EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, February 12, 2021

Supreme Court of South Dakota Observes That Routine Practice Evidence Doesn't Require Corroboration or Eyewitnesses

Similar to its federal counterpart, South Dakota Rule of Evidence 19-19-406 states that

Evidence of a person's habit or an organization's routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

The second sentence of this rule was at the heart of the recent opinion of the Supreme Court of South Dakota in Ferguson v. Thaemert, 952 N.W.2d 277 (S.D. 2020).

In Thaemert, "Dr. Bradley Thaemert performed the incision for an anterior spinal surgery on Alyssa Ferguson. Ferguson sued Dr. Thaemert for lack of informed consent after he performed a vertical incision rather than her requested horizontal incision." One of the pretrial questions in the case was whether Dr. Thaemert could testify about his routine practices in treating patients, prompting the court to rule as follows:

Dr. Thaemert argues that Federal Rule of Evidence 406 does not require corroborating evidence for him to testify about routine practice, whereas Ferguson argues that specific evidence of a sufficient number of instances is required to demonstrate a routine....However, testimony of general practice is admissible to show conformity with that routine under Federal Rule of Evidence 406, which is identical to SDCL 19-19-406, “regardless of whether it is corroborated or whether there was an eyewitness.” Dr. Thaemert's testimony concerning his habit in obtaining informed consent may well be weak evidence, but a jury will be able to weigh it against Ferguson's conflicting testimony and determine whether Dr. Thaemert obtained Ferguson's informed consent



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