                           NO. COA14-165

                  NORTH CAROLINA COURT OF APPEALS

                       Filed:   5 August 2014

Keen Lassiter, as Guardian Ad
Litem for JAKARI BAIZE, a minor,
     Plaintiff,

    v.                              Johnston County
                                    No. 11 CVS 3982
NORTH CAROLINA BAPTIST HOSPITALS,
INCORPORATED a/k/a NORTH CAROLINA
BAPTIST HOSPITAL, WAKE FOREST
UNIVERSITY HEALTH SCIENCES, TERRY
DANIEL, M.D. AND DAYSPRING FAMILY
MEDICINE ASSOCIATES, PLLC,
     Defendants.


     Appeal by plaintiff from orders entered 9 September 2013 by

Judge Thomas H. Lock in Johnston County Superior Court.     Heard

in the Court of Appeals 21 May 2014.


     Pulley, Watson, King & Lischer, P.A., by Charles F.
     Carpenter and Tracy K. Lischer, and Edwards & Edwards,
     L.L.P., by Joseph T. Edwards and Sharron R. Edwards, for
     plaintiff-appellant.

     Wilson Helms & Cartledge, LLP, by G. Gray Wilson and Linda
     L. Helms, for defendant-appellees North Carolina Baptist
     Hospitals,   Incorporated  a/k/a   North  Carolina   Baptist
     Hospital and Wake Forest University Health Sciences.

     Carruthers & Roth, P.A., by Richard L. Vanore, Norman F.
     Klick, Jr., and Robert N. Young, for defendant-appellees
     Terry   Daniel,   M.D.  and  Dayspring  Family  Medicine
     Associates, PLLC.


     McCULLOUGH, Judge.
                                      -2-
    Plaintiff Keen Lassiter as guardian ad litem for Jakari

Baize appeals an order granting expert witness fees as costs to

defendants    Terry    Daniel,    M.D.,    and   Dayspring     Family   Medicine

Associates,    PLLC,    pursuant     to    section    7A-305    of    the     North

Carolina General Statutes.          Based on the reasons stated herein,

we reverse and remand the orders of the trial court.

                             I.      Background

    On 8 December 2010, Chinatha Clark as guardian ad litem for

Jakari Baize filed a complaint against defendants North Carolina

Baptist   Hospitals,     Incorporated       a/k/a    North   Carolina       Baptist

Hospital, Wake Forest University Health Sciences (collectively

“defendants Baptist and Wake Forest”), Terry Daniel, M.D., and

Dayspring     Family     Medicine     Associates,       PLLC     (collectively

“defendants Daniel and Dayspring”) for medical malpractice.

    In February of 2011, defendants filed motions for the court

to schedule a discovery conference.

    On 6 July 2012, plaintiff               Keen Lassiter as         guardian ad

litem for Jakari Baize filed an “Amended Designation of Expert

Witnesses.”

    Following a hearing held              on 13 January 2013, the trial

court entered a “Discovery Scheduling Order” (“DSO”).                    The DSO

was amended by order entered 4 February 2013.                    Plaintiff was
                                            -3-
ordered   to     designate,       on   or   before       1    May    2012,    all   expert

witnesses intended to be called at trial.                       The trial court also

stated    that      “[p]laintiff       shall      make       [his]   expert    witnesses

available for deposition upon request by any party on or before

November 15, 2012.”

       Prior   to     the    15   November        2012   deadline,      the    following

witnesses were deposed by defendants:                        Kitty B. Carter-Wicker,

M.D. on 27 July 2012; Thomas Hegyi, M.D. on 3 August 2012;

Richard Inwood, M.D. on 22 August 2012; Marcus C. Hermansen, and

M.D. on 25 September 2012.

       On 20 December 2012, plaintiff filed a “Motion to Amend

Discovery Scheduling Order” seeking an extension of the deadline

to depose his expert witnesses.

       On 27 December 2012, defendants filed a “Motion to Strike

and Exclude Certain Expert Witnesses Designated by Plaintiff,”

arguing that plaintiff had failed to comply with the provisions

of the DSO.       Defendants argued that plaintiff failed to provide

dates,    prior       to    the   15    November         2012    deadline,      for    the

depositions      of    the      following      expert        witnesses:      Richard    C.

Lussky, M.D.; J.C. Poindexter, Ph.D.; Lois Johnson, M.D.; Ann T.

Neulicht, M.D.; and Steven Shapiro, M.D.                         Defendants asserted

that   they    would       be   prejudiced        if   the     aforementioned       expert
                                       -4-
witnesses were not stricken and precluded from testifying at

trial.

    Following a hearing held at the 14 January 2013 term of

Johnston    County    Superior    Court,     the   trial    court     entered    an

order, denying plaintiff’s motion to amend the DSO and granting,

in part, defendants’ motion to strike and exclude certain expert

witnesses.     Dr. Lussky, Dr. Poindexter, and Dr. Neulicht were

excluded    from     testifying   as   experts;       Dr.   Shapiro    was    only

allowed to testify as a treating physician and not as an expert;

and Dr. Johnson was to be made available for deposition no later

than 1 March 2013.

    On 22 July 2013, plaintiff filed a “Notice of Voluntary

Dismissal     Without     Prejudice”       of   all    claims       against     all

defendants.

    On 2 August 2013, defendants Daniel and Dayspring filed a

motion to tax costs against plaintiff pursuant to section 41(d)1

of the North Carolina Rules of Civil Procedure and sections 7A-

305 and 6-20 of the North Carolina General Statutes.                  Defendants

Daniel and Dayspring alleged that they had “incurred reasonable

1
 N.C. Gen. Stat. § 1A-1, Rule 41 (2013), entitled “Voluntary
dismissal; effect thereof,” provides in subsection (d) the
following:  “Costs. – A plaintiff who dismisses an action or
claim under section (a) of this rule shall be taxed with the
costs of the action unless the action was brought in forma
pauperis.”
                                                -5-
and     necessary          expenses      for     stenographic           and     videographic

services, the cost of deposition transcripts, travel expenses of

defense counsel for depositions and expert witness fees for the

depositions of plaintiffs’ expert witnesses in the total amount

of $39,749.60[.]”

      Also on 2 August 2013, defendants Baptist and Wake Forest

filed a motion to tax costs against plaintiff pursuant to Rule

41(d)     of    the        North     Carolina         Rules     of      Civil     Procedure.

Defendants       Baptists        and     Wake    Forest       alleged      that    they    had

incurred       “reasonable         and    necessary          costs   in    the    amount       of

$29,609.80”       in       the   preparation           and    defense      of     plaintiff’s

action.

      Following        a    hearing      held     at    the     26   August       2013   civil

session    of    Johnston          County   Superior          Court,      the    trial   court

entered    orders      taxing        certain      costs       against     plaintiff       on   9

September 2013.             The trial court denied expenses incurred by

defendants for video conferencing, stenographic preparation of a

deposition summary, and room rent which were found to be “not

reasonable and necessary.”                  However, the trial court held as

follows:

               [defendants] incurred expenses recoverable
               under North Carolina General Statute § 7A-
               305   for   stenographic   and   videographic
               services   and   expert  witness   fees   for
                                      -6-
          depositions   of   expert  witnesses  taken
          pursuant to the provisions of the [DSO]
          entered in this action which the Court
          concludes did not need to be subpoenaed in
          light of the language of the [DSO] and that
          those expenses set forth below were, in the
          Court’s     discretion,   reasonable    and
          necessary[.]
The trial court ordered $23,799.61 to be taxed as costs against

plaintiff to be paid to defendants Baptist and Wake Forest and

$24,738.76 to be taxed as costs against plaintiff to be paid to

defendants Daniel and Dayspring.

    On 30 September 2013, plaintiff entered notice of appeal

from these two orders.

                        II.   Standard of Review

    “Whether    a   trial     court     has      properly   interpreted    the

statutory framework applicable to costs is a question of law

reviewed de novo on appeal.       The reasonableness and necessity of

costs   is   reviewed   for    abuse        of   discretion.”     Peters    v.

Pennington, 210 N.C. App. 1, 25, 707 S.E.2d 724, 741 (2011)

(citations omitted).

                              III. Discussion

    The sole issue on appeal is whether the trial court erred

by granting expert witness fees as costs to defendants pursuant

to section 7A-305 of the North Carolina General Statutes.

    Pursuant to N.C. Gen. Stat. § 6-20,
                                   -7-
          [i]n actions where allowance of costs is not
          otherwise provided by the General Statutes,
          costs may be allowed in the discretion of
          the court.   Costs awarded by the court are
          subject to the limitations on assessable or
          recoverable costs set forth in G.S. 7A-
          305(d), unless specifically provided for
          otherwise in the General Statutes.

N.C. Gen. Stat. § 6-20 (2013) (emphasis added).       N.C. Gen. Stat.

§   7A-305(d)(11)   grants   the   trial   court   explicit   statutory

authority, to award as discretionary costs, “[r]easonable and

necessary fees of expert witnesses solely for actual time spent

providing testimony at trial, deposition, or other proceedings.”

N.C. Gen. Stat. § 7A-305(d)(11) (2013).       In addition, N.C. Gen.

Stat. § 7A-314 provides, inter alia, that

          (a)   A witness under subpoena . . . shall be
                entitled to receive five dollars ($
                5.00) per day, or fraction thereof,
                during his attendance[.]

          (b)   A witness entitled to the fee set forth
                in subsection (a) of this section . . .
                shall    be    entitled   to    receive
                reimbursement for travel expenses . . .
                .

          . . . .

          (d)   An expert witness . . . shall receive
                such compensation and allowances as the
                court,   or   the   Judicial  Standards
                Commission, in its discretion, may
                authorize. . . .
                                         -8-
N.C. Gen. Stat. § 7A-314(a), (b), and (d) (2013).                                “In sum,

before a trial court may assess expert witness testimony fees as

costs, the testimony must be (1) reasonable, (2) necessary, and

(3) given while under subpoena.”                Peters, 210 N.C. App. at 26,

707 S.E.2d at 741.

    Both plaintiffs and defendants agree that N.C. Gen. Stat. §

7A-305,   read    in    conjunction      with    N.C.    Gen.      Stat.     §    7A-314,

limits the trial court’s power to award expert fees as costs

only when the expert is under subpoena.                        However, plaintiff

argues    that       because     none    of     the     expert       witnesses         were

subpoenaed, the DSO did not modify or waive the requirement of a

subpoena,      and     the     parties    did     not        waive     the       subpoena

requirement, the trial court erred by granting expert witness

fees.     On    the    other     hand,   defendants      contend       that      the    DSO

eliminated the need to subpoena expert witnesses for deposition.

    Both       plaintiff       and   defendants       cite    to     our   holding       in

Jarrell   v.     The   Charlotte-Mecklenburg           Hospital       Authority,        206

N.C. App. 559, 698 S.E.2d 190 (2010), in furtherance of their

respective arguments.           In Jarrell, the plaintiffs challenged an

order granting the defendants’ motion for costs, “specifically

disputing that portion totaling $5,715.40 in costs associated

with out-of-state expert witnesses.”                  Id. at 560, 698 S.E.2d at
                                         -9-
191.      Two    expert   witnesses      were     served     with    subpoenas     to

testify, but the plaintiffs argued that the out-of-state expert

witnesses      appearances    at   trial    were    not    subject     to    subpoena

because    the    subpoenas     served     upon    them    were     ineffective     to

compel their attendance.           Id. at 564, 698 S.E.2d at 193.                  The

defendants       argued   that      their      discovery        scheduling      order

“expressly       waived   the      statutory       requirement        that     expert

witnesses       must   testify     pursuant        to     subpoena     before      the

prevailing party may recover expert fees.”                      Id. at 561, 698

S.E.2d    at    191-92.      Our   Court    reviewed      the     language    of   the

Jarrell discovery scheduling order and directed our attention to

a paragraph that stated that “[a]ll parties agree that experts

need not be issued a subpoena either for deposition or for trial

and waive that requirement of the statute as it may affect the

recovery of costs.”       Id. at 561, 698 S.E.2d at 192.

       In Jarrell, our Court reiterated the following:

               [w]here § 7A-314 specifically authorizes the
               court to tax expert witness fees as costs,
               only “witness[es] under subpoena, bound
               over, or recognized” are included.   Read in
               pari   materia,    with   specific  statutes
               prevailing over general ones, § 7A-314
               limits    the    trial     court’s   broader
               discretionary power under § 7A-305(d)(11) to
               award expert fees as costs only when the
               expert is under subpoena.

Id. at 563, 698 S.E.2d at 193.
                                      -10-


    Although our Court agreed with the defendants that the “the

express terms of the DSO would [have] render[ed] inapplicable

the statutory provisions detailing recovery of expert witness

costs,” it did not consider the substance of the defendants’

argument for failure to raise it at the trial level.                         Id. at

561-62, 698 S.E.2d at 192.           Our Court ultimately ruled that the

plaintiffs   lacked      standing    to   challenge      the    validity     of    the

subpoenas served on the non-party expert witnesses.                    Id. at 560,

698 S.E.2d at 191.       In addition, our Court held that because the

“[p]laintiffs      are   not   entitled       to     argue   that     [the   expert

witnesses’] appearance was voluntary in fact, [the] [d]efendants

have met not only the requirements of § 7A-305(d)(11) but have

also overcome the hurdle imposed by § 7A-314 ‘that the cost of

an expert witness cannot be taxed unless the witness has been

subpoenaed.’”      Id. at 565, 698 S.E.2d at 194.

    Based    on    a   thorough     review,    we    hold    that    the   facts    of

Jarrell   are     distinguishable     from     the    case     sub   judice.        In

Jarrell, the expert witnesses were subpoenaed while the expert

witnesses at issue here were never issued a subpoena.                        Another

important distinguishing factor is that the discovery scheduling

order language in Jarrell was explicit in terms of waiving the

requirement of issuing an expert witness a subpoena in order to
                                          -11-
recover costs.        Here, the DSO language                 merely provided that

“[p]laintiff      shall    make    [his]    expert     witnesses      available    for

deposition upon request by any party on or before November 15,

2012.”      There was no mention by the parties that the expert

witnesses    at    issue   did     not    need   to    be    issued   subpoenas    for

deposition    or    for    trial    and     we   do    not    interpret    this    DSO

language as a waiver of the statutory requirements detailing

recovery of expert witness costs.                  Based on the foregoing, we

hold that the trial court erred by awarding costs for expert

witnesses when the witnesses were not under subpoena. See Stark

v. Ford Motor Co., __ N.C. App. __, __, 739 S.E.2d 172, 176

(2013)   (citing     Jarrell,      Ford    Motor      Company   conceded    and    our

Court agreed that the trial court erred in awarding fees for

expert witnesses incurred while the expert witnesses were not

under subpoena).

                                  IV.    Conclusion

      We reverse the trial court’s 9 September 2013 orders to the

extent it awarded costs for expert witnesses when the witnesses

were not under subpoena.            We also remand to the trial court for

a   determination     of    an    award    of    costs      consistent    with    this

opinion.

      Reversed and remanded.
                         -12-
Judges STEPHENS and STROUD concur.
