Dyer v. Emergency Care, Inc. , 91 P.3d 683 ( 2004 )

Opinion by

CAROL M. HANSEN, Judge:

¶ 1 In this action which was tried on issues of medical negligence,¹ Appellant, Jewell Dyer (Dyer), appeals from the trial court’s order disposing of [a] the parties’ post-trial opposing motions to compel the other to pay the fees of experts who testified live at trial, and [b] Dyer’s post-trial motion seeking an order to require one of those experts to “disgorge” part of the fee Dyer paid for his deposition during discovery. The trial court found against Dyer and in favor of Appellees, Emergency Care, Inc. and Mark Brandenburg (collectively Appellees), as to all motions.

¶ 2 During the discovery phase of the case, Dyer identified Dr. Cary Bartlow (Bartlow) as a retained expert to testify on a “Life Care Plan” for Dyer and regarding future economic loss she would suffer as a result of permanent blindness. Appellees retained Dr. Anthony Billings (Billings) as an expert on neurosurgical issues. Dyer deposed Billings and Appellees deposed Bartlow. Both depositions were videotaped under a standing order which allowed all depositions to be videotaped.

¶ 3 Before taking Billings’ deposition, Dyer objected to, among other things, Billings’ expert witness fee to be deposed. Dyer argued the fee was “unreasonable” within the meaning of 12 O.S.2001 § 3226(B)(3)(c)(l), which provides “[t]he court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery.” The trial court denied Dyer’s motion to set reasonable expert witness fees and Dyer paid the fee demanded by Billings for his deposition.

¶ 4 Prior to trial, Dyer indicated she would use the video tape of Bartlow’s deposition at trial in its entirety and would use parts of Billings’ videotaped deposition, but would call neither to appear for live testimony. Appel-lees, who had not endorsed Billings as a witness in the pretrial conference order, subpoenaed Bartlow and Billings to appear at trial. Over Dyer’s objections, Appellees were allowed to call both for cross-examination during Dyer’s case-in-chief immediately after their respective depositions had been played. Appellees tendered the standard statutory witness fee for attendance and mileage when the subpoenas were served on Bartlow and Billings.

¶ 5 After their appearances at trial, both Bartlow and Billings sent invoices to Appel-lees for their expert witness fees for the trial. Appellees declined to pay Bartlow’s fees, suggesting he seek compensation from Dyer on the basis that he was Dyer’s witness. Appellees did pay Billings, but demanded reimbursement from Dyer on the same basis that Bartlow’s invoice was refused. Dyer filed her motion to compel Appellees to pay Bartlow’s fees. Appellees then filed their motion to compel Dyer to pay for Billings’ fees. Dyer responded to Appellees’ motion to compel with a “cross-motion” to “disgorge excessive fees” paid to Billings for his discovery deposition. As noted above, the trial court found in favor of Appellees on all motions and Dyer filed this appeal.

¶ 6 Here on appeal Dyer contends the trial court erred in its determinations on the two motions to compel payment of expert witness fees and on her motion to require Billings to disgorge a portion of his allegedly unreasonable fee for being deposed. In that expert witness fees “are only recoverable when specifically made so by statute”, Andress v. Bowlby, 1989 OK 78, 773 P.2d 1265, legal questions regarding statutory interpretation are necessarily implicated in our consideration. In such cases, our review is de novo. Heffron v. District Court Oklahoma County, 2003 OK 75, 77 P.3d 1069. With respect to the reasonableness of expert witness fees, that determination is a matter of discretion for the trial court. R.J.B. Gas Pipeline Co. v. Colorado Interstate Gas Co., 1990 OK CIV APP 47, 813 P.2d 14. We may not reverse a trial court determination for abuse of discretion unless we find the court “made a clearly erroneous conclusion and judgment, against reason and evidence.” Green Bay Packaging, Inc. v. Preferred Packaging, Inc., 1996 OK 121, 932 P.2d 1091.

¶ 7 We find merit in Dyer’s contention the trial court erred in ordering her to pay Billings’ expert witness fees for his live appearance at trial. At the time Dyer deposed Billings, he had been retained by Ap-pellees as an expert in neurosurgery. After Billings had been examined by Dyer’s counsel at the deposition, Appellees’ counsel chose to ask only three questions on cross-examination. Appellees’ counsel then stated on the record that Appellees would “reserve the rest of our examination until trial.” Dyer’s counsel then asked a few questions on redirect before concluding the deposition.

¶8 Appellees’ counsel made a considered decision not to make a complete record on Billings’ cross-examination at the deposition, apparently expecting to elicit Billings’ expert opinion as Appellees’ witness at trial. He did so as a matter of legal strategy. Although we find no authority directly on point with the question before us, federal courts have concluded, in analogous circumstances, that a party’s decision to limit cross-examination in a discovery deposition is a “strategic choice” and “calculated risk”. Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492 (11th Cir.1985).

¶ 9 In Hendrix, one party was opposing, pursuant to Fed.R.Civ.P. 804(b)(1)², introduction of a discovery deposition at which it had not cross-examined the deponent. Rule 804(b)(1) provides that the deposition testimony of an unavailable witness is not excludable hearsay if the opposing party “had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.” The opposing party in Hendrix argued it had not been motivated to cross-examine the deponent because “the deposition was taken for discovery purposes only.”³

¶ 10 The Hendrix Court, at 1506, noted the decision not to cross-examine was a “strategic choice” which did not preclude the adversary’s use of the deposition at a subsequent proceeding. Citing Gill v. Westinghouse Electric Corp., 714 F.2d 1105 (11th Cir.1983), the Hendrix Court further noted in its reasoning that pretrial depositions are not only intended as a means of discovery, but also serve to preserve relevant testimony that might otherwise be unavailable for trial.”

¶ 11 Here, Appellees argue Dyer should be liable for the cost of Billings’ expert witness fees because Dyer utilized Billings’ deposition at trial and Appellees had a right to cross-examine Billings at trial also. We agree Appellees had the right to subpoena Billings for cross-examination under 12 O.S. 2001 § 3232(A)(3), which provides, inter alia, that the deposition of an expert witness “may be used for any purpose”, but expressly does not limit issuance of a subpoena “to compel an expert witness to appear in the same manner as any other witness.” We do not agree, however, that Dyer should be responsible for the expense of Billings’ live testimony where Appellees made the tactical decision not to cross-examine Billings with the knowledge that the deposition could be used by Dyer at trial under § 3232(A)(3).⁴

¶ 12 In an argument similar to that raised in Hendrix, Appellees assert they would have acted differently in examining Billings if the deposition had been a trial deposition rather than a discovery deposition. However, § 3232, which authorizes use of depositions in court proceedings, does not differentiate between trial and discovery depositions. In fact, the difference on which Appellees rely is more the result of normative legal practice rather than any statutory prescription.

¶ 13 Section 3232 generally allows use of any part of or all of a deposition, otherwise admissible under the Evidence Code, “against any party who was present or who was represented at the taking of the deposition or who had reasonable notice thereof.”⁵ Thus, depositions may not be used for any of the purposes allowed under § 3232 unless the party against whom it is going to be used had, at a minimum, the opportunity to be present and examine the deponent. The decision whether to take advantage of that opportunity is one for the party put on notice.

¶ 14 Appellees were represented at Billings’ deposition and are charged with the knowledge that the deposition could be used at trial by Dyer even though its purpose at the time was for discovery. Appellees made the “strategic choice” to defer, any further examination of Billings until trial, at the time knowing they would be responsible for the expert witness fees when they called him. They may not now shift the burden of those fees to Dyer when they could have cross-examined Billings at the deposition.

¶ 15 In choosing to defer a complete examination of Billings, presumably to avoid further disclosure of his expected testimony, Appellees assumed the risk of having to pay for the testimony if Billings had to be called live at trial. Appellees are not deprived of their right to cross-examine Billings, but they must bear the expense resulting from their choice. Appellees concede expert witness fees may not be assessed as litigation costs, unless specifically authorized by statute. See, Dulan v. Johnston, 1984 OK 44, 687 P.2d 1045. We have not been made aware of any statutory authority to assess such costs here. The trial court erred in ordering Dyer to pay Billings’ expert witness fees for his appearance at trial under Appel-lees’ subpoena.

¶ 16 With respect to Bartlow, the facts are somewhat different, but in our view the consequences are the same as with Billings. Bartlow was Dyer’s retained expert and was deposed by Appellees. Appellees therefore had the opportunity to fully examine Bartlow at the deposition. Additionally, calling Bartlow at trial after his videotaped deposition had the curious effect of Appellees “cross-examining” their own direct examination at the deposition. In any event, as with Billings’ deposition, Appellees were charged with the knowledge that Bartlow’s deposition could be used at trial and had the opportunity to expand the deposition examination as necessary to make a complete record.

¶ 17 Dyer chose to stand on Bartlow’s deposition testimony, at which Appellees were not only represented but were able to fully examine the deponent. Appellees’ choice to subpoena Bartlow for “cross-examination” at trial was their prerogative' under § 3232(A)(3), but they may not shift the cost of doing so to Dyer.

¶ 18 We are not, however, persuaded by Dyer’s third contention of trial court error. She asserts the trial court should have ordered Billings to disgorge a portion of his expert witness fees for his deposition appearance. She argues $4,200.00 for approximately five hours of deposition testimony is unreasonable because it was, according to her calculations, eight times more than Billings would have received for performing professional services as a neurosurgeon in a comparable period of time.

¶ 19 Pursuant to 12 O.S.2001 § 3226(B)(3)(e)(1), unless manifest injustice would result, a party seeking discovery must pay experts a “reasonable fee” for time spent responding to the request. What is a reasonable fee is not defined by the Discovery Code, and has not been defined by our courts. In Drake v. Wal-Mart, Inc., 1994 OK CIV APP 47, 876 P.2d 738, the Court of Civil Appeals, citing Anthony v. Abbott Laboratories, 106 F.R.D. 461 (D.R.I.1985), articulated that in setting a reasonable expert witness fee:.

... the ultimate goal is balance, so that parties will not be hampered in their efforts to .attract competent experts, while at the same time the opposing parties will not be burdened by excessive fees which produce windfalls for the experts.

¶ 20 The Drake Court found Anthony distinguishable because the expert in the latter case had charged a “friendly” litigant less than what was billed in Anthony, the expert had no “discernible overhead”, and the record contained no indication of “manifest inconvenience or consequential loss” to the expert. There was evidence the Drake expert did incur “material inconvenience and possible financial loss”, and there was no evidence the expert had charged “friendly” litigants less. The Drake Court held, under the circumstances, a fee of $2,500.00 for four hours and twenty minutes of deposition time and one and one half hours spent responding to discovery requests was not unreasonable.

¶ 21 Appellees produced evidence that other neurosurgeons in the area charged similar or higher fees than Billings demanded here, and also increased their fees if thé deposition was to be videotaped. There was no evidence Billings charged other litigants less or otherwise engaged in discriminatory practices in his fees for discovery. We find no authority for Dyer’s contention that Billings should be restricted in his expert fees for discovery to an equivalent of the amount he might make for the same period of time in his regular medical practice. The trial court had a sufficient basis for determining what was a “reasonable fee” within the meaning of § 3226(B)(3)(c)(1). There was no clearly erroneous conclusion arid judgment, against reason and evidence, such as to evidence an abuse of discretion. Green Bay Packaging, Inc. v. Preferred Packaging, Inc., 932 P.2d at 1097.

¶22 Those portions of the trial court’s order denying Dyer’s motion to .compel Ap-pellees to pay Bartlow’s expert witness fees, and granting Appellees’ motion to compel Dyer to pay Billings’ expert witness fees, are REVERSED. The remainder of the trial court’s order is AFFIRMED. Dyer’s request for appellate attorney fees is DENIED.

JOPLIN, J., concurs; and MITCHELL, P. J., concurs in part and dissents in part with a separate opinion.

1 . Appellant Jewell Dyer filed a separate Petition in Error' — Appeal No. 97,407 — from judgment in favor of Appellees on her medical negligence claim. The substantíve questions from that appeal are not at issue here.

2 . Federal counterpart of 12 O.S.2001 § 2804(B)(10).

3 . See also, Henkel v. XIM Products, Inc., 133 F.R.D. 556 (D.Minn.l991)(protective order was issued against deposing witness again after discovery period had ended and party had refrained from examining deponent who was beyond subpoena power of court.)

4 .Compare with, Hall v. Brookshire Bros. Ltd., 831 So.2d 1010 (La.App. 3 Cir.2002)(Under Louisiana statutoiy scheme [La.Code Civ. P. art. 1450(A)(5)] a party may object to use of expert deposition and require live testimony, however, the objecting party must pay in advance the fee, reasonable expenses and actual costs associated with such live testimony.)

5 . See, Henkel v. XIM Products, Inc., 133 F.R.D. at 557 (Neither the Rules of Civil Procedure nor the Rules of Evidence make any distinction between discovery depositions and depositions for use at trial.)