## Facts

- Evelyn Aikman underwent mitral-valve repair surgery performed by Dr. Louis Kanda, a cardiothoracic surgeon, associated with Cardiovascular Thoracic Surgery Associates, P.C.
- After surgery, Aikman suffered an embolic stroke causing neurological deficits.
- The parties agreed embolic material traveled to Aikman’s brain but disputed its nature and source.
- Aikman alleged Kanda negligently failed to perform, or properly perform, “air-drill” de-airing steps at the end of surgery, leaving air that embolized to the brain.
- Kanda testified that air-drill steps are an integral part of mitral-valve repair and that he performed them “every single time” in more than 500 such surgeries, including Aikman’s.
- Expert testimony conflicted on causation: Aikman’s expert attributed the stroke to inadequate de-airing; the defense expert attributed it more likely to clot or plaque.
- A jury returned a verdict for Kanda, and judgment entered for defendants.

## Issues

1. Whether the surgeon’s testimony that he always performed air-drill steps in mitral-valve repairs was inadmissible character evidence or admissible habit evidence under the jurisdiction’s Rule 406 analog.
2. Whether habit evidence should be categorically excluded in medical-malpractice cases because physicians’ conduct varies by patient.
3. Whether the trial court committed reversible error by (a) instructing that a physician is not negligent merely because treatment is unsuccessful, (b) addressing allegedly surprise transesophageal echocardiogram (TEE) testimony through remedial measures, and (c) qualifying the defense expert to testify on a national standard of care.

## Decision

- The appellate court affirmed the denial of Aikman’s motion for a new trial and affirmed the defense verdict.
- The court held Kanda’s “every single time” testimony described a specific, invariable routine integral to the procedure and was properly admitted as habit evidence, not character evidence.
- The court rejected a categorical bar on habit evidence in malpractice cases, reasoning it may be admissible when the routine does not vary with patient condition and is uniformly appropriate for the procedure.
- The court upheld the “not negligent merely because unsuccessful” instruction as supported by record evidence that stroke is a known risk of the surgery even absent negligence.
- The court found no abuse of discretion in the trial court’s handling of surprise TEE-related testimony, including striking/disregarding portions, allowing mid-trial discovery at defendants’ expense, and permitting rebuttal.
- The court upheld admission of the defense expert’s national-standard-of-care testimony based on qualifications; conflicts or changes were matters for cross-examination, not exclusion.

## Legal Principles

- Habit evidence is admissible when it reflects a specific, regular, and invariable practice, supporting an inference that the actor likely acted the same way on the occasion in question.
- Testimony about routine conduct may be excluded as character evidence when it merely suggests a general disposition (e.g., carefulness) rather than a concrete, repeated practice.
- There is no categorical rule excluding physician habit evidence in malpractice cases; admissibility turns on whether the practice is sufficiently uniform and not meaningfully dependent on individualized patient conditions.
- A jury may be instructed that an adverse outcome or known complication, standing alone, does not establish negligence, provided the instruction is grounded in the evidence and does not dilute the standard of care.
- Trial courts have broad discretion to address late-disclosed or unexpected testimony through curative instructions, discovery remedies, and rebuttal opportunities; reversal requires a showing of prejudicial abuse of discretion.
- Expert qualification and the permissible scope of expert testimony are largely discretionary; weaknesses and inconsistencies typically go to weight and cross-examination rather than admissibility.

## Conclusion

The court affirmed judgment for the surgeon, holding that testimony describing an invariable, procedure-specific routine was admissible habit evidence and that the challenged instruction and evidentiary rulings—including the trial court’s remedies for surprise expert testimony and its expert-qualification decisions—did not warrant a new trial.


Aikman v. Kanda, 975 A.2d 152 (D.C. 2009)