Jurors Must Be Told of Well-Paid Witnesses

ALBANY, N.Y. (CN) - Trial judges can admit testimony from well-paid expert witnesses, but the jury should be alerted to the potential for bias, New York's highest court ruled.

Barry Krosser, an orthopedic surgeon, received $10,000 to testify against a woman he treated after she allegedly fell while walking her dog in Peekskill, N.Y.

It had been a rainy night in October 2006, and Benefield Boulevard was pocked with backfilled trenches and test pits as part of the underground installation of high-speed fiber-optic lines for Cablevision Systems Corp.

Bessie Caldwell said she tripped and fell over a dip in one of the trenches, but Krosser wrote in his emergency room consultation note that she had tripped over her 100-pound dog.

Communications Specialists Inc., the contractor whom Caldwell sued for negligence, called Krosser to testify in Westchester County Supreme Court about his notes.

On cross-examination, Krosser explained that that the contractor paid him to appear, but that the $10,000 fee did not influence his testimony.

Comparing this fee against the minimum $15-per-day, plus mileage, that New York civil law mandates for subpoenaed "fact" witnesses, Caldwell's attorney asked the court to strike Krosser's testimony. He said that alternatively the court could issue either a curative instruction or a jury charge about the payment.

The court instead suggested the attorneys address the issue in their summations, which they did, and the judge then offered the jury a general bias charge, with no specific reference to the doctor's testimony or payment.

Following deliberations, the jury found the contractor negligent, but not responsible for Caldwell's accident.

In May 2011, the Appellate Division's Second Judicial Department said Krosser's testimony was properly admitted. Though the Brooklyn-based panel found that the trial court failed to properly charge the jury, it said the error did not require reversal because it did not prejudice the trial.

New York's highest judicial authority, the Court of Appeals, affirmed Thursday.

"We, like the Appellate Division, are troubled by what appears to be a substantial payment to a fact witness in exchange for minimal testimony," Judge Eugene Pigott wrote for the five-member court. "Such payments, when exorbitant as compared to the amount of time the witness spends away from work or business, create an unflattering intimation that the testimony is being bought or, at the very least, has been unconsciously influenced by the compensation provided.

"While we are concerned by the amount the witness was paid for this minimal attendance and testimony, we conclude that the Appellate Division's order should be affirmed under the circumstances of this case."

Courts and disciplinary rules "have long acknowledged" the potential necessity to pay witnesses for expenses and time lost when they are called to court.

CPLR 8001(a) is the New York statute that provides reimbursement of $15 per day and 23 cents per mile for anyone "compelled by subpoena to appear at trial," according to the opinion.

This is merely a "minimum fee," however, and does not bar parties from paying their witnesses more.

"Nonetheless, the payment of such a disproportionate fee for a short amount of time at trial is troubling, and the distinction between paying a fact witness for testimony and paying a fact witness for time and reasonable expenses can easily become blurred," Pigott wrote.

Quoting the Committee on Professional Ethics of the New York State Bar Association, Pigott wrote: "A line must therefore be drawn between compensation that enhances the truth-seeking process by easing the burden on testifying witnesses, and compensation that serves to hinder the truth-seeking process because it tends to influence witnesses to remember things in a favorable way to the side paying them."

The ruling notes that there is no suggestion that Krosser tailored his testimony in exchange for the fee, or that he fabricated his emergency room notes.

A more rigorous jury charge was warranted, however, because the doctor had been offered so much money for about an hour's worth of testimony. The defense "did not even attempt to justify" the amount, the court added.

"Supreme Court should have instructed the jury that fact witnesses may be compensated for their lost time but that the jury should assess whether the compensation was disproportionately more than what was reasonable for the loss of the witness's time from work or business," Pigott wrote. "Should the jury find that the compensation is disproportionate, it should then consider whether it had the effect of influencing the witness's testimony."

Echoing the Appellate Division's finding, the latest ruling also found that the failure to issue a more specific jury charge "was harmless."

"The substance of the doctor's testimony was such that the jury's assessment was only tangentially related to the doctor's credibility," Pigott wrote.

Fred Profeta Jr., of Profeta & Eisenstein in New York City, represented Caldwell. Christopher Simone, of Shaub, Ahmuty, Citrin & Spratt in Lake Success, represented Communications Specialists.

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