Opinion Evidence - Expert Cannot Be Compelled to Testify
An expert cannot generally be compelled to testify to matters of opinion.[1]
An expert may not be subpoenaed and required to give his opinion. He may decline to accept a fee and refuse to testify as an expert.[2]
An expert witness may decline to testify. If he chooses to testify he is entitled to compensation as a condition for his appearance. In People ex rel. Kraushaar Bros. & Co., Inc., v Thorpe, [3] a tax certiorari proceeding, the relator subpoenaed an involuntary expert witness who previously had prepared an appraisal of the property in suit for a prior owner. At the trial, relator sought to elicit the witness's opinion as to the value of the premises but the witness declined to accept a fee and refused to testify, stating that he did not wish to take part in the case. The trial court ruled, over relator's objection, that, while that witness was required to testify with regard to what he had seen on the premises, he had a right to refuse to answer any question connected with his experience and judgment as a real estate expert and not as an ordinary lay witness. The Court of Appeals affirmed holding that the better rule is not to compel a witness to give his opinion as an expert against his will.
Thus, in a paternity proceeding, a doctor subpoenaed to produce in court all medical reports, lab analysis, blood test results and any other and all medical and laboratory tests conducted regarding test results developed as consequence of order of court made during course of proceedings, who had no independent knowledge of facts material to the issue of paternity and his involvement was only by virtue of pertinent expertise in administration of blood tissue test, was not an "ordinary witness," but an "expert" and as such he was entitled to modification of the subpoena so as to allow for his negotiation for compensation as a condition for his appearance.[4]
Where a witness refuses to testify because he has not been paid he cannot be compelled to testify, but his former testimony may be admissible if he gave prior testimony in a similar proceeding between the parties. [5]
A party is not permitted to call and pay the other party’s expert since that would create a conflict of interest.[6] An exception to this rule might be made where no other expert is available. However, an expert who examined a party during pre-trial proceedings and whose report was disclosed to all parties may be called by any party to testify to the substance of the report.[7]
[1] People ex rel. Kraushaar Bros. & Co. v Thorpe, 296 NY 223, 72 NE2d 165; see Meyer, The Expert Witness: Some Proposals For Change, 45 St. John's L. Rev 105, 108.
[2] People ex rel. Kraushaar Bros. & Co. v. Thorpe, 296 N.Y. 223.
[3] 296 N.Y. 223, 72 N.E.2d 165 (1947).
[4] Lynette D. v. Carlton W., 1982, 112 Misc.2d 738, 447 N.Y.S.2d 365.
[5] In Palma S. v Carmine S. 134 Misc.2d 34, 509 N.Y.S.2d 527 (Fam Ct, 1986), a custody modification proceeding, the petitioner moved to have admitted into evidence reports prepared by a doctor who was formerly with the Brooklyn Center for Families in Crisis, who examined the parties and testified at the request of the Justice of the Supreme Court in the earlier divorce proceeding between the two parties. While the doctor was physically available to testify he requested fees as an expert witness which the petitioner, who was represented by counsel assigned by the court, could not afford to pay. The respondent objected to the admission of these reports, absent the testimony at trial of the doctors, as inadmissible hearsay. The motion to admit the reports of the doctor who testified in the prior action was granted. The court held that Civil Practice Laws & Rules 4517 provides for prior testimony of an unavailable witness to be made part of the record of a subsequent proceeding between the same parties if certain conditions have been met. Once these conditions are met the prior testimony as well as "all exhibits and documents introduced in connection with it may be introduced in evidence by any party ... subject to any objection to admissibility other than hearsay”. Section 4517 provides that the second or subsequent action must be between the same parties and on the same subject matter. In this case the parties were the same, the subject matter--custody, was the same and, respondent's counsel in this action duly cross-examined the doctor at the prior divorce and custody proceeding in the Supreme Court. In addition to these conditions, section 4517 requires that the witness must be unavailable because of "privilege, death, physical or mental illness, absence beyond the jurisdiction of the court to compel appearance by its process or absence because the proponent of his statement does not know and with diligence has been unable to ascertain his whereabouts, or because he is incompetent to testify by virtue of section 4519." The court held that due to the Court's inability to compel the doctor to testify as to his opinions and recommendations as to these parties, he was effectually absent beyond the jurisdiction of the court to compel his appearance by its process as a matter of law. Accordingly, counsel for petitioner could introduce these transcripts as well as any "exhibits and documents introduced in connection with it" including reports prepared by the doctor which were introduced at the earlier proceeding.
[6] See County of Onondaga v Hiawatha Plaza Assocs., 195 AD2d 1009, 600 NYS2d 573; Regan v State, 49 AD2d 665, 371 NYS2d 191, mod 50 AD2d 619, 374 NYS2d 738; Maglione v Cunard S.S. Co., 30 AD2d 784, 291 NYS2d 604; Gnoj v New York, 29 AD2d 404, 288 NYS2d 368; Gugliano v Levi, 24 AD2d 591, 262 NYS2d 372; see also Byczek v New York Dept. of Parks, 81 AD2d 823, 438 NYS2d 596.
[7] Gilly v New York, 69 NY2d 509, 516 NYS2d 166, 508 NE2d 901; see also Liddy v Frome, 85 AD2d 716, 445 NYS2d 841.
An expert cannot generally be compelled to testify to matters of opinion.[1]
An expert may not be subpoenaed and required to give his opinion. He may decline to accept a fee and refuse to testify as an expert.[2]
An expert witness may decline to testify. If he chooses to testify he is entitled to compensation as a condition for his appearance. In People ex rel. Kraushaar Bros. & Co., Inc., v Thorpe, [3] a tax certiorari proceeding, the relator subpoenaed an involuntary expert witness who previously had prepared an appraisal of the property in suit for a prior owner. At the trial, relator sought to elicit the witness's opinion as to the value of the premises but the witness declined to accept a fee and refused to testify, stating that he did not wish to take part in the case. The trial court ruled, over relator's objection, that, while that witness was required to testify with regard to what he had seen on the premises, he had a right to refuse to answer any question connected with his experience and judgment as a real estate expert and not as an ordinary lay witness. The Court of Appeals affirmed holding that the better rule is not to compel a witness to give his opinion as an expert against his will.
Thus, in a paternity proceeding, a doctor subpoenaed to produce in court all medical reports, lab analysis, blood test results and any other and all medical and laboratory tests conducted regarding test results developed as consequence of order of court made during course of proceedings, who had no independent knowledge of facts material to the issue of paternity and his involvement was only by virtue of pertinent expertise in administration of blood tissue test, was not an "ordinary witness," but an "expert" and as such he was entitled to modification of the subpoena so as to allow for his negotiation for compensation as a condition for his appearance.[4]
Where a witness refuses to testify because he has not been paid he cannot be compelled to testify, but his former testimony may be admissible if he gave prior testimony in a similar proceeding between the parties. [5]
A party is not permitted to call and pay the other party’s expert since that would create a conflict of interest.[6] An exception to this rule might be made where no other expert is available. However, an expert who examined a party during pre-trial proceedings and whose report was disclosed to all parties may be called by any party to testify to the substance of the report.[7]
[1] People ex rel. Kraushaar Bros. & Co. v Thorpe, 296 NY 223, 72 NE2d 165; see Meyer, The Expert Witness: Some Proposals For Change, 45 St. John's L. Rev 105, 108.
[2] People ex rel. Kraushaar Bros. & Co. v. Thorpe, 296 N.Y. 223.
[3] 296 N.Y. 223, 72 N.E.2d 165 (1947).
[4] Lynette D. v. Carlton W., 1982, 112 Misc.2d 738, 447 N.Y.S.2d 365.
[5] In Palma S. v Carmine S. 134 Misc.2d 34, 509 N.Y.S.2d 527 (Fam Ct, 1986), a custody modification proceeding, the petitioner moved to have admitted into evidence reports prepared by a doctor who was formerly with the Brooklyn Center for Families in Crisis, who examined the parties and testified at the request of the Justice of the Supreme Court in the earlier divorce proceeding between the two parties. While the doctor was physically available to testify he requested fees as an expert witness which the petitioner, who was represented by counsel assigned by the court, could not afford to pay. The respondent objected to the admission of these reports, absent the testimony at trial of the doctors, as inadmissible hearsay. The motion to admit the reports of the doctor who testified in the prior action was granted. The court held that Civil Practice Laws & Rules 4517 provides for prior testimony of an unavailable witness to be made part of the record of a subsequent proceeding between the same parties if certain conditions have been met. Once these conditions are met the prior testimony as well as "all exhibits and documents introduced in connection with it may be introduced in evidence by any party ... subject to any objection to admissibility other than hearsay”. Section 4517 provides that the second or subsequent action must be between the same parties and on the same subject matter. In this case the parties were the same, the subject matter--custody, was the same and, respondent's counsel in this action duly cross-examined the doctor at the prior divorce and custody proceeding in the Supreme Court. In addition to these conditions, section 4517 requires that the witness must be unavailable because of "privilege, death, physical or mental illness, absence beyond the jurisdiction of the court to compel appearance by its process or absence because the proponent of his statement does not know and with diligence has been unable to ascertain his whereabouts, or because he is incompetent to testify by virtue of section 4519." The court held that due to the Court's inability to compel the doctor to testify as to his opinions and recommendations as to these parties, he was effectually absent beyond the jurisdiction of the court to compel his appearance by its process as a matter of law. Accordingly, counsel for petitioner could introduce these transcripts as well as any "exhibits and documents introduced in connection with it" including reports prepared by the doctor which were introduced at the earlier proceeding.
[6] See County of Onondaga v Hiawatha Plaza Assocs., 195 AD2d 1009, 600 NYS2d 573; Regan v State, 49 AD2d 665, 371 NYS2d 191, mod 50 AD2d 619, 374 NYS2d 738; Maglione v Cunard S.S. Co., 30 AD2d 784, 291 NYS2d 604; Gnoj v New York, 29 AD2d 404, 288 NYS2d 368; Gugliano v Levi, 24 AD2d 591, 262 NYS2d 372; see also Byczek v New York Dept. of Parks, 81 AD2d 823, 438 NYS2d 596.
[7] Gilly v New York, 69 NY2d 509, 516 NYS2d 166, 508 NE2d 901; see also Liddy v Frome, 85 AD2d 716, 445 NYS2d 841.
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