ALBANY – Although "troubling," the practice of paying fact witnesses substantially more than nominal fees should not disqualify their testimony as long as trial judges properly charge juries about potential bias, the state Court of Appeals ruled yesterday.

The 5-0 court upheld a jury verdict in favor of the defendants in a personal injury case in which a woman sued Cablevision Systems Corporation and subcontractor Communications Specialists Inc. (CSI) for leg injuries she suffered when she allegedly fell into holes dug for high-speed fiber-optic cable in Peekskill, Westchester County.

Attorneys for Bessie Caldwell in Caldwell v. Cablevision Systems, 19, argued that the verdict should have been invalidated because an emergency room doctor, Barry Krosser, subpoenaed by the defense demanded and received $10,000 for appearing in court (NYLJ, Jan. 9).

Not only was that compensation far in excess of the $15 a day and 23 cents a mile for transportation that is specified for witnesses in CPLR 8001(a), Caldwell also contended that Supreme Court Justice Richard Liebowitz in Westchester County failed to properly instruct jurors about the "suspect credibility" of fact witnesses who are disproportionately compensated for their time.

Judge Eugene Pigott Jr. (See Profile), writing for the Court of Appeals, said the court is "troubled by what appears to be a substantial payment to a fact witness in exchange for minimal testimony."

"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," Pigott wrote.

He said Liebowitz properly concluded that the question of the doctor’s compensation as a witness was fair game during cross-examination and for comment during summation.

But Pigott said Liebowitz "should have issued a bias charge specifically tailored to address the payment CSI made to the doctor."

"Supreme Court should have instructed the jury that fact witnesses may be compensated for their lost time but that the jury should assess whether the compensation was disproportionately more than what was reasonable for the loss of the witness’s time from work or business," Pigott wrote. "Should the jury find that the compensation is disproportionate, it should then consider whether it had the effect of influencing the witness’s testimony."

However, Pigott concluded that Liebowitz’s failure to issue a "more specific jury charge" in the Caldwell case was harmless.

"The substance of the doctor’s testimony was such that the jury’s assessment was only tangentially related to the doctor’s credibility," Pigott wrote.

Chief Judge Jonathan Lippman (See Profile) and Judges Susan Phillips Read (See Profile), Victoria Graffeo (See Profile) and Robert Smith (See Profile) joined in the opinion. The decision affirmed a 4-0 determination by an Appellate Division, Second Department, panel (NYLJ, June 7, 2011).

In his testimony, which lasted less than an hour, the doctor attested to the authenticity of a note he made after examining Caldwell in the emergency room of Hudson Valley Hospital. His note indicated that the woman said she had "tripped over" her dog while walking in the rain, not that she had fallen into a hole dug for underground cable.

The defendants said the doctor insisted on the $10,000 fee to compensate him for the valuable time he would have to take away from his medical practice to be in court.

Fred Profeta Jr. of Profeta & Eisenstein in Manhattan argued for Caldwell.

Caldwell said he still believes allowing the testimony was a "very prejudicial error."

Profeta said Caldwell seemed to have "won the battle and lost the war" with the court’s finding that the trial judge did not properly instruct the jury while it also held that the error was harmless.

While the court tried to provide guidance to judges on what to do when confronted by the issue of highly paid subpoenaed witnesses, Profeta said it left open the question of at what point a judge should make known his determination that a witness’ compensation is exorbitant.

Christopher Simone of Shaub, Ahmuty, Citrin & Spratt in Lake Success represented the defendants.