 |
| NORTH
CAROLINA |
|
IN
THE GENERAL COURT OF JUSTICE SUPERIOR COURT
DIVISION |
| PERSON
COUNTY |
|
FILE
NO. 92 CVS 548 |
| NORTH
CAROLINA COURT OF APPEALS |
| LEE
ANNE JARRELL, Administratrix |
) |
| of
the Estate of Robert E. L. Jarrell,
II, |
) |
| deceased,
) |
|
|
) |
|
Plaintiff, |
) |
|
) |
|
|
|
vs. |
) |
|
) |
| JAMES
N. FINCH, M.D., |
) |
|
) |
|
Defendant. |
) |
| _____________________________________________) |
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|
PLAINTIFF'S MEMORANDUM
IN OPPOSITION TO
DEFENDANT'S
MOTION FOR COSTS
|
I. INTRODUCTION
This
cause is before the Court on defendant' s motion to
tax the plaintiff with costs in the amount of
$27,007.53. Plaintiff filed this action in Durham
County Superior Court on May 6, 1992 against
defendant Finch and Person County Memorial Hospital
(" Hospital" ) alleging medical negligence/wrongful
death arising out of the defendant' s discharge of
plaintiff' s husband from the emergency department
of Person County Memorial Hospital on February 14,
1992, within thirty-five minutes after plaintiff' s
husband presented with symptoms including " chest
tightness, arms tingling." Mr. Jarrell died of a
myocardial infarction on February 15, 1992. Claims
were also brought on behalf of decedent' s minor son
and widow for negligent infliction of emotional
distress. The Complaint subsequently was amended to
add as additional defendants Coastal Emergency
Services of the Carolinas, Inc. and Coastal
Emergency Services, Inc., who provided the defendant
Finch, a resident of Durham, who is employed by the
Durham County Mental Health Department, for
part-time emergency services at the hospital.
On
December 29, 1992 the Superior Court of Durham
County transferred venue of this action to Person
County on motion of the hospital based upon a
finding that the hospital was a "public
officer."
During October of 1994 the Court entered summary
judgments in favor of the hospital and the Coastal
defendants on claims alleging that defendant Finch
was acting as their agent in providing medical care
and treatment to decedent and the Court also entered
summary judgments in favor of all defendants on the
claim for negligent infliction of emotional distress
that was brought by decedent' s minor son. The Court
denied the motion of defendant Finch for summary
judgment on the issue of punitive damages. Plaintiff
appealed the summary judgments to the Court of
Appeals of North Carolina and, although that Court
initially issued an order staying trial against the
defendant Finch pending resolution of the appeal,
the Court later entered an order that plaintiff' s
appeal was interlocutory.
The
case was set for trial against defendant Finch for
April 8, 1996. Plaintiff filed a Notice of Voluntary
Dismissal without Prejudice as to defendant Finch on
March 28, 1996. Subsequently, the decedent' s widow,
as Administratrix of his Estate, filed an action in
the Superior Court of Durham County (97 CVS 01115),
the county of defendant Finch' s residence and
employment, on March 26, 1997, within one year of
taking the voluntary dismissal of the wrongful death
action. Defendant' s motion to transfer venue from
his county of residence to Person County was denied
by the Superior Court in Durham County on June 13,
1997. Defendant now brings this motion on for
hearing seeking an order taxing in excess of $27,000
as costs against the plaintiff.
II. SUMMARY OF
ARGUMENT
A. Defendant
Cannot Recover His Expert Witness Fees Because His
Experts Did Not Attend Court Pursuant to Subpoenas.
Defendant' s
motion to tax plaintiff with $21,400 in expert
witness fees of defendant' s experts must be denied
as a matter of law because fees are only allowed in
North Carolina where the witness testifies
pursuant to a subpoena. G.S. ' 7A-314 (App.
1); G.S. ' 6-53 (App. 2). State v. Johnson,
282 N.C. 1, 191 S.E.2d 641 (1972) (App. 3); Wade
v. Wade, 72 N.C.App. 372, 384, 325 S.E.2d 260, disc.
rev. denied, 313 N.C. 612, 616 (1985); Couch
v. Couch, 18 N.C.App. 108, 196 S.E.2d 64 (1973).
The case was set for trial on April 8, 1996. The
action was dismissed on March 28, 1996. None of the
defendant' s expert witnesses ever testified
pursuant to a subpoena and defendant' s motion in
this respect must be denied.
B. Defendant
Cannot Recover Expert Witness Fees Paid to
Plaintiff' s Experts Because They Did Not Testify
Pursuant to Subpoena.
Defendant' s motion seeking to tax
the plaintiff in the amount of $1,476.14 for fees
the defendant paid to plaintiff' s experts in
connection with their discovery depositions must
also be denied. As shown above, expert witness fees
are only allowed pursuant to G.S. ' 7A-314. The law
is clear that the trial court may award expert
witness fees only for time actually spent testifying
and only if the witness has testified pursuant to
subpoena. Defendant did not subpoena plaintiff'
s experts in connection with the taking of their
depositions. Therefore, these expenses are not
recoverable pursuant to Chapter 7A. Holtman v.
Reese, 119 N.C.App. 747, 406 S.E.2d 338 (1995)
(App. 4).
Defendant' s
motion seeking to tax plaintiff with costs in the
amount of $150.00 for expert witness fees paid to
Carolyn C. Barker, M.D., plaintiff' s psychiatrist,
must also be denied because, on information and
belief, Dr. Barker did not testify pursuant to
subpoena. Holtman, supra. In addition,
although defendant subpoenaed Janie Endres and Sarah
Peach (clinical social workers who counseled with
decedent' s widow) in connection with the taking of
their depositions and paid their employer a total of
$162.50 for time spent in their depositions, this
amount is not taxable to plaintiff because these
witnesses did not testify at trial. G.S. ' 7A-314;
G.S.' 6-53; Brandenburg Land v. Champion
International, 107 N.C. App. 102, 418 S.E.2d 526
(1992) (App. 5).
C. Defendant
Should Not Be Awarded Deposition Expenses Because
the Depositions Will
Be Used in the
Pending Action And the Issues Between the Parties
Have Not Been
Determined.
Defendant' s motion to tax
plaintiff with costs in the amount of $3,390.09 in
connection with deposition expenses for the taking
of nineteen depositions, should also be denied. The
information contained in these deposition
transcripts will be useful to defendant in the
pending litigation arising out of the same subject
matter as this case. Defendant is not entitled to a
windfall of free discovery in the pending action.
Plaintiff has a substantial and meritorious claim
that will be heard by a jury in the pending action.
Rule 41(d) is not intended to make one
Rule 32(a)(5) of the North Carolina Rules of Civil
Procedure provides that when an action has been
dismissed and another action involving the same
subject matter is afterward brought forward between
the same parties, depositions taken in the former
action can be used in the latter action.
party pay the
other party' s trial preparation expenses. The Rule
is intended to punish vexatious litigation, and
deter frivolous suits. Alsup v. Pitman, 98
N.C. App. 389, 390 S.E.2d 750 (1990). This action
does not fall into that category as shown by the
fact that at the summary judgment hearing in this
Court in October of 1994, the Honorable Robert H.
Hobgood, Superior Court Judge Presiding, denied
defendant' s motion for summary judgment on the
issue of punitive damages after considering
discovery materials in the case and noting that
although it is undisputed that plaintiff' s husband
was in pain during the entire time he was in the
emergency department of the hospital on February 14,
1992, he received no treatment whatsoever from
defendant Finch.
The deposition expenses which defendant seeks to tax
to Ms. Jarrell will be useful to defendant in the
trial between the parties. See Brown v.
Zackert, 701 P.2d 711, (Kan.App. 1985)
(reimbursement pursuant to Rule 41(d) should only
include that amount that would not benefit defendant
in pending litigation or litigation to be filed in
another form). See e.g. Cauley v.
Wilson, 754 F.2d 769, 772 (7th Cir. 1985) (award
pursuant to Rule 41(d) should only reimburse
defendant for expenses incurred in preparing work
product that will not be used in subsequent
litigation of the same claim.) If defendant prevails
in the pending action it can request the Court in
that action to tax plaintiff with deposition
expenses incurred in the initial action. Sealey
v. Grine, 115 N.C.App. 343, 444 S.E.2d 632
(1994)(A trial court in one action can tax costs
incurred in an earlier action that was voluntarily
dismissed). If the plaintiff is taxed with
deposition expenses in this action and ultimately
prevails in the pending action, the anomalous result
would be that the losing party would have been
awarded costs against the party in whose favor the
verdict and judgment are rendered.
III.
THE LAW OF COSTS IN NORTH
CAROLINA
A. Costs May Be
Awarded Only Pursuant to Express Statutory
Provisions.
The fundamental, basic tenet of law applicable to
any award of costs is that A costs@ are solely a
creature of statute. Clerk' s Office v.
Commissioners, 121 N.C. 29, 30, 27 S.E. 1003
(1897); City of Charlotte v. McNeely, 281
N.C. 684, 691, 190 S.E.2d 179 (1972) (App. 6).
Parties at common law were forced to bear their own
litigation expenses, so costs today are awarded only
pursuant to statutory authority. McNeely, supra;
Wade v. Wade, 72 N.C. App. 372, 325 S.E.2d
260, disc. rev. denied, 313
N.C. 612 (1985).
Only those costs which are expressly allowed by
statute may be taxed against a losing party, and
these " costs" are not to be equated with litigation
" expenses." State v. Johnson, supra.
A Since the right to tax costs did not exist at
common law and costs are considered penal in their
nature, ' [s]tatutes relating to costs are strictly
construed.'" " McNeely, 281 N.C.
at 692, 190 S.E.2d at 186(citation omitted)(emphasis
added). Costs are not granted upon
Defendant should not be awarded any deposition
expenses in this action because of the reasoning and
authorities cited above. However, it should also be
noted that defendant is seeking to tax plaintiff
with transcript and travel expenses in connection
with the depositions of three emergency medicine
expert witnesses of defendant (Bateman, Podgorny and
Allison). G.S. ' 7A-314 (e) provides that
" If more than two witnesses are subpoenaed...to prove
a single material fact, the expense of additional
witnesses shall be borne by the party issuing or
requesting the subpoena."
Likewise, a party should not be allowed to tax
deposition expenses of more than two expert
witnesses it has designated in a particular
speciality.
"'mere
equitable or moral grounds."' Id.,
281 N.C. at 691, 190 S.E.2d at 185 (citation
omitted).
B. Costs That This
Court May Allow
Rule 41(d) of the North Carolina Rules of Civil
Procedure provides in relevant part that , " A
plaintiff who dismisses an action or claim under
section (a) of this rule shall be taxed with the
costs of this action..." Rule 41 therefore
authorizes this Court to tax costs, but the
delineation of which " costs" may be allowed is
controlled by other statutory provisions and their
judicial interpretation.
Chapters 6 and 7 of the General Statutes govern the
award of costs. See N.C. Gen. Stat. ' 6-1
(1986) (A to the party for whom judgment is given,
costs shall be allowed as provided in Chapter 7A and
this chapter.")
Chapter 7A sets out the specific costs that shall be
awarded upon judgment. The following costs must
be assessed:
(1) A $10 facilities fee;
(2) A $55 fee for support of the General Court of
Justice.
N.C.G.S. '
7A-305(a)(1) and (2). The following costs may
be assessed:
(1) Witness fees, as provided by law;
(2) Expenses of service of process by certified
mail;
(3) Fees for personal service and civil process and
other sheriff" s fees.
N.C.G.S. '
7A-305(d)(1), (4), and (6).
N.C.G.S. ' 7A-314 governs witness and expert witness
fees. In relevant part, this statute provides for
the mandatory assessment of the following
costs:
|
(1)
Witnesses under subpoena are entitled to
compensation at the rate of five dollars per
day of testimony. See N.C.G.S. '
7A-314(a).
(2)
Witnesses that so qualify pursuant to (1)
are also entitled to reimbursement of travel
expenses at an established rate. See
N.C.G.S. ' 7A-314(b)(1).
(3)
Expert witnesses who testify pursuant to
subpoena are entitled to receive such
compensation as the court in its discretion
may authorize. See
N.C.G.S. ' 7A-314(d); State v. Johnson,
282 N.C. 1, 191 S.E.2d 641 (1972).
|
The Section 7A-314 mandatory and permissive witness
fee provisions are restricted by N.C.G.S. '
7A-314(e), which provides that if more than two
witnesses are subpoenaed to prove a single material
fact the party offering the duplicate witnesses must
bear the expense. Moreover, the above provisions in
Chapter 7A regarding court costs and witness fees
are the exclusive statement regarding these
costs. N.C.G.S. ' 7A-320 establishes that " [t]he
costs set forth in this Article are complete and
exclusive, and in lieu of any other costs and
fees."
C. Costs That This
Court May Not, As a Matter of North Carolina Law,
Allow.
It
is apparent from the delineation of costs in Chapter
7A that may be taxed to the losing party that the
word "costs" has a very specific legal meaning. See
Nichols v. Goldston, 231 N.C. 581, 58 S.E.2d
348 (1950) (the costs of transporting witnesses was
not a "cost" but an "
expense" ). "Costs" refers
to those standard court costs and litigation costs
that the legislature in its careful consideration
has deemed compensable. " Costs" are not intended to
cover each and every litigation
"expense." Indeed,
the list of potential expenses that could,
in a broad sense,
be termed expenses of litigation is endless; meals
for attorneys who work late, staff time, postage,
etc. The legislature has made the policy
determination as to where the cut-off line is and
which "expenses" can be allowed as
"costs." This
legislative determination must be strictly followed.
Clearly defendant, in his Motion, seeks to recover
mostly for "expenses" rather than
" costs."
This distinction
was noted by the Supreme Court in Nichols v.
Goldston, 231 N.C. 581, 58 S.E.2d 348 (1950). In
Nichols plaintiff sought recovery from
defendant pursuant to a prior court order allowing a
change of venue but requiring defendant to pay the
reasonable "costs" for transportation of witnesses.
The Supreme Court held that such transportation
expense was not recoverable as "costs" :
| Patently
the word "cost," appearing
in the order, was used in the sense of
"expense" of providing
transportation for plaintiff and his
witnesses to and from the place of trial of
the action. Such cost of transportation is
not "costs" incident to the
action, for which defendant would become
liable in the event the judgment was against
him. Costs incident to the action, or costs
of the action are " entirely creatures
of legislation and constitute an incident of
the judgment," -- and the liability for
such costs depends upon the nature of the
final judgment, and the party cast in the
suit is the one upon whom the costs must
fall... And there was and is no statute in
this State pertaining to the cost of
transporting a party and his witnesses as
"costs" in the sense of costs of
the action for which the losing party may be
liable. |
231 N.C. at 584.
Other bright line
guidelines for awarding costs were established by
the Supreme Court decision of City of Charlotte
v. McNeely, 281 N.C. 684, 190 S.E.2d 179 (1972).
Among the principles established by this decision
are the following:
1. The expense
of procuring surveys, maps, plans, photographs
and
"documents" are not taxable as costs unless
there is clear statutory authority therefor or
they have ordered by the Court. 281 N.C. at
691-92.
2. Parties to
the lawsuit are not entitled to compensation for
time spent in preparing for and attending
hearings and they are also not entitled to an A
expert witness" fee. 281 N.C. at 692-93.
3. Parties to
the lawsuit are not entitled to compensation for
travel expenses, including mileage, meals and
hotel bills expended for securing evidence and
attending hearings. 281 N.C. at 694.
These rules
establishing a distinction between
"expenses" and " costs," and G.S. ' 7A-314, which prohibits the
taxing of expert witness fees for witnesses who do
not attend court pursuant to a subpoena, show that
the overwhelming amount of money claimed by
defendant by his motion are mostly for litigation
expenses that cannot be taxed as costs. In
particular, the following expenses claimed by
defendant as "costs" are not recoverable as a
matter of law pursuant to the statutory
provisions discussed above in ' III.B. and North
Carolina case law:
1. Expert
witness fees may not be recovered for experts
who do not testify pursuant to a subpoena. G.S.
' ' 7A-314, 7A-320; Johnson; G.S. ' 6-53.
2. Fees paid
to other witnesses may not be recovered if they
do not attend court pursuant to a subpoena. G.S.
' ' 7A-314, 7A-320; G.S. ' 6-53.
When these rules
are considered in combination with the fact that the
expenses claimed by defendant in this suit are
expenses that he will be saved in plaintiff' s
pending action on the same claim, it is apparent
that defendant' s extraordinary request for costs
must be denied.
IV. FEES PAID BY
DEFENDANT TO HIS EXPERT WITNESSES ARE NOT
RECOVERABLE.
Defendant seeks
$21, 400 for fees paid to his expert witnesses. Fees
paid by a party to expert witnesses are not
recoverable as part of the costs of the action
unless specifically authorized by statute. 20
Am.Jur.2nd Costs Section 65 (1965). In North
Carolina the allowance of fees for expert witnesses
is controlled by N.C.G.S. ' 7A-314. N.C.G.S. '
7A-314 allows expert witness fees in the discretion
of the Court, but the case law interpreting this
provision has explicitly established that fees are
only allowed where the witness testifies
pursuant to a subpoena. State v. Johnson,
282 N.C. 1, 191 S.E.2d 641 (1972); Wade v. Wade,
72 N.C. App. 372, 384, 325 S.E.2d 260, disc. rev.
denied, 313 N.C. 612, 616 (1985); Couch v.
Couch, 18 N.C. App. 108, 196 S.E.2d 64 (1973).
These requirements
have two implications for the expenses claimed by
defendant. First, only the expert fees relating to
time spent testifying is potentially recoverable.
Second, the experts must have testified pursuant to
subpoena. These requirements bar recovery of fees in
this case. Quite simply, none of defendant' s
experts testified at any point in this litigation
pursuant to subpoena. Also, it should be noted that
plaintiff paid defendant' s experts for the time
spent in giving their deposition testimony.
Defendant is asking this Court to ignore the
controlling statutes and case law and award him fees
paid to his experts for time spent reviewing case
materials and consulting with defense counsel.
Although defendant says his expert witnesses had
been subpoenaed for the trial that was scheduled for
April 8, 1996, plaintiff served her Notice of
Voluntary Dismissal without Prejudice on March 27,
1996, and none of defendant' s expert witnesses
attended court and testified pursuant to such
subpoenas.
"Simply put,
it is error for a trial court to tax an expert
witness fee as part of the costs when the expert has
not testified pursuant to a subpoena."
(citations omitted)(emphasis added). Craven v.
Chambers, 56 N.C.App. 151, 287 S.E.2d 905, 911
(1982). Defendant' s Motion for Costs includes the
following statements in support of his contention
that he is entitled to costs for fees paid to expert
witnesses who never attended court and testified
pursuant to subpoena:
|
Expert
witness fees may be taxed against an adverse
party when the testimony of the witness
examined or tendered was or would have been
material and competent. Costs may properly
include preparation time outside of time
spent testifying at trial. The testimony of
each expert tendered by this defendant was
material and competent. Each expert witness
who was expected to testify in court during
the trial of this action was under subpoena
to appear in court and testify. (Defendant'
s Motion for Costs, &
4). |
In support of his
theory which conflicts with controlling statutes and
case law, defendant apparently seeks to rely on some
language found in City of Charlotte v. McNeely,
281 N.C. 684, 190 S.E.2d 179 (1972), in which our
Supreme Court noted that,
| ...expert
witness fees can be taxed against an adverse
party only when the testimony of the witness
examined (or tendered) was (or would have
been) material and competent. Chadwick v.
Insurance Co., supra; 20 C.J.S. Costs
' 244 (1940). |
Therefore, it is
important to examine the case law to determine if a
witness can be "tendered" so a party can recover
his fees as costs when the witness does not attend
court in obedience to a subpoena. The unequivocal
answer to that question is no. The expert witness
fee at issue in McNeely involved an expert
who was present and testified at the trial, but his
fees were disallowed as costs by the Supreme Court
because the witness' testimony was irrelevant to the
issues in the case.
The case cited by
our Supreme Court in McNeely, Chadwick v.
Life Ins. Co. of Virginia, 158 N.C. 380, 74 S.E.
115 (1912) (App. 7), also involved expert witness
fees in a case that went to trial. At the conclusion
of plaintiff' s evidence the judge nonsuited the
plaintiff' s case. The Supreme Court disallowed
expert witness fees of defendant' s experts who had
appeared in court but who were not examined or
tendered by the defendant after plaintiff' s case
was nonsuited. In Chadwick, the Supreme Court
relied on Cureton v. Garrison, 111 N.C. 271,
16 S.E. 338 (1892)(App. 8) in support of the rule
that expert witness fees can be taxed as costs to
the losing party only if the witness is " ...subpoenaed and examined or
tendered." Chadwick,
supra, 74 S.E. at 116.
In Cureton
the trial court ruled that if the witnesses were
not sworn, and examined or tendered, even though
attending under subpoena, and though they would
have given material evidence, their fees could
not be taxed against the losing party. The
Supreme Court found no error, ruling as follows:
"Where a witness, though duly subpoenaed, is neither
examined nor tendered to the opposite party on the
trial, his attendance can be taxed only against
the party who summoned him." (citations
omitted)(emphasis added).
In Brandenburg
Land v. Champion Intern., supra, the
plaintiff in a title dispute involving real property
took a voluntary dismissal and the trial court taxed
plaintiff with the costs of defendant' s expert
witness fee. Before plaintiff took a voluntary
dismissal without prejudice defendant had filed a
motion for summary judgment with a voluminous
affidavit prepared by its expert witness. Plaintiff
appealed the order taxing costs on the ground that
the defendant' s expert witness had not been
subpoenaed. Our Court of Appeals unanimously
reversed, noting that, "[a]ll of the decisions
reported refer to awards of costs after the case had
been calendared for and indeed had gone to
trial." Id.,
418 S.E.2d at 528.
In Brandenburg
Land the defendant cited Henderson v.
Williams, 120 N.C. 339, 27 S.E. 30 (1897) (App.
9) in support of its unsuccessful argument that the
costs of witnesses who are A available and present
and prepared to testify" may be taxed as costs when
their testimony is rendered unnecessary by the
plaintiff' s voluntary dismissal. Id.
However, the Court of Appeals rejected defendant' s
argument, noting the distinction that in the Henderson
case the trial court called the case for trial and
the plaintiff took a voluntary nonsuit in open
court. At the time the voluntary nonsuit was taken
defendant' s witnesses were
"properly...present." Henderson,
120 N.C. at 340, 27 S.E. at 30. Accordingly, as the
Court of Appeals correctly observed in Brandenburg
Land, supra, 418 S.E.2d at 529, our
Supreme Court in Henderson decided that
witnesses must be present in court before
they can be examined or tendered.
Indeed, the
applicable statutes require, at a minimum, that the
witness be present in court pursuant to a subpoena
before any consideration can be given to taxing the
witness' fees as costs to the opposing party. G.S. '
7A-314(a) provides that, " [a] witness under
subpoena...shall be entitled to receive...during
his attendance, which ...must be certified to
the clerk of superior court." (emphasis added).
Furthermore, G.S.' 6-53, which is cited by our
Supreme Court in McNeely, supra,
provides as follows:
|
Every person
summoned, who shall attend as a witness in any suit,
shall, before the clerk of the court, or before the
referee or officer taking the testimony,
ascertain by his own oath or affirmation the sum due
for traveling to and from court, attendance and
ferriage, which shall be certified by the clerk;
and on failure of the party, at whose instance such
witness was summoned (witnesses for the State and
municipal corporations excepted), to pay the same
previous to the departure of the witness from court,
such witness may at any time sue for and recover the
same from the party summoning him; and the
certificate of the clerk shall be sufficient
evidence of the debt. (emphasis added). |
V. DEFENDANT CANNOT
RECOVER FEES PAID TO PLAINTIFF= S EXPERT WITNESSES.
Defendant is also
seeking to recover $1,476.14 in fees paid to
plaintiff' s expert witnesses in connection with
taking their discovery depositions (See
Appendix B-3, Defendant' s Motion for Costs).
However, as discussed hereinabove, expert witness
fees are only allowed pursuant to N.C.G.S. '
7A-314(d). Section 7A-314(d) and the case law
interpreting that Section establish two crucial
requirements: First, the trial court may award
expert witness fees only for the time actually spent
testifying; and second, the trial court may award
expert witness fees only if the witness has
testified pursuant to subpoena. Defendant did not
subpoena plaintiff' s experts in taking their
depositions. Therefore, these expenses are not
recoverable pursuant to Chapter 7A. Holtman, supra.
Moreover, it appears from the foregoing that even if
Dr. Nazari and Dr. Lee had been subpoenaed for their
depositions, the fees paid to them by defendant
could not be taxed to the plaintiff as costs because
these witnesses never appeared at trial. Brandenburg
Land, supra. (Notes that all the reported
decisions refer to awards of costs after the case
had gone to trial and suggests that the legislature
may want to reconsider this area of law, including
the question of whether a party can tax as costs
fees paid to an expert subpoenaed for a deposition.)
VI. DEFENDANT IS
NOT ENTITLED TO RECOVER FEES PAID TO TREATING HEALTH
CARE PROVIDERS OF LEE ANNE JARRELL.
Defendant' s
Motion also requests that the Court award as costs
$312.50 defendant paid to treating health care
providers of Lee Anne Jarrell in connection with the
taking of their depositions. (See Appendix
B-4, Defendant' s Motion for Costs) However, as
noted hereinabove, pursuant to N.C.G.S. ' 7A-314 and
G.S. ' 6-53, fees paid to witnesses in connection
with the taking of their testimony are not allowed
to be recovered as costs unless they were subpoenaed
and attended court. None of the treating health care
providers of Lee Anne Jarrell attended court.
VII. THE PLAINTIFF
IS UNABLE TO BEAR THE EXPENSE OF DEFENDANT' S
DISCOVERY.
Plaintiff in this
action is the widow of Robert E. L. Jarrell, II, as
Administratrix of his Estate. Mr. Jarrell died
leaving no substantial property and the Estate has
no assets. The Administratrix is unable to pay the
costs of the Estate' s litigation, much less the
deposition transcript and travel expenses of the
defendant, who will use the depositions in defense
of the pending action.
Sections 7A-305(a)
and (d) are clear that there are two kinds of costs:
mandatory and discretionary. The only mandatory
costs are filing and facilities fees, which
plaintiff has paid. Defendant is not entitled to
recover for fees plaintiff has paid. Remaining
costs, those relating to deposition transcripts and
travel expenses, if allowed, are discretionary.
An award of
discretionary costs against the Estate of anything
other than the filing and facilities fees would be
contrary to the spirit of Rule 41. By its own terms
Rule 41(d) prohibits the award of costs against
those suing as paupers. While the Estate did not
bring suit as a pauper, the situation is such that
the policy of the Rule 41(d) pauper provision should
be entertained by this Court in its discretion. In
addition, defendant will be able to use the
discovery it obtained in the initial action in the
pending action. Moreover, as discussed hereinabove,
if defendant is the prevailing party in the pending
action, it can request the court in that action to
tax as costs the expenses for deposition transcripts
and travel that were incurred in this action.
The pending action
will be heard by a jury. It will be for the jury to
decide the factual issues in the case, and only upon
that decision will it be appropriate to make a final
determination as to which party should bear the
"costs" of the litigation. If this Court exercises
its discretion in favor of defendant now and awards
some or all of the deposition transcript and travel
costs claimed by defendant that are discretionary,
and plaintiff later secures a jury verdict against
defendant, the plaintiff will have unfairly carried
the financial burden of defendant' s defense. See
Brown v. Zackert, 701 P.2d 711, 714, (Kan.
App. 1985) (reimbursement pursuant to Rule 41(d)
should only include that amount which will not
benefit defendant in pending litigation or
litigation to be filed in another forum). In Brown,
the Court of Appeals of Kansas held that the trial
court abused its discretion by ordering plaintiff to
pay defendant' s costs without considering whether
the expenses would benefit defendant in future
litigation. The appellate court noted that a trial
court cannot "...shift responsibility for
litigation expenses unaffected by the
dismissal." Id.
The North Carolina
Rules of Civil Procedure are modeled on the Federal
Rules, and our Rule 41(d) is substantially the same
as the federal rule. Alsup v. Pitman, supra.;
Sutton v. Duke, 277 N.C. 94, 99, 176 S.E.2d
161, 163 (1970). This Court should take guidance
from the federal decisions interpreting Rule 41(d)
which allow recovery only for those costs not
associated with information that will be useful in
subsequent litigation of the same claim. E.g.,
Cauley v. Wilson, 754 F.2d 769, 772 (7th Cir.
1985) (award pursuant to Rule 41(d) should only
reimburse defendant for expenses incurred in
preparing work product that will not be used in
subsequent litigation of the same claim); McLaughlin
v. Cheshire, 676 F.2d 855, 857 (D.C. Cir. 1982)
(when plaintiff seeks dismissal in one forum,
defendant is not entitled to reimbursement for
expenses in preparing work product that has been or
will be useful in continuing litigation); Bready
v. Geist, 85 F.R.D. 36, 38 (E.D. Pa. 1979)
(potential prejudice to defendant by dismissal would
be offset by requiring plaintiff to stipulate that
defendant could use discovery in subsequent
litigation).
VIII CONCLUSION
Based on the
foregoing reasoning and authorities, plaintiff
respectfully requests the Court to deny defendant' s
Motion for Costs.
This the _______
day of ___________________, 1997.
BENTLEY &
ASSOCIATES, P.A.
_________________________________
Charles
A. Bentley, Jr.
Post Office Box 52089
Durham, North Carolina 27717-2089
Telephone: (919) 489-1330
Attorneys for Plaintiff |
CERTIFICATE OF
SERVICE
I do hereby
certify that on this _____ day of _______________,
1997, I served copies of the foregoing PLAINTIFF' S
RESPONSE IN OPPOSITION TO DEFENDANT' S MOTION FOR
COSTS and PLAINTIFF' S MEMORANDUM IN OPPOSITION TO
DEFENDANT' S MOTION FOR COSTS on counsel for the
defendants by hand delivery in the Person County
Courthouse, addressed as follows:
Samuel G. Thompson
John D. Madden
James Y. Kerr, II
Smith, Anderson,Blount, Dorsett, Mitchell & Jernigan
Post Office Box
2611
Raleigh, North Carolina 27602
___________________________________
Charles A. Bentley, Jr.
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Bentley Law Offices,
P.A.
400 West Main Street, Suite 501
Durham, NC 27701
Tel: (919) 682-3700 | Fax: (919) 683-1080
E-mail: info@bentleylawfirm.com |
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