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Conway v. Blackburn6/13/2005
us, statutory witness and mileage fees were properly awarded for Blackburn's expert witnesses.
Conway argues that even though experts are not expressly excluded from the scope of RCW 2.40.010, the statute should be construed not to apply to them. Conway argues that under Washington law, parties testifying on their own behalf are not entitled to witness fees. See Van Nostern v. Richey & Gilbert Co., 2 Wn.2d 663, 677, 99 P.2d 608 (1940); Fowler v. Gray, 141 Wn. 372, 373, 251 P. 570 (1926) (citing Ham, Yearsley & Ryrie v. N. Pac. Ry. Co., 107 Wn. 378, 181 P. 898 (1919)); see also The Wahkeena, 51 F.2d 106, 108 (W.D. Wash. 1931) ('The general rule is that a party testifying in his own behalf is not entitled to witness fees.'). Conway argues that experts speak for or on behalf of parties and should therefore be treated in the same manner as parties with respect to witness fees.
The exception excluding witness fees for parties is narrow. For example, in Noon v. Mironski, 58 Wn. 453, 108 P. 1069 (1910), the defendant/husband subpoenaed his wife to testify. After successfully defending the lawsuit, he was awarded witness fees for her attendance. Noon, 58 Wn. at 456. Although his wife was not a party to the lawsuit, the plaintiff argued that she would have been a competent party. Noon, 58 Wn. at 456. The court affirmed the grant of witness fees, noting that the plaintiff chose not to make her a party and therefore she was 'entitled to her fees the same as any other witness.' Noon, 58 Wn. at 456. And in University Plumbing & Heating Co. v. Naches Hotel Co., 177 Wn. 548, 551, 32 P.2d 545 (1934), the plaintiffs were corporations. The court affirmed a grant of witness fees for the presidents of the corporations, who were not parties, noting that the restriction was against an award of witness fees for parties to the action. University Plumbing, 177 Wn. at 551.
Expert witnesses are witnesses, not parties. Washington courts have narrowly restricted the witness fee exception only to parties, and not to potential parties or representatives of parties. We hold that the trial court did not err in awarding statutory witness and mileage fees under RCW 2.40.010.
We affirm.
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