Rule 406 - Habit Flashcards
This is a civil tort action. Simon Weinstein was a private pilot whose plane crashed while he was attempting to take off. Simon was killed in the crash, and his widow Linda Weinstein sued the Cessna Aircraft Company, claiming that a design defect in Simon’s plane caused the crash. Linda claims that the elevator on the plane has a tendency to “flutter” under certain conditions, which could cause the plane to tilt up sharply and stall. If such a stall occurs close to the ground, as on take-off or landing, the plane will crash before the pilot can regain control.
Cessna claims there is no design defect, and that Simon crashed as a result of his own negligence. The company claims that Simon tried to take off too soon with insufficient speed. When a pilot makes this mistake, a plane will climb for about twenty feet, then stall and fall to the ground.
Cessna wants to call Dick Hartley to the stand at trial. Hartley was one of Simon’s flying instructors, and he will testify that he practiced “about two dozen take-offs” with Simon. On ten of those training take-offs, Simon attempted to take off at a speed “well below” the safe speed. On each of those occasions Hartley intervened and delayed the take-off until the plane had built up more speed. The last time this happened was two weeks before Simon’s fatal crash.
Hartley will also testify that in his opinion Simon was a dangerous pilot who “never followed appropriate procedures” and who “should never have been given a pilot’s license.” (Simon earned his pilot’s license after completing a flying test with an FAA examiner ten days after his last flight with Hartley and four days before his death).
Linda Weinstein has filed a motion in limine to exclude all of Hartley’s testimony. Admissible?
Answer:
Not specific enough to show Habit evidence. Refer to the 3 Factors.
The specificity of the conduct
The distinctiveness of the situation producing the conduct
The regularity of the conduct
