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Pinson v. DeBoer

Court of Appeals of Tennessee, Nashville

July 30, 2019


          Session: January 9, 2019

          Appeal from the Circuit Court for Davidson County No. 13C2897 Kelvin D. Jones, Judge

         Appeal of an award of discretionary costs to Defendants in healthcare liability action that had been voluntarily dismissed. The trial court initially awarded Defendants, inter alia, expert witness fees for medical providers who had treated Plaintiff, expenses for videotaped depositions, and costs for the travel time and deposition preparation time for Plaintiff's vocational expert. On Plaintiff's motion, the court modified the award to exclude videographer expenses, expenses attendant to the vocational expert's deposition, and other court reporter expenses. We modify the award to exclude the witness fees for the providers who treated Plaintiff and to include the court reporter fee for the deposition of Plaintiff's vocational expert; vacate the portion of the award that reduces the amount of court reporter fees and expenses and remand the case for reconsideration of the award; and reverse the order to the extent it requires the Plaintiff to post a bond or pay discretionary costs prior to re-filing the suit.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Modified in Part, Reversed in Part, and Affirmed in Part; Case Remanded for Further Proceedings

          Luvell L. Glanton, Nashville, Tennessee, for the appellant, Maurice Pinson.

          Phillip North, Edward A. Hadley, and Brent A. Kinney, Nashville, Tennessee, for the appellees, David Kent DeBoer, M.D., and Southern Sports Medicine & Orthopaedic Center, P. C..

          Richard H. Dinkins, J., delivered the opinion of the court, in which Andy D. Bennett and W. Neal McBrayer, JJ., joined.




         Maurice Pinson filed a healthcare liability action against Dr. David DeBoer and Southern Sports Medicine & Orthopaedic Center, P.C., d/b/a Southern Joint Replacement Institute, ("Defendants") on July 19, 2013. Mr. Pinson ("Plaintiff") alleged, inter alia, that Dr. DeBoer performed knee replacement surgery on both of his knees on August 19, 2010, improperly installed the knee replacements, and "failed to provide appropriate and reasonable care" to Plaintiff; in due course, the case was set for trial on November 2, 2017.

         On October 3, 2017, Plaintiff filed a Notice of Voluntary Dismissal and gave Defendants notice, pursuant to Tennessee Code Annotated section 29-26-121, of his intent to re-file the action on October 5; the court entered an Order of Voluntary Dismissal on October 10. Defendants moved the court, pursuant to Tennessee Rule of Civil Procedure 54.04 and Tennessee Code Annotated section 20-12-101 and 20-12-110, for an award of discretionary costs in the total amount of $17, 356.31 on October 18; in the motion, Defendants asked the court to require Plaintiff to pay the discretionary costs prior to proceeding with the new action. Plaintiff responded to the motion, requesting that the court reserve ruling on the motion "until such time as there is a prevailing party in the re-filed action" and opposing the request that the new action be stayed pending payment of the judgment. On November 27, the court entered an order granting the motion and awarding Defendants a judgment in the amount of $17, 356.31; the court declined to stay the proceedings in any new action until Plaintiff paid the costs of the dismissed action.

         On December 1, 2017, Plaintiff moved to alter or amend the judgment by reducing the award by $8, 641.19.[1] The court entered an order on March 16, 2018, reducing the amount of costs awarded to $9, 736.12, holding that $7, 620.19 was not recoverable.[2] The court ordered that Plaintiff pay the modified award or post a bond in that amount prior to re-filing the suit.

         Both sides appeal. Plaintiff contends that the court erred in awarding costs for the depositions of Drs. William Kurtz and Stuart Smith and Physician Assistant Bryn Southards, who had treated the Plaintiff, and in requiring that Plaintiff pay the judgment or post a bond for the costs prior to re-filing the action. Defendants contend that the court abused its discretion in reducing the judgment. Defendants agree with Plaintiff that the court erred in requiring that Plaintiff pay the costs or post a bond prior to filing the new action but argue that the court may stay the action until Plaintiff pays the award.

         II. ANALYSIS

         A. Standard of Review

         The issues raised call for us to consider Tennessee Rules of Civil Procedure 54.04, [3] governing the assessment of costs, and 41.04, [4] governing payment of costs in an action that was previously dismissed. "Awarding costs in accordance with Tenn. R. Civ. P. 54.04(2), like awarding other costs, is within the trial court's reasonable discretion." Mass. Mut. Life Ins. Co. v. Jefferson, 104 S.W.3d 13, 35 (Tenn. Ct. App. 2002) (citing Perdue v. Green Branch Mining Co., 837 S.W.2d 56, 60 (Tenn. 1992)). "Accordingly, we employ a deferential standard when reviewing a trial court's decision either to grant or to deny motions to assess these costs. . . . Because these decisions are discretionary, we are generally disinclined to second-guess a trial court's decision unless the trial court has abused its discretion." Mass. Mut. Life. Ins. Co., 104 S.W.3d at 35 (citing Scholz v. S.B. Int'l, Inc., 40 S.W.3d 78, 84 (Tenn. Ct. App. 2000); Woodlawn Mem'l Park, Inc. v. Keith, 70 S.W.3d 691, 698 (Tenn. 2002); Stalsworth v. Grummons, 36 S.W.3d 832, 836 (Tenn. Ct. App. 2000); Mitchell v. Smith, 779 S.W.2d 384, 392 (Tenn. Ct. App. 1989)). Decisions awarding costs under Rule 41.04 are governed by the same standard of review applicable to Rule 54.04. J.P. Morgan Chase Bank v. Franklin National Bank, No. M2005-02088-COA-R3-CV, 2007 WL 2316450, at *3 (Tenn. Ct. App. Aug. 13, 2007). This deferential standard of review was explained in Lee Medical, Inc. v. Beecher:

Discretionary decisions must take the applicable law and relevant facts into account. An abuse of discretion occurs when a court strays beyond the applicable legal standards or when it fails to properly consider the factors customarily used to guide the particular discretionary decision. A court abuses its discretion when it causes an injustice to the party challenging the decision by (1) applying an incorrect legal standard, (2) reaching an illogical or unreasonable decision, or (3) basing its decision on a clearly erroneous assessment of the evidence.

312 S.W.3d 515, 524 (Tenn. 2010) (internal citations omitted).

         B. Expert Witness Fees for Treating Physicians

         We first address Plaintiff's contention regarding the award of discretionary costs as to Dr. Smith, Dr. Kurtz, and Ms. Southards. The Plaintiff argues "Dr. Stuart Smith, Dr. William Kurtz, and Bryn Southards, P.A.'s roles in this case were as treating physicians and/or medical providers of the Plaintiff, and are therefore considered fact witnesses." The Plaintiff asserts that treating physicians are typically considered fact witnesses and that, "a legal distinction is made between physicians who testify based solely on facts gained by their actual treatment of a patient (fact witnesses) and physicians who give opinions based upon facts and/or material furnished to them during the course of litigation (expert witnesses)."

         In response, Defendants argue that Rule 54.04(2) of the Tennessee Rules of Civil Procedure does not distinguish between "experts" for purposes of Rule 26[5] and "experts" for purposes of Tennessee Rules of Evidence 701 and 702.[6] The Defendants argue that Dr. Smith, Dr. Kurtz, and Ms. Southards, P.A., are experts within the meaning of Tennessee Rules of Evidence 702 because "the testimony of Ms. Southards, Dr. Smith, and Dr. Kurtz would certainly help the jury to understand the causes of the types of injury alleged by Plaintiff and whether Plaintiff's ...

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