873 F.2d 1453 (D.C. Cir. 1989), 88-7070, Weil v. Seltzer

Docket Nº:88-7070.
Citation:873 F.2d 1453
Party Name:Brian Keith WEIL, as Personal Representative of the Estate of Martin Leonard Weil, Deceased, Appellee, v. Florence SELTZER, Personal Representative of the Estate of Alvin Seltzer, M.D., Deceased, Appellant.
Case Date:April 28, 1989
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 1453

873 F.2d 1453 (D.C. Cir. 1989)

Brian Keith WEIL, as Personal Representative of the Estate

of Martin Leonard Weil, Deceased, Appellee,


Florence SELTZER, Personal Representative of the Estate of

Alvin Seltzer, M.D., Deceased, Appellant.

No. 88-7070.

United States Court of Appeals, District of Columbia Circuit.

April 28, 1989

Page 1454

[Copyrighted Material Omitted]

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As Amended April 28, 1989. Rehearing and Rehearing En Banc Denied July 12, 1989.

Argued Dec. 8, 1988.

J. Joseph Barse, with whom Keith Bonner and David P. Sutton, Washington, D.C., were on the brief, for appellant.

Mark A. Binstock, with whom Edward H. Kerman, Rockville, Md., was on the brief, for appellee.

Before RUTH BADER GINSBURG and SILBERMAN, Circuit Judges, and FLOYD R. GIBSON, [*] United States Senior Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge:

This is an appeal from a final judgment entered on a jury's verdict in a survival and wrongful death action. This case is now before us after two successive trials. The first trial resulted in a verdict for the defendant/appellant; however, the district court set aside the verdict and ordered a new trial after concluding that a contributory negligence instruction was erroneously submitted to the jury. On retrial before a different judge, the jury returned a verdict in favor of the plaintiff/appellee. The jury awarded $1,080,000 under the wrongful death claim and $3,000,000 under the survival act claim. Final judgment was entered in the district court pursuant to that verdict.

Now on appeal the following issues are raised: 1) whether there was sufficient evidence to support a jury instruction on the defense of contributory negligence; 2) whether the district court erred in permitting the testimony of five of the defendant's former patients in order to establish the defendant's habit and routine practice of prescribing steroids to his patients; 3) whether the damages award was properly calculated and based on sufficient evidence in the record; and 4) whether the damages award was excessive as a matter of law.

For the following reasons we vacate the district court's judgment and remand this case for a new trial.


    This case was filed against Dr. Alvin Seltzer in the district court by Brian Keith Weil, as personal representative of Martin Weil's estate [hereinafter appellee or Weil's estate]. After the case was commenced, Dr. Seltzer died and was replaced by Florence Seltzer, as personal representative of his estate [hereinafter appellant].

    On March 27, 1984, Martin Weil died unexpectedly at the age of 54 years. Weil's treating physicians could not explain the cause of his death nor could they account for a series of recent medical problems which he suffered from prior to his death. 1 An autopsy was performed in order

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    to determine the cause of Weil's death. The autopsy and a subsequent investigation into the treatment that Weil received from his allergist, Dr. Seltzer, were very revealing.

    Dr. Seltzer had treated Weil for more than twenty years and over the course of this treatment Dr. Seltzer regularly prescribed medication which Weil was led to believe were antihistamines. After Weil's death, however, it was determined that Dr. Seltzer had been prescribing a drug called prednisone, which is a steroid. Suddenly, Weil's treating physicians were able to explain his bizarre medical problems that predominated the last ten years of his life. It became apparent that Weil's illnesses were attributable to his long-term ingestion of steroids prescribed by Dr. Seltzer.

    The autopsy, which was consistent with long-term steroid use, determined that Weil's cause of death was a saddle block embolus (a type of blood clot), which contained several bone marrow fragments. The autopsy also revealed significant atrophy in Weil's adrenal glands and severe osteoporosis.

    Medical experts testified that Weil's osteoporosis, which was linked to his steroid use, may have caused his bones to crumble thus explaining the presence of bone marrow fragments in the fatal blood clot. Long-term steroid use also may have been the cause of the atrophy in Weil's adrenal glands. This condition reduces the body's ability to ward off infection.

    Weil's estate filed suit against Dr. Seltzer and began discovery. Through its discovery efforts, Weil's estate learned that Dr. Seltzer prescribed steroids to Weil on his first visit in 1963 and continued to prescribe steroids over a period of more than twenty years. Indeed, Dr. Seltzer had prescribed steroids just eight days before Weil's death and on at least three other occasions during the three months immediately preceding Weil's death.

    The most startling fact revealed in the discovery was the frequency with which Dr. Seltzer prescribed steroids to his patients. Dr. Seltzer's purchase orders for medication during the years 1980 thru 1984, which were produced during discovery, revealed that he purchased 10,000 tablets of the steroidal drugs. Weil's estate then contacted three of the drug companies named in the purchase orders and learned that Dr. Seltzer had purchased more than 1.7 million tablets containing steroids during the 1980-1984 period alone. Weil's estate then contacted eight of Dr. Seltzer's former patients and learned that each had been treated by Dr. Seltzer for many years and they were prescribed pills which Dr. Seltzer represented to be antihistamines and decongestants. All of the patients later learned that the pills prescribed by Dr. Seltzer were in fact steroids. Finally, a number of boxes and bottles labeled with the names of antihistamines and other non-steroidal medications were found in the possession of Dr. Seltzer, Weil, and several of Dr. Seltzer's former patients. These boxes and bottles were mislabeled because they actually contained cortisone, another type of steroid.


    This case has been tried twice in the district court with each trial presided over by a different judge. The first trial resulted in a verdict in favor of the appellant. The verdict was set aside and a new trial ordered, however, after the district judge concluded that a contributory negligence instruction was erroneously given to the jury. On retrial the jury returned a verdict in favor of Weil's estate.

    1. Jury Instructions

      1. Contributory Negligence

      The first issue raised in this appeal is whether the district court, in the initial trial, erred in granting the motion for a new trial. The district court granted the

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      motion because it was persuaded that the contributory negligence instruction submitted to the jury was improper and resulted in prejudice.

      We review the district court's decision to grant or deny a new trial motion under the deferential abuse of discretion standard. See, e.g., Grogan v. General Maintenance Service Co., 763 F.2d 444, 447 (D.C.Cir.1985); Taylor v. Washington Terminal Co., 409 F.2d 145, 147 (D.C.Cir.), cert. denied, 396 U.S. 835, 90 S.Ct. 93, 24 L.Ed.2d 85 (1969). This deference is accorded the district court because the district judge is in a position to see and hear the witnesses and is able to view the case from a perspective that an appellate court can never match. See Founding Church of Scientology v. Webster, 802 F.2d 1448, 1457 (D.C.Cir.1986), cert. denied, --- U.S. ----, 108 S.Ct. 199, 98 L.Ed.2d 150 (1987). In addition, when a new trial is ordered because of legal error the district court's "decision will ordinarily be affirmed." McNeal v. Hi-Lo Powered Scaffolding, Inc., 836 F.2d 637, 646 (D.C.Cir.1988). With these standards in mind we cannot say that the district court incorrectly ordered a new trial.

      Appellant argues that the district court abused its discretion because there was sufficient evidence in the first trial to submit a contributory negligence instruction to the jury. In ordering the new trial the district court stated that it was "persuaded that instructions permitting the jury to find that [Weil] was guilty of contributory negligence were not appropriate in this case and were prejudicial." (J.A. 181).

      A party is "entitled to an instruction upon his theory of the case if there is evidence to support it...." Wegerer v. First Commodity Corp. of Boston, 744 F.2d 719, 723 (10th Cir.1984) (citation omitted). However, "[t]he evidence presented must be more than a 'scintilla'...." Wood v. Day, 859 F.2d 1490, 1493 (D.C.Cir.1988) (quoting Doe v. Binker, 492 A.2d 857, 860 (D.C.1985)).

      The doctrine of contributory negligence operates as a defense under District of Columbia law when a party knows or by the exercise of ordinary care should have known a particular fact or circumstance and should have acted upon the fact or circumstance with reasonable care for his own safety. See Queen v. Washington Metro. Area Transit Auth., 842 F.2d 476, 478 (D.C.Cir.1988). We do not believe that the district court erred in ordering a new trial based on the submission of the contributory negligence instruction because there were insufficient facts to support it. It does not appear to be proper to charge the deceased in this case with contributory negligence when he was merely following his doctor's orders.

      In Morrison v. MacNamara, 407 A.2d 555, 567-68 (D.C.1979), the District of Columbia Court of Appeals noted:

      In the context of medical malpractice, the superior knowledge of the doctor with his expertise in medical matters and the generally limited ability of the patient to ascertain the existence of certain risks and dangers that inhere in certain medical treatments, negates the critical elements of the defense, i.e., knowledge and appreciation of the risk. Thus, save for exceptional circumstances, a patient cannot assume the risk of negligent treatment.

      While the court in...

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