EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Sunday, June 12, 2011

Call The Doctor: NY Court Addresses Questions About Compensation For Physicians Called As Fact Witnesses

A party can only pay fact witnesses attendance fees, travel expenses, and compensation for their loss of time spent testifying. This is because fact witnesses have a public duty to testify. Conversely, expert witnesses are under no obligation to testify and can be pad commensurate with their special knowledge and skill. But let's say that a party wants to call a physician who is usually called as a expert witness, but the party only wants to call him as a fact witness. Can the party pay the expert an amount commensurate with the amount that he ordinarily receives when he testifies as an expert? According to the recent opinion of the New York Supreme Court, Appellate Division, Second Department in Caldwell v. Cablevision Systems Corp., 2011 WL 2164004 (N.Y.A.D. 2 Dept. 2011), the answer is "no." So, why did the court affirm a verdict against a plaintiff despite a defendant overpaying a physician/fact witness?

In Caldwell
The defendant [Communications Specialists, Inc.] was contracted by Cablevision Systems Corporation  to install a high-speed fiber-optic cable underneath Benefield Boulevard in Peekskill. To install the cable, the defendant cut a trench, two feet deep and four to five inches wide, which extended more than 3,000 feet along Benefield Boulevard. Additionally, the defendant dug, along the trench, a series of "test pits," approximately one-foot wide, to determine the location of existing underground utility lines. The plaintiffs' home is located on Benefield Boulevard. On October 11, 2006, at approximately 10:00 P.M., the plaintiff Bessie Caldwell (hereinafter the injured plaintiff) took her 100–pound dog for a walk during a heavy rainstorm. As was her daily custom, the injured plaintiff crossed Benefield Boulevard from her driveway and walked with the dog on the sidewalk for a short distance. As she was walking back across Benefield Boulevard toward her driveway, the injured plaintiff tripped and fell in the road, allegedly sustaining injuries. At the time of the injured plaintiff's accident, the defendant had previously dug and backfilled the trench and test pits on Benefield Boulevard, but the road had not yet been permanently repaved.
The injured plaintiff and her husband, suing derivatively, subsequently commenced [an] action alleging, inter alia, that the defendant failed to properly backfill the trench and test pits, and had failed to adequately cover the trench and test pits with a temporary resurfacing material. According to the plaintiffs, the defendant had thereby created a dangerous condition on Benefield Boulevard which was the cause of the accident.

At trial, "the injured plaintiff testified that she fell when she tripped on a 'dip' in one of the test pits along the trench." Thereafter,

To rebut this testimony, the defendant called as a witness Dr. Barry Krosser, an orthopedic surgeon who had examined the injured plaintiff in an emergency room after the accident. Dr. Krosser was called during the liability phase of the trial solely to testify as to the description of the accident given to him by the injured plaintiff and recorded in his consultation note. Dr. Krosser's consultation note was admitted into evidence as a business record. Based upon the note, as opposed to his independent recollection, Dr. Krosser testified that when he evaluated the plaintiff, she indicated to him that she "tripped over a dog while walking ... in the rain." Dr. Krosser further testified that he was appearing by virtue of a subpoena served upon him by defense counsel, and that the defendant was compensating him for his lost time in the sum of $10,000. The plaintiffs' counsel cross-examined Dr. Krosser regarding this payment, without limitation. Dr. Krosser indicated that, in cases in which he had previously testified as an expert, he had charged a fee, since he would otherwise have been seeing patients or performing surgery.

Based upon thus payment, the plaintiffs' counsel moved (1) to strike Dr. Krosser's testimony on the ground that it was improper for the defendant to have paid $10,000 to a fact witness; or, in the alternative, (2) for a jury instruction pertaining specifically to the payment. The trial court ruled that both counsel could address Dr. Krosser's compensation in their summations, but it otherwise denied the plaintiffs' motion. After the jury entered a verdict finding that the defendant was negligent but that this negligence was not a substantial factor in bringing about the injured plaintiff's accident, the plaintiffs appealed, claiming "that Dr. Krosser's testimony should have been stricken or, alternatively, that the jury should have been specifically instructed as to the potential bias created by the $10,000 payment made to the witness."

In addressing this argument, the Supreme Court of New York, Appellate Division, Second Department, began by noting that parties may only pay fact witnesses "attendance fees" in the amount of $15 for each day of attendance at trial, and travel expenses in the amount of 23 cents per mile pursuant to CPLR 8001(a) as well as compensation for the loss of their time spent testifying. The court then rejected the defendant's suggestion that its $10,000 payment was proper because it "was commensurate with the amount Dr. Krosser ordinarily charges to testify as an expert." According to the court,

There are...important differences between expert witnesses and fact witnesses. Experts are under no public duty, nor can they be compelled, to testify....Their opinion testimony involves "special knowledge and skill...and often requires examination and study upon a particular branch of science.. about which they are to testify"....Moreover, the testimony of a particular expert is not ordinarily necessary to the resolution of a case in the same manner as is the testimony of a fact witness who has personal knowledge peculiar to the case at hand. Thus, while fact witnesses have a public duty to testify and are limited to receipt of statutory fees and compensation for lost time, expert witnesses are justified in receiving compensation for their efforts....Here, Dr. Krosser was not called to provide any medical evidence. Therefore, because no special knowledge or examination and study was required for the testimony given by Dr. Krosser, the defendant's suggestion that the payment to Dr. Krosser was commensurate with his normal expert fees detracts from its assertion that the payment was merely reasonable compensation for time lost testifying.

That said, the court then noted that its role in the appeal before it was not to determine whether the payment to Dr. Krosser was reasonable; instead, it had to decide whether Dr. Krosser's testimony should have been excluded or accompanied by a specific instruction regarding potential bias. The court quickly rejected the exclusion argument, finding that "[o]ur legal system generally 'leave[s] the veracity of a witness to be tested by cross-examination, and the credibility of his testimony to be determined by a properly instructed jury.'"

The court, however, agreed with the argument that a specific instruction on bias should have been given. It concluded that

While the Supreme Court instructed the jury that it should consider bias or prejudice in determining the weight to be given to any particular witness's testimony, this general charge was insufficient under the circumstances. Just as a jury that hears testimony in a criminal trial from a witness who is testifying in exchange for a promise of leniency is given a specific instruction regarding the possibility of bias..., we conclude that, in light of the important public policy considerations concerning fees paid to fact witnesses, more than the general credibility charge is also warranted where, as here, a reasonable inference can be drawn that a fact witness has been paid an amount disproportionate to the reasonable value of his or her lost time. In crafting an appropriate instruction, trial courts should bear in mind the general principles regarding fact-witness testimony heretofore discussed, including a fact witness's public duty to testify for the statutory fee of $15; the permissibility of voluntary compensation for the reasonable value of time spent in testifying; the goal of drawing the line between compensation that merely eases the burden of testifying and that which tends to unintentionally influence testimony; the inference, which may be drawn from the disproportionality of the payment to the reasonable value of lost time, that a fee for testimony has been paid; and the potential for unconscious bias that such a fee may create

That said, the court ultimately concluded that

Although the trial court here failed to give a specific instruction regarding fact-witness compensation to the jury, under the particular circumstances of this case, the charge error does not require reversal. Dr. Krosser was called as a witness by the defendant for the sole purpose of testifying as to a single fact recorded in his medical notes. Dr. Krosser admitted that he had no personal recollection of speaking with the plaintiff and that his testimony was based only on what was written in his note. The jury's evaluation of this testimony was, therefore, only minimally dependent upon an assessment of Dr. Krosser's credibility. In other words, the plaintiffs do not challenge the believability of Dr. Krosser's testimony that he made a particular notation in the injured plaintiff's medical chart. Rather, they dispute the accuracy of the note itself. Because the payment of fees to a fact witness goes merely to the credibility of the witness, in view of the nature of Dr. Krosser's testimony, the charge error here was not so prejudicial as to warrant reversal and a new trial.

I'm not sure that I agree. Now, I don't have access to the full factual record of the Caldwell case, but a few things are clear. First, the jury found that the defendant was negligent. My assumption from this finding is that the jury found the defendant negligent in failing to act properly after digging the trench and test pits. Second, the jury found that the plaintiff was injured. Third, the jury found that the defendant's negligence was not a substantial factor in causing the plaintiff's injury. My assumption is that the jury credited Dr. Krosser's notation that the plaintiff tripped over a dog and thus discredited the plaintiff's testimony that she tripped on a dip in a test pit. That leaves one question: Besides Dr. Krosser's notation, what other evidence was there to discredit the plaintiff's testimony?

If there was plenty of other evidence that the plaintiff did not trip on a dip, I would agree with the court that a new trial was not warranted. But if Dr. Krosser's notation was the only or the primary evidence discrediting her testimony, his credibility was central to the case, and I think that a new trial was warranted.

(Hat tip to Michael J. Hutter for the link)



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