Foster v. Weir Orthodontic Centers of Arizona, Inc.

FILED BY CLERK
IN THE COURT OF APPEALS FEB 28 2006
STATE OF ARIZONA COURT OF APPEALS
DIVISION TWO DIVISION TWO
CHRIS FOSTER and DEBRA FOSTER, )
husband and wife, on behalf of )
themselves and their minor daughter, )
KARA FOSTER, )
) 2 CA-CV 2005-0096
Plaintiffs/Appellees/ ) DEPARTMENT B
Cross-Appellants, )
) OPINION
v. )
)
G. THOMAS WEIR, JR., D.D.S., and )
JANE DOE WEIR, husband and wife; )
G. THOMAS WEIR, JR., D.D.S., P.C., an )
Arizona corporation; and )
ORTHODONTIC CENTERS OF )
ARIZONA, INC., an Arizona corporation, )
)
Defendants/Appellants/ )
Cross-Appellees. )
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. C20035760
Honorable Carmine Cornelio, Judge
VACATED AND REMANDED
Law Office of JoJene Mills, P.C.
By JoJene Mills, P.C.C. Tucson
Attorney for Plaintiffs/
Appellees/Cross-Appellants
Jardine, Baker, Hickman & Houston
By Gerald T. Hickman and John Drazkowski Phoenix
Attorneys for Defendants/
Appellants/Cross-Appellees
E C K E R S T R O M, Presiding Judge.
¶1 In this appeal, appellants/cross-appellees Dr. Thomas Weir and Orthodontic
Centers of Arizona, Inc., and appellees/cross-appellants Chris, Debra, and Kara Foster
challenge only the propriety and reasonableness of the trial court’s award of expert witness
fees under Rule 54(f)(2), Ariz. R. Civ. P., 16 A.R.S., Pt. 2. For the reasons stated below,
we vacate the award and remand the case for further proceedings.
Background
¶2 Debra and Chris Foster filed an action against Weir, alleging negligence in his
treatment of Kara Foster, their minor daughter, who suffered root resorption as a result of
the orthodontic treatment she had received from Weir. The jury returned a verdict in favor
of the Fosters and awarded $109,200 in damages. The Fosters sought $12,425.73 and
$1,575 respectively to recoup the costs incurred for their expert witnesses, Dr. Boyd and Dr.
Cueva. Weir objected to the requested amounts.
¶3 The trial court awarded the Fosters $7,444 for Boyd’s fees, which included
compensation for his time reviewing the case file, time spent with the Fosters’ attorney, and
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his 3.5 hours of trial testimony. The trial court also awarded the Fosters the entire amount
requested for Cueva’s fees. Both Weir and the Fosters now appeal those awards.
Discussion
¶4 As a general rule, the parties to a civil proceeding are responsible for their own
litigation expenses. Wichita v. Pima County, 131 Ariz. 576, 577, 643 P.2d 21, 22 (App.
1982). Those expenses may not be recovered as costs unless a statute so provides. Schritter
v. State Farm Mut. Auto. Ins. Co., 201 Ariz. 391, ¶ 6, 36 P.3d 739, 740 (2001). Costs in
superior court are awarded pursuant to A.R.S. § 12-332 and include the “[f]ees of officers
and witnesses.” § 12-332(A)(1). In the narrow context of medical malpractice lawsuits,
“witness fees, set forth in A.R.S. § 12-332([A])(1) as taxable costs in the Superior Court,
shall include reasonable fees paid expert witnesses for testifying at trial.” Ariz. R. Civ. P.
54(f)(2).
¶5 The parties disagree on the intended scope of that provision. Weir claims that
only the cost of an expert’s time actually spent testifying in superior court is recoverable
under the rule. Accordingly, he argues, the Fosters should have been awarded costs for
Boyd’s 3.5 hours of testimony but not for the time he spent preparing for trial. Moreover,
Weir argues, because Cueva had not been disclosed as an expert witness before trial, the
Fosters should not have recovered any of his fees under Rule 54(f)(2). In their cross-appeal,
the Fosters claim the trial court erred by not awarding them more of Boyd’s fees under Rule
54(f)(2)—specifically, some additional time Boyd spent in trial preparation following the
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settlement conference, including his review of other witnesses’ deposition testimony and
Weir’s medical literature. Because no Arizona court has considered the reach of Rule
54(f)(2), this is a matter of first impression. As an issue of statutory interpretation, whether
certain expenditures are taxable costs is a matter of law that we review de novo. See
Schritter, 201 Ariz. 391, ¶ 5, 36 P.3d at 740.
¶6 Rules are interpreted in accord with the drafters’ intent, the best evidence of
which is the plain language of the rule. Fragoso v. Fell, 210 Ariz. 427, ¶ 7, 111 P.3d 1027,
1030 (App. 2005). We rely on alternative methods of construction only if the language is
ambiguous. Zamora v. Reinstein, 185 Ariz. 272, 275, 915 P.2d 1227, 1230 (1996); see
Nielson v. Patterson, 204 Ariz. 530, ¶ 5, 65 P.3d 911, 912 (2003) (applying rules of
statutory construction to interpret ambiguous procedural rules). Those alternative methods
include consideration of the rule’s context, background, effect, or purpose. See Zamora,
185 Ariz. at 275, 915 P.2d at 1230.
¶7 Here, the pertinent clause of Rule 54(f)(2)—“witness fees . . . shall include
reasonable fees paid expert witnesses for testifying at trial”—is subject to two plausible
interpretations. On one hand, Weir contends provisions related to the recovery of litigation
costs are construed narrowly and we should therefore interpret the language of the rule to
exclude expenses incurred in trial preparation. See Ahwatukee Custom Estates Mgmt.
Ass’n, Inc. v. Bach, 193 Ariz. 401, ¶ 7, 973 P.2d at 106, 107-08 (1999) (noting “consistent
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refusal” of courts to interpret cost statute broadly). In essence, Weir argues the phrase “for
testifying at trial” encompasses only the time an expert actually spends testifying.
¶8 The Fosters counter that an expert’s fee “for testifying at trial” necessarily also
includes the cost of time spent preparing for that testimony and associated travel time. They
contend a narrow interpretation of the rule would not only lead to absurd and unjustifiable
results but would frustrate the rule’s purpose and intent. See City of Phoenix v. Superior
Court, 101 Ariz. 265, 267, 419 P.2d 49, 51 (1966) (statutory construction should not
produce absurd results). For the reasons explained below, we conclude that Rule 54(f)(2)
encompasses as a taxable cost only those fees incurred for an expert witness’s actual
attendance at trial to testify and that the additional expenses incurred to retain and prepare
an expert witness for trial are not recoverable under the rule.
¶9 Rule 54(f)(2) must be read in conjunction with § 12-332 and the other
provisions in Title 12, chapter 3, A.R.S., relating to fees and costs. See State ex rel.
McDougall v. Superior Court, 173 Ariz. 385, 386, 843 P.2d 1277, 1278 (App. 1992)
(procedural rules and statutes must be construed together). Because these provisions are in
pari materia, that is, on the same subject, they must be interpreted in a “harmonious and
consistent” manner. State ex rel. Larson v. Farley, 106 Ariz. 119, 122, 471 P.2d 731, 734
(1970). Indeed, Rule 54(f)(2) itself requires us to determine which expert fees can be
considered taxable costs by referring to those fees allowed by the legislature in § 12-
332(A)(1). See Ariz. R. Civ. P. 54(f)(2) (“[W]itness fees, set forth in A.R.S. § 12-
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332([A])(1) as taxable costs . . . shall include reasonable fees paid expert witnesses for
testifying at trial.”) (emphasis added). When read together with a related provision, A.R.S.
§ 12-303, § 12-332 restricts witness fees to costs associated with actual attendance at trial
to testify. See § 12-303 (limiting witness fees taxable as costs in non-medical malpractice
cases to twelve dollars per day, plus mileage, for each day witness attends trial). Thus, the
language of Rule 54(f), when read in conjunction with § 12-332 as the rule itself requires,
suggests that expert witness fees are only taxable as costs to the extent they represent time
actually spent testifying or being available for testimony at trial.
¶10 No legal authority compels a broader construction of Rule 54(f)(2). In fact,
we have found that, when the legislature has intended to permit recovery of fees incurred in
preparing for expert testimony, it has done so in explicit terms. For example, in certain
actions involving the state, the opposing party may recover the expenses associated with an
expert’s “actual time expended in representing the party.” A.R.S. § 12-348(D). These
expenses are awarded “[i]n addition to any costs which are awarded as prescribed by
statute.” § 12-348(B) (emphasis added). Notably, § 12-348(B), like Rule 54(f)(2), was
enacted against the backdrop of § 12-332, and we believe our supreme court crafts its rules
in full cognizance of the statutory context within which those rules operate. Had the
supreme court intended to expand the costs recoverable in medical malpractice cases to the
extent Foster suggests, we believe it would have done so in clearer, more specific language,
such as that used by the legislature in § 12-348 and its own language in drafting other cost-
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shifting provisions. See, e.g., Ariz. R. Civ. P. 68(d), 16 A.R.S., Pt. 2 (supreme court
articulating enlarged scope of expert witness fees recoverable as sanction for not accepting
offer of judgment).
¶11 In a somewhat different context, the supreme court has addressed the
implications of cost-shifting for less wealthy litigants. In Schritter, the court considered
whether the language of § 12-332 permitted recovering as costs the fees paid to depose one’s
own expert witnesses when the deposition testimony was used in lieu of live testimony at
trial. 201 Ariz. 391, ¶ 1, 36 P.3d at 739. In reviewing the policy arguments for and against
allowing such expenses to be taxed as costs, the supreme court noted that “wealthier parties
could depose their highly-paid experts at length, plan to use the depositions in lieu of live
trial testimony, and then use the possibility of recovering the deposition fees as taxable costs
as a means of gaining settlement leverage.” Schritter, 201 Ariz. 391, ¶ 16, 36 P.3d at 742.
¶12 Here, the Fosters seek an interpretation of Rule 54(f)(2) that would shift to the
losing party in every medical malpractice trial the prevailing party’s expert witness fees
incurred in preparation for trial. Because the expert witnesses in medical malpractice actions
are usually highly trained medical specialists, those fees will often be so substantial that
poorer litigants simply could not afford to risk incurring them. The Fosters counter that their
interpretation of Rule 54(f) would actually benefit litigants of modest means because it
would potentially allow such litigants to escape paying their own prohibitively expensive
expert witness fees. But Rule 68(d) already provides such a mechanism. And, we find it
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unlikely that the supreme court—sensitive to any potential impact of cost shifting on less
wealthy litigants—would promulgate in Rule 54(f) a rule dramatically reallocating the
ultimate responsibility for expert witness fees without using language that clearly
demonstrates its intent to do so.
¶13 At oral argument, the Fosters emphasized that, if the rule was intended only
to tax as costs those expert witness fees incurred for the expert’s time spent attending trial
to testify, its effect would be too insignificant to have been worth the supreme court’s effort
to promulgate it. But, in the absence of that rule, a court could impose taxable costs of no
more than twelve dollars a day for witness fees. See § 12-303. Thus, although the rule, as
we interpret it, does not authorize the dramatic shift in responsibility for experts’ preparation
expenses envisioned by the Fosters, its effect is far from insignificant. Indeed, even under
the narrow interpretation we apply here, the Fosters will be entitled to recover over two
thousand dollars of their own expert witness fees as taxable costs.
¶14 The Fosters observe correctly that the rule was originally promulgated as part
of the Uniform Rules for Medical Malpractice Cases, whose stated purpose was to create a
“more efficient and less expensive system” for such litigation. See Preamble, Ariz. Unif. R.
P. Med. Malpractice Cases, adopted Nov. 9, 1989, effective Jan. 1, 1990 (superseded 2000).
But the Fosters have not explained why the supreme court’s intent to create a more efficient
and less expensive system would necessarily cause it to promulgate a more dramatic cost-
shifting measure in Rule 54(f). Accordingly, we conclude the trial court abused its
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discretion when it taxed to Weir some of the fees charged by the Fosters’ expert witness, Dr.
Boyd, in preparing for his trial testimony. In so concluding, we necessarily reject the
Fosters’ cross-appeal challenging the trial court’s failure to tax to Weir some additional fees
the Fosters claimed for Boyd’s trial preparation.
¶15 The trial court also erred by including Boyd’s travel expenses from California
as taxable costs. As noted, the supreme court has expressly anchored Rule 54(f)(2) to § 12-
332(A)(1), which authorizes taxing witness fees as costs. The legislature has limited witness
fees in § 12-303 to include compensation only for mileage for traveling to court from the
witness’s “place of residence in the state of Arizona to the place of trial.” See Ponderosa
Plaza v. Siplast, 181 Ariz. 128, 134, 888 P.2d 1315, 1321 (App. 1993) (travel expenses of
out-of-state witnesses not taxable as costs pursuant to § 12-332). And, as discussed at
length, we do not interpret Rule 54(f)(2) to expand the statutory limits on taxable costs set
forth in § 12-332, except to the extent expressly stated in the rule.
¶16 Finally, Weir claims the Fosters were not entitled to recover Dr. Cueva’s fee
because the Fosters had not disclosed Cueva as an expert witness in a timely fashion
pursuant to Rule 16(c), Ariz. R. Civ. P., 16 A.R.S., Pt. 1.1 Under Rule 16(c)(2), the parties
to a medical malpractice action must disclose their expert witnesses on the issues of standard
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Alternatively, they assert that, even if Cueva’s fee was an appropriate taxable cost,
the amount of his fee was unreasonable. Because they did not present this claim to the trial
court, we do not address it. See Van Loan v. Van Loan, 116 Ariz. 272, 274, 569 P.2d 214,
216 (1977).
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of care and causation within thirty to ninety days after the pretrial conference. Furthermore,
Rule 16(c)(3) requires the parties to disclose all other expert witnesses within forty-five days
before the close of discovery. Any witness not disclosed in accordance with these rules is
precluded from testifying absent “a showing of extraordinary circumstances.” Id. We decide
witness-disclosure issues on a case-by-case basis. See Perguson v. Tamis, 188 Ariz. 425,
428, 937 P.2d 347, 350 (App. 1996).
¶17 Here, following the pretrial conference, the court ordered the parties to
disclose all expert witnesses by July 2, 2004, and all lay witnesses by August 1, 2004. On
June 29, 2004, the Fosters disclosed that Cueva “may be characterized as [an] expert witness
. . . concerning the cost and frequency of necessary future care caused by Kara’s root
resorption.” Thereafter, the Fosters did not include Cueva as an expert witness in their
December 2004 disclosure statement. He was, however, among the Fosters’ witnesses listed
in the joint pretrial statement filed on December 23, 2004, but nothing in the statement
indicated that he would be called as an expert. Cueva testified on the fourth day of trial.
The trial court noted that he had testified as an expert and awarded the Fosters $1,575 for
Cueva’s fees.
¶18 The available record is silent on a number of important issues, including the
content of Cueva’s testimony. Nor is there any record of whether Weir objected to Cueva’s
testimony or to any expert opinion he may have given. In the absence of such material, we
must assume the full record supports the trial court’s implied conclusion that, under the
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specific circumstances of this case, Cueva had been sufficiently disclosed as an expert
witness pursuant to Rule 16(c) to justify taxing Cueva’s fees for testifying at trial as a
recoverable cost. See Aguirre v. Forrest, 186 Ariz. 393, 397, 923 P.2d 859, 863 (App.
1996) (presuming omissions in record support trial court’s ruling).
Disposition
¶19 We vacate the award of $7,444 in taxable costs for Dr. Boyd’s fees and remand
the case to the trial court to determine the appropriate amount taxable for Boyd’s expert’s
trial testimony consistent with this holding. We affirm the award of $1,575 in taxable costs
for Dr. Cueva’s fees.
____________________________________
PETER J. ECKERSTROM, Presiding Judge
CONCURRING:
____________________________________
J. WILLIAM BRAMMER, JR., Judge
____________________________________
JOSEPH W. HOWARD, Judge
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