Lassiter ex rel. Baize v. North Carolina Baptist Hospitals, Inc.

• Decision Date: 06 November 2015
• Docket Number: No. 330PA14.,330PA14.
• Citation: 368 N.C. 367,778 S.E.2d 68
• Court: North Carolina Supreme Court
• Parties: Keen LASSITER, as Guardian ad Litem for Jakari Baize, a minor v. 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.

368 N.C. 367

778 S.E.2d 68

Keen LASSITER, as Guardian ad Litem for Jakari Baize, a minor

v.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.

No. 330PA14.

Supreme Court of North Carolina.

Nov. 6, 2015.

Crabtree, Carpenter & Connolly, PLLC, Durham, by Charles F. Carpenter ; and Edwards & Edwards, L.L.P., Greenville, by Joseph T. Edwards and Sharron R. Edwards, for plaintiff-appellee.

Carruthers & Roth, P.A., Greensboro, by Norman F. Klick, Jr., Richard L. Vanore, and Robert N. Young, for defendant-appellants Terry Daniel, M.D. and Dayspring Family Medicine Associates, PLLC; and Wilson Helms & Cartledge, LLP, Winston–Salem, by G. Gray Wilson and Linda L. Helms, for defendant-appellants North Carolina Baptist Hospitals, Incorporated a/k/a North Carolina Baptist Hospital and Wake Forest University Health Sciences.

ERVIN, Justice.

In this case we are required to determine whether defendants North Carolina Baptist Hospitals, Incorporated a/k/a North Carolina Baptist Hospital and Wake Forest University Health Sciences (collectively, "defendants NCBH and WFUHS"), and defendants Terry Daniel, M.D. and Dayspring Family Medicine Associates, PLLC (collectively, "defendants Daniel and Dayspring") were required to obtain the issuance of subpoenas directed to certain individuals who had been identified as planning to provide expert testimony on behalf of plaintiff Keen Lassiter, as guardian ad litem for Jakari Baize, as a prerequisite for being awarded the fees that defendants paid for the "actual time [that the expert witnesses] spent providing [deposition] testimony" as costs. N.C.G.S. § 7A–305(d)(11) (2013). On 5 August 2014, a unanimous panel of the Court of Appeals filed an opinion concluding that the trial court had erred by awarding the relevant expert witness fees as costs because defendants were statutorily required to subpoena the expert witnesses in question as a prerequisite for obtaining such relief. Lassiter ex rel. Baize v. N.C. Baptist Hosps., Inc., ––– N.C.App. ––––, ––––, 761 S.E.2d 720, 724 (2014) (citing Stark v. Ford Motor Co., 226 N.C.App. 80, 84, 739 S.E.2d 172, 176 (citing Jarrell v. Charlotte–Mecklenburg Hosp. Auth., 206 N.C.App. 559, 563, 698 S.E.2d 190, 193 (2010) (concluding that N.C.G.S § 7A–314 "limits the trial court's broader discretionary power under [N.C.G.S.] § 7A–305(d)(11) to award expert fees as costs only when the expert is under subpoena")), disc. rev. denied, 367 N.C. 240, 748 S.E.2d 321 (2013) ). After reviewing the relevant statutory provisions, we conclude that the General Assembly eliminated the traditional subpoena requirement associated with the taxing of certain expert witness fees as costs in civil actions by adding subdivision (11) to N.C.G.S. § 7A–305(d) (stating that "[r]easonable and necessary fees of expert witnesses solely for actual time spent providing testimony at trial, deposition, or other proceedings" are "assessable or recoverable" as costs) in 2007, see Act of July 3, 2007, ch. 212, sec. 3, 2007 N.C. Sess. Laws (Reg. Sess. 2007) 339, 339–40, and that the Court of Appeals' decision should be reversed.

On 8 December 2010, Chinatha Clark, as guardian ad litem for her son, Jakari Baize,¹ filed a complaint in Superior Court, Pitt County,² against defendants based on their alleged individual and collective failure to properly treat Jakari for a severe case of jaundice

that resulted in serious complications and left Jakari permanently disabled. In February 2011, defendants NCBH and WFUHS and defendants Daniel and Dayspring, respectively, filed separate answers in which they denied that Jakari's injuries had resulted from any negligence on their part. Subsequently, defendants NCBH and WFUHS and defendants Daniel and Dayspring filed separate motions asking the trial court to schedule a discovery conference and enter a discovery scheduling order as required by N.C.G.S. § 1A–1, Rule 26(f1).

On 13 February 2012, a hearing was held before Judge Marvin K. Blount, III to address a number of issues, including the entry of a discovery scheduling order. Two days later, counsel for defendants Daniel and Dayspring sent a draft discovery scheduling order to the trial court coordinator for the Superior Court, Johnston County, for consideration by Judge Blount. On 25 April 2012, the trial court coordinator contacted counsel for the parties to inform them that, while Judge Blount had not yet entered a discovery scheduling order, he would do so as soon as possible.

According to the draft discovery scheduling order transmitted to Judge Blount by counsel for defendants Daniel and Dayspring, plaintiff was required to designate all expert witnesses whom he intended to call at trial on or before 1 May 2012 and to "make [his] expert witnesses available for deposition upon request by any party on or before August 15, 2012." Although Judge Blount had not, by that point, entered a discovery scheduling order, plaintiff identified ten expert witnesses whom he expected to call at trial during May 2012 before plaintiff withdrew one of those expert witnesses on 6 July 2012.

On 15 October 2012, Judge Blount entered a discovery scheduling order that, among other things, extended the date by which plaintiff's designated expert witnesses must be made available for deposition from 15 August 2012 to 15 November 2012. In addition, the discovery scheduling order provided that (1) "[e]xperts not designated and made available for deposition in accordance with this [o]rder shall not be permitted to testify at trial"; (2) "[a]ll designated expert witnesses shall reasonably be made available for a discovery deposition upon request by any party"; (3) "[a] party desiring to depose another party's expert witness shall pay the expert a reasonable hourly rate for the expert's actual time testifying at the deposition"; and (4), if a dispute concerning the amount of compensation to be paid to an expert witness for deposition-related testimony arises, "the deposition shall be taken, and thereafter the [c]ourt, upon motion filed by any party, shall establish a reasonable hourly rate for the expert's actual time testifying at the deposition." Moreover, the discovery scheduling order required that all discovery be completed by 3 October 2013, that the mandatory mediation conference be held by 17 October 2013, and that the case be set for trial on or after 20 January 2014. Finally, the discovery scheduling order permitted modification of the "schedule and deadline dates set forth [t]herein ... only by the written consent of counsel for all parties with the [c]ourt's consent or by order of the [c]ourt for good cause shown."

Prior to the 15 November 2012 deadline, defendants deposed (1) Kitty Carter–Wicker, M.D. on 27 July 2012;³ (2) Thomas Hegyi, M.D. on 3 August 2012; (3) Richard Inwood, M.D. on 22 August and 13 September 2012; and (4) Marcus Hermansen, M.D. on 25 September 2012. On 20 December 2012, plaintiff filed a Motion to Amend Discovery Scheduling Order in which he sought the entry of an order extending the deadline by which he could make his remaining experts available for deposition from 15 November 2012 to 31 January 2013. On 27 December 2012, all defendants filed a Motion to Strike and Exclude Certain Expert[ ] Witnesses Designated by Plaintiff in which they argued that plaintiff had violated the discovery scheduling order by failing to provide dates upon which defendants could depose Richard C. Lussky, M.D.; J.C. Poindexter, Jr., Ph.D.; Lois Johnson, M.D.; Ann T. Neulicht, M.D.; and Steven Shapiro, M.D. prior to 15 November 2012, and that these witnesses should be precluded from testifying at trial "as expressly ordered in the Discovery Scheduling Order." In January 2013, plaintiff responded to defendants' motion by offering an explanation for the delays that had occurred during the discovery process and asserting that defendants had failed to make two important treating physicians available for deposition in a timely manner.

A hearing concerning the issues raised by these competing motions was held before Judge William R. Pittman at the 14 January 2013 term of the Superior Court, Johnston County. On the same date, Judge Pittman entered an order denying plaintiff's motion to amend and allowing defendants' motion to preclude certain of plaintiff's expert witnesses from testifying at trial. More specifically, Judge Pittman ordered that Drs. Lussky, Poindexter, and Neulicht be precluded from testifying at trial, allowed Dr. Shapiro to testify as a treating physician while precluding him from testifying as an expert witness, and stated that, if Dr. Johnson had not been made available for deposition by 1 March 2013, her trial testimony would be precluded as well.

On 4 February 2013, the trial court entered an amended discovery scheduling order, under which the 15 November 2012 deadline by which plaintiff was required to make his expert witnesses available for deposition remained in effect. On 21 February 2013, plaintiff filed a motion seeking to have the deadline by which Dr. Johnson had to be made available for deposition extended or, in the alternative, to have Dr. Johnson replaced with another expert witness. On 4 March 2013, defendants filed a motion to preclude Dr. Johnson from testifying at trial on grounds that plaintiff "has not offered any dates for Dr. Johnson's deposition and has not made her available for deposition by March 1, 2013." On 11 April 2013, Judge Pittman entered an order allowing defendants' motion.

On 22 July 2013, plaintiff voluntarily dismissed all claims against all defendants without prejudice pursuant to N.C.G.S. § 1A–1, Rule 41(a). On 2 August 2013, defendants Daniel and Dayspring filed a motion seeking the entry of an order taxing costs against plaintiff in the dismissed case pursuant to N.C.G.S. § 1A–1, Rule 41(d)⁴ including "reasonable and necessary...