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Stalsworth v. Grummons5/5/2000
The sole issue presented in this appeal is whether the trial court properly awarded as discretionary costs fees of the defendant's expert witnesses who did not testify because the plaintiffs voluntarily dismissed their lawsuit on the day of trial before any proof was taken. The fees in question were charged by the defendant's medical experts for reserving time in their schedules to testify, thereby precluding any other income-producing professional activities. The award of discretionary costs is affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and Remanded
Cottrell, J., delivered the opinion of the court, in which Koch, J., and Cain, J., joined.
OPINION
After an adverse ruling on their motion in limine to exclude just- obtained records affecting the credibility of their only medical expert witness, the plaintiffs voluntarily dismissed their medical malpractice lawsuit. This occurred after the jury was empaneled and opening statements were presented but before any proof was taken. The defendant timely moved for discretionary costs, which were awarded by the trial court. The only portion of the awarded costs challenged by the plaintiffs involves fees by two defense expert witnesses, doctors who were scheduled to testify at trial and who had charged the defendant for setting aside that time.
The motion for discretionary costs asked for "the reasonable and necessary expert witness fees incurred in having [named doctors] available to give expert testimony at trial" and was accompanied by the doctors' bills. One bill included an entry for "court appearance reservation" for January 14 for which two hours was charged. The other bill included an entry for "one day in office rescheduled . . . 8 hours" and was submitted by an out-of-town physician.
The plaintiffs opposed the motion for discretionary costs especially with regard to fees for experts who did not testify. After a hearing, the trial court granted the defendant's motion for discretionary costs awarding, in relevant part:
$800.00 for the reasonable and necessary expert witness fees incurred in having Kenneth Sharp, M.D. available to give expert witness testimony at trial;
$1200.00 for the reasonable and necessary expert witness fees incurred in having Bert E. Geer, D.O. available to give expert testimony at trial. (The original amount requested was $1800.00, but $600.00 in preparation fees was not awarded to Defendant.)
The Stalsworths have appealed this ruling, arguing that the trial court abused its discretion by granting expert witness fees to individuals who did not actually testify. They argue that Tenn. R. Civ. P. 54.04(2) limits the recovery of expert witness fees to those incurred for testimony actually obtained during depositions or trials.
Rule 54.04(2) specifically authorizes the recovery of discretionary costs. It states:
Costs not included in the bill of costs prepared by the clerk are allowable only in the court's discretion. Discretionary costs allowable are: reasonable and necessary court reporter expenses for depositions or trials, reasonable and necessary expert witness fees for depositions or trials, and guardian ad litem fees; travel expenses are not allowable discretionary costs. Subject to Rule 41.04, a party requesting discretionary costs shall file and serve a motion within thirty (30) days after entry of judgment. The trial court retains jurisdiction over a motion for discretionary costs even though a party has filed a notice of appeal. The court may tax discretionary costs at the time of voluntary dismissal.
When this rule was original
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