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McMurry v. Metropolitan Government of Nashville and Davidson County2/26/2003
es that the court abused its discretion by not awarding her $900 in discretionary costs for Dr. Sieveking's expert testimony because his testimony was necessary and "an expert witness cannot testify accurately without sufficient pre-trial preparation, which in this case included the conference with Ms. McMurry's attorney and time for . . . to review . . . his file." Therefore, Ms. McMurry asks this court to increase her award by $900 for this charge.
The Tennessee Rules of Civil Procedure authorize the trial court to award discretionary costs for other expenses related to the preparation and trial of a case. Tenn. R. Civ. P. 54.04(2). Specifically, the Rule 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 . . . . Tenn. R. Civ. P. 54.04(2) (emphasis added).
The awarding of costs under the rule is a discretionary matter with the court. Lock v. National Union Fire Ins. Co., 809 S.W.2d 483, 490 (Tenn. 1991). Absent a clear abuse of discretion, appellate courts generally will not interfere with a trial court's assessment of costs. Perdue v. Green Branch Mining Co., Inc., 837 S.W.2d 56, 60 (Tenn. 1992); Stalsworth v. Grummons, 36 S.W.3d 832, 835 (Tenn. Ct. App. 2000)
Tenn. R. Civ. P. 54.04 specifically limits discretionary costs with regard to expert witnesses to their fees for testifying. Miles v. Marshall C. Voss Health Care Ctr., 896 S.W.2d 773, 776 (Tenn. 1995). Expert fees are limited to fees incurred for actual deposition or trial testimony. Shahrdar v. Global Hous., Inc., 983 S.W.2d 230, 239 (Tenn. Ct. App. 1998). Fees for preparation time are not recoverable. Id.; Miles, 896 S.W.2d at 776. Similarly, the portion of the fee charged for evaluating the employee is not recoverable under Rule 54.04(2). Miles, 896 S.W.2d at 776.
Ms. McMurry does not claim the $900 was for anything other than preparation. However she cites Stalsworth v. Grummons, 36 S.W.3d 832 (Tenn. Ct. App. 2000), as suggesting that trial preparation expenses are recoverable. This court in Stalsworth "declin to find that under no circumstances would a non-testifying expert's fees be reasonable and necessary." Id. at 835. The court went on further to grant fees to non-testifying experts in that case. Id. The decision in Stalsworth is distinguishable from this case because the fees in Stalsworth were for the expert's time being available to testify where the plaintiff nonsuited at the beginning of trial. The fees in question were not for trial preparation, such as in the present case. Id. at 836.
Based upon well-settled principles, the trial court correctly awarded the fees that Ms. McMurry requested for actual testimony, but disallowed the trial preparation fee. Dr. Sieveking's trial preparation fee is not one that is recoverable under Tenn. R. Civ. P. 54.04(2), and we affirm the decision of the trial court.
V. Judgment
The judgment of the trial court is affirmed. Remand this cause to Circuit Court of Davidson County for further proceedings consistent with this opinion. Tax the costs on appeal to the appellant, Rebecca McMurry.
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