Witness Payment Challenged
On Jan. 8, the court will consider arguments about the propriety of a payment made to a subpoenaed witness in Caldwell v. Cablevision Systems Corporation, 19. Dr. Barry Krosser, an emergency room physician, was called to testify about examining Bessie Caldwell after she said she fell into an improperly backfilled trench or test pit that Cablevision had dug for installation of fiber-optic cable in Peekskill, Westchester County.
Cablevision subpoenaed Krosser and paid him $10,000 for an hour of testimony in state Supreme Court, where the doctor said he did not recall seeing the woman, but did record in a note that she had said she had tripped over the dog she was walking in the rain. Caldwell objected, asking in vain for a curative instruction to the jury or for the doctor's testimony to be stricken entirely.
A jury found that Cablevision had been negligent, but that its negligence was not a substantial factor in Caldwell's mishap.
A Second Department panel ruled that even if the $10,000 payment to Krosser was unethical, his testimony did not have to be stricken. But the panel said the trial judge should have instructed the jury about the payment and the inferences the jury could draw, if any, about the witness' credibility (NYLJ, June 7, 2011).
Caldwell's attorney, Fred Profeta Jr. of Manhattan, will argue before the Court of Appeals that CPLR 8001(a) limits the fee for subpoenaed witnesses to $15 a day and 23 cents a mile traveled to court.
Cablevision will counter that the payments specified in the CPLR are minimums and that a professional like Krosser should be compensated for time and income lost for being a witness.
@|Joel Stashenko can be contacted at firstname.lastname@example.org.