Federal judge rules on witness pay

NEWS IN BRIEF — Posted Sept. 6, 2004

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A federal court in New York said lawyers who asked a physician questions that delved into areas of technical and other specialized knowledge need to pay the doctor a "reasonable fee" and not simply the small stipend given to lay, fact witnesses for deposition testimony.

The U.S. District Court of the Northern District of New York said although a plaintiff's lawyer did not identify Albany, N.Y., psychiatrist Mary Panzetta, MD, as an expert, the doctor was asked questions that "could reasonably be interpreted as calling for opinion testimony."

"The critical factor in determining whether a witness is entitled to a reasonable fee is the substance of the testimony," Judge Thomas J. McAvoy wrote in his opinion in Lamere v. New York State Office for the Aging.

For example, he said, a physician testifying to whether a clamp was left in a patient during surgery or whether an assailant in a battery case was wearing a blue shirt would not qualify as an expert entitled to a "reasonable fee." That type of testimony is limited to pure observation.

"If, however, testimony is elicited that reasonably may be considered to be opinion based on specialized skill and knowledge ... then the physician may properly be characterized as an expert witness and is entitled to a reasonable fee for time spent in responding to discovery," McAvoy said.

Note: This item originally appeared at

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