In December 2019, we addressed, for the first time in more than two decades, the issue of the admissibility of physicians’ testimony as to their custom and practice, also known as habit evidence. See Evidence of Custom and Practice, NYLJ (Dec. 3, 2019), p. 3. We are drawn back to that subject by two recent Appellate Division decisions that provide new insights into the admissibility and applicability of such evidence.

By way of context, two of the opinions discussed at length in that column were those of the Court of Appeals in Rivera v. Anilesh, 8 N.Y.3d 627 (2007) and the Second Department in Martin v. Timmins, 178 A.D.3d 107 (2d Dept. 2019). In Rivera, a dental malpractice action, the court held that the defendant’s testimony as to her routine procedure for administering injections of anesthesia, which she indicated she had done “in the same manner thousands of times,” was properly considered in conjunction with her summary judgment motion and was sufficient to shift the burden to the plaintiff to establish issue of fact.