By Daniel Wiessner
ALBANY, N.Y., Feb 7 (Reuters) - The New York State Court of
Appeals ruled Thursday that the testimony of a doctor paid
$10,000 to testify for one hour in a personal injury case was
admissible but said the trial court should have warned the jury
of his potential bias.
The court on Thursday said it was "troubled" by the payment
to the doctor, who was subpoenaed by the defense to testify in a
case brought by Bessie Caldwell against Communications
Specialists and Cablevision.
The payment, however, did not run afoul of a state law
regarding witness compensation, the court said.
Section 8001 of the state Civil Practice Laws and Rules
requires that a witness who is compelled to testify be paid a
minimum of $15 per day, as well as 23 cents per mile traveled.
The law does not cap witness compensation.
"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," Judge Eugene Pigott wrote for the court.
Pigott faulted the trial judge for failing to instruct the
jury on the doctor's potential bias but said the error was
harmless because Caldwell had not alleged that the doctor's
testimony was fabricated.
According to the court, Communications Specialists in 2006
contracted with Cablevision to install a fiber-optic cable in
the Westchester County city of Peekskill. Communications
Specialists dug trenches along a road that were filled with dirt
but not completely finished.
Caldwell claimed that one night in 2006, while walking her
dog, she tripped and fell into one of the trenches.
In 2009, she sued Cablevision and Communications
Specialists, claiming they had negligently created a hazardous
condition by failing to pave the trenches.
The doctor who examined Caldwell shortly after her fall
wrote in a medical report that she "tripped over a dog while
walking last night in the rain," the court said. Communications
Specialists subpoenaed the doctor to testify on its behalf.
During cross-examination by Caldwell's attorney, the doctor
testified that he had been paid $10,000 by Communications
Specialists to appear but denied that the payment influenced his
testimony, the Court of Appeals said.
Caldwell moved to strike the testimony. As an alternative,
her attorney asked Westchester County Supreme Court Justice
Richard Liebowitz to instruct the jury on potential bias arising
from the payment. Liebowitz denied the motions, instead
suggesting that Caldwell raise the issue during summation.
The jury in 2009 found Communications Specialists negligent
but concluded that its negligence was not a factor in Caldwell's
accident. It was not immediately clear what the jury ruled with
respect to Cablevision.
The Appellate Division, Second Department, in 2011 affirmed,
finding that Liebowitz erred in declining to fashion a jury
instruction on potential bias but that the error was harmless.
The Court of Appeals on Thursday agreed.
Pigott was joined by Chief Judge Jonathan Lippman and Judges
Victoria Graffeo, Susan Read and Robert Smith.
Caldwell's attorney, Fred Profeta, said on Thursday that the
decision is important because it provides guidance with respect
to witness pay, but he disagreed with the court that the judge's
failure to instruct the jury in his case was harmless.
"The jury asked about the doctor's testimony a couple of
times; he was a persuasive witness, and clearly they were
focused on him," Profeta said.
Communications Specialists' attorney, Christopher Simone,
did not immediately return a request for comment.
The case is Bessie Caldwell v. Cablevision Systems
Corporation, New York State Court of Appeals, No. 19.
For Caldwell: Fred Profeta.
For Communications Specialists, Inc.: Christopher Simone of
Shaub, Ahmuty, Citrin & Spratt.
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