Court: Louisiana Court of Appeal; October 14, 2015; Louisiana; State Appellate Court
Plaintiffs lost a medical malpractice trial concerning the death of Darlene McDougald, who had a history of heart disease and suffered a fatal myocardial infarction after following the advice of her cardiologist, Dr. Ronald Koepke, to stop blood thinners before surgery. The jury found no malpractice, leading to an appeal by the defendants, Dr. Koepke and his insurer, Louisiana Medical Mutual Insurance Company (LMMIC), regarding the trial court’s decision not to tax the plaintiffs with a $34,064.41 expert witness fee for Dr. David Elizardi. Instead, the court taxed only $3,539.76 in costs for other experts.
During the costs hearing, the defendants presented a letter from Dr. Elizardi detailing his fee, but the plaintiffs objected to its admission as hearsay, an objection the court overruled; however, the letter was not formally included in the evidence. The trial court made a determination on the costs based on stipulated amounts owed by the plaintiffs, excluding Dr. Elizardi’s fee. The appellate court affirmed the trial court’s judgment, emphasizing the broad discretion the trial court holds in awarding costs and expert witness fees under Louisiana law. Notably, La. C.C.P. art. 1920 allows the court to render judgments for costs based on equitable considerations, and the burden of proof lies with the party seeking costs to establish the reasonable value of the expert's out-of-court work.
La. C.C.P. art. 2164 mandates that appellate courts base their decisions solely on the record on appeal, which is compiled by the trial court and includes pleadings, court minutes, transcripts, judgments, and other relevant rulings. Evidence not included in this record cannot be reviewed or considered by the appellate court, including facts referenced in briefs or attachments. In Bolton v. Willis-Knighton Medical Center, the appellate court affirmed that expert witnesses are entitled to reasonable fees, which are determined at the trial court's discretion based on various factors, including the time spent and the complexity of the case. During a hearing on a motion to tax costs, no evidence was introduced, and the plaintiffs only objected to a specific charge of $34,064.41 for expert Dr. Elizardi. Although a letter detailing Dr. Elizardi's fees was referenced, it was not formally admitted into evidence and thus not part of the appellate record. The trial court stated it could equitably tax costs against any party and characterized the situation as one of fairness, despite the defendants' objections to the portrayal of the case.
The trial court acknowledged, for argument's sake, that Dr. Elizardi's substantial claim and the plaintiffs' unsuccessful medical malpractice action were not frivolous. It concluded the defendants' expenditure of over $34,000 was a necessary business cost and indicated uncertainty regarding the financial status of the unsuccessful plaintiffs. The court remarked that the defense could choose its litigation expenses and ultimately decided that the fees for Dr. Elizardi should not be taxed to the plaintiffs as costs. On appeal, the defendants argued that the trial court abused its discretion in denying any reimbursement of Dr. Elizardi’s fees, emphasizing that expert witnesses are entitled to reasonable compensation. However, the trial court found the defendants' decision to utilize Dr. Elizardi's services was a business expense for which they must bear the cost. The appellate court affirmed the trial court's judgment, citing a lack of documentation in the record to support Dr. Elizardi’s charges, despite the defendants' reliance on a precedent case, Bolton v. Willis-Knighton, which allowed for expert fees to be taxed as costs based on proper documentation. In Bolton, expert fees were substantiated with records and witness testimony, which was not the case here.
In the Bolton litigation, the expert fees claimed by the prevailing parties were well-supported, unlike the current case where the successful defendants did not provide sufficient evidence to justify their reimbursement request. Dr. Elizardi’s trial testimony lacked details on his rates, time spent, or other charges, only noting he received information from the defendants. The defendants did not submit the promised letter and receipts during the hearing to tax costs, despite the trial court overruling a hearsay objection. They also failed to request a postponement for Dr. Elizardi's testimony regarding his charges. Although Dr. Elizardi’s deposition was part of the trial court record, it also did not disclose his fees or time expended.
On appeal, the defendants highlighted the litigation's duration, complexity, and Dr. Elizardi’s expertise, asserting that the trial court displayed bias regarding the plaintiffs' financial ability to pay the judgment, which they claimed constituted an abuse of discretion in cost assessment. The court acknowledged that expert witnesses are entitled to reasonable compensation under La. R.S. 18:3666, with costs typically borne by the losing party. However, La. C.C.P. art. 1920 allows the trial court discretion in cost taxation. The court affirmed the trial court's decision, which did not impose the defendants' expert costs on the unsuccessful plaintiffs due to the lack of evidence supporting the claimed fees. The appeal costs were assigned to the defendants, Dr. Robert Koepke and Louisiana Medical Mutual Insurance Company, as other defendants were dismissed. La. R.S. 13:4533 and La. R.S. 13:3666 outline the court’s authority to determine and tax expert witness fees and related costs. Furthermore, it was noted that plaintiffs’ counsel indicated Dr. Elizardi required a $2,500 advance for a two-hour deposition, which he affirmed would not exceed that time.
