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Foster v. Weir - 3/2/2006

Arizona Court of Appeals Division Two Holds That Recoverable “Taxable Costs” for Expert Witness Fees in Medical Malpractice Claims are Limited to Those Fees Incurred for an Expert Witness’s Actual Attendance at Trial.

The trial court awarded appellees expert fees in a medical malpractice case, including compensation for time an expert spent reviewing the case file, time spent with Appellee’s attorney, and his 3.5 hours of trial testimony. The trial court declined to award expert fees for additional time the expert spent in trial preparation following a settlement conference. Both parties appealed the propriety and reasonableness of the trial court’s award of expert witness fees under Rule 54(f)(2). Reading Rule 54(f)(2) in conjunction with A.R.S. § 12-332, the court of appeals concluded that Rule 54(f)(2) encompasses as a taxable cost only those fees incurred for an expert’s actual attendance at trial to testify. The additional expenses incurred to retain and prepare an expert witness for trial are not recoverable under the rule. Given this reading of Rule 54(f)(2), the court found that the trial court abused its discretion when it taxed Appellant some of the fees charged by the expert witness in preparing for his trial testimony and his travel expenses from California.

Judge Eckerstrom wrote the opinion; Judges Brammer and Howard concurred.

Posted On: 3/2/2006