Lassiter Ex Rel. Baize v. North Carolina Baptist Hospitals, Inc. ( 2014 )

NO. COA14-165
NORTH CAROLINA COURT OF APPEALS
Filed: 5 August 2014
Keen Lassiter, as Guardian Ad
Litem for JAKARI BAIZE, a minor,
Plaintiff,
v. Johnston County
No. 11 CVS 3982
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,
Defendants.
Appeal by plaintiff from orders entered 9 September 2013 by
Judge Thomas H. Lock in Johnston County Superior Court. Heard
in the Court of Appeals 21 May 2014.
Pulley, Watson, King & Lischer, P.A., by Charles F.
Carpenter and Tracy K. Lischer, and Edwards & Edwards,
L.L.P., by Joseph T. Edwards and Sharron R. Edwards, for
plaintiff-appellant.
Wilson Helms & Cartledge, LLP, by G. Gray Wilson and Linda
L. Helms, for defendant-appellees North Carolina Baptist
Hospitals, Incorporated a/k/a North Carolina Baptist
Hospital and Wake Forest University Health Sciences.
Carruthers & Roth, P.A., by Richard L. Vanore, Norman F.
Klick, Jr., and Robert N. Young, for defendant-appellees
Terry Daniel, M.D. and Dayspring Family Medicine
Associates, PLLC.
McCULLOUGH, Judge.
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Plaintiff Keen Lassiter as guardian ad litem for Jakari
Baize appeals an order granting expert witness fees as costs to
defendants Terry Daniel, M.D., and Dayspring Family Medicine
Associates, PLLC, pursuant to section 7A-305 of the North
Carolina General Statutes. Based on the reasons stated herein,
we reverse and remand the orders of the trial court.
I. Background
On 8 December 2010, Chinatha Clark as guardian ad litem for
Jakari Baize filed a complaint against defendants North Carolina
Baptist Hospitals, Incorporated a/k/a North Carolina Baptist
Hospital, Wake Forest University Health Sciences (collectively
“defendants Baptist and Wake Forest”), Terry Daniel, M.D., and
Dayspring Family Medicine Associates, PLLC (collectively
“defendants Daniel and Dayspring”) for medical malpractice.
In February of 2011, defendants filed motions for the court
to schedule a discovery conference.
On 6 July 2012, plaintiff Keen Lassiter as guardian ad
litem for Jakari Baize filed an “Amended Designation of Expert
Witnesses.”
Following a hearing held on 13 January 2013, the trial
court entered a “Discovery Scheduling Order” (“DSO”). The DSO
was amended by order entered 4 February 2013. Plaintiff was
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ordered to designate, on or before 1 May 2012, all expert
witnesses intended to be called at trial. The trial court also
stated that “[p]laintiff shall make [his] expert witnesses
available for deposition upon request by any party on or before
November 15, 2012.”
Prior to the 15 November 2012 deadline, the following
witnesses were deposed by defendants: Kitty B. Carter-Wicker,
M.D. on 27 July 2012; Thomas Hegyi, M.D. on 3 August 2012;
Richard Inwood, M.D. on 22 August 2012; Marcus C. Hermansen, and
M.D. on 25 September 2012.
On 20 December 2012, plaintiff filed a “Motion to Amend
Discovery Scheduling Order” seeking an extension of the deadline
to depose his expert witnesses.
On 27 December 2012, defendants filed a “Motion to Strike
and Exclude Certain Expert Witnesses Designated by Plaintiff,”
arguing that plaintiff had failed to comply with the provisions
of the DSO. Defendants argued that plaintiff failed to provide
dates, prior to the 15 November 2012 deadline, for the
depositions of the following expert witnesses: Richard C.
Lussky, M.D.; J.C. Poindexter, Ph.D.; Lois Johnson, M.D.; Ann T.
Neulicht, M.D.; and Steven Shapiro, M.D. Defendants asserted
that they would be prejudiced if the aforementioned expert
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witnesses were not stricken and precluded from testifying at
trial.
Following a hearing held at the 14 January 2013 term of
Johnston County Superior Court, the trial court entered an
order, denying plaintiff’s motion to amend the DSO and granting,
in part, defendants’ motion to strike and exclude certain expert
witnesses. Dr. Lussky, Dr. Poindexter, and Dr. Neulicht were
excluded from testifying as experts; Dr. Shapiro was only
allowed to testify as a treating physician and not as an expert;
and Dr. Johnson was to be made available for deposition no later
than 1 March 2013.
On 22 July 2013, plaintiff filed a “Notice of Voluntary
Dismissal Without Prejudice” of all claims against all
defendants.
On 2 August 2013, defendants Daniel and Dayspring filed a
motion to tax costs against plaintiff pursuant to section 41(d)1
of the North Carolina Rules of Civil Procedure and sections 7A-
305 and 6-20 of the North Carolina General Statutes. Defendants
Daniel and Dayspring alleged that they had “incurred reasonable
1
N.C. Gen. Stat. § 1A-1, Rule 41 (2013), entitled “Voluntary
dismissal; effect thereof,” provides in subsection (d) the
following: “Costs. – A plaintiff who dismisses an action or
claim under section (a) of this rule shall be taxed with the
costs of the action unless the action was brought in forma
pauperis.”
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and necessary expenses for stenographic and videographic
services, the cost of deposition transcripts, travel expenses of
defense counsel for depositions and expert witness fees for the
depositions of plaintiffs’ expert witnesses in the total amount
of $39,749.60[.]”
Also on 2 August 2013, defendants Baptist and Wake Forest
filed a motion to tax costs against plaintiff pursuant to Rule
41(d) of the North Carolina Rules of Civil Procedure.
Defendants Baptists and Wake Forest alleged that they had
incurred “reasonable and necessary costs in the amount of
$29,609.80” in the preparation and defense of plaintiff’s
action.
Following a hearing held at the 26 August 2013 civil
session of Johnston County Superior Court, the trial court
entered orders taxing certain costs against plaintiff on 9
September 2013. The trial court denied expenses incurred by
defendants for video conferencing, stenographic preparation of a
deposition summary, and room rent which were found to be “not
reasonable and necessary.” However, the trial court held as
follows:
[defendants] incurred expenses recoverable
under North Carolina General Statute § 7A-
305 for stenographic and videographic
services and expert witness fees for
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depositions of expert witnesses taken
pursuant to the provisions of the [DSO]
entered in this action which the Court
concludes did not need to be subpoenaed in
light of the language of the [DSO] and that
those expenses set forth below were, in the
Court’s discretion, reasonable and
necessary[.]
The trial court ordered $23,799.61 to be taxed as costs against
plaintiff to be paid to defendants Baptist and Wake Forest and
$24,738.76 to be taxed as costs against plaintiff to be paid to
defendants Daniel and Dayspring.
On 30 September 2013, plaintiff entered notice of appeal
from these two orders.
II. Standard of Review
“Whether a trial court has properly interpreted the
statutory framework applicable to costs is a question of law
reviewed de novo on appeal. The reasonableness and necessity of
costs is reviewed for abuse of discretion.” Peters v.
Pennington, 210 N.C. App. 1, 25, 707 S.E.2d 724, 741 (2011)
(citations omitted).
III. Discussion
The sole issue on appeal is whether the trial court erred
by granting expert witness fees as costs to defendants pursuant
to section 7A-305 of the North Carolina General Statutes.
Pursuant to N.C. Gen. Stat. § 6-20,
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[i]n actions where allowance of costs is not
otherwise provided by the General Statutes,
costs may be allowed in the discretion of
the court. Costs awarded by the court are
subject to the limitations on assessable or
recoverable costs set forth in G.S. 7A-
305(d), unless specifically provided for
otherwise in the General Statutes.
N.C. Gen. Stat. § 6-20 (2013) (emphasis added). N.C. Gen. Stat.
§ 7A-305(d)(11) grants the trial court explicit statutory
authority, to award as discretionary costs, “[r]easonable and
necessary fees of expert witnesses solely for actual time spent
providing testimony at trial, deposition, or other proceedings.”
N.C. Gen. Stat. § 7A-305(d)(11) (2013). In addition, N.C. Gen.
Stat. § 7A-314 provides, inter alia, that
(a) A witness under subpoena . . . shall be
entitled to receive five dollars ($
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 . . .
.
. . . .
(d) An expert witness . . . shall receive
such compensation and allowances as the
court, or the Judicial Standards
Commission, in its discretion, may
authorize. . . .
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N.C. Gen. Stat. § 7A-314(a), (b), and (d) (2013). “In sum,
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.” Peters, 210 N.C. App. at 26,
707 S.E.2d at 741.
Both plaintiffs and defendants agree that N.C. Gen. Stat. §
7A-305, read in conjunction with N.C. Gen. Stat. § 7A-314,
limits the trial court’s power to award expert fees as costs
only when the expert is under subpoena. However, plaintiff
argues that because none of the expert witnesses were
subpoenaed, the DSO did not modify or waive the requirement of a
subpoena, and the parties did not waive the subpoena
requirement, the trial court erred by granting expert witness
fees. On the other hand, defendants contend that the DSO
eliminated the need to subpoena expert witnesses for deposition.
Both plaintiff and defendants cite to our holding in
Jarrell v. The Charlotte-Mecklenburg Hospital Authority, 206
N.C. App. 559, 698 S.E.2d 190 (2010), in furtherance of their
respective arguments. In Jarrell, the plaintiffs challenged an
order granting the defendants’ motion for costs, “specifically
disputing that portion totaling $5,715.40 in costs associated
with out-of-state expert witnesses.” Id. at 560, 698 S.E.2d at
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191. Two expert witnesses were served with subpoenas to
testify, but the plaintiffs argued that the out-of-state expert
witnesses appearances at trial were not subject to subpoena
because the subpoenas served upon them were ineffective to
compel their attendance. Id. at 564, 698 S.E.2d at 193. The
defendants argued that their discovery scheduling order
“expressly waived the statutory requirement that expert
witnesses must testify pursuant to subpoena before the
prevailing party may recover expert fees.” Id. at 561, 698
S.E.2d at 191-92. Our Court reviewed the language of the
Jarrell discovery scheduling order and directed our attention to
a paragraph that stated 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.
In Jarrell, our Court reiterated the following:
[w]here § 7A-314 specifically authorizes the
court to tax expert witness fees as costs,
only “witness[es] under subpoena, bound
over, or recognized” are included. Read in
pari materia, with specific statutes
prevailing over general ones, § 7A-314
limits the trial court’s broader
discretionary power under § 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.
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Although our Court agreed with the defendants that the “the
express terms of the DSO would [have] render[ed] inapplicable
the statutory provisions detailing recovery of expert witness
costs,” it did not consider the substance of the defendants’
argument for failure to raise it at the trial level. Id. at
561-62, 698 S.E.2d at 192. Our Court ultimately ruled that the
plaintiffs lacked standing to challenge the validity of the
subpoenas served on the non-party expert witnesses. Id. at 560,
698 S.E.2d at 191. In addition, our Court held that because the
“[p]laintiffs are not entitled to argue that [the expert
witnesses’] appearance was voluntary in fact, [the] [d]efendants
have met not only the requirements of § 7A-305(d)(11) but have
also overcome the hurdle imposed by § 7A-314 ‘that the cost of
an expert witness cannot be taxed unless the witness has been
subpoenaed.’” Id. at 565, 698 S.E.2d at 194.
Based on a thorough review, we hold that the facts of
Jarrell are distinguishable from the case sub judice. In
Jarrell, the expert witnesses were subpoenaed while the expert
witnesses at issue here were never issued a subpoena. Another
important distinguishing factor is that the discovery scheduling
order language in Jarrell was explicit in terms of waiving the
requirement of issuing an expert witness a subpoena in order to
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recover costs. Here, the DSO language merely provided that
“[p]laintiff shall make [his] expert witnesses available for
deposition upon request by any party on or before November 15,
2012.” There was no mention by the parties that the expert
witnesses at issue did not need to be issued subpoenas for
deposition or for trial and we do not interpret this DSO
language as a waiver of the statutory requirements detailing
recovery of expert witness costs. Based on the foregoing, we
hold that the trial court erred by awarding costs for expert
witnesses when the witnesses were not under subpoena. See Stark
v. Ford Motor Co., __ N.C. App. __, __, 739 S.E.2d 172, 176
(2013) (citing Jarrell, Ford Motor Company conceded and our
Court agreed that the trial court erred in awarding fees for
expert witnesses incurred while the expert witnesses were not
under subpoena).
IV. Conclusion
We reverse the trial court’s 9 September 2013 orders to the
extent it awarded costs for expert witnesses when the witnesses
were not under subpoena. We also remand to the trial court for
a determination of an award of costs consistent with this
opinion.
Reversed and remanded.
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Judges STEPHENS and STROUD concur.