The N.C. Court of Appeals in Jarrell v. Charlotte-Mecklenburg Hospital Authority (August 17, 2010) on an issue of first impression considered whether a subpoena issued to an out of state expert witness would be valid for recovery of costs associated with the expert’s testimony at trial.

The Court first addressed the defendants‘ initial argument that, “the Discovery Scheduling Order (DSO) in this case expressly waived the statutory requirement that expert witnesses must testify pursuant to subpoena before the prevailing party may recover expert fees.” “The DSO contained the following language: ‘[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.’” The Court stated that while they would have found this argument convincing they could not consider it because defendants had not raised the issue before the trial court and it was not considered by the trial court.

Defendants then argued that the subpoenas issued to two out of state expert witnesses to appear for trial in N.C. meet the statutory requirements to allow them to recover costs for the witnesses’ fees and travel expenses. Plaintiff’s did not contest that the subpoenas had been issued but argued that the subpoenas, which were not valid as a N.C. subpoena, could not compel an out of state witness to appear and testify.

The Court stated that the argument the plaintiffs attempted to make belonged to the witnesses and not to the plaintiffs. Therefore, the plaintiffs lacked standing to challenge the subpoena unless the non-party witness was objecting to it. The Court held that the subpoenas met the requirements of § 7A-305(d) (11) and also those imposed by § 7A-314 “that the cost of an expert witness cannot be taxed unless the witness has been subpoenaed.” Greene v. Hoekstra, 189 N.C. App. 179, 181, 657 S.E.2d 415, 417 (2008). According to the Court, the statutory requirements for awarding expert witness fees as costs were satisfied and the Court affirmed the trial court’s order granting defendants’ expert witness cost.

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