Weil v. Seltzer, 873 F.2d 1453 (D.C. Cir. 1989)

Facts: Martin Weil died unexpectedly and his treating physicians could not explain the cause or a series of medical problems he experienced prior to his death.  Dr. Seltzer had treated and prescribed medication to Weil for more than 20 years.  The Dr. had been prescribing medications to Weil as antihistamines, when in fact they were steroids.  Through an autopsy, it was learned that the prolonged use of these steroids attributed to his ailments and death.  Then through discovery it was determined that eight other of the Dr.’s patients were given steroids and told they were antihistamines and decongestants. The Dr had purchased more than 1.7 million steroid pills during a four year period, and he also altered the labels of the prescriptions.

Issue: Whether the testimony of five former patients of Dr. Seltzer, concerning his prescription of steroids as antihistamines or decongestants, was improperly admitted evidence of habit?

Holding: Pursuant to FRE 406 the testimony was improperly admitted as evidence of habit.

Procedure: Two successive trials; the first ended in jury verdict for Df, but the court set aside the verdict and ordered a new trial after erroneous instructions were given; the second trial ended with a jury verdict for the Pl; Ct of App. vacate and remand for new trial.

Rule: Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

Rationale: Under 406 certain evidence is admissible if it rises to the level of habit.  Habit refers to the type of non-volitional activity that occurs with invariable regularity.  It is the non-volitional character of habit evidence that makes it probative. The conduct at issue may not have occurred with sufficient regularity making it more probable than not that it would be carried out in every instance or in most instances.  None of the former patients had ever observed the Dr with another patient, and before the former patient evidence could be properly admitted as habit evidence, the witnesses “must have some knowledge of the practice and must demonstrate this knowledge prior to giving testimony concerning the routine practice.  Where a witness cannot demonstrate such knowledge, he cannot testify as to the routine nature of the practice.”  Laszko v. Cooper Laboratories, Inc., 114 Mich. App. 253 (1982).  For the former patient’s testimony to be at all probative, it must show that the Dr responded the same way with each patient as he did with the testifying patient.   The burden of establishing the habitual nature of the evidence rests on the proponent.  Former patient testimony is the type of character evidence contemplated by 404(b), to show plan, knowledge, identity, or absence of mistake or accident.

PL A: The Dr’s acts in prescribing steroids as antihistamines/decongestants over a period of 20 years, is a consistent manner of responding to a situation.   The Df failed to contradict the testimony and therefore should not have been excluded.

Df A: The admission of former patient evidence is forbidden by FRE 404(b)