Weil v. Seltzer
1989 WL 40527, 277 U.S. App. D.C. 196, 873 F.2d 1453 (1989)
Rule of Law:
Evidence of a person's conduct constitutes admissible 'habit' under Federal Rule of Evidence 406 only if it is non-volitional and semi-automatic; furthermore, passive investment income derived from capital appreciation is not recoverable as lost future earnings in a survival action.
Facts:
- Dr. Alvin Seltzer treated Martin Weil for allergies for over twenty years, prescribing medication he represented to be antihistamines and decongestants.
- In reality, Dr. Seltzer was prescribing prednisone and cortisone—strong steroids—and mislabeling the bottles to conceal their contents.
- Dr. Seltzer purchased over 1.7 million steroid tablets between 1980 and 1984.
- Weil took the medication as prescribed, unaware of its true nature, until his unexpected death at age 54.
- An autopsy revealed Weil died of a blood clot containing bone marrow fragments, a condition caused by severe osteoporosis.
- Medical investigation linked Weil's osteoporosis, adrenal atrophy, and immune system failure to long-term, undisclosed steroid ingestion.
- Evidence revealed Seltzer had treated at least five other patients in a similar manner, giving them steroids disguised as antihistamines.
- Weil's income included significant earnings from real estate investments which appreciated in value independently of his daily labor.
Procedural Posture:
- Weil's estate filed a survival and wrongful death action against Dr. Seltzer in the U.S. District Court for the District of Columbia.
- The first trial resulted in a jury verdict for the defendant.
- The district court judge set aside the first verdict and ordered a new trial, ruling that a contributory negligence instruction had been erroneously submitted to the jury.
- A second trial was held before a different district court judge.
- The jury in the second trial returned a verdict for the plaintiff, awarding $1,080,000 for wrongful death and $3,000,000 for the survival claim.
- The district court entered final judgment on the verdict.
- The defendant appealed the judgment to the U.S. Court of Appeals for the D.C. Circuit.
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Issue:
Does testimony regarding a physician's treatment of former patients qualify as admissible 'habit' evidence under Federal Rule of Evidence 406, and may an expert witness calculate lost future earnings based on increases in net worth derived primarily from passive real estate investments?
Opinions:
Majority - Floyd R. Gibson
No, the testimony does not qualify as habit evidence, and passive investment income is not a proper basis for lost earnings damages. The court reasoned that 'habit' under Rule 406 refers to non-volitional, semi-automatic conduct that occurs with invariable regularity. Prescribing medication is a volitional act requiring analysis of each patient's unique needs, and evidence regarding five former patients was insufficient to establish a reflexive habit. This testimony was actually character evidence (propensity to commit bad acts), which is governed by the stricter requirements of Rule 404(b). Regarding damages, the court held that 'net worth' increases driven by real estate appreciation are passive income. Since passive income derives from capital investment rather than personal labor, and continues to accrue to the estate after death, it cannot be claimed as lost future earnings in a survival action unless the plaintiff proves the increase resulted predominantly from the decedent's personal skill and effort.
Analysis:
This decision is a seminal case in defining the boundaries of 'habit' evidence under the Federal Rules of Evidence. The court drew a sharp distinction between 'habit' (reflexive, semi-automatic responses like taking stairs two at a time) and 'character' (volitional traits like negligence or dishonesty). By rejecting the doctor's prescribing patterns as 'habit,' the court prevents plaintiffs from bypassing the restrictions on character evidence simply by showing a pattern of repeated voluntary acts. Additionally, the case refines damages calculations in wrongful death and survival actions for entrepreneurs, establishing that passive income (like real estate appreciation) must be subtracted from lost earnings calculations because death does not stop such assets from appreciating.
