Eastern District of Missouri Holds that Remoteness in Time Not Excuse for Excluding Impeachment Evidence of an Expert

The Eastern District of Missouri Court of Appeals reversed the Circuit Court of Cape Girardeau County’s exclusion of impeachment evidence of one of defendants’ experts.

The plaintiffs, Jimmie Sue and John Marchbank, filed suit against Amit Chakrabarty and Urologic Clinics of North Alabama, P.C., d/b/a Poplar Bluff Urology for injuries Jimmie Sue Marchbank suffered following a vaginal prolapse repair surgery. During the trial, Dr. Chakrabarty (who was also a non-retained expert) sought to exclude evidence of a prior disciplinary action taken against him by the Alabama Medical Licensure Commission and the Alabama Board of Medical Examiners in 2003. The trial court sustained Dr. Chakrabarty’s motion in limine to exclude his 2003 Alabama disciplinary action due to the “remoteness in time” and the lack of specific allegations in the action. At the conclusion of the trial, the jury returned a verdict in Dr. Chakrabarty’s favor, and the trial court entered judgment accordingly. Plaintiffs appealed, claiming the circuit court abused its discretion by excluding this evidence.

On appeal, the Court held that because plaintiffs sought to question Dr. Chakrabarty regarding his qualifications and skill as an expert witness, the circuit court abused its discretion in excluding this impeachment evidence. See Miller v. SSMHealth Care Corp., 193 S.W.3d 416, 421 (Mo. App. 2006) (finding jury entitled to know about expert witness’s professional organization censure because it could affect credibility); Kinser v. Elkadi, 674 S.W.2d 226, 236 (Mo. App. 1984) (finding a doctor’s hospital privileges “are legitimate subjects of inquiry when the physician testifies as an expert witness”). Plaintiffs should have been allowed to cross-examine Dr. Chakrabarty regarding his qualifications and skill as an expert witness.

The Court held that the exclusion of the prior disciplinary action was prejudicial to plaintiffs’ case in that the jury was not able to fully evaluate Dr. Chakrabaty’s credibility. Dr. Chakrabaty testified at trial that he was relying on his many years of experience as a urologist in forming or developing his expert conclusions. Those years included time when his medical license was on probation in Alabama and as such, the jury could consider this probation in determining his credibility. By withholding this information from the jury, the Court held that the trial court effectively determined that it was not an important consideration. “Factual determinations of matters in dispute, including the weighing of medical opinions, rest solely within the province of the jury. It is error for the court to declare as a matter of law a result or legal effect which is within the exclusive province of the jury to determine.” Kivland v. Columbia Orthopaedic Grp., LLP, 331 S.W.3d 299, 311 (Mo. banc 2011) (quoting Mitchell v. Kardesch, 313 S.W.3d 667, 683 (Mo. banc 2010). The Court reversed the opinion and remanded for new trial.

The impact of this opinion is that it effectively opens the door for the admissibility of any impeachment testimony against an expert. Despite the fact that the disciplinary action occurred over 20 years ago, the Appellate Court makes clear that impeachment evidence of an expert is not to be limited to time or “remoteness.” Rather, what the Court makes clear is that when it comes to an expert—someone whose credibility is of the utmost importance—just about anything goes.