EMAIL TO A FRIEND COMMENT

 

No Subpoena Proof Required to Tax Expert Witness Fees as Costs; Jaundice Treatment


An infant suffered from a severe case of jaundice. He was treated at the hospital. He suffered serious complications and was left permanently disabled.

 

The infant’s mother sued, on the infant’s behalf, the doctor, his practice group, the hospital, and the medical school that provided the hospital with many of its staff. The complaint alleged the doctor, hospital, and medical school’s individual and collective failure to properly treat the infant resulted in serious complications and left him permanently disabled.

 

After discovery had begun, the infant-plaintiff voluntarily dismissed all claims against all defendants without prejudice. The doctor and his practice group filed a motion seeking the entry of an order taxing costs against the infant-plaintiff in the dismissed case pursuant to N.C.G.S. § 1A–1, Rule 41(d)4 including “reasonable and necessary expenses for stenographic and videographic services [related to the taking of depositions], the cost of deposition transcripts, travel expenses of defense counsel for depositions and expert witness fees for the depositions of plaintiff[’s] expert witnesses in the total amount of $39,749.60.” The hospital and medical school filed a motion seeking to have “reasonable and necessary costs in the amount of $29,609.80” incurred in “the preparation and defense of [plaintiff’s] action” taxed against the infant pursuant to Rule 41(d).

 

After conducting a hearing on these motions, the Johnston County Superior Court determined that (1) the expenses the doctor, his practice group, the hospital, and the medical school incurred for video conferencing, stenographic preparation of a deposition summary and room rent” should not be taxed against the infant-plaintiff because those expenses were not reasonable and necessary; (2) the doctor, his practice group, the hospital, and the medical school had incurred expenses recoverable under section 7A–305 for stenographic and videographic services and expert witness fees for depositions of expert witnesses that the doctor, his practice group, the hospital, and the medical school had taken; and (3) the discovery scheduling orders eliminated the need for the expert witnesses to be subpoenaed in order to tax against the infant-plaintiff these expert witness fee costs. Based upon these determinations, the trial court taxed $23,799.61 in costs in favor of the hospital and medical school, and $24,738.76 in costs in favor of the doctor and his practice group.

 

The sole issue on appeal was whether the trial court erred by granting expert witness fees for the actual time that the infant-plaintiff’s designated experts spent testifying during their respective depositions as costs to the doctor, his practice group, the hospital, and the medical school pursuant to section 7A–305 of the North Carolina General Statutes. The North Carolina Court of Appeals reversed and remanded. The appellate court concluded that the trial court had erred by awarding the relevant expert witness fees as costs because the doctor, his practice group, the hospital, and the medical school were statutorily required to subpoena the expert witnesses in question as a prerequisite for obtaining this relief.

 

The Supreme Court of North Carolina reversed the appellate decision. The court held that the party seeking to obtain the taxing of expert witness fees is not required to demonstrate that the expert witnesses in question testified subject to a subpoena.

 

The party seeking to obtain the taxing of expert witness fees is not required to demonstrate that the expert witnesses in question testified subject to a subpoena. The North Carolina General Assembly eliminated the traditional subpoena requirement associated with the taxing of certain expert witness fees as costs in civil actions by adding subdivision (11) to N.C.G.S. § 7A–305(d) in 2007. Subdivision (11) states that “[r]easonable and necessary fees of expert witnesses solely for actual time spent providing testimony at trial, deposition, or other proceedings” are “assessable or recoverable” as costs. The subpoena requirement established in N.C.G.S. § 7A–314 did not apply to expert witness fees taxed as costs pursuant to N.C .G.S. § 7A–305(d)(11). The court held that the trial court correctly taxed expert witness fees in accordance with N.C.G.S. § 7A–305(d)(11) against the infant-plaintiff, albeit for different reasons.

 

The Supreme Court of North Carolina reversed the appellate court’s reversal of the trial court’s award of the relevant expert witness fees as costs to the doctor, his practice group, the hospital, and the medical school.

 

See: Lassiter ex rel. Baize v. North Carolina Baptist Hospitals, Inc., 2015 WL 6777113 (N.C., Nov. 6, 2015) (not designated for publication). 

 

 

REPRINTS & PERMISSIONS COMMENT