Costs Award Due to Health Providers Moving for Continuance on Trial Date

The administrator of an estate brought a medical malpractice and wrongful death action against the decedent's health care providers. During pretrial hearings, the health care providers moved for a continuance of the trial date at least three times. The trial court denied each of these motions. On the scheduled trial date, five expert witnesses appeared to testify on the estate's behalf. The health care providers moved for a continuance. The court granted the motion for a continuance. The five expert witnesses did not testify.


The administrator filed a "Petition for Costs for Experts' Trial Attendance," requesting that the health care providers be required to pay for the costs of the five expert witnesses. The Phillips County Circuit Court entered an interlocutory order directing the health care providers to immediately pay the estate $12,000 for the fees and costs associated with the trial appearances of the estate's expert witnesses on the date originally scheduled for trial. The defendants petitioned the Supreme Court of Arkansas for a writ of prohibition or a writ of certiorari arguing that the circuit court was wholly without jurisdiction and committed a plain, clear, and gross abuse of discretion when it awarded expert witness costs in this case.


The Supreme Court of Arkansas denied the writ of prohibition and the writ of certiorari. The court reasoned that a writ of prohibition could not be invoked to correct an order already issued by the circuit court. The court reasoned that a writ of certiorari was not appropriate where the defendant's had an alternative remedy to challenge the trial court's interlocutory order.


The court held that the writ of prohibition was extraordinary relief that is appropriate when the trial court is wholly without jurisdiction and when there is no other remedy, such as an appeal, available. Moreover, the writ of prohibition cannot be invoked to correct an order already entered. The court reasoned that because the trial court had already entered an order awarding costs, relief in the form of a writ of prohibition could not be invoked.


For the Arkansas Supreme Court to grant a writ of certiorari, there can be no other adequate remedy but for the writ of certiorari. If there is no other adequate remedy, a writ of certiorari lies only where (1) it is apparent on the face of the record that there has been a plain, manifest, clear, and gross abuse of discretion; or (2) there is a lack of jurisdiction, an act in excess of jurisdiction on the face of the record, or the proceedings are erroneous on the face of the record. Harm is normally considered irreparable only when it cannot be adequately compensated by money damages or redressed in a court of law. The court reasoned that the only issue was the payment of costs and the trial court can order return of that payment. Additionally, the court noted that the health care defendants would have an opportunity to file an appeal following the final judgment in the underlying action. Therefore, the petition for writ of prohibition was denied and the petition for writ of certiorari was denied without prejudice.


See: Moore v. Circuit Court of Phillips County, 2013 Ark. 443, 2013 WL 5947123 (Ark., November 7, 2013) (not designated for publication).