Cross Examination of Expert Witness

Swammi, Inc. v. Shambaugh, Beck, Kast, Williams, LLP (Ind. Ct. App. July 13, 2012)

In this case, the Court of Appeals affirmed a defense verdict in a legal malpractice action. Much of the decision discusses the waiver of claims and the sufficiency of arguments made on appeal. These lessons are important for appellate practitioners but are nothing new.

The most important aspect of the Court’s decision was its adoption of Tennessee law, which allows a party to impeach an opposing expert with questions regarding disciplinary actions filed against that expert. No Indiana court had addressed this question, but several out-of-state courts had done so. The Court of Appeals quoted at length from a Tennessee Court of Appeals decision, Sneed v. Stovall, 22 S.W.3d 277, 280-82 (Tenn. Ct. App. 1999), appeal denied. Quoting Sneed, our Court of Appeals explained that an expert’s prior conduct that led to disciplinary charges was relevant:

[T]he expert’s “veracity as a witness should surely be questioned by virtue of this conduct,” as he was, “in effect, pronouncing judgment as to the conduct of [a fellow professional].” Sneed, 22 S.W.3d at 282. As one who undertakes such a task is exposed to a determination of his own view of the profession by virtue of his own conduct, the jury should have the benefit of evidence concerning his veracity and character.

Surprisingly, the Court of Appeals designated this case as not-for-publication, despite its recognition that it was addressing a point of law that no Indiana court had previously addressed. Either party may ask the Court of Appeals to change this opinion to a “for publication.”

In the interests of full disclosure, William Ramsey, the editor and one of the authors of the IAL and author of this post, was one of the defense attorneys in this appeal.

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