                     IN THE

Indiana Supreme Court
         Supreme Court Case No. 19S-CT-18
                                                                FILED
                Levetta Tunstall,
                                                            Jun 26 2019, 1:33 pm

                                                                CLERK
                 Appellant (Defendant)                      Indiana Supreme Court
                                                               Court of Appeals
                                                                 and Tax Court



                          –v–

                Dawn Manning,
                   Appellee (Plaintiff)


   Argued: February 14, 2019 | Decided: June 26, 2019

        Appeal from the Marion Superior Court
                No. 49D14-1602-CT-7366
         The Honorable James B. Osborn, Judge

On Petition to Transfer from the Indiana Court of Appeals
                No. 49A04-1711-CT-2572



            Opinion by Chief Justice Rush
         Justices David, Massa, and Goff concur.
    Justice Slaughter dissents with separate opinion.
Rush, Chief Justice.

    This case presents an issue of first impression for this Court: may a
party use evidence of an expert witness’s professional disciplinary history
to challenge the expert’s credibility? Here, an expert–doctor testified that
the plaintiff suffered permanent injury from an auto accident. And the
defendant was not permitted to introduce evidence that the expert’s
medical license had previously been on probation or evidence of the
reasons underlying the expert’s past professional discipline.

    Today, we hold that both types of evidence—an expert witness’s
professional-licensure status and the reasons for professional discipline—
may be admissible to challenge the expert’s credibility. Under the facts of
this case, the trial court abused its discretion when it excluded evidence
that the expert–doctor’s medical license had been on probation—though
the error was harmless. And the trial court properly excluded evidence of
the reasons for the doctor’s professional discipline, as that evidence was
inadmissible under certain evidentiary rules. We thus affirm the jury’s
verdict in the plaintiff’s favor.


Facts and Procedural History
   On a clear, dry afternoon, Dawn Manning was waiting at a stop sign in
her vehicle when she was rear-ended by Levetta Tunstall. Manning pulled
over and immediately began experiencing head and neck pain. Although
she declined an ambulance, Manning later went to the emergency room—
leaving the hospital that evening with a neck brace and pain medication.

    Over the next several months, Manning tried various treatments for her
ongoing pain. Months of twice-weekly chiropractor appointments yielded
little improvement, so Manning stopped going and turned to other
doctors. A family doctor’s x-rays, and a spine specialist’s MRIs, of her
spine came back normal. The spine specialist offered injections, but
Manning declined them because they could be ongoing for the rest of her
life.

  Then, nearly a year after the accident, Manning went to see Dr. Stephen
Paschall. Manning reported a constant ache in her neck and regular back


Indiana Supreme Court | Case No. 19S-CT-18 | June 26, 2019         Page 2 of 12
spasms that lasted up to thirty seconds. Dr. Paschall observed a reduced
range of motion in Manning’s cervical spine and took x-rays that indicated
a significant loss of motion segment integrity in her spine. Based on the
medical exam, the doctor concluded that Manning had reached
“maximum medical improvement” with 28% impairment of her whole
body, and that the injury resulted from the auto accident.

   Manning sued Tunstall. Before trial, Manning’s counsel deposed Dr.
Paschall. Toward the end, Tunstall’s counsel asked the doctor about his
professional disciplinary history—starting with whether his license had
ever been on probation, revoked, or suspended.

    Dr. Paschall admitted that his medical license had previously been on
probation, but he would not answer questions about reasons underlying
his past professional discipline.

    The day before trial, Tunstall moved to compel Dr. Paschall to answer
those unanswered deposition questions and reasonable follow-up
questions. The trial court denied Tunstall’s motion, reasoning that Dr.
Paschall’s professional disciplinary history was not relevant because his
medical license was in good standing at the time of trial. Ultimately, this
meant the trial court would not admit any evidence about Dr. Paschall’s
licensure probation or the reasons for his past professional discipline.

   At the jury trial, Manning testified—as did her parents, best friend,
and boyfriend—about the negative changes in her disposition and lifestyle
since the accident. The only medical testimony Manning presented was
from Dr. Paschall’s deposition. Tunstall, on the other hand, called two
expert witnesses, both of whom disagreed with Dr. Paschall’s assessment
of Manning’s condition.

    In the end, the jury found in Manning’s favor and awarded $1.3
million in damages.

    Tunstall appealed, arguing in part that the trial court abused its
discretion by not allowing the jury to hear testimony that Dr. Paschall’s
license was, at one time, placed on probation and testimony about the
reasons for the doctor’s past professional discipline. A split panel of the
Court of Appeals disagreed and affirmed the jury’s verdict. Tunstall v.


Indiana Supreme Court | Case No. 19S-CT-18 | June 26, 2019          Page 3 of 12
Manning, 107 N.E.3d 1093, 1098–99, 1102 (Ind. Ct. App. 2018). Judge Baker
dissented, believing that excluding evidence of Dr. Paschall’s professional
disciplinary history was reversible error. Id. at 1102–03 (Baker, J.,
dissenting).

   Tunstall petitioned for transfer, which we granted, vacating the Court
of Appeals opinion. Ind. Appellate Rule 58(A).


Standard of Review
    This case involves the admissibility of two related, but distinct, types
of evidence to impeach an expert witness. The first is evidence of an
expert witness’s professional licensure status—that is, evidence that an
expert’s professional license has ever been, or is currently, limited in some
way. The second is evidence of the reasons for past professional
discipline.

   Here, the trial court excluded both types of evidence. To the extent the
court’s ruling depended on a legal question—whether certain evidence is
generally admissible for impeachment—we review the ruling de novo. See
Fairbanks v. State, 119 N.E.3d 564, 567 (Ind. 2019). But to the degree the
ruling did not raise a question of law, we review it for an abuse of
discretion. Id.


Discussion and Decision
    Expert testimony is a valuable litigation tool. And it is particularly
significant when, in cases like this, competing expert testimony offers
different conclusions on the seriousness of an auto-accident injury.

    A trial court may admit expert testimony if it “will help the trier of fact
to understand the evidence or to determine a fact in issue” and, for expert
scientific testimony, if it “rests upon reliable scientific principles.” Ind.
Evidence Rule 702. Once these conditions are met and the 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.” Bennett



Indiana Supreme Court | Case No. 19S-CT-18 | June 26, 2019           Page 4 of 12
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) (plurality opinion)).

   There is no dispute that Dr. Paschall’s expert testimony met the
requirements of Indiana Evidence Rule 702; the dispute is whether the
credibility of his expert opinion could be attacked by evidence of his
professional disciplinary history.

   Tunstall argues that it was an abuse of discretion to bar evidence of Dr.
Paschall’s past licensure status and the reasons for his past professional
discipline. She maintains that this evidence was relevant to the credibility
of Dr. Paschall’s opinion—the only medical testimony supporting
Manning’s permanent-injury claim.

   Manning responds that the trial court properly excluded evidence of
Dr. Paschall’s professional disciplinary history, as it was either irrelevant
or otherwise barred by our evidentiary rules.

   Both parties are partially correct. The trial court abused its discretion in
excluding evidence that Dr. Paschall’s license was on probation
previously, but the court correctly barred evidence of the reasons for the
past professional discipline. Because we find the trial court’s evidentiary
error harmless, we affirm the judgment.1


    I.   Evidence of both an expert witness’s
         professional licensure status and the reasons for
         professional discipline may be admissible to
         impeach that expert’s credibility.
   Our Court of Appeals has addressed the admissibility of professional
disciplinary history on two occasions.

   First, in Fridono v. Chuman, the court held that the modification,
restriction, or termination of an expert witness’s medical-staff privileges



1On all other issues, we summarily affirm the decision of the Court of Appeals. See App. R.
58(A)(2).



Indiana Supreme Court | Case No. 19S-CT-18 | June 26, 2019                        Page 5 of 12
was admissible to impeach that expert’s credibility. 747 N.E.2d 610, 620
(Ind. Ct. App. 2001), trans. denied. But the reasons for those final
disciplinary actions were inadmissible because they were a peer-review
committee’s opinions and discussions, which are protected by statute. Id.
at 617–19; see Ind. Code § 34-30-15-9 (2018).

   Later, the court in Linton v. Davis likewise held that a testifying expert–
doctor’s licensure status was admissible for impeachment purposes. 887
N.E.2d 960, 969 (Ind. Ct. App. 2008), trans. denied. Relying on Fridono,
Linton held that the Medical Licensing Board’s specific findings in
reaching the licensure-status decision were inadmissible. Linton, 887
N.E.2d at 969.

    Although both Fridono and Linton rightly recognized that evidence of a
testifying expert’s professional licensure status may be admissible for
impeachment purposes, the Linton panel misunderstood why, in Fridono,
the reasons for the final disciplinary action were inadmissible. It was not
because our rules of evidence precluded admission; it was because the
peer-review statute did. See Fridono, 747 N.E.2d at 617–19; I.C. § 34-30-15-
9. That statute, however, did not apply to the Medical Licensing Board’s
findings in Linton. Nor did a similar statute bar the Board’s findings from
a judicial proceeding. Thus, Linton is overly restrictive, and we disapprove
its holding that our rules of evidence generally prohibit admitting
evidence—to impeach an expert witness—of the reasons for professional
disciplinary action.

   Both types of professional disciplinary history—limitations on
professional licenses and the reasons underlying professional discipline—
may be relevant to an expert’s credibility. And an expert’s credibility goes
to the weight a jury assigns to that witness’s testimony. That weight, in
turn, may directly affect the outcome of the case. After all, the trial court
allows expert testimony only if it will help the jury “to understand the
evidence” presented or “to determine a fact in issue.” Evid. R. 702(a).

  So when a testifying expert has been subject to professional discipline,
both an expert’s professional licensure status and the reasons for
professional discipline may be admissible to impeach that expert’s




Indiana Supreme Court | Case No. 19S-CT-18 | June 26, 2019           Page 6 of 12
credibility. But the evidence’s admissibility is subject to statutory
restrictions and specific rules of evidence.

  We now turn to whether the trial court abused its discretion when it
excluded both types of evidence about Dr. Paschall’s licensure history.


II.     The trial court abused its discretion when it
        excluded evidence of Dr. Paschall’s licensure
        probation, but it properly excluded evidence of
        the reasons for the doctor’s past professional
        discipline.
  Here, the trial court excluded two types of evidence relating to Dr.
Paschall’s professional disciplinary history—evidence that his license had
been on probation previously and evidence of the reasons for his past
professional discipline. As explained below, the court should have
admitted the former, but it properly excluded the latter.


    A. Evidence of the doctor’s past licensure status was
       relevant and had significant probative value.
   In excluding evidence about Dr. Paschall’s past licensure probation, the
trial court reasoned that the evidence lacked relevance because the
doctor’s license was in good standing at the time of trial. But that ruling
was an abuse of discretion. Evidence of the licensure probation was
admissible to impeach the doctor because it was relevant to his credibility
and its probative value outweighed any prejudicial effect. See Evid. R. 401,
402, 403.

   Manning presented Dr. Paschall’s testimony to establish his diagnosis
of her injury. Thus, the doctor’s professional qualifications—including
that his medical license had previously been on probation—were relevant
to the credibility of his medical opinion. See Evid. R. 401, 402; see also
Mousseau v. Schwartz, 756 N.W.2d 345, 359 (S.D. 2008) (holding that an
expert–neurosurgeon’s licensure probation was relevant to the credibility
of the expert’s testimony in the field of neurosurgery).



Indiana Supreme Court | Case No. 19S-CT-18 | June 26, 2019              Page 7 of 12
   Still, relevant evidence must pass Indiana Evidence Rule 403’s
balancing test. Sims v. Pappas, 73 N.E.3d 700, 707 (Ind. 2017). Under Rule
403, a court may exclude relevant evidence “if its probative value is
substantially outweighed by a danger of . . . unfair prejudice, confusing
the issues, misleading the jury, undue delay, or needlessly presenting
cumulative evidence.” Evid. R. 403.

  Here, the probative value of the licensure-probation evidence
outweighed any of Rule 403’s dangers. Dr. Paschall was the only medical
expert to testify on Manning’s behalf, and his medical license was placed
on probation only a few months after he first examined Manning.

  Thus, the trial court should not have excluded this evidence. The jurors
were entitled to hear it and assess whether it affected their view of the
doctor’s expert testimony.


    B. Evidence of the reasons for the doctor’s past
       professional discipline was barred by specific
       evidentiary rules.
   Tunstall also tried to impeach Dr. Paschall’s testimony with evidence of
the reasons for his professional discipline. These reasons included two
prior misdemeanor convictions and two other acts of misconduct. Because
this evidence was inadmissible for impeachment under certain
evidentiary rules, the trial court properly excluded it.

   Over the years, the Medical Licensing Board of Indiana received two
complaints from the State against Dr. Paschall. After the first, the doctor
entered into a settlement agreement, stipulating that he had “engaged in
fraud or material deception” by failing to disclose, on his online medical-
license renewal application, a pending criminal violation. The Board
approved the agreement and imposed disciplinary sanctions.

   The second complaint alleged that Dr. Paschall violated the standards
of professional practice in multiple ways. The Board found him in
violation for three reasons—two involved misdemeanor convictions, and
the third concerned a failure to maintain controlled-substance dispensing




Indiana Supreme Court | Case No. 19S-CT-18 | June 26, 2019         Page 8 of 12
records. As a result, the Board imposed discipline that included placing
the doctor’s medical license on probation for at least one year.

   The trial court did not abuse its discretion when it excluded evidence of
these reasons for Dr. Paschall’s professional discipline, because that
evidence is inadmissible under Indiana Evidence Rules 608 and 609.

   First, the misdemeanor convictions are inadmissible under Rule 609.
Although this rule permits impeachment by certain criminal convictions,
the misdemeanor convictions here fall outside the rule’s scope. See Evid.
R. 609(a).

    Second, the other reasons—that Dr. Paschall engaged in “fraud or
material deception” to receive his license and that he failed to maintain
required records—are inadmissible under Rule 608(b). This rule 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.” Evid.
R. 608(b); see also 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.”). Rule
608(b)’s limitation extends to both proof of and reference to specific acts of
misconduct. See Turnbow v. State, 637 N.E.2d 1329, 1332 (Ind. Ct. App.
1994) (holding that it is improper to cross-examine a witness on prior acts
of misconduct when this evidence is directed only to the credibility and
character of that witness), trans. denied; see also 12 Robert Lowell Miller, Jr.,
Indiana Practice, Indiana Evidence § 608.201 (4th ed. 2016).

   Here, Tunstall tried to use extrinsic evidence to attack Dr. Paschall’s
credibility. She presented him with a copy of the settlement agreement
and attempted to question him about its specific findings. She also asked
him if his licensure probation was “with regard to failure to maintain
controlled substance dispensing records?” But under Rule 608(b),
evidence of these prior, uncharged acts was inadmissible to impeach the
doctor.

   Thus, the trial court did not abuse its discretion when it excluded
evidence of the reasons for Dr. Paschall’s past professional discipline. But



Indiana Supreme Court | Case No. 19S-CT-18 | June 26, 2019             Page 9 of 12
because it should not have excluded evidence of his licensure probation,
we now assess whether that error was harmless.


III.    Excluding evidence of Dr. Paschall’s licensure
        probation was harmless error.
   Tunstall argues that excluding evidence of Dr. Paschall’s licensure
probation was reversible error, not harmless error, because it “depriv[ed]
the jury of the opportunity to accurately assess [his] credibility in the face
of contrary expert evidence.” Manning disagrees.

   An error excluding evidence is harmless if “its probable impact on the
jury, in light of all of the evidence in the case, is sufficiently minor so as
not to affect the defendant’s substantial rights.” Rohr v. State, 866 N.E.2d
242, 246 (Ind. 2007) (quoting Williams v. State, 714 N.E.2d 644, 652 (Ind.
1999)); see also App. R. 66(A); Ind. Trial Rule 61. When making this
determination, we consider the evidence’s likely impact on a reasonable,
average jury. See Bonner v. State, 650 N.E.2d 1139, 1141–42 (Ind. 1995).

   On this record, we conclude that the trial court’s error was harmless for
two reasons. First, even without the excluded evidence, Tunstall
throughout trial methodically attacked Dr. Paschall’s credibility and his
diagnosis of Manning’s condition. Second, Manning presented substantial
and consistent testimony about how her injury has had a significant,
permanent impact on her life.

   To start, Tunstall attacked Dr. Paschall’s credibility during opening
argument in several ways: highlighting that he failed part of a board
certification exam twice and never became board certified; arguing that he
was in the business of performing medical examinations and that he
worked with Manning’s counsel previously; saying that, when making his
conclusions, he didn’t review all the records that may have been pertinent;
and noting that he never said his opinions were to the degree of medical
certainty. In short, before the jury heard Dr. Paschall’s testimony, Tunstall
cast doubt on his credibility.




Indiana Supreme Court | Case No. 19S-CT-18 | June 26, 2019           Page 10 of 12
   Then, when the jury watched Dr. Paschall’s deposition, they saw
Tunstall spend nearly half of it forcefully cross-examining him on his
credibility and conclusions.

   And the jury later heard testimony from Tunstall’s two expert
witnesses, who also attacked Dr. Paschall’s credibility and assessment of
Manning’s condition. Forensics biomechanical engineer Dr. Ana Barbir
disagreed with Dr. Paschall’s conclusion that Manning could have
suffered a permanent injury from a one-time low-speed impact event.
Similarly, neurosurgeon Dr. David Steiman opined that Manning’s
medical records revealed “no permanent partial impairment rating
whatsoever” and that Dr. Paschall “rated her wrong.”

   As a result, the fact that Dr. Paschall’s medical license had been on
probation would have been a small drop in the large bucket of Tunstall’s
evidence attacking Dr. Paschall’s credibility. See Zanders v. State, 118
N.E.3d 736, 754 (Ind. 2019).

    In addition to hearing the doctor’s credibility undermined, the jury
also heard substantial and consistent testimony on the significant,
permanent impact of Manning’s injury. See Murphy v. State, 265 Ind. 116,
128, 352 N.E.2d 479, 486 (1976) (“The weight to be accorded expert
testimony, as well as lay testimony, is the exclusive province of the [jury]
which is at liberty to discount it or to reject it in the face of lay testimony
which it finds more persuasive.”).

    Manning testified that since the accident, she has been unable to
exercise and has given up her modeling career—two activities she misses
the most. She also explained that she cannot work as much as she used to
at her father’s tax business.

    And Manning’s parents, best friend, and boyfriend described how she
has not been herself since the accident. They said that Manning has shown
signs of depression and anxiety, she has more mood swings, and her
overall attitude has deteriorated. Manning and her boyfriend have also
suffered intimacy issues. Expert testimony aside, this evidence supports
the negative effects and permanent nature of Manning’s injury.




Indiana Supreme Court | Case No. 19S-CT-18 | June 26, 2019            Page 11 of 12
   For these reasons, we cannot conclude that the trial court’s improper
exclusion of Dr. Paschall’s one-time licensure probation affected Tunstall’s
substantial rights. Accordingly, this evidentiary error does not require
reversal.


Conclusion
   We hold that an expert witness’s professional licensure status and the
reasons for professional discipline may be admissible to impeach that
expert’s credibility. The trial court abused its discretion here by excluding
evidence that Dr. Paschall’s medical license had previously been on
probation. But because we find that error was harmless, we affirm the
jury’s verdict.


David, Massa, and Goff, JJ., concur.
Slaughter, J., dissents with separate opinion.



ATTORNEYS FOR APPELLANT
Brian J. Paul
Harmony A. Mappes
Jason M. Rauch
Faegre Baker Daniels LLP
Indianapolis, Indiana

ATTORNEY FOR APPELLEE
Ronald S. Todd
Ronald S. Todd, P.C.
Noblesville, Indiana

ATTORNEYS FOR AMICUS CURIAE
INDIANA TRIAL LAWYERS ASSOCIATION
Daniel J. Buba
Thomas C. Doehrman
Doehrman●Buba
Indianapolis, Indiana




Indiana Supreme Court | Case No. 19S-CT-18 | June 26, 2019         Page 12 of 12
Slaughter, J., dissenting.

   I agree that the trial court abused its discretion in excluding evidence of
Dr. Paschall’s past licensure status. This evidence was relevant to his
credibility as a medical expert and had significant probative value. But its
exclusion was not harmless. I would reverse the trial court’s judgment for
Manning and remand for a new damages trial.

   Dr. Paschall’s testimony was the lynchpin of Manning’s case. The
record shows that the doctor has twice received professional discipline
from Indiana’s licensing authority since 2009—the more recent occurring
only months after he examined Manning. Because of the trial court’s
evidentiary ruling, the jury never learned of the doctor’s troubled record. I
do not take issue with the Court’s conclusion that Evidence Rule 608(b)
prevented Tunstall from impeaching the doctor with “specific instances”
of his prior misconduct. But that rule did not foreclose her from
impeaching the doctor with the fact of his prior discipline. Even if the jury
could not learn the “specific instances” of misconduct prompting the
doctor’s discipline, a reasonable jury would diminish the weight it
assigned to the testimony of a doctor sanctioned not once but twice,
especially when considering his testimony against that of two other
experts without such baggage.

   The Court holds otherwise. It concludes that no reasonable jury would
have been swayed by this evidence because Tunstall challenged Dr.
Paschall’s testimony in other ways during the trial. True enough. But such
challenges do not carry the same weight as official sanctions by a medical
licensing board charged with deciding who is fit to practice medicine. The
fact and recency of Dr. Paschall’s past professional discipline persuade me
that this evidence likely would influence how a reasonable jury weighs his
testimony. In my view, the exclusion of this evidence was not only
erroneous but also prejudicial.

  For these reasons, I respectfully dissent.
