BLOXAM V. BERG, M.D.
EVIDENCE: KRE 1102(a); KRE 406; habit evidence
2005-CA-002191
PUBLISHED: AFFIRMING; KNOPF
DATE RENDERED: 1/26/2007
CA affirms TC exclusion of “habit” evidence concerning doctor’s marijuana use in medmal case. (Jefferson Cir. Ct., Hon. Kathleen Voor Montano, judge, presiding).
Appellant sought treatment from appellee-anesthesiologist for chronic back pain. Appellee performed a spinal injection that resulted in paralysis. A woman appellee dated testified that she believed he used marijuana daily, though her testimony about his drug use during the week of appellant’s treatment was speculative at best. TC excluded the testimony as impermissible “habit” evidence.
CA affirms, holding that, though the Kentucky Rules of Evidence were amended during the pendency of the appeal, at the time the case was tried the pivotal inquiry for the fact-finder was not what the defendant was accustomed to do, but what he did at the time in controversy, and appellee’s girlfriend could not testify to any actual firsthand knowledge of drug use. Furthermore, CA holds that even if this had been permissible habit evidence, it should nevertheless been excluded under KRE 403 as its probative value was substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury.
By John Hamlet
