February 12, 2019

Appellate Courts Aren’t Inclined to Correct Your Choices; Tunstall v. Manning

Category: Indianapolis Law Club | Author: | Share:

This case is an example of the general rule that an appellate court is not there to help a lawyer out. If you elect to take or not take a certain action, the Court is generally going to make you live with that decision.

Manning was stopped at a stop sign when she was hit from behind by Tunstall. The low-speed collision damaged Manning’s bumper, and she complained of head and neck pain at the scene. Manning was taken to the emergency room, where she was treated for whiplash. She has been treated for pain ever since but has experienced little relief.

Manning filed a complaint, and the case was tried to a jury. Manning presented both lay and expert evidence of her injuries. Tunstall’s experts called Manning a malingerer. The jury returned a verdict for Manning of $1.3 million. After having a motion to correct error denied, Tunstall appealed.

On appeal, Tunstall argued that the verdict was excessive, and asked the Court to compare it to verdicts in other, similar cases. The Court strongly rejected this approach and deferred to the jury.

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 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.

Tunstall next argued that the trial court abused its discretion when it did not allow Tunstall to cross-examine Manning’s expert about the fact that he had been disciplined by the Indiana Medical Licensing Board in the past. The expert was apparently disciplined for “fraud or material deception in order to obtain a license to practice,” but his license was in good standing at the time of trial. The Court (over Judge Baker’s dissent) held that an expert’s past disciplinary history is not as relevant as the current probationary status, and concluded that the fact of that history was, if erroneous, harmless.

The Court then addressed two juror-related issues raised by Tunstall. The first dealt with the discharge of a juror, who complained of pain in her legs after deliberations began. Before this complaint, the jury indicated that there was one holdout which prevented them from reaching a verdict. Tunstall expressly indicated that she had no objection, and the juror was excused. The jury returned with a verdict about 40 minutes later. The Court found that this was invited error. “Based on the record, we conclude that Tunstall engaged in a rational, albeit unsuccessful, trial strategy. She cannot now be heard to complain.”

That excused juror later told defense counsel that she disagreed with the verdict and that another juror said that she was treated by one of Manning’s treating physicians and that he would not treat Manning “unless he saw something.” Tunstall claimed that this was juror misconduct. The Court disagreed.

We conclude that Staton’s affidavit does not amount to evidence warranting a new trial. Michelle’s statements were based on her own knowledge and common sense. 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.

The verdict was, therefore, affirmed.


  1. Appellate courts will generally defer to the jury on issues concerning the amount of damages.
  2. If you do not object to the discharge of a juror during deliberations, then the Court is not going to question that tactical decision.
  3. The fact that a juror treated with a plaintiff’s treating physician and expresses that to the entire jury during deliberations is not juror misconduct.