Civil Practice – Costs – Expert Witness Expenses – First Impression – Subpoenas – Out-of-State – Standing

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Jarrell v. Charlotte-Mecklenburg Hospital Authority. (Lawyers Weekly No. 10-07-0797, 10 pp.) (Cheri Beasley, J.) Appealed from Mecklenburg County Superior Court. (Nathaniel J. Poovey, J.) N.C. App.

Holding: Since defendants’ experts testified pursuant to subpoenas, plaintiffs could be taxed with their expenses. Even though plaintiffs contend the subpoenas on the out-of-state experts were ineffective, plaintiffs lack standing to challenge the sufficiency of the subpoenas.

We affirm the trial court’s award of costs including the defense experts’ expenses.

While we agree with defendants that the express terms of the discovery scheduling order would render inapplicable the statutory provisions detailing recovery of expert witness costs, we must disregard this contention as it was not made before the trial court.

The instant case is governed by revised legislation not yet addressed by this court.

The General Assembly has addressed the inconsistencies within our case law by providing that G.S. § 7A-305(d) is a complete and exclusive limit on the trial court’s discretion to tax costs pursuant to G.S. § 6-20, effective Aug. 1, 2007.

The amended statute supplements the witness fees allowed under subsection (1) “as provided by law” by adding a specific provision for expert fees. Section 7A-305(d)(11) grants the trial court explicit statutory authority to award as discretionary costs “reasonable and necessary fees of expert witnesses solely for actual time spent providing testimony at trial, deposition, or other proceedings.”

Like subsection (1), § 7A-305(d)(11) must be understood in light of § 7A-314. We have held that § 7A-305(d)(1) “is to be read in conjunction with § 7A-314, which governs fees for witnesses.” Morgan v. Steiner, 173 N.C. App. 577, 619 S.E.2d 516 (2005). Specifically, § 7A-314(a) provides that “[a] witness under subpoena … to testify before the court … shall be entitled to receive five dollars ($5.00) per day, or fraction thereof,” and subsection (d) grants the court discretion to increase an expert witness’s compensation. G.S. §§ 7A-314(a), (d).

Our Supreme Court has held, “As to expert witnesses, Section (d) modifies Section (a),” which means “Sections (a) and (d) must be considered together.” State v. Johnson, 282 N.C. 1, 191 S.E.2d 641 (1972). Thus, the modification relates only to the amount of an expert witness’s fee; it does not abrogate the requirement that all witnesses must be subpoenaed before they are entitled to compensation.

As § 7A-305(d)(11) now codifies the trial court’s authority to award discretionary expert witness fees (formerly read into subsection (1)) the statutory provision for expert witness fees must likewise be read in conjunction with § 7A-314. Therefore, satisfying the requirements of § 7A-305(d)(11) by proving the fees they seek are “reasonable and necessary” does not automatically entitle defendants to recover expert witness costs. Where § 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. Thus, in the particular situation where an expert testifies without being subpoenaed, § 7A-314 controls as an exception to the general applicability of § 7A-305(d)(11).

This court has applied § 7A-314 to reverse awards of expert fees as costs when no subpoena existed. In this case, however, the record shows that defendants served both expert witnesses in question, Drs. Rosenthal and Scott, with subpoenas to testify. Since Dr. Scott did not request compensation for his personal time, defendants sought, and the trial court awarded, costs for the trial testimony time of only Dr. Rosenthal and travel expenses for both witnesses.

Plaintiffs acknowledge that defendants issued subpoenas to Dr. Rosenthal in Florida and Dr. Scott in Missouri but maintain that the service thereof is insufficient to satisfy § 7A-314, where the subpoenas themselves were ineffective to compel the attendance of the non-resident expert witnesses at trial.

Thus, plaintiffs concede the existence of the subpoenas but contest only their validity. The challenge they attempt to assert, however, belongs not to plaintiffs but to the nonparty witnesses whose attendance was sought, and plaintiffs accordingly lack standing to dispute the subpoenas’ validity.

Where plaintiffs have cited no authority or grant of permission to act on behalf of the individuals named in subpoenas ad testificandum, they accordingly lack standing to contest whether the subpoenas were properly issued.

Where Drs. Rosenthal and Scott were undisputedly served with subpoenas to testify at trial and plaintiffs are not entitled to argue that their appearance was voluntary in fact, defendants have not only met the requirements of § 7A-305(d)(11), but they 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.”

Accordingly, the statutory requirements for awarding expert witness fees as costs were satisfied with respect to Drs. Rosenthal and Scott. Thus, we affirm that related portion of the trial court’s award of costs in the amount of $5,715, thereby affirming the total award of costs for defendants in the amount of $11,605.

Affirmed.