Herrera v. Levine, Docket Nos. 100185
| Decision Date | 18 May 1989 |
| Docket Number | Docket Nos. 100185,102606 |
| Citation | 439 N.W.2d 378,176 Mich.App. 350 |
| Parties | Raymon N. HERRERA and Juanita Herrera, Plaintiffs-Appellants, v. Stanley B. LEVINE, d/b/a Levine Clinic of Chiropractic, Defendant-Appellee. 176 Mich.App. 350, 439 N.W.2d 378 |
| Court | Court of Appeal of Michigan — District of US |
[176 MICHAPP 352] Poe & Stanesa by Jeffrey M. Poe, Royal Oak, for plaintiffs-appellants.
Kitch, Saurbier, Drutchas, Wagner & Kenney, P.C. by Susan Healy Zitterman, Detroit, for defendant-appellee.
Before MAHER, P.J., and CYNAR and GRIFFIN, JJ.
On the first day of trial, March 23, 1987, the trial court dismissed with prejudice plaintiffs' chiropractic malpractice case against defendant due to plaintiffs' inability to proceed with trial. Plaintiffs appeal as of right from the dismissal and a subsequent order granting costs and attorney fees.
A brief history of the events relating to this appeal is as follows:
February 21, 1985 Suit filed.
April 26, 1985 Interrogatories served requesting identity and opinions of plaintiffs' expert witnesses.
December 10, 1985 Defendant prepared a motion to compel answers within twenty-eight days of service. Plaintiffs stipulated to order.
January 15, 1986 Stipulation and order entered for plaintiffs to answer interrogatories.
February 7, 1986 Mediation award of $15,000 for plaintiffs (rejected by both parties)
[176 MICHAPP 353] June 11, 1986 Defendant filed motion to dismiss for failure to comply with discovery.
July 1, 1986 Plaintiffs advised that they had not yet determined who would provide the expert testimony.
July 31, 1986 Defendant filed third motion concerning interrogatories.
August 26, 1986 Case on standby for trial. Second stipulation and order to provide interrogatory answers by September 9, 1986.
September 25, 1986 Fourth motion filed to dismiss for failure to comply with discovery order.
October 7, 1986 Plaintiffs indicated unidentified expert would formalize opinion as soon as he had examined x-rays taken by defendant.
October 13, 1986 Case was on standby for trial beginning November 17, 1986.
October 15, 1986 Hearing on fourth motion to dismiss. Plaintiffs ordered to disclose identity and opinion of witness by November 3, 1986. If plaintiffs failed to comply by November 1, 1986, further request to dismiss would be considered.
October 30, 1986 Order of October 25, 1986, ruling entered without objection.
November 10, 1986 Fifth motion to dismiss was filed.
November 18, 1986 Plaintiffs' counsel first contacted Dr. Abraham.
[176 MICHAPP 354] November 20, 1986 Plaintiffs filed answer identifying C.J. Abraham as their expert and his purported opinion.
December 1, 1986 Plaintiffs claimed that they received an opinion from Dr. Abraham.
December 22, 1986 Plaintiffs first request of Dr. Abraham the name of specialist who would be able to testify at trial.
January 15, 1987 Sixth motion for dismissal filed for failure to provide sufficient answers.
January 28, 1987 Trial court declined to dismiss but ordered report of Dr. Abraham to be produced on or before February 11, 1987.
February 5, 1987 Plaintiffs produced an expert report by Dr. Palmer and not Dr. Abraham.
February 9, 1987 Case on standby for trial.
February 17, 1987 Supplemental answers to interrogatories identified Dr. Stopek as plaintiffs' expert.
February 23, 1987 Plaintiffs noticed de bene esse deposition of Dr. Stopek on March 11, 1987, for use at trial.
March 2, 1987 Seventh motion to dismiss filed.
March 11, 1987 Trial court declined to dismiss but limited plaintiffs to use only Dr. Abraham as their expert witness at trial.
March 13, 1987 Emergency motion for rehearing setting March 25, 1987, for the hearing. Plaintiffs contended that they had just learned that Dr. Abraham was not a chiropractor, M.D., or D.O., but that he was a Ph.D. and an engineer.
[176 MICHAPP 355] March 23, 1987 Case called for trial. Dismissal upon plaintiffs' inability to proceed.
First, plaintiffs contend that the trial court abused its discretion by denying plaintiffs' request to present testimony of an unlisted witness and later dismissing the lawsuit.
On March 11, 1987, the trial court, while declining to dismiss the action, ruled that plaintiffs would be limited to using Dr. Abraham as their only expert witness at trial. The trial court stated:
This case was called for trial on March 23, 1987. At that time, plaintiffs' counsel conceded that plaintiffs were not prepared to go to trial. An order of dismissal was entered with prejudice, with costs and attorney fees awarded to defendant.
Decisions whether to allow an undisclosed expert to testify and whether to grant an adjournment are within the discretion of the trial court. Pastrick v. General Telephone Co. of Michigan, 162 Mich.App. 243, 245, 412 N.W.2d 279 (1987); Cummings v. Detroit, 151 Mich.App. 347, 351, 390 N.W.2d 666 (1986), lv. den. 426 Mich. 851 (1986). A [176 MICHAPP 356] review of the history of events in this case from the date of the filing of the complaint to the date of dismissal clearly supports our determination that the trial court did not abuse its discretion by not allowing plaintiffs to present undisclosed expert witnesses at trial and in ordering a dismissal with prejudice.
Secondly, plaintiffs argue that the trial court abused its discretion by awarding costs in the amount of $1,500. Plaintiffs contend that the trial court erred since the complaint was dismissed prior to trial, no testimony was taken from defendant's experts at trial or otherwise, no depositions were used in any proceeding, and no statutory basis existed for awarding the costs of obtaining a party's medical records.
Defendant requested the trial court to tax the following as costs:
(1) Proceedings before trial (pursuant to M.C.L. Sec.600.2441[a]; $ 20.00
M.S.A. Sec.27A.2441[a])........................................
(2) Motion fees (pursuant to M.C.L. Sec.600.2529; M.S.A. Sec.27A.2529 80.00
[eight motions at $10.00 each])................................
(4) Deposition transcript fees
(Dr. Levine)..................................................... 74.40
(5) Procurement of plaintiff's medical record copies................. 440.74
TOTAL COSTS.................................................... $3,605-
The affidavit in support of defendant's taxed bill of costs and attorney fees stated that the disbursements were correct and actually incurred for services performed in this action.
Plaintiffs had no objection to the $20 fee before [176 MICHAPP 357] trial. The objection to the $80 in motion fees is moot since defendant has withdrawn this request. The only reason for plaintiffs' objection to the expert witness fees was that the listed witnesses never gave testimony in this case. The plaintiffs' only objection to the deposition transcript fee requested was that such costs are only allowed if the deposition was received into evidence. Plaintiffs' only objection to the costs of obtaining medical records was a lack of statutory authority for the request. At the hearing on the motion for taxation of costs, no additional reasons were argued by plaintiffs' counsel in opposition to the costs. After hearing arguments, the trial court entered an opinion and order awarding costs in the amount of $1,500.
The power to tax costs is wholly statutory; costs are not recoverable where there is no statutory authority for awarding them. Brown v. Dep't of State Highways, 126 Mich.App. 392, 396, 337 N.W.2d 76 (1983). Defendant relies on M.C.L. Sec. 600.2164(1); M.S.A. Sec. 27A.2164(1) to support taxation of witness fees in this case. That section provides in pertinent part:
"No expert witness shall be paid, or receive as compensation in any given case for his services as such, a sum in excess of the ordinary witness fees provided by law, unless the court before whom [sic] such witness is to appear, or has appeared, awards a larger sum, which sum may be taxed as a part of the taxable costs in ...
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