With respect to reflexivity , conduct is more likely to be considered habit where it represents semiautomatic behavior that is essentially reflexive in nature . U . S . v . Aguirre , 368 F . App ’ x 979 , 990 ( 11th Cir . 2010 ).
B . THE MECHANICS OF USING EVIDENCE TO PROVE CAUSATION .
A . GENERAL BACKGROUND ON HABIT EVIDENCE
Under Federal Rule of Evidence 406 , a party may offer evidence that a person had a particular habit for the purpose of proving that he or she acted in accordance with that habit on a particular occasion . The rule states : “[ e ] vidence of a person ’ s habit . . . may be admitted to prove that on a particular occasion [ he ] acted in accordance with that habit . . . .” Fed . R . Evid . 406 . To qualify as habit evidence , the conduct at issue “ must reflect a systematic response to specific situations .” Goldsmith v . Bagby Elevator Co ., 513 F . 3d 1261 , 1285 ( 11th Cir . 2008 ). Courts applying Rule 406 generally require the habit evidence to meet three criteria : ( 1 ) specificity ; ( 2 ) regularity ; and ( 3 ) reflexivity .
Specificity applies to both the situation encountered by the person and that person ’ s reaction to the situation . The Eleventh Circuit has said habit is “ meeting a particular kind of situation with a specific type of conduct .” U . S . v . Holman , 680 F . 2d 1340 , 1351 ( 11th Cir . 1982 ) ( internal quotation marks omitted ); G . M . Brod & Co . v . U . S . Home Corp ., 759 F . 2d 1526 , 1533 ( 11th Cir . 1985 ) ( noting that habit is a response to a “ repeated specific situation ”). As one treatise put it , “[ t ] he more specific the behavior , the better its chance of being habit .” 2 Federal Evidence § 4:46 ( 4th ed .).
With respect to regularity , a party must establish that the person performed the conduct regularly . G . M . Brod & Co ., 759 F . 2d at 1533 . To establish regularity , the proponent should establish both numerosity ( i . e ., that the person performed the habit numerous times ) and uniformity ( i . e ., that the person did not deviate from the habit ). As the Eleventh Circuit has put it , “‘ adequacy of sampling and uniformity of response are controlling considerations [.]” Id . at 1285 .
Regarding numerosity , “[ i ] t is only when examples offered to establish such pattern of conduct or habit are numerous enough to base an inference of systematic conduct , that examples are admissible .” Loughan v . Firestone Tire & Rubber Co ., 749 F . 2d 1519 , 1524 ( 11th Cir . 1985 ). Regarding uniformity , the proponent should establish that the person rarely , if ever , deviated from the habit . U . S . v . Copeland , 662 F . App ’ x 750 , 757 ( 11th Cir . 2016 ) ( emphasis added ).
With that background on habit evidence in place , it ’ s worth discussing how you can use habit evidence to ( 1 ) prove causation in over-the-counter drug cases where the drug taker is dead ; and ( 2 ) prove causation in prescription drug cases where the prescribing doctor is dead .
1 . Proving causation in OTC cases where the drug taker is dead .
Under many state laws , there is no so-called “ heeding ” presumption . In other words , the law in question does not presume that had the manufacturer provided an adequate warning , the drug taker would have followed it . So , the plaintiff must affirmatively prove that she would have heeded an adequate warning . If the plaintiff is alive , she can simply testify that she would have done so . But if the plaintiff is dead , an attorney must obviously meet the burden of production in some other way .
One such way is through habit evidence . Indeed , three different federal district courts have applied Rule 406 in this particular context . Broadly speaking , these cases make clear that the proponent of habit evidence should be as thorough as possible when laying the evidentiary foundation .
In Smith v . Pfizer Inc ., 688 F . Supp . 2d 735 , 745 ( M . D . Tenn . 2010 ), the district court held that the plaintiff could offer evidence about the decedent ’ s habit of taking medicine as prescribed . During discovery , the decedent ’ s spouse testified that her husband took his prescriptions as prescribed because “ that was just the way he did things ” and that he “ normally ” took Neurontin “ as the doctor prescribed .” Id . at 740-41 . The district court relied on the spouse ’ s multiple opportunities to observe her dead husband ’ s act of taking prescription medicine because she “ frequently observed her husband taking prescription medicine as directed for years ” and this came across in her testimony . Id . at 745 .
In contrast , the court in Batoh v . McNeil-PPC , Inc ., 167 F . Supp . 3d 296 , 310 ( D . Conn . 2016 ) held that a plaintiff ’ s proferred evidence was insufficient to qualify as habit evidence under Rule 406 . During trial , the decedent ’ s mother testified that she had never “ see [ n ] [ the decedent ] with a medication bottle or medication paperwork in his hand reading the label , reading the warnings .” Id . Because the Plaintiff did not introduce any examples of the decedent reading a medication ’ s warning or labels , the court ruled that “ Plaintiff ’ s evidence [ was ] insufficient to show admissible habit evidence ” due to lack of personal knowledge . Id .
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