Thursday, February 7, 2013
Habit Forming Behavior: Court of Appeals of Michigan Finds Doctor's Testimony About Blood Draw Admissible Under Rule 406
Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
A student in my Evidence class today asked whether expert witnesses may testify regarding their habit of complying with certain procedures pursuant to Rule 406. Let's take a look at Zyskowski v. Habelmann, 388 N.W.2d 315 (Mich.App. 1986), to see the answer.In Habelmann, the
Plaintiff, Edwin Zyskowski, commenced [a] wrongful death action as personal representative of the estate of his son the deceased, Bruce Zyskowski, who was struck and killed by a motorist during the early morning hours of March 15, 1980, while walking on Outer Drive in Detroit's River Rouge Park. The complaint alleged negligence against the motorist, defendant Habelmann, and negligence and intentional nuisance against defendants City of Detroit and the Wayne County Board of Road Commissioners for their alleged failure to maintain the street lights along the road. From a March 8, 1984, jury verdict of no cause of action, plaintiff appeal[ed] as of right, alleging that there were a number of errors in the trial below.
According to the plaintiff, one of these alleged errors was that "Wayne County Medical Examiner Dr. Werner Spitz...was allowed to testify that a blood alcohol test performed at his office showed decedent's blood alcohol content was .18 percent at the time of his death." Specifically,
Dr. Spitz testified that he performed the autopsy on decedent and drew the blood during the autopsy. He testified as to the manner in which the blood was taken and that he personally labeled the containers and put the samples in a refrigerator. Although he had no personal recollection of the event, he testified that the sample was picked up by someone in the laboratory that same day or the next. The laboratory is a division of the medical examiner's office and located in the same building. Dr. Spitz testified that the alcohol level in the blood is measured by a gas chromatograph and explained what procedures were used and how the machine worked. He identified the name of the lab technician who performed the test and testified that it was done under the supervision of Dr. Mumford, who reviewed and signed the report. Dr. Mumford is in turn supervised by Dr. Spitz. Dr. Spitz further testified that there would never be a single mistake, that if there was a mistake it would affect all of the samples, and that there were control samples used in the procedure.
On appeal, the plaintiff claimed that this testimony was inadmissible and/or insufficient to support the admission of the blood sample because "first-hand observation of the sample is required." The Court of Appeals of Michigan disagreed, concluding that
Dr. Spitz's testimony was based on his personal knowledge of the routine practice of the medical examiner's office, including the lab, which was under his auspices. This testimony was relevant and admissible under MRE 406 which provides:
"Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice."