 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Fernandez v. Espanola Public School District8/8/2005
Petitioners-Appellants Eric E. Fernandez and Veronica R. Fernandez, personal representatives for the estate of Leon A. Fernandez, entered into a settlement agreement with Respondents-Appellees Espanola Public School District and the Board of Education for the Espanola Public School District for a wrongful death action. Appellants filed a cost bill with the district court that included expert witness fees. The trial court denied these fees, finding that it did not have the discretion to award expert witness fees as costs because none of the expert witnesses testified by deposition or at trial. Appellants appealed to the Court of Appeals, and the Court of Appeals, by unanimous opinion, affirmed the trial court. Fernandez v. Espanola Pub. Sch. Dist., 2004-NMCA-068, 135 N.M. 677, 92 P.3d 689. This Court granted certiorari. We conclude that NMSA 1978, ยง 38-6-4(B) (1983) does not authorize the trial court to award expert witness fees as costs when the expert witness does not testify by deposition or at trial. Thus, we affirm the Court of Appeals and the trial court.
I. Facts and Background
Appellants accepted an offer of settlement from Appellees for $95,000 plus costs. Appellants requested costs of $89,274.25 for expert witness fees, and Appellees objected, arguing that such costs are precluded when the expert witnesses do not testify at trial or by deposition under the applicable statute. The district court ruled that it did not have the discretion to award the expert witness fees as costs because none of the witnesses testified in person or by deposition.
II. Discussion
The interpretation of a statute is an issue of law that we review de novo. State v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379, 1382 (1995). Our goal regarding statutory construction is to give effect to the intent of our Legislature. Id. We give the words of a statute their ordinary meaning in the absence of clear and express legislative intent to the contrary. Id.
Section 38-6-4(B) provides:
The district judge in any civil case pending in the district court may order the payment of a reasonable fee, to be taxed as costs, . . . for any witness who qualifies as an expert and who testifies in the cause in person or by deposition. The additional compensation shall include a reasonable fee to compensate the witness for the time required in preparation or investigation prior to the giving of the witness's testimony. Thus, the plain language of this statute sets out two requirements for recovery of expert witness fees as costs. First, Section 38-6-4(B) requires that the witness qualify as an expert. Second, relevant to the present matter, Section 38-6-4(B) requires that the expert witness testify, either "in the cause in person or by deposition." Id.
This Court has previously addressed this issue. In Jimenez v. Foundation Reserve Insurance Co., 107 N.M. 322, 323, 757 P.2d 792, 793 (1988), the trial court granted the plaintiff's motion for summary judgment. The plaintiff attempted to recover costs for the fees of two expert witnesses who did not testify but attended a hearing that was vacated. Id. at 323-24, 757 P.2d at 793-94. This Court held that " he right of a prevailing party to recover costs incurred in litigation is by virtue of statutory authority, or by rule of the court as authorized by statute." Id. at 327, 757 P.2d at 797. We concluded that the statute applicable to expert witness fees authorized the fees as costs "`for any witness who qualifies as an expert and who testifies in the cause in person or by deposition.'" Id. "Thus, there are two hurdles the prevailing party must overcome before costs . . . will be allowed for a witness. First
Page 1 2 3 4 5 6 New Mexico Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|