In light of these cases , an attorney should seek to establish the hallmarks of habit evidence — specificity , regularity , and reflexivity .
To establish specificity , the attorney should elicit testimony showing that the decedent met a particular kind of situation ( the taking of medicine ) with a specific type of conduct ( the careful reading and heeding of warnings ). Relatives , roommates , or others who cohabitated with the decedent may serve as good witnesses .
To establish regularity , the attorney should call witnesses to testify that they ( 1 ) saw the decedent take medicine numerous times and ( 2 ) never observed the decedent take medicine without looking at , and complying with , the label ( or , at least , does not recall such deviations ).
To establish reflexivity , the attorney should call witnesses who can establish that the decedent ’ s practice of reading / following the label was second nature to them . For example , a witness can testify that each time they saw the decedent take medicine , the decedent would immediately turn the medicine box or bottle to the label instructions .
Two things to keep in mind when considering this foundation . One , “ habit ” can be established by relying on the decedent ’ s practice regarding medicine generally , whether the medicine be prescription or over-the-counter . Two , no one can reasonably expect witnesses to recall every time they saw the decedent take medicine . Consequently , relying on approximations is acceptable .
2 . Proving causation in prescription cases where the doctor is dead .
In prescription drug cases , most states have adopted the learned intermediary doctrine . Under that doctrine , the causation analysis is generally focused on the doctor who prescribed the drug , not the patient . But , in some instances , the doctor who prescribed the drug to the plaintiff is dead . Just like in the over-the-counter context , this presents a proof issue for which the plaintiff must account .
Again , a plaintiff ’ s attorney may use Rule 406 to establish causation . Under Rule 406 , a plaintiff may offer evidence that it was the doctor ’ s habit to scrupulously warn her patients regarding risks associated with a prescription drug and / or defer to the patient ’ s decision with respect to prescription medicine . Multiple federal district courts have applied Rule 406 in this particular context . Two cases are worth covering here .
In In re Testosterone Replacement Therapy Prod . Liab . Litig . Coordinated Pretrial Proc ., 430 F . Supp . 3d 516 , 541 ( N . D . Ill . 2019 ), the district court held that the plaintiff ’ s sworn declaration about his dead doctor ’ s prescription practices qualified as habit evidence under Rule 406 . Specifically , the plaintiff ’ s declaration stated , in relevant part , that “( 1 ) [ The doctor ] was [ the plaintiff ’ s ] primary care physician from approximately 2007 to 2014 ; ( 2 ) [ the doctor ] normally discussed the risks and benefits of any treatment with [ the plaintiff ]; and ( 3 ) “[ w ] hen [ the doctor ] made a treatment recommendation and explained the risks and benefits to [ the plaintiff ], he respected [ the plaintiff ’ s ] decision to use or not use a prescription medication .” Id .
In contrast , the district court in Fecho v . Eli Lilly & Co ., 914 F . Supp . 2d 130 , 139 ( D . Mass . 2012 ) held that the testimony from two of the doctor ’ s longtime patients and a former colleague of the doctor was not admissible to show that the doctor in question had a habit of warning his patients about the dangers of prescription drugs . Id . at 134 . The court held that the collective testimony was insufficient to establish the doctor ’ s evidence . Id . The court noted that the doctor ’ s colleague had only seen the doctor prescribe the drug at issue once . Id . With respect to the longtime patients , the court reasoned two patients were “ not numerous enough ” because “ the doctor had significantly more than two patients to whom he prescribed the medication .” Id . at 139 .
Again , looking to these cases as guideposts , an attorney should look to offer testimony that will satisfy the various hallmarks of habit evidence .
To establish specificity , the attorney should call witnesses who can testify that the decedent doctor met a particular kind of situation ( meetings with patients about prescription drugs ) with a specific type of conduct ( assiduously warning patients about the drugs ’ potential dangers and soliciting the patients ’ risk tolerance regarding the same ). Such witnesses would include the plaintiff ( if alive ), other patients of the doctor , or the doctor ’ s nurse / assistant . If possible , these witnesses should relate specific instances in which the doctor carried out the relevant conduct .
To establish regularity , the attorney should offer testimony that covers the numerosity / consistency factors . For example , the witnesses could testify that they saw the decedent doctor discuss prescription medication with patients on numerous occasions and that the doctor never deviated from his habit of thoroughly conveying warnings and soliciting patient feedback .
To establish reflexivity , one could envision testimony establishing that the doctor ’ s practice was second nature to them . Witnesses might testify that the doctor covered the warnings in the same way . For example , maybe the doctor used the same precatory language when either introducing warnings (“ O . k ., now I need to go over some risks with you .”) or soliciting patient feedback (“ Are you comfortable with those risks ?”).
In summary , if confronted with a key witness who is dead , don ’ t give up . The Federal Rules of Evidence — and Rule 406 specifically — may help you fill in evidentiary gaps . The key is understanding the requirements of the rule and case law and thoroughly interviewing potential witnesses to see how they can help you satisfy those requirements .
48 x The Trial Lawyer