Lassiter, ex rel. v. North Carolina Baptist Hospitals, Incorporated , 368 N.C. 367 ( 2015 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 330PA14
FILED 6 NOVEMBER 2015
KEEN LASSITER, as Guardian ad Litem for JAKARI BAIZE, a minor
v.
NORTH CAROLINA BAPTIST HOSPITALS, INCORPORATED a/k/a NORTH
CAROLINA BAPTIST HOSPITAL, WAKE FOREST UNIVERSITY HEALTH
SCIENCES, TERRY DANIEL, M.D., and DAYSPRING FAMILY MEDICINE
ASSOCIATES, PLLC
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision
of the Court of Appeals, ___ N.C. App. ___, 761 S.E.2d 720 (2014), reversing and
remanding orders entered on 9 September 2013 by Judge Thomas H. Lock in Superior
Court, Johnston County. Heard in the Supreme Court on 1 September 2015.
Crabtree, Carpenter & Connolly, PLLC, by Charles F. Carpenter; and Edwards
& Edwards, L.L.P., by Joseph T. Edwards and Sharron R. Edwards, for
plaintiff-appellee.
Carruthers & Roth, P.A., by Norman F. Klick, Jr., Richard L. Vanore, and
Robert N. Young, for defendant-appellants Terry Daniel, M.D. and Dayspring
Family Medicine Associates, PLLC; and Wilson Helms & Cartledge, LLP, by G.
Gray Wilson and Linda L. Helms, for defendant-appellants North Carolina
Baptist Hospitals, Incorporated a/k/a North Carolina Baptist Hospital and
Wake Forest University Health Sciences.
ERVIN, Justice.
In this case we are required to determine whether defendants North Carolina
Baptist Hospitals, Incorporated a/k/a North Carolina Baptist Hospital and Wake
Forest University Health Sciences (collectively, “defendants NCBH and WFUHS”),
and defendants Terry Daniel, M.D. and Dayspring Family Medicine Associates,
LASSITER EX REL. BAIZE V. N.C. BAPTIST HOSPS., INC.
Opinion of the Court
PLLC (collectively, “defendants Daniel and Dayspring”) were required to obtain the
issuance of subpoenas directed to certain individuals who had been identified as
planning to provide expert testimony on behalf of plaintiff Keen Lassiter, as guardian
ad litem for Jakari Baize, as a prerequisite for being awarded the fees that defendants
paid for the “actual time [that the expert witnesses] spent providing [deposition]
testimony” as costs. N.C.G.S. § 7A-305(d)(11) (2013). On 5 August 2014, a unanimous
panel of the Court of Appeals filed an opinion concluding that the trial court had erred
by awarding the relevant expert witness fees as costs because defendants were
statutorily required to subpoena the expert witnesses in question as a prerequisite
for obtaining such relief. Lassiter ex rel. Baize v. N.C. Baptist Hosps., Inc., ___ N.C.
App. ___, ___, 761 S.E.2d 720, 724 (2014) (citing Stark v. Ford Motor Co., 226 N.C.
App. 80, 84, 739 S.E.2d 172, 176 (citing Jarrell v. Charlotte–Mecklenburg Hosp. Auth.,
206 N.C. App. 559, 563, 698 S.E.2d 190, 193 (2010) (concluding that N.C.G.S § 7A-
314 “limits the trial court’s broader discretionary power under [N.C.G.S.] § 7A-
305(d)(11) to award expert fees as costs only when the expert is under subpoena”)),
disc. rev. denied, 367 N.C. 240, 748 S.E.2d 321 (2013)). After reviewing the relevant
statutory provisions, we conclude that the 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)
(stating that “[r]easonable and necessary fees of expert witnesses solely for actual
time spent providing testimony at trial, deposition, or other proceedings” are
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“assessable or recoverable” as costs) in 2007, see Act of July 3, 2007, ch. 212, sec. 3,
2007 N.C. Sess. Laws (Reg. Sess. 2007) 339, 339-40, and that the Court of Appeals’
decision should be reversed.
On 8 December 2010, Chinatha Clark, as guardian ad litem for her son, Jakari
Baize,1 filed a complaint in Superior Court, Pitt County,2 against defendants based
on their alleged individual and collective failure to properly treat Jakari for a severe
case of jaundice that resulted in serious complications and left Jakari permanently
disabled. In February 2011, defendants NCBH and WFUHS and defendants Daniel
and Dayspring, respectively, filed separate answers in which they denied that
Jakari’s injuries had resulted from any negligence on their part. Subsequently,
defendants NCBH and WFUHS and defendants Daniel and Dayspring filed separate
motions asking the trial court to schedule a discovery conference and enter a
discovery scheduling order as required by N.C.G.S. § 1A-1, Rule 26(f1).
On 13 February 2012, a hearing was held before Judge Marvin K. Blount, III
to address a number of issues, including the entry of a discovery scheduling order.
Two days later, counsel for defendants Daniel and Dayspring sent a draft discovery
scheduling order to the trial court coordinator for the Superior Court, Johnston
County, for consideration by Judge Blount. On 25 April 2012, the trial court
1At some unspecified point before entry of the 28 November 2011 order, Keen Lassiter
was substituted for Ms. Clark as Jakari’s guardian ad litem.
2 On 28 November 2011, “upon motion of defendants,” venue in this case was
transferred to the Superior Court, Johnston County.
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coordinator contacted counsel for the parties to inform them that, while Judge Blount
had not yet entered a discovery scheduling order, he would do so as soon as possible.
According to the draft discovery scheduling order transmitted to Judge Blount
by counsel for defendants Daniel and Dayspring, plaintiff was required to designate
all expert witnesses whom he intended to call at trial on or before 1 May 2012 and to
“make [his] expert witnesses available for deposition upon request by any party on or
before August 15, 2012.” Although Judge Blount had not, by that point, entered a
discovery scheduling order, plaintiff identified ten expert witnesses whom he
expected to call at trial during May 2012 before plaintiff withdrew one of those expert
witnesses on 6 July 2012.
On 15 October 2012, Judge Blount entered a discovery scheduling order that,
among other things, extended the date by which plaintiff’s designated expert
witnesses must be made available for deposition from 15 August 2012 to 15 November
2012. In addition, the discovery scheduling order provided that (1) “[e]xperts not
designated and made available for deposition in accordance with this [o]rder shall not
be permitted to testify at trial”; (2) “[a]ll designated expert witnesses shall reasonably
be made available for a discovery deposition upon request by any party”; (3) “[a] party
desiring to depose another party’s expert witness shall pay the expert a reasonable
hourly rate for the expert’s actual time testifying at the deposition”; and (4), if a
dispute concerning the amount of compensation to be paid to an expert witness for
deposition-related testimony arises, “the deposition shall be taken, and thereafter the
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[c]ourt, upon motion filed by any party, shall establish a reasonable hourly rate for
the expert’s actual time testifying at the deposition.” Moreover, the discovery
scheduling order required that all discovery be completed by 3 October 2013, that the
mandatory mediation conference be held by 17 October 2013, and that the case be set
for trial on or after 20 January 2014. Finally, the discovery scheduling order
permitted modification of the “schedule and deadline dates set forth [t]herein . . . only
by the written consent of counsel for all parties with the [c]ourt’s consent or by order
of the [c]ourt for good cause shown.”
Prior to the 15 November 2012 deadline, defendants deposed (1) Kitty Carter-
Wicker, M.D. on 27 July 2012;3 (2) Thomas Hegyi, M.D. on 3 August 2012; (3) Richard
Inwood, M.D. on 22 August and 13 September 2012; and (4) Marcus Hermansen, M.D.
on 25 September 2012. On 20 December 2012, plaintiff filed a Motion to Amend
Discovery Scheduling Order in which he sought the entry of an order extending the
deadline by which he could make his remaining experts available for deposition from
15 November 2012 to 31 January 2013. On 27 December 2012, all defendants filed a
Motion to Strike and Exclude Certain Expert[ ] Witnesses Designated by Plaintiff in
which they argued that plaintiff had violated the discovery scheduling order by failing
to provide dates upon which defendants could depose Richard C. Lussky, M.D.; J.C.
Poindexter, Jr., Ph.D.; Lois Johnson, M.D.; Ann T. Neulicht, M.D.; and Steven
3 Defendants also deposed Dr. Carter-Wicker on 4 December 2012.
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Shapiro, M.D. prior to 15 November 2012, and that these witnesses should be
precluded from testifying at trial “as expressly ordered in the Discovery Scheduling
Order.” In January 2013, plaintiff responded to defendants’ motion by offering an
explanation for the delays that had occurred during the discovery process and
asserting that defendants had failed to make two important treating physicians
available for deposition in a timely manner.
A hearing concerning the issues raised by these competing motions was held
before Judge William R. Pittman at the 14 January 2013 term of the Superior Court,
Johnston County. On the same date, Judge Pittman entered an order denying
plaintiff’s motion to amend and allowing defendants’ motion to preclude certain of
plaintiff’s expert witnesses from testifying at trial. More specifically, Judge Pittman
ordered that Drs. Lussky, Poindexter, and Neulicht be precluded from testifying at
trial, allowed Dr. Shapiro to testify as a treating physician while precluding him from
testifying as an expert witness, and stated that, if Dr. Johnson had not been made
available for deposition by 1 March 2013, her trial testimony would be precluded as
well.
On 4 February 2013, the trial court entered an amended discovery scheduling
order, under which the 15 November 2012 deadline by which plaintiff was required
to make his expert witnesses available for deposition remained in effect. On 21
February 2013, plaintiff filed a motion seeking to have the deadline by which Dr.
Johnson had to be made available for deposition extended or, in the alternative, to
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have Dr. Johnson replaced with another expert witness. On 4 March 2013,
defendants filed a motion to preclude Dr. Johnson from testifying at trial on grounds
that plaintiff “has not offered any dates for Dr. Johnson’s deposition and has not made
her available for deposition by March 1, 2013.” On 11 April 2013, Judge Pittman
entered an order allowing defendants’ motion.
On 22 July 2013, plaintiff voluntarily dismissed all claims against all
defendants without prejudice pursuant to N.C.G.S. § 1A-1, Rule 41(a). On 2 August
2013, defendants Daniel and Dayspring filed a motion seeking the entry of an order
taxing costs against 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.”
On the same date, defendants NCBH and WFUHS 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 plaintiff pursuant to
Rule 41(d).
4 Although costs in civil actions are ordinarily taxed to one party or the other pursuant
to N.C.G.S. § 6-20, which provides that such an award is discretionary with the trial judge
subject to the limitations set out in N.C.G.S. § 7A-305(d), the costs at issue here were subject
to being taxed against plaintiff pursuant to N.C.G.S. § 1A-1, Rule 41(d), which makes the
taxing of costs mandatory when a plaintiff has voluntarily dismissed an action pursuant to
Rule 41(a). See N.C.G.S. §§ 1A-1, Rule 41, 6-20 (2013).
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After conducting a hearing to consider the issues raised by defendants’ motions
on 26 August 2013, the trial court entered orders on 9 September 20135 determining
that (1) the “expenses [defendants had] incurred for video conferencing, stenographic
preparation of a deposition summary and room rent” should not be taxed against
plaintiff because those expenses “were not reasonable and necessary”; (2) defendants
had “incurred expenses recoverable under [section] 7A-305 for stenographic and
videographic services and expert witness fees for depositions of expert witnesses [that
defendants had] taken”; and (3) “in light of the language of the Discovery Scheduling
Orders,” the expert witnesses “did not need to be subpoenaed” for these expert
witness fee costs to be taxed against plaintiffs.6 Based upon these determinations,
the trial court taxed $23,799.61 in costs in favor of defendants NCBH and WFUHS,
and $24,738.76 in costs in favor of defendants Daniel and Dayspring. Plaintiff
appealed from the trial court’s 9 September 2013 orders to the Court of Appeals.7
5The language quoted in the text of this opinion is taken from the order that the trial
court entered in response to the motion filed by defendants NCBH and WFUHS. The order
entered in response to the motion filed by defendants Daniel and Dayspring, while
substantively identical, is worded somewhat differently.
6 According to the 9 September 2013 orders, all defendants withdrew their requests
“for taxation of . . . travel expenses.”
7 More specifically, plaintiff appealed “from that portion of” the trial court’s orders
that “grant[ed] expert witness fees to” defendants for the time the experts actually spent
testifying during the depositions and not from that portion of the trial court’s orders that
taxed the costs of the stenographic and videographic services to plaintiff.
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“The sole issue on appeal [before the Court of Appeals was] whether the trial
court erred by granting expert witness fees” for the actual time that the experts
plaintiff had designated spent testifying during their respective depositions “as costs
to defendants pursuant to section 7A-305 of the North Carolina General Statutes.”
Lassiter, ___ N.C. App. at ___, 761 S.E.2d at 722. In resolving this issue, the Court
of Appeals began by discussing the interplay between N.C.G.S. §§ 6-20, 7A-305(d)(11),
and 7A-314, and concluded that under existing law “before a trial court may assess
expert witness testimony fees as costs, the testimony must be (1) reasonable, (2)
necessary, and (3) given while under subpoena.” Id. at ___, 761 S.E.2d at 723 (quoting
Peters v. Pennington, 210 N.C. App. 1, 26, 707 S.E.2d 724, 741 (2011)).
After making this determination, the court addressed defendants’ contention
that the discovery scheduling orders “eliminated the need to subpoena [the] expert
witnesses for deposition” as a precondition for taxing the expert witness fees incurred
in the course of taking these depositions as costs. Id. at ___, 761 S.E.2d at 723. In
plaintiff’s view, since the discovery scheduling orders “did not modify or waive the
[subpoena] requirement” and since “the parties [had] not [otherwise] waive[d] the
subpoena requirement, the trial court erred by granting expert witness fees” at issue
here given defendants’ failure to subpoena these witnesses. Id. at ___, 761 S.E.2d at
723. Defendants, on the other hand, argued that the trial court had correctly
concluded that the discovery scheduling orders had the effect of altering the
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traditional rule that a party is not entitled to recover costs associated with testimony
given by a witness who had not been placed under subpoena.
In their briefs before the Court of Appeals, plaintiff and defendants relied upon
Jarrell v. Charlotte–Mecklenburg Hospital Authority, in which the plaintiffs
challenged an order awarding costs “associated with out-of-state expert witnesses” on
the ground that the subpoenas sent to the expert witnesses in question were
ineffective to compel their attendance. Jarrell, 206 N.C. App. 559, 560-61, 698 S.E.2d
190, 191 (2010). In response, the defendants in Jarrell asserted that the effectiveness
of the subpoenas that had been served on these expert witnesses was irrelevant given
that the discovery scheduling order governing the case provided that “ ‘[a]ll parties
agree that experts need not be issued a subpoena either for deposition or for trial and
waive that requirement of the statute as it may affect the recovery of costs.’ ” Id. at
561, 698 S.E.2d at 192 (alteration in original). Although the Court in Jarrell agreed
“that the express terms of the [discovery scheduling order] would render inapplicable
the statutory provisions detailing recovery of expert witness costs,” the Court of
Appeals declined to decide the case on that basis because that argument had not been
raised before the trial court. Id. at 561-62, 698 S.E.2d at 192. In addition, the Court
of Appeals concluded that “[N.C.G.S.] § 7A-314 limits the trial court’s broader
discretionary power under [N.C.G.S.] § 7A-305(d)(11) to award expert fees as costs
only when the expert is under subpoena.” Id. at 563, 698 S.E.2d at 193. (citing Krauss
v. Wayne Cty. Dep’t of Soc. Servs., 347 N.C. 371, 378, 493 S.E.2d 428, 433 (1997)).
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Instead, after finding that the plaintiffs lacked standing to challenge the validity of
the subpoenas served on the nonparty expert witnesses, the Court of Appeals upheld
the taxing of the challenged expert witness fees to the plaintiffs as costs. Id. at 564-
65, 698 S.E.2d at 194.
The Court of Appeals distinguished this case from Jarrell on the grounds that
(1) subpoenas had been issued for the expert witnesses in Jarrell and (2) the discovery
scheduling order in Jarrell explicitly waived the otherwise-applicable subpoena
requirement. Lassiter, ___ N.C. App. at ___, 761 S.E.2d at 723-24. On the other hand,
the expert witnesses at issue in this case were not placed under subpoena and the
discovery scheduling orders merely required plaintiff to “ ‘make [his] expert witnesses
available for deposition upon request by any party on or before November 15, 2012.’ ”
Id. at ___, 761 S.E.2d at 724 (alteration in original). Given the absence of any
indication “that the expert witnesses at issue did not need to be issued subpoenas for
deposition or for trial,” the Court of Appeals declined to treat the discovery scheduling
orders “as a waiver of the statutory requirements detailing recovery of expert witness
costs.” Id. at ___, 761 S.E.2d at 724. Thus, the court held that the trial court
erroneously awarded costs associated with fees paid to expert witnesses who had not
been placed under subpoena and remanded this case to the trial court for a proper
determination of the amount of costs that should be taxed in favor of defendants. Id.
at ___, 761 S.E.2d at 724.
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On 9 September 2014, defendants petitioned for discretionary review of the
Court of Appeals’ decision. On 9 April 2015, we allowed the petition. As was the case
before the Court of Appeals, the sole issue before this Court is whether defendants’
failure to subpoena the expert witnesses identified by plaintiff pursuant to the
discovery scheduling orders precluded the trial court from taxing plaintiff with the
costs of “[r]easonable and necessary fees of expert witnesses” incurred “solely for
actual time spent providing testimony at . . . deposition” pursuant to N.C.G.S. § 7A-
305(d)(11).
In their briefs before this Court, defendants argue that their failure to
subpoena the relevant expert witnesses did not preclude an award of costs in their
favor because (1) the discovery scheduling orders waived or eliminated the subpoena
requirement that the Court of Appeals has deemed applicable in civil actions by
virtue of N.C.G.S. §§ 7A-314(a) and 7A-314(d) and (2) N.C.G.S. § 7A-305(d)(11)
obviates the necessity for the issuance of a subpoena as a prerequisite for an award
of expert witness fees as costs pursuant to that statute. On the other hand, plaintiff
contends that the discovery scheduling orders in this case did not obviate the need
for defendants to subpoena the expert witnesses at issue here because: (1) no
language similar to that contained in the discovery scheduling orders before the Court
of Appeals in Jarrell is present here and N.C.G.S. § 1A-1, Rule 26(f1) contains no
indication that the General Assembly intended for the enactment of that provision to
have the effect of eliminating the traditional subpoena requirement and (2) the
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enactment of N.C.G.S. § 7A-305(d)(11) did not, as Jarrell and its progeny indicate,
have the effect of eliminating the traditional subpoena requirement either.8
At common law neither party recovered costs in a civil
action and each party paid his own witnesses. Today in
this State, “all costs are given in a court of law [by] virtue
of some statute.” The simple but definitive statement of
the rule is: “[C]osts in this State, are entirely creatures of
legislation, and without this they do not exist.”
City of Charlotte v. McNeely, 281 N.C. 684, 691, 190 S.E.2d 179, 185 (1972) (second
alteration in original) (citations omitted). As a result of the fact that “[a]n award of
costs is an exercise of [the] statutory authority[,] if the statute is misinterpreted, the
judgment is erroneous.” Id. at 691, 190 S.E.2d at 185 (quoting State ex rel. Morris v.
Shinn, 262 N.C. 88, 89, 136 S.E.2d 244, 245 (1964)). In other words, when the validity
of an award of costs hinges upon the extent to which the trial court properly
interpreted the applicable statutory provisions, the issue before the appellate court
is one of statutory construction, which is subject to de novo review. See In re D.S.,
364 N.C. 184, 187, 694 S.E.2d 758, 760 (2010) (stating that “[q]uestions of statutory
interpretation are questions of law and are reviewed de novo” (citing Brown v. Flowe,
349 N.C. 520, 523, 507 S.E.2d 894, 896 (1998))).
According to N.C.G.S. § 7A-305, which governs the recovery of costs in civil
actions:
8 Plaintiff does not appear to contend that the costs awarded by the trial court
exceeded an amount that was “[r]easonable and necessary” under N.C.G.S. § 7A-305(d)(11)
in the event that no subpoena was required as a prerequisite for the taxing of the relevant
expert witness fees as costs.
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(d) The following expenses, when incurred, are
assessable or recoverable, as the case may be. The
expenses set forth in this subsection are complete and
exclusive and constitute a limit on the trial court's
discretion to tax costs pursuant to [N.C.]G.S. [§] 6-20:
(1) Witness fees, as provided by law.
....
(11) Reasonable and necessary fees of expert
witnesses solely for actual time spent
providing testimony at trial, deposition, or
other proceedings.
N.C.G.S. § 7A-305(d)(1), (11) (2013). Similarly, N.C.G.S. § 7A-314, which applies to
all types of actions, provides, in pertinent part, that:
(a) A witness under subpoena, bound over, or
recognized, other than a salaried State, county, or
municipal law-enforcement officer, or an out-of-state
witness in a criminal case, whether to testify before the
court, Judicial Standards Commission, jury of view,
magistrate, clerk, referee, commissioner, appraiser, or
arbitrator shall be entitled to receive five dollars ($5.00)
per day, or fraction thereof, during his attendance . . . .
(b) A witness entitled to the fee set forth in
subsection (a) of this section . . . shall be entitled to receive
reimbursement for travel expenses as [set forth in
subsection (b)] . . . .
....
(d) An expert witness, other than a salaried
State, county, or municipal law-enforcement officer, shall
receive such compensation and allowances as the court, or
the Judicial Standards Commission, in its discretion, may
authorize.
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Id. § 7A-314(a), (b), (d) (2013). In defendants’ view, the General Assembly’s decision
to add subdivision (11) to N.C.G.S. § 7A-305(d), effective 1 August 2007, without
including the reference to “as provided by law” contained in N.C.G.S. § 7A-305(d)(1),
decoupled N.C.G.S. § 7A-305(d)(11) from N.C.G.S. § 7A-314 so as to explicitly allow
trial judges to tax “[r]easonable and necessary fees of expert witnesses solely for
actual time spent providing testimony at trial, deposition, or other proceedings” as
costs regardless of whether the expert witness in question had been placed under
subpoena. Plaintiff, on the other hand, contends that defendants’ argument is
contrary to decisions by the Court of Appeals, such as Jarrell, and that interpreting
the relevant statutory provisions so as to eliminate any link between N.C.G.S. § 7A-
305(d)(11) and N.C.G.S. § 7A-314 would “effectively nullif[y]” the provisions of
N.C.G.S. § 7A-314 relating to expert witness fees discussed by this Court in State v.
Johnson, 282 N.C. 1, 26-28, 191 S.E.2d 641, 658-59 (1972). We find defendants’
argument to be the more persuasive of the two.
In Johnson, which arose from a condemnation proceeding initiated by the State
and which was decided several decades before enactment of N.C.G.S. § 7A-305(d)(11),
this Court considered, among other things, whether the trial court erred by taxing
fees for four expert witnesses who had testified at trial without having been placed
under subpoena as costs against the State. 282 N.C. at 26-28, 191 S.E.2d at 658-59.
In reversing the trial court’s award, we stated that N.C.G.S. § 7A-314(a) “makes a
witness fee for any witness, except those specifically exempted therein, dependent
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upon his having been subpoenaed to testify in the case” and “fixes his fee at $5.00 per
day”; that, with respect “to expert witnesses,” N.C.G.S. § 7A-314(d) “modifies
[N.C.G.S. § 7A-314(a)] by permitting the court, in its discretion, to increase . . .
compensation and allowances” for expert witnesses; and that this “modification
relates only to the amount of an expert witness’s fee” and accordingly, “does not
abrogate the requirement that all witnesses must be subpoenaed before they are
entitled to compensation” pursuant to N.C.G.S. § 7A-314. Id. at 27-28, 191 S.E.2d at
659 (citing N.C.G.S. § 7A-314 (Supp. 1971)).9
As noted in Jarrell, the Court of Appeals has consistently stated, in the
aftermath of Johnson,10 that even though such “fees were not specifically provided for
under N.C.[G.S.] § 7A-305(d), . . . ‘expert witness fees could be taxed as costs when a
witness has been subpoenaed.’ ” Jarrell, 206 N.C. App. at 562, 698 S.E.2d at 192
9In view of our determination that the expert witnesses whose fees were at issue in
Johnson were not “entitled to compensation” for their testimony pursuant to N.C.G.S. § 7A-
314 because their attendance had not been compelled by subpoena, we did not specify the
statutory authority under which expert witness fees payable to subpoenaed witnesses could
have been taxed as costs against the State. 282 N.C. at 28, 191 S.E.2d at 659.
10 Although Johnson marked the first occasion on which this Court analyzed the
subpoena requirement in the context of N.C.G.S. § 7A-314, Johnson was only the latest in a
long line of cases holding that witness fees were only recoverable as costs when the testimony
in question was compelled by a subpoena. E.g., McNeely, 281 N.C. at 692, 190 S.E.2d at 186
(stating that “[t]he losing party is taxed with the costs of his adversary’s witness only if the
witness was subpoenaed and examined or tendered” (citing N.C.G.S. § 6-53 (1969)); Chadwick
v. Life Ins. Co. of Va., 158 N.C. 318, 320, 158 N.C. 380, 381, 74 S.E. 115, 116 (1912) (stating
that, “[b]y statute, the losing party is taxed with the costs of the witnesses of the winning
party, but to prevent oppression only two witnesses of the winning side to each material fact
can be taxed against the losing side, and then only if subpoenaed and examined or tendered”
(citations omitted)).
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(quoting Bennett v. Equity Residential, 192 N.C. App. 512, 516, 665 S.E.2d 514, 517
(2008) (emphasis omitted) (quoting Vaden v. Dombrowski, 187 N.C. App. 433, 440,
653 S.E.2d 543, 547 (2007))). More specifically, the Court in Jarrell noted that prior
panels of the Court of Appeals had concluded that expert witness fees constituted
recoverable costs pursuant to N.C.G.S. § 7A-305(d)(1), which allows taxing “witness
fees . . . as costs as provided by law” and reasoned that the reference to “as provided
by law” contained in N.C.G.S. § 7A-305(d)(1) referred to N.C.G.S. § 7A-314. Id. at
562, 698 S.E.2d at 192 (citing Vaden, 187 N.C. App. at 440, 653 S.E.2d at 547). The
court further noted that the Court of Appeals had previously held that N.C.G.S. § 7A-
305(d)(1) should “be read in conjunction with [N.C.G.S.] § 7A-314, which governs fees
for witnesses” so as to limit awardable expert witness fees to amounts paid to
witnesses who have testified subject to a subpoena. Id. at 562, 698 S.E.2d at 192
(quoting Morgan v. Steiner, 173 N.C. App. 577, 583, 619 S.E.2d 516, 520 (2005), disc.
rev. denied, 360 N.C. 648, 636 S.E.2d 808 (2006)). In reliance on this line of authority,
the Court in Jarrell determined that the 2007 General Assembly had amended
N.C.G.S. § 7A-305(d) in response to “ ‘inconsistencies within [Court of Appeals’] case
law’ ” regarding “the propriety of taxing certain costs” and had “supplement[ed] the
witness fees allowed under” N.C.G.S. § 7A-305(d)(1) “by adding a specific provision
for expert fees” in N.C.G.S. § 7A-305(d)(11). Id. at 562, 698 S.E.2d at 192 (quoting
Vaden, 187 N.C. App. at 438 n.3, 653 S.E.2d at 546 n.3). As a result, the Court in
Jarrell concluded that, like N.C.G.S. § 7A-305(d)(1), “[N.C.G.S.] § 7A-305(d)(11) must
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be understood in light of [N.C.G.S.] § 7A-314” so that, in order to recover amounts
paid to expert witnesses for actual time spent testifying as authorized by N.C.G.S. §
7A-305(d)(11) as costs, the expert witness whose testimony generated the relevant
fees had to have testified while subject to subpoena. Id. at 562-63, 698 S.E.2d at 192-
93.
Although the General Assembly certainly intended for the 2007 amendments
to N.C.G.S. § 7A-305(d) to clarify the identity and amounts of taxable costs in civil
actions, we believe that the enactment of N.C.G.S. § 7A-305(d)(11) served an
additional purpose, which was to establish that “[r]easonable and necessary [expert
witness] fees . . . solely for actual time spent providing testimony at trial, deposition,
or other proceedings” are taxable as costs in civil actions and that, given the omission
of “as provided by law,” such expert witness fees are taxable as costs even though the
expert testimony is not compelled by a subpoena. See ch. 212, sec. 3, 2007 N.C. Sess.
Laws (Reg. Sess. 2007) at 339-40 (captioned “An Act to Clarify the Court’s Discretion
to Allow Court Costs.”). We do not believe, as plaintiff argues, that giving
determinative effect to the omission from N.C.G.S. § 7A-305(d)(11) of any reference
to “as provided by law” as contained in N.C.G.S. § 7A-305(d)(1) “effectively nullifie[s]”
the expert witness provisions of N.C.G.S. § 7A-314.11 Unlike N.C.G.S. § 7A-305(d),
11On the contrary, plaintiff’s argument effectively adds the reference to “as provided
by law” contained in N.C.G.S. § 7A-305(d)(1) into N.C.G.S. § 7A-305(d)(11) even though no
such language appears in N.C.G.S. § 7A-305(d)(11).
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which governs the taxing of costs in civil actions, N.C.G.S. § 7A-314 applies to other
types of legal proceedings, including special proceedings and criminal actions, as well.
As a result, the enactment of N.C.G.S. § 7A-305(d)(11) has no effect on the awarding
of expert witness fees as costs or the taxing of costs in any proceeding other than in
a civil action. In view of the fact that the General Assembly did not repeal or
otherwise alter N.C.G.S. § 7A-305(d)(1) or N.C.G.S. § 7A-314, a trial court also has
the authority in a civil action to award additional expert witness-related costs, such
as amounts related to travel pursuant to N.C.G.S. § 7A-314(b) or incurred for time
spent in attendance at trial or some other proceeding pursuant to N.C.G.S. § 7A-
314(d), provided that the expert witness testified pursuant to subpoena.12 As a result,
adopting the construction of N.C.G.S. § 7A-305(d)(11) that we deem appropriate does
not render N.C.G.S. § 7A-314 without any effect.
Thus, we conclude that the enactment of N.C.G.S. § 7A-305(d)(11) in 2007
allows for the taxing of “[r]easonable and necessary fees of expert witnesses solely
for actual time spent providing testimony at trial, deposition, or other proceedings”
12 The existence of multiple options for awarding costs associated with expert
testimony discussed in the text was short-lived. With respect to “motions or applications for
costs filed on or after” 1 October 2015, the General Assembly has amended N.C.G.S. § 7A-
314(d) to provide that, “[s]ubject to the specific limitations set forth in [N.C.]G.S. [§] 7A-
305(d)(11), an expert witness, other than a salaried State, county, or municipal law-
enforcement officer, shall receive such compensation and allowances as the court, or the
Judicial Standards Commission, in its discretion may authorize.” Act of July 15, 2015, ch.
153, sec. 2, 3, 2015 3 Adv. Legis. Serv. 12, 14 (LexisNexis) (captioned “An Act Amending the
Rules of Civil Procedure to Modernize Discovery of Expert Witness and Clarifying Expert
Witness Costs in Civil Actions.”).
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without requiring the party seeking to obtain the taxing of such costs to demonstrate
that the expert witnesses in question testified subject to a subpoena.13 To the extent
that Jarrell and its progeny suggest that the subpoena requirement established in
N.C.G.S. § 7A-314 applies to expert witness fees taxed as costs pursuant to N.C.G.S.
§ 7A-305(d)(11), those decisions are overruled. As a result, given that the trial court
correctly taxed expert witness fees in accordance with N.C.G.S. § 7A-305(d)(11)
against plaintiff, albeit for reasons other than those we have deemed persuasive in
this opinion, the decision of the Court of Appeals is reversed.
REVERSED.
13In light of our determination that the enactment of N.C.G.S. § 7A-305(d)(11)
eliminated the requirement that expert witnesses be subpoenaed as a precondition for an
award of expert witness fees as costs, we need not address the validity of defendants’
contention that the trial court correctly determined that the discovery scheduling order and
the provisions of N.C.G.S. § 1A-1, Rule 26(f1) obviated the necessity for the issuance of
subpoenas to compel the deposition testimony of plaintiff’s designated expert witnesses.
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