## Facts

- Martin Weil, age 54, died unexpectedly on March 27, 1984, after years of unexplained medical problems.
- For more than twenty years, Weil was treated by allergist Dr. Alvin Seltzer.
- Evidence indicated Dr. Seltzer regularly prescribed Weil medication represented as antihistamines, but the medication was a corticosteroid.
- Autopsy findings were consistent with long-term steroid use, including significant adrenal atrophy and severe osteoporosis.
- Weil’s death was attributed to a saddle embolus containing bone marrow fragments; experts linked the fragments to steroid-induced osteoporosis.
- During litigation, the estate developed evidence that Dr. Seltzer had prescribed steroids to Weil from the first visit and commonly prescribed steroids to other patients while describing them as different medications.

## Issues

1. Whether sufficient evidence supported instructing the jury on contributory negligence at the first trial.
2. Whether testimony from five former patients was admissible as “habit and routine practice” evidence under Federal Rule of Evidence 406 to show Dr. Seltzer acted similarly with Weil.
3. Whether the damages awarded at the second trial were supported by the record and whether they were excessive as a matter of law.

## Decision

- The court vacated the judgment for Weil’s estate and remanded for a new trial.
- It held the first trial record contained sufficient evidence to justify a contributory-negligence instruction; the district court erred in setting aside the defense verdict on the ground that the instruction lacked evidentiary support.
- It held the second trial court erred by admitting five former patients’ testimony as Rule 406 habit evidence because it reflected a broader pattern of negligent treatment rather than a specific, nearly invariable response to a repeated situation.
- Because the judgment was vacated and the case remanded, the damages award was set aside for redetermination on retrial rather than affirmed.

## Legal Principles

- A contributory-negligence instruction is proper when the evidence permits a reasonable jury to find the plaintiff’s own negligence contributed to the injury.
- Federal Rule of Evidence 406 permits proof of a person’s habit only when the conduct is a specific, regular response to a repeated situation, commonly characterized as semi-automatic.
- Repeated instances of alleged professional negligence, even if frequent, generally do not qualify as Rule 406 habit when offered to show conduct in conformity on the occasion at issue; such proof risks functioning as inadmissible propensity evidence.

## Conclusion

The D.C. Circuit vacated the plaintiff’s malpractice verdict because the first trial’s contributory-negligence instruction was supported by evidence and the second trial was tainted by erroneous admission of other-patient testimony under Rule 406, requiring a new trial and a fresh determination of liability and damages.


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