[29]   Although a verdict may not normally be impeached by juror testimony, an

       exception exists where “extraneous prejudicial information was improperly

       brought to the jury’s attention”. Ind. Evidence Rule 606(2)(B); see also Kistner,

       769 N.E.2d at 593 (“exception to this general rule occurs when there is evidence

       demonstrating that the jury was exposed to improper, extrinsic material during

       its deliberations, and when a substantial possibility exists that the verdict was

       prejudiced by the improper material”).


[30]   Tunstall acknowledges that jurors are allowed, and even encouraged and

       instructed, to bring their common sense, knowledge, and general personal

       experience to deliberations.6 But she argues that the statements made by

       Michelle, as well as Michelle’s personal opinions, go “beyond the kind of

       general knowledge that a juror might appropriately bring to deliberations; it is

       specific knowledge about a specific person involved in this specific case. This




       6
        In this case, the jury was specifically instructed by the trial court: “In deciding what or whom you believe,
       you should use your own knowledge, experience, common sense – and common sense gained from day-to-
       day living.” Transcript Vol. II at 74.

       Court of Appeals of Indiana | Opinion 49A04-1711-CT-2572 | August 20, 2018                        Page 15 of 21
       infiltration of outside information and bias provides an independent basis for

       granting a new trial.” Appellant’s Brief at 48.


[31]   We conclude that Staton’s affidavit does not amount to evidence warranting a

       new trial.7 Michelle’s statements were based on her own knowledge and

       common sense. See Naumoski v. Bernacet, 799 N.E.2d 58, 63 (Ind. Ct. App.

       2003) (“We no longer expect or wish for our jurors to ignore the knowledge

       with which they enter the courtroom.”), trans. denied. That is, she had been

       treated by Dr. Sasso in the past and her experience and common sense

       indicated that Dr. Sasso would not order an MRI and spinal injections if his

       patient was entirely healthy. Further, Dr. Sasso was not a testifying witness,

       and his credibility was not at issue. In fact, Tunstall’s own medical expert

       relied on the records and MRI from Dr. Sasso’s treatment of Manning.


[32]   In sum, we cannot say that there was a substantial possibility that Michelle’s

       statements prejudiced the verdict. See Stephenson v. State, 742 N.E.2d 463, 477

       (Ind. 2001) (“extrinsic or extraneous material brought into deliberation may be

       grounds for impeaching a verdict where there is a substantial possibility that

       such extrinsic material prejudiced the verdict”). Nor do we believe that her

       statements constituted gross misconduct. See Naumoski, 799 N.E.2d at 63 (we

       instruct jurors to use the knowledge with which they enter the courtroom, so “it




       7
        We note that the trial court impliedly questioned Staton’s credibility. At the hearing on the motion to
       correct error, the court noted that Staton “didn’t have the courage to stay in that room and fight for her
       beliefs and wanted out” and then returned after the verdict to try to “nullify” it. Transcript Vol. IV at 170.

       Court of Appeals of Indiana | Opinion 49A04-1711-CT-2572 | August 20, 2018                           Page 16 of 21
       cannot be gross misconduct to do precisely what the court instructed the jurors

       to do”). Accordingly, the trial court did not abuse its discretion in refusing to

       grant a new trial on this ground.


[33]   Judgment affirmed.


[34]   Kirsch, J., concurs.


[35]   Baker, J., dissents with opinion.




       Court of Appeals of Indiana | Opinion 49A04-1711-CT-2572 | August 20, 2018   Page 17 of 21
                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Levetta Tunstall,                                          Court of Appeals Case No.
                                                                 49A04-1711-CT-2572
      Appellant-Defendant,

              v.

      Dawn Manning,
      Appellee-Plaintiff




      Baker, Judge, dissenting.


[1]   I respectfully dissent because I disagree with the majority’s conclusion

      regarding Dr. Paschall’s testimony.


[2]   In Linton, this Court squarely held that “the licensure status of a physician who

      gives an expert opinion is admissible to impeach the doctor’s opinion.” Id. at

      969. Here, the trial court implicitly distinguished this case from Linton by

      finding that because Dr. Paschall’s license was in good standing at the time of

      trial, his disciplinary history was irrelevant and inadmissible.




      Court of Appeals of Indiana | Opinion 49A04-1711-CT-2572 | August 20, 2018             Page 18 of 21
[3]   I agree with Tunstall that this is a distinction without a difference. Although

      there is little Indiana caselaw on the issue, I find Sneed v. Stovall, 22 S.W.3d 277

      (Tenn. Ct. App. 1999), instructive. In that case, Sneed asserted that the trial court

      erroneously permitted Stovall to present proof of Sneed’s medical expert’s past

      conduct. The Sneed Court disagreed:


              Certainly, the truthfulness of the witness will be a matter of grave
              concern for the jury . . . . [The expert] was bound by the ethical
              rules of his profession, and yet engaged in a practice of deception
              for a number of years even though he knew that his acts could
              constitute grounds for revocation of his license. His veracity as a
              witness should surely be questioned by virtue of this conduct.


                                                        ***


              In short, the jury must determine whether [the expert’s]
              testimony . . . is truthful and in giving weight to his testimony,
              the jury should have the benefit of evidence concerning his
              veracity and character.


      Id. at 282. Ultimately, the court found that evidence regarding the expert’s past

      disciplinary history—not just his licensure status at the time of trial—was

      admissible. Id.


[4]   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

      Court of Appeals of Indiana | Opinion 49A04-1711-CT-2572 | August 20, 2018   Page 19 of 21
      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.


[5]   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.


[6]   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

      Court of Appeals of Indiana | Opinion 49A04-1711-CT-2572 | August 20, 2018   Page 20 of 21
      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.


[7]   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.




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