James v. South Carolina Department of Transportation
Docket: No. 4835
Court: Court of Appeals of South Carolina; June 1, 2011; South Carolina; State Appellate Court
Appellants sought to compel the South Carolina Department of Transportation (the Department) to pay their expert witness's deposition fees, totaling $6,021.10, after the expert traveled from Ohio to South Carolina. The circuit court ordered the Department to pay $2,125, reasoning that this amount was reasonable given the expert's refusal to testify telephonically and Appellants' failure to demonstrate good cause for additional costs. The court's decision was based on its interpretation of the South Carolina Rules of Civil Procedure, specifically Rules 26(b)(4)(C) and 30(b)(7). Appellants appealed, arguing that the circuit court's ruling disregarded these rules and improperly corrected the Department's position that the expert was entitled only to the statutory witness fee of $25. The appellate court reversed the circuit court's decision and remanded the case to reassess a reasonable fee for the expert's travel time and expenses.
Courts in South Carolina interpret the Rules of Civil Procedure using the same principles applicable to statutory interpretation, ensuring that these rules do not create traps for legal practitioners or parties involved. Statutory language must align with its subject matter and purpose, and conflicting statutes should be reconciled to uphold both whenever possible. Generally, specific statutes take precedence over general ones in cases of conflict.
Rule 26(b)(4) addresses the discovery of expert witness opinions, stating that a party seeking discovery must produce the expert for deposition within the state, and that the requesting party must compensate the expert for reasonable fees and expenses incurred. Additionally, Rule 30 permits depositions by telephone if agreed upon by the parties or ordered by the court, requiring that the notary be present where the deponent is located.
The circuit court’s ruling is criticized for not adequately applying Rules 26(b)(4)(C) and 30(b)(7), resulting in an undue financial burden on the Appellants, who should not bear costs that the Department is responsible for in this context. Rule 26(b)(4)(C) specifies two scenarios where fees may be required, but only the obligation for the deposing party to pay the expert's reasonable fees is relevant in this case.
The circuit court's decision to limit the Department’s liability for Scherocman’s fees and expenses was based on his refusal to give a telephone deposition. According to Rule 26(b)(4)(C), expert witnesses must be produced in South Carolina unless the parties agree otherwise or the court grants a deviation for good cause. In this case, no agreement was reached, nor did either party seek a court order to deviate from the requirement, thus maintaining the obligation for Scherocman to appear in person in South Carolina. While Rule 30(b)(7) allows for telephone depositions, it does not obligate the parties to agree to such an arrangement.
The Department was responsible for covering Scherocman’s reasonable travel time and expenses if it did not want to pay for travel. Since the Department's offer for a telephone deposition did not lead to an agreement or court order, the requirement for an in-person deposition remained. Consequently, the reasons for Scherocman's refusal to be deposed by telephone did not affect his entitlement to reimbursement for travel costs.
There is a conflict between Rules 26 and 30 regarding witness payment; Rule 30 sets a witness fee at $25 per day, while Rule 26 entitles expert witnesses to a reasonable fee for their time and travel expenses. In cases of conflict, the specific statute prevails, meaning Rule 26 governs Scherocman as an expert witness, making the circuit court's award of the $25 fee improper. The ambiguity in Rule 26 regarding whether both travel time and travel expenses are compensable suggests that the expert should be compensated for both aspects of his involvement in the case, thereby raising questions about the circuit court's assessment of the reasonableness of the fees owed to Scherocman.
Compensating an expert witness for their time includes payment for travel, which the circuit court initially excluded in its assessment of Scherocman’s bill. The court deemed his hourly rate for deposition reasonable but did not account for his travel time and expenses because Scherocman declined to testify via telephone. The court determined that it was the Department's responsibility to obtain either an agreement or a court order for a telephonic deposition, and by not doing so, the Department was liable for Scherocman’s reasonable travel costs as stipulated by Rule 26(b)(4)(C). The circuit court's error in excluding these costs based solely on Scherocman’s refusal to testify by phone led to a reversal of the court's decision, and the case was remanded for reevaluation of Scherocman’s travel-related charges. The ruling clarified that Rule 30 does not mandate telephonic depositions without mutual agreement or court order, and the party requesting such a deviation carries the burden to secure it. Scherocman’s fee request included 15.4 hours at $350 per hour and expenses totaling approximately $629 for travel-related costs. The Department's failure to address these expenses necessitated a reevaluation of Scherocman’s bill, making further considerations on other issues unnecessary.
Rule 26(b)(4)(C) in South Carolina mirrors the pre-1993 federal rule, allowing courts discretion to order a discovering party to cover a fair share of fees incurred by the other party in obtaining expert testimony. However, this provision was eliminated for testifying witnesses in the federal rule after 1993. South Carolina's rule still includes this language, but it does not apply in this case, as the Appellants are not seeking to recover fees from Scherocman. The record indicates that the Department did not pursue options for compelling Scherocman’s appearance after being informed of his refusal to participate in a telephonic deposition. Instead, the Department claimed no obligation to pay more than the $25 per diem witness fee. The Appellants argued that Scherocman’s refusal was due to the complexity of the subject matter, while the Department suggested he sought a paid trip to South Carolina. At a hearing, Appellants’ counsel clarified that Scherocman had no other engagements in South Carolina besides the deposition. It is noted that there is no requirement for an expert's travel rate to match their testifying rate, as the circuit court has discretion in determining reasonable rates. The opinion emphasizes the importance of cooperation in discovery to achieve efficiency and cost-effectiveness.
