20 N.Y.3d 365 (2013)

Testimony from a subpoenaed fact witness who receives a fee disproportionately exceeding the statutory minimum is generally admissible; however, the trial court may need to instruct the jury about potential bias if the fee is excessive and unexplained.

Summary

Caldwell sued Cablevision Systems Corp. for negligence after she tripped and fell in a trench created during cable installation. CSI, Cablevision’s contractor, subpoenaed the emergency room physician who initially treated Caldwell, to testify that she stated she tripped over her dog. The physician testified consistently with his records. Caldwell’s counsel revealed the physician was paid $10,000 by CSI for his appearance. The court provided a general bias charge but not a specific one related to the doctor’s payment. The jury found CSI negligent, but that such negligence was not a substantial factor in bringing about the accident. The Court of Appeals held the testimony was admissible, but a specific jury instruction regarding potential bias should have been given. However, the error was deemed harmless.

Facts

In September 2006, CSI, contracted by Cablevision, installed fiber-optic cable, cutting trenches and test pits along Benefield Boulevard. On October 11, 2006, Caldwell, a resident, tripped and fell while walking her dog, allegedly due to a “dip in the trench.” She claimed injuries from the fall. CSI subpoenaed the emergency room physician who treated Caldwell to testify about his consultation note stating Caldwell “tripped over a dog.” The physician testified confirming his note, and admitted being paid $10,000 by CSI for his appearance.

Procedural History

Caldwell sued CSI for negligence. At the trial level, the Supreme Court denied Caldwell’s motion to set aside the jury verdict finding CSI negligent but not the cause of the accident. The Appellate Division affirmed, finding that while the payment to the doctor did not warrant excluding his testimony, the Supreme Court erred by not adequately charging the jury regarding the credibility of a paid fact witness, but deemed the error harmless. The Court of Appeals granted leave to appeal.

Issue(s)

Whether the testimony of a subpoenaed fact witness, who receives a fee alleged to be disproportionately in excess of CPLR 8001 (a)’s mandatory fee requirement for attendance at trial, is inadmissible as a matter of law, and whether the trial court erred by not giving a specific jury instruction regarding the potential bias of the paid fact witness.

Holding

No, the testimony is generally admissible, but a specific jury instruction should have been given regarding potential bias, because the payment was substantial and unexplained, but the failure to do so was harmless error under the circumstances of this case.

Court’s Reasoning

The Court acknowledged concerns about the substantial payment to the fact witness, noting such payments could create an implication that the testimony was bought or influenced. While CPLR 8001(a) sets a minimum witness fee, it doesn’t authorize unlimited payments. The Court referred to precedent stating, “To procure the testimony of witnesses it is often necessary to pay the actual expenses of a witness in attending court and a reasonable compensation for the time lost.” The Court cited Rules of Professional Conduct, permitting “reasonable compensation…for the loss of time.” The Court emphasized the prohibition against paying a fact witness contingent on favorable testimony or the litigation’s outcome. The Court determined, although a more specific jury charge should have been given, Supreme Court’s failure to issue one in this case was harmless. The dispute underlying the doctor’s testimony was not whether he fabricated the contents of the consultation note. In other words, the substance of the doctor’s testimony was such that the jury’s assessment was only tangentially related to the doctor’s credibility. Thus, the Court affirmed the Appellate Division’s order.