Tuesday, August 17, 2010, 7:49 PM

COA: Expert Witness Costs May Only Be Awarded If the Expert Was Under Subpoena (But Language in Scheduling Order Could Waive This Requirement)

Today the COA held that in order to recover expert witness costs, the expert witness must be under subpeona. However, the Court indicated that this requirement could be waived by contrary language in a discovery scheduling order (IF the party contesting the subpoena requirement properly preserves that argument for appeal!). The case is Jarrell v. Charlotte-Mecklenburg Hospital Authority.

This case was a medical negligence action in which two doctors appeared as out-of-state expert witnesses on behalf of Defendants. Defendants were awarded costs associated with these witnesses (e.g., airfare and travel expenses).

Although the doctors were served with subpoenas to appear at the trial, the discovery scheduling order (DSO) in the case provided that any expert subpoenas "need not be issued" and the parties waived the statutory requirement that expert witnesses must be subpoenaed, "as it may affect the recovery of costs.” Even thought the COA acknowledged that "the express terms of the DSO would render inapplicable the statutory provisions detailing recovery of expert witness costs, the COA didn't consider the DSO because Plaintiffs failed to raise the issue in arguing against Defendants' motion for costs.

Plaintiffs argued that the award of costs was improper because the experts weren't properly subpoenaed. The COA noted that the trial court has 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" pursuant to N.C. Gen. Stat. § 7A-305(d)(11), and that this statute must be read in conjunction with N.C. Gen. Stat. § 7A-314, which governs subpoenas. N.C. Gen. Stat. § 7A-314 provides that only costs for “witness[es] under subpoena, bound over, or recognized” may be recovered. Thus, the COA reasoned, "§ 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."

The COA held that Plaintiffs had no standing to contest the validity of the subpoenas to the two doctors - only the non party witnesses whose attendance was sought could. The COA concluded that the statutory requirements for awarding expert witness fees as costs were satisfied.

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