Weil v. Seltzer

United States Court of Appeals for the District of Columbia Circuit · 1989 · Evidence

EvidenceFederal Rule of Evidence 406Federal Rule of Evidence 404(b)habit evidencecharacter evidencecontributory negligenceassumption of riskmedical malpractice

Facts

Dr. Seltzer treated Martin Weil for more than twenty years and regularly prescribed medication Weil believed to be antihistamines, but which was later determined to be steroids. After Weil died, the autopsy and other evidence suggested long-term steroid use caused severe medical problems and may have contributed to his death. At the second trial, the district court admitted testimony from five former patients that Seltzer had similarly prescribed steroids while representing them as nonsteroidal drugs. The plaintiff also introduced expert damages testimony that projected Weil's future income using both salary history and increases in his net worth from real estate holdings.

Issue

Whether the district court properly granted a new trial after the first trial based on an unsupported contributory negligence instruction, and whether the second trial was tainted by admitting former-patient testimony as habit evidence under Rule 406 and by allowing future-income calculations based on Weil's net worth. The court also considered whether certain other defenses and damages methodologies were properly handled.

Rule

A party is entitled to a jury instruction on its theory only if supported by more than a scintilla of evidence. Under Rule 406, habit evidence is admissible only when it reflects a regular, nonvolitional, semi-automatic response to a particular situation with sufficient uniformity and sampling; evidence of other acts offered to show conduct in conformity is character evidence governed by Rule 404(b), not habit. In a survival action, future earnings must exclude passive investment returns unless the proponent shows the profits predominantly resulted from the decedent's own services, effort, skill, or initiative rather than capital appreciation or the labor of others.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a malpractice trial in Baltimore, Nora Kim alleges that Dr. Evan Laird routinely told patients that a powerful prescription cream was "just a mild moisturizer." The plaintiff offers testimony from four former patients, each saying Dr. Laird made that statement to them during their own appointments over several years; none ever observed him treating anyone else.

Is the former-patient testimony most likely admissible under Federal Rule of Evidence 406 to prove Dr. Laird said the same thing to Nora?

Explanation. Rule 406 requires a regular, nonvolitional, semi-automatic response to a particular situation, shown with sufficient uniformity and sampling. Testimony from patients who know only how the doctor treated themselves does not adequately establish a routine practice toward others, and describing medications to patients is volitional conduct rather than reflexive habit. The evidence is therefore not admissible as habit on these facts.