Parties are free to pay fact witnesses exorbitant fees, according to New York’s highest court, so long as the jury is alerted to the potential for bias. In a recent decision before the New York Appellate Division, an orthopedic surgeon received $10,000 to testify against a woman he treated after she allegedly fell while walking her dog in Peekskill, New York. Notably, the surgeon did not provide expert advice, rather he received the hefty sum to merely recount for the jury his conversations with the plaintiff during his examination. This raises some concerns regarding ethical treatment of witnesses.
Plaintiff Bessie Caldwell allegedly told her surgeon that she tripped when she became tangled with her dog’s leash. Her story changed, however, when she instituted suit claiming that her fall was due to underground cable wires that were improperly installed by the defendant, a local cable television company. The defendant proffered the orthopedic surgeon to refute the plaintiff’s claim and paid him handsomely for that testimony.
According to the court: it is “troubled by what appears to be a substantial payment to a fact witness in exchange for minimal testimony … [because 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.” Nonetheless, the court concluded that a limiting instruction to the jury could cure this apparent problem.
Fundamentally, payment of the high fee does not make the surgeon’s testimony inadmissible as a matter of law; it’s still a matter for the jury. “And what shall one make of the use of a subpoena here?” writes David D. Siegel, editor of the New York State Law Digest, “wasn’t it just for show? At $10,000 for an hour’s testimony, wouldn’t [the surgeon] have skipped to court, laughing all the way?” Hence, payment of more than the statutory daily fee is not precluded, but the amount of that fee is fair game for cross-examination.
Granted, full and complete fact testimony is critical to our legal system and there must be some form of compensation to encourage voluntary participation in trial. Apparently, parties may reimburse witnesses hefty fees to testify and it is up to the jury to balance that information when evaluating credibility.