In Docket No. 277983, plaintiff appeals by right the trial court’s judgment for defendants on a jury verdict of no cause of action. In Docket No. 279595, plaintiff appeals by right the trial court’s postjudgment order taxing costs and denying plaintiffs request to sanction defendants under MCR 2.114. This Court has consolidated the appeals. We affirm in part, reverse in part, and remand for modification of the order taxing costs consistent with this opinion.
I. ALLEGED MISCONDUCT OF DEFENSE COUNSEL
In Docket No. 277983, plaintiff first argues that he was prejudiced by several instances of misconduct by defense counsel and that he is therefore entitled to a new trial. We disagree.
A
The proper standard of review for claims of attorney misconduct in civil cases was discussed by our Supreme Court in
Reetz v Kinsman Marine Transit Co,
When reviewing an appeal asserting improper conduct of an attorney, the appellate court should first determine whether or not the claimed error was in fact error and, if so, whether it was harmless. If the claimed error was not harmless, the court must then ask if the error was properly preserved by objection and request for instruction or motion for mistrial. If the error is so preserved, then there is a right to appellate review; if not, the court must still make one further inquiry. It must decide whether a new trial should nevertheless be ordered because what occurred may have caused the result or played too large a part and may have denied a party a fair trial. If the court cannot say that the result was not affected, then a new trial may be granted. Tainted verdicts need not be allowed to stand simply because a lawyer or judge or both failed to protect the interests of the prejudiced party by timely action.
See also
Hilgendorf v St John Hosp & Med Ctr Corp,
B
Plaintiff argues that defense counsel prejudicially and improperly questioned him and another witness regarding his past marijuana use. Relying in part on
Wayne Co Bd of Rd Comm’rs v GLS LeasCo, Inc,
Plaintiff has maintained throughout this case that he sustained a traumatic brain injury as a result of an automobile accident on July 22, 2002, and that this neurological injury has impaired his cognitive abilities and mental acuity. Plaintiff testified at trial that the symptoms of his alleged closed head injury included cognitive deficiencies, confusion, forgetfulness, difficulty in organizing his thoughts and affairs, and a general inability to focus. As evidenced by the deposition testimony of plaintiffs witness, Dr. Hankenson, at least one of plaintiffs physicians apparently believed that the nature and extent of plaintiffs marijuana use was a relevant consideration in diagnosing plaintiffs condition.
It is true that defense counsel was not permitted to prove plaintiffs “general lack of morality” with evidence of past instances of specific conduct such as marijuana use.
People v Crabtree,
Plaintiff also argues that it was improper for defense counsel to question witness Steve Porterfield on cross-examination concerning plaintiffs past marijuana use. It is clear from the record that defense counsel sought to question Porterfield concerning plaintiffs past marijuana use for the purpose of impeaching plaintiffs credibility on this issue. Plaintiff initially testified that he had smoked marijuana only once at a University of Michigan football tailgate party. Plaintiff then admitted that although he had also smoked marijuana occasionally as a teenager, he no longer used the drug. It is clear that defense counsel’s questioning of Porterfield — who worked for plaintiff during the summers of 1999, 2000, 2001, 2002, and 2003 — was designed to test plaintiffs credibility with respect to the issue of marijuana use. Indeed, Porterfield testified in response to defense counsel’s questions that he had smoked marijuana with plaintiff a “couple times” between 1999 and 2003, thereby undercutting the credibility of plaintiffs earlier testimony.
The problem with defense counsel’s questioning of Porterfield, however, is that it did not satisfy the technical requirements of MRE 608(b)(2). Pursuant to MRE 608(b)(2), “[s]pecific instances of the conduct of a witness” may, “if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness . . . concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.” In light of plaintiffs own testimony that he had used marijuana only once since his teenage years, evidence that Porterfield had smoked marijuana with plaintiff a “couple times” since 1999 would have been probative of plaintiffs truthfulness or untruthfulness. Therefore, defense counsel’s questioning of Porterfield satisfied one of the prongs of MRE 608(b)(2). However,
Nonetheless, defense counsel’s improper questioning of Porterfield concerning specific instances of marijuana use with plaintiff was harmless. In civil cases, evidentiary error is considered harmless unless “declining to grant a new trial, set aside a verdict, or vacate, modify, or otherwise disturb a judgment or order ‘appears to the court inconsistent with substantial justice.’ ”
Chastain v Gen Motors Corp,
c
Plaintiff next argues that defense counsel prejudicially emphasized and mischaracterized a letter written by his attorney to Dr. Joel Saper on September 8, 2005. The letter stated, in pertinent part:
Dear Dr. Saper:
Enclosed is a copy of an abstract of an article ... entitled “MRI [magnetic resonance imaging] assessment of the alar ligaments in the late stage of whiplash injury — a study of structural abnormalities and observer agreement.” According to the (abstract) study, whiplash trauma can cause permanent damage to the alar ligaments which can be objectively evidenced by a high resolution proton density-weighted MRI.
In order to prevail in litigation against the driver of the motor vehicle which rear-ended him (and injured him), Tom must have objective evidence of injury to his craniovertebral junction.
In the hope that it will provide such objective evidence of injury, Tom needs an MRI study, which accords with the protocol described in the enclosed abstract. Specifically, Tom needs a “proton density-weighted MRI of the craniovertebral junction in three orthogonal planes.” Can you arrange for such an MRI?
Thanks for your consideration of this request.
Sincerely yours,
John L. Noud
The trial court admitted this letter into evidence. Defense counsel argued, both during his opening statement and during his closing argument, that the letter “speaks volumes” and that it evidenced a plan by-plaintiff and his attorney to find favorable evidence of “an objective sign of injury to get to a jury.” Defense counsel also argued that the letter showed that plaintiffs attorney had assisted plaintiff in “faking it [and] these sorts of things.” Because plaintiff did not object to these statements by defense counsel, our review is for plain error.
Veltman v Detroit Edison Co,
It is true that counsel must avoid arguing that a party or attorney has “bought” testimony or witnesses “when there is no basis in the evidence for any such charge.” GLS LeasCo, Inc, supra at 137 (citation and quotation marks omitted). However, unlike the situation presented in GLS LeasCo, Inc, defense counsel never argued that plaintiff and his counsel had “bought” favorable evidence in the case at bar. Moreover, as noted previously, the letter to Dr. Saper had already been admitted into evidence. Accordingly, there was a “basis in the evidence” to support the charge that plaintiff and his attorney had set out to find and obtain favorable evidence in this case.
We acknowledge that defense counsel likely exceeded the bounds of proper argument when he stated in reference to the letter that plaintiffs attorney had
assisted plaintiff in “faking it [and] these sorts of things.” However, plaintiff never objected to this comment or requested a curative instruction. Furthermore, the trial court twice instructed the jurors that they should confine their deliberations to the actual evidence presented at trial and that the arguments and remarks of the attorneys were not evidence. These instructions were sufficient to cure the prejudice arising from defense counsel’s improper remarks.
Tobin v Providence Hosp,
D
Plaintiff argues that defense counsel improperly raised the issues of plaintiffs wage-loss benefits and plaintiffs lack of health insurance at trial. Because plaintiff did not object to the challenged remarks of defense counsel in this regard, our review is for plain error. Id.
It is true that attorneys must avoid injecting the issue of insurance coverage and benefits into trial.
Felice v Weinman,
Moreover, any prejudice resulting from defense counsel’s improper references to plaintiff’s lack of health insurance and collection of wage-loss benefits “could have been cured by an instruction from the bench . .. .”
Reetz, supra
at 105. An improper reference to insurance coverage or benefits during trial is simply not the type of error that cannot be alleviated by a timely objection and curative instruction.
Id.;
see also
Fritz v McDonough Power Equip Co,
Finally, even if this issue had been properly preserved, we note that the jurors never reached the issue of damages in this case. Indeed, the jury specifically found that plaintiff had not suffered a serious impairment of body function and that he was consequently entitled to no tort recovery. We believe that this finding by the jury was sufficient to overcome any presumption of prejudice raised by defense counsel’s improper references to plaintiffs insurance coverage and benefits. See Kokinakes, supra at 654.
II. ALLEGED EVIDENTIARY AND INSTRUCTIONAL ERROR
Plaintiff argues that the trial court erred by admitting into evidence the aforementioned letter written by his attorney to Dr. Joel Saper on September 8,2005, and by declining to give three requested supplemental jury instructions. Again, we disagree.
A
While preliminary questions of law are reviewed de novo, a trial court’s decision to admit or exclude evidence is generally reviewed for an abuse of discretion.
Waknin v Chamberlain,
B
Plaintiff argues that the letter written by his attorney to Dr. Saper constituted inadmissible hearsay. The letter from plaintiffs attorney to Dr. Saper did not constitute hearsay because it was not offered to prove the truth of the matter asserted. MRE 801(c);
c
Plaintiff also argues that the trial court erred by refusing to give three supplemental jury instructions that he requested. As this Court explained in
Koester v City of Novi,
[w]hen the standard instructions do not properly cover an area, a trial court is required to give requested supplemental instructions if they properly inform the jury of the applicable law. Sherrard v Stevens,176 Mich App 650 , 655;440 NW2d 2 (1988). However, it is error to instruct the jury on a matter not supported by the evidence. Mills v White Castle Systems, Inc,199 Mich App 588 , 591;502 NW2d 331 (1992). The determination whether supplemental instructions are applicable and accurate is within the trial court’s discretion. Bordeaux v Celotex Corp,203 Mich App 158 , 168-169;511 NW2d 899 (1993).
Plaintiff requested three supplemental jury instructions, all of which the trial court declined to give. The first supplemental jury instruction requested by plaintiff provided:
The following nonexhaustive list of objective factors may be of assistance in evaluating whether plaintiffs “general ability” to conduct the course of his normal life has been affected: (a) the nature and extent of the impair ment, (b) the type and length of treatment required, (c) the duration of the impairment, (d) the extent of any residual impairment, and (e) the prognosis for eventual recovery. This list of factors in not meant to be exclusive nor are any of the individual factors meant to be dispositive by themselves.
The language of this requested instruction was lifted word-for-word from our Supreme Court’s decision in
Kreiner v Fischer,
However, we conclude that the trial court was not required to give plaintiffs first requested supplemental jury instruction because it had already properly and adequately instructed the jury on the relevant law. Specifically, the trial court instructed the jury as follows:
One of the elements Plaintiff must prove in order to recover noneconomic loss damages in this case is that he sustained a serious impairment of body function.
Serious impairment of body function means an objectively manifested impairment of an important body function that affects Plaintiffs general ability to lead his normal life. An impairment does not have to be permanent in order to be a serious impairment of body function.
In order for an impairment to be objectively manifested, there must be amedically identifiable injury or condition that has a physical basis.
If you find Plaintiff suffered serious impairment of body function, but his injury has ceased, or may in the future cease to be a serious impairment of body function, that fact will not relieve Defendants from liability for any of the noneconomic loss damages suffered by Plaintiff as a proximate result of [defendants’] negligence.
The operation of the mind and of the nervous system are body functions. Mental or emotional injury which [is] caused by physical injury or mental or emotional injury not caused by physical injury but which results in physical symptoms may be a serious impairment of body function.
The court’s actual instructions were substantially similar to the applicable model jury instructions and substantially paralleled the language of M Civ JI 36.01, 36.01A, 36.02, and 36.11. These instructions adequately conveyed to the jury the applicable law and the meaning of the phrases “serious impairment of body function” and “objectively manifested.” Notably, the instructions as read informed the jury that it should consider the duration of any injuries sustained by plaintiff, that an injury need not be permanent in order to qualify as a serious impairment of body function, and that an injury could constitute a serious impairment of body function even if plaintiff were to eventually recover. Because the instructions, as given, properly covered the area, the trial court was not required to give plaintiffs first requested supplemental jury instruction. Koester, supra at 664; Sherrard, supra at 655.
The second and third supplemental jury instructions requested by plaintiff provided that “[m]uscle spasms and loss of normal cervical lordotic curve may establish an objectively manifested injury” and “[m]emory is an important body function, and neuropsychological testing may suffice as an objective manifestation of an important body function.” This Court has observed that muscle spasms and loss of the normal lordotic curve may qualify as objective manifestations of injury. See, e.g.,
Chumley v Chrysler Corp,
However, as with plaintiffs first proposed instruction, we cannot conclude that the trial court erred by declining to give plaintiffs second and third proposed supplemental jury instructions. This was a well-tried case. Both plaintiffs attorney and defendants’ attorney presented cogent and well-crafted arguments to the jury. Plaintiffs attorney thoroughly summarized the pertinent evidence and comprehensively explained plaintiffs theories of liability. Plaintiffs attorney argued that the x-rays and physical examinations had revealed muscle spasms in plaintiffs neck and a loss of the normal lordotic curve in plaintiffs
As noted previously, the trial court instructed the jury that “[i]n order for an impairment to be objectively manifested, there must be a medically identifiable injury or condition that has a physical basis” 2 and that “[t]he operation of the mind and of the nervous system are body functions. Mental or emotional injury which [is] caused by physical injury or mental or emotional injury not caused by physical injury but which results in physical symptoms may be a serious impairment of body function.” 3 There is simply no indication that the jury misunderstood plaintiffs theories of liability in this case, that the jury did not comprehend the applicable legal principles, or that it was unaware of plaintiffs position that the x-rays, other physical examinations, and neuropsychological testing had produced objectively manifested evidence of neck, back, and neurological injuries. Because the court’s instructions properly covered the relevant areas, the trial court did not err by declining to give plaintiffs second and third requested supplemental jury instructions. Koester, supra at 664; Sherrard, supra at 655.
The jury instructions read by the trial court in this case accurately and fairly presented the applicable law and the parties’ theories. Meyer, supra at 566. We perceive no instructional error requiring reversal.
III. MOTION FOR JNOV OR NEW TRIAL
Plaintiff next argues that the trial court erred by denying his motion for judgment notwithstanding the verdict (JNOV) or alternatively a new trial. We disagree. Reasonable jurors could honestly have reached different conclusions in this case, and the jury’s verdict of no cause of action was not against the great weight of the evidence.
A
“This Court reviews de novo a trial court’s ruling on a motion for JNOV”
Attard v Citizens Ins Co of America,
“[W]ith respect to a motion for a new trial, the trial court’s function is to determine whether the overwhelming weight of the evidence favors the losing party.”
Phinney v Perlmutter,
B
Plaintiff argues that the evidence presented at trial established that he suffered a serious impairment of body function as a matter of law. He asserts that the trial court should have granted his motion for JNOV for this reason.
Following trial, the jury returned a unanimous verdict of no cause of action. The jury determined (1) that defendant Derek Smith was negligent, (2) that plaintiff was injured in the accident, (3) that Smith’s negligence was a proximate cause of plaintiffs injuries, but (4) that plaintiffs injuries had not resulted in a serious impairment of body function. The question whether plaintiff had suffered a serious impairment of body function turned largely on the testimony and reports of physicians and psychologists, as well as the testimony of plaintiff himself.
In order to establish a serious impairment of body function, plaintiff was required to prove that he had suffered one or more objectively manifested injuries that affected his general ability to lead his normal life. MCL 500.3135(7); Kreiner, supra at 132.
As an initial matter, there was conflicting evidence with respect to whether plaintiffs alleged injuries were objectively manifested. Physical examinations and x-rays appeared to show that plaintiff had sustained muscle spasms and a loss of the normal lordotic curve in his neck and back as a result of the July 2002 automobile accident. In addition, both Dr. Branca and Dr. Andary opined that plaintiff had suffered a traumatic brain injury as a result of the accident, and plaintiff himself testified at length concerning not only his alleged neurological and cognitive symptoms, but also concerning his back, neck, and head pain. In contrast, Dr. Chodoroff did not believe that plaintiff had sustained brain trauma as a result of the July 2002 automobile accident, and suggested that much of plaintiffs pain was likely attributable to a degenerative disc condition that had been present in plaintiffs neck and back since before 2002.
But even assuming, for the sake of argument, that plaintiffs alleged back, neck, head, and neurological injuries were all objectively manifested, we find that
reasonable jurors could have honestly concluded that plaintiffs injuries did not affect his general ability to lead his normal life. It is true that plaintiff testified that his life had changed since the accident. For example, plaintiff complained that he was no longer able to perform many of the tasks that he had taken for granted before the accident. Buttressing plaintiffs testimony in this regard, Dr. Andary testified that plaintiffs neurological deficits, mood disorders, pain, headaches, and depression would likely “be persistent.” Dr. Andary also “doubt[ed] that [plaintiffs] neck pain will ever go away,” and “suspect[ed]” that plaintiffs occipital neuralgia would “be permanent.” In contrast, however, other testimony painted a somewhat different picture. For instance, plaintiff admitted that he had begun building a deck and that he had used heavy equipment since the July 2002 accident. Plaintiff also admitted that he continued to exercise, ride a bike, jog, and play tennis, and even testified that he had taken up hunting since the 2002 accident. Similarly, witness Susan Barry was confident that plaintiff “could perform the duties of a tennis coach,” even after the July 2002 accident. Finally, the surveillance video played for the jury showed that plaintiff had plowed and shoveled snow without any apparent difficulties during early 2007. In short, plaintiffs claim
Viewing the evidence in a light most favorable to defendants, Sniecinski, supra at 131, we find that reasonable jurors could honestly have reached different conclusions with respect to whether plaintiffs injuries affected his general ability to lead his normal life. Central Cartage, supra at 524. Because reasonable jurors could have honestly differed on this issue, the trial court did not err by denying plaintiffs motion for JNOV Id.
c
Nor did the trial court err by denying plaintiffs motion for a new trial, which was predicated on the ground that the jury’s verdict was against the great weight of the evidence. The evidence in this case did not overwhelmingly favor either side. With respect to whether plaintiffs alleged injuries were objectively manifested, the jury’s determination turned largely on the weight ascribed to the testimony of the individual physicians and psychologists. “The weight given to the testimony of experts is for the jury to decide,” and it is the province of the jury to decide which expert to believe.
Phillips v Deihm,
We give substantial deference to the trial court’s conclusion that the jury’s verdict was not contrary to the great weight of the evidence. Phinney, supra at 525. In view of the totality of the evidence presented at trial, we simply cannot conclude that “the overwhelming weight of the evidence” favored plaintiff in this case. Id. The trial court did not abuse its discretion by denying plaintiffs motion for a new trial on the ground that the verdict was against the great weight of the evidence. Id.
IV TAXATION OF COSTS
In Docket No. 279595, plaintiff argues that the trial court erred by allowing defendants to improperly tax certain of their expenses as costs. We agree in part.
A
We review for an abuse of discretion the trial court’s ruling on a motion to tax costs under MCR 2.625.
Klinke v Mitsubishi Motors Corp,
B
“Costs will be allowed to the prevailing party in an action, unless prohibited by statute or by these rules or unless the court directs otherwise, for reasons
“[C]osts shall be allowed as a matter of course to the prevailing party. This does not mean, of course, that every expense incurred by the prevailing party in connection with the proceeding may be recovered against the opposing party. The term ‘costs’ as used [in] MCR 2.625(A) takes its content from the statutory provisions defining what items are taxable as costs.” [Beach, supra at 622, quoting 3 Martin, Dean & Webster, Michigan Court Rules Practice (3d ed), pp 720-721 (emphasis added).]
Defendants, as the prevailing parties at trial, filed a motion to tax costs under MCR 2.625 in the amount of $10,768.18. Specifically, defendants sought to tax the following expenses as costs: (1) The case evaluation fee of $75, (2) three motion fees, totaling $60, (3) transcript and videotaping costs related to the depositions of Dr. Hankenson, Dr. Branca, Dr. Andary, and Dr. Chodoroff, totaling $2,681.61, 4 (4) copying of the doctors’ video depositions for trial, totaling $70, (5) a copy of the surveillance video for plaintiffs counsel, totaling $35, (6) expert witness fees for Dr. Chodoroff in the amount of $4,142.50, (7) “Investigator Costs” for witness Gary Setla in the amount of $1,305.25, (8) statutory attorney fees in the amount of $170, (9) costs for “Blow Up Mounts” in the amount of $1,351.50, (10) a subpoena fee for witness Lauren Bell in the amount of $15, (11) mileage to and from trial in the amount of $562.32, and (12) general “Copying Charges” in the amount of $300.
Plaintiff first argues that there was no legal authority supporting the taxation of “Investigator Costs” for witness Gary Setla in the amount of $1,305.25. Defendants respond by arguing that Setla was an “expert witness” and that the “Investigator Costs” were therefore taxable pursuant to MCL 600.2164.
It is true that “MCL 600.2164(1) authorizes a trial court to award expert witness fees as an element of taxable costs.”
Rickwalt v Richfield Lakes Corp,
Plaintiff next argues that there was no legal authority permitting taxation of costs for “Blow Up Mounts” in the amount of $1,351.50. Plaintiff is correct. The
expense of exhibit enlargement is not a taxable cost.
J C Bldg Corp II v Parkhurst Homes, Inc,
Plaintiff also argues that there was no authority allowing the taxation of mileage to and from trial in the amount of $562.32. Again, plaintiff is correct. Although the traveling expenses of witnesses may be taxed as costs, MCL 600.2405(1); MCL 600.2552(1); MCL 600.2552(5), there is no statute or court rule allowing for the taxation of the traveling expenses of attorneys or parties. See
McDonald v McDonald,
Plaintiff further argues that there was no legal authority permitting taxation of general “Copying Charges” in the amount of $300. Plaintiff is correct. No statute or court rule allows the taxation of expenses related to the general copying of documents. 5 See Beach, supra at 622-623. While the time spent by an attorney on activities such as the copying of documents may be awardable as attorney fees, the individual copying expenses are not awardable as taxable costs. Because no statute or court rule authorizes the taxation of general copying expenses, the trial court abused its discretion by awarding copying charges in the amount of $300 as an element of the costs taxed in this case. Klinke, supra at 518.
Plaintiff next argues that that there was no authority allowing the taxation of the case evaluation fee of $75. Plaintiff is again correct. Contrary to defendants’ assertion, case evaluation fees are not specifically covered by MCL 600.2529. Indeed, this Court has specifically observed that case evaluation fees, formerly known as mediation fees, are not taxable as costs. J C Bldg Corp II, supra at 429. The trial court abused its discretion by awarding the case evaluation fee of $75 as an element of the taxed costs. Klinke, supra at 518.
Plaintiff also argues that there was no legal authority permitting the taxation of $35 for copying of the surveillance video. Plaintiff is correct. There is simply no statute or court rule that authorizes the taxation of costs for the copying of surveillance
Lastly, plaintiff argues that there was no authority permitting the taxation of $41.06 for the copying of Dr. Hankenson’s video deposition and $70 for the copying of the remaining doctors’ video depositions. Although correct about the above-mentioned items, plaintiff is incorrect with respect to these two expenses. The costs of copying the video depositions at issue here were properly taxed because the depositions were filed in the clerk’s office and used as evidence at trial. MCR 2.315(1); MCL 600.2549.
The trial court erred by allowing defendants to tax $3,629.07 in improper expenses. On remand, the trial court shall modify the order taxing costs accordingly, by decreasing the amount of taxable costs from $10,768.18 to $7,139.11.
V REASONABLENESS OF EXPERT WITNESS FEES
Plaintiff next argues that the trial court abused its discretion by allowing defendants to tax Dr. Chodoroff s expert witness fees of $4,142.50, which were charged at a rate of $500 an hour. We cannot agree.
A
We review for an abuse of discretion the trial court’s determination of the proper amount of taxable expert witness fees. Rickwalt, supra at 466. An abuse of discretion occurs when the court’s decision falls outside the range of principled and reasonable outcomes. Maldonado, supra at 388.
B
The trial court allowed defendants to tax Dr. Chodoroffs expert witness fees in the amount of $4,142.50. Those expert witness fees were charged at a rate of $500 an hour. As noted previously, “MCL 600.2164(1) authorizes a trial court to award expert witness fees as an element of taxable costs.”
Rickwalt, supra
at 466. The trial court also has discretion under MCL 600.2164 to include fees for the expert’s preparation time.
Herrera v Levine,
Plaintiff argues that Dr. Chodoroff s hourly rate of $500 was “patently unreasonable.” However, Dr. Hankenson, one of plaintiffs medical experts in this case, testified that he was paid $375 an hour for his deposition testimony. Dr. Hankenson is a family doctor and is board-certified in family medicine only. In contrast, Dr. Chodoroff is a specialist who is board-certified in the fields of physical medicine and rehabilitation and electrodiagnostic medicine. In comparison to Dr. Hankenson’s hourly rate of $375, Dr. Chodoroff s hourly rate of $500 does not strike us as “patently unreasonable.”
In
Rickwalt,
the plaintiff sought to tax $5,184.80 in expert witness fees.
Rickwalt, supra
at 466. “[A]n itemized bill was presented to the trial court and . . . the parties argued regarding the propriety of specific items within the bill.”
Id.
The record indicated that the expert had spent time preparing for his deposition testimony, establishing a case file, reviewing deposition testimony and notes, preparing a reconstruction of the decedent’s death, and reviewing the mediation summaries.
Id.
The trial court “considered the breakdown of [the expert’s] charges, ultimately finding appropriate the requested amounts of time [the expert] spent preparing for his testimony and trial,
Similarly in this case, the trial court observed during oral argument on the motion to tax costs that it had carefully considered the amount of expert witness fees that defendants sought to tax. After reviewing defendants’ itemized bill of costs and listening to the parties’ arguments, the court concluded that an award of expert witness fees for Dr. Chodoroff in the amount of $4,142.50 would not be unjustified. As in Rickwalt, the record “indicates that the trial court considered and weighed the reasonableness of [the] requested expert witness fees.” We cannot conclude that the trial court’s ultimate award of $4,142.50 in expert witness fees for Dr. Chodoroff, at a rate of $500 an hour, fell outside the range of principled and reasonable outcomes. Maldonado, supra at 388.
VI. SANCTIONS PURSUANT TO MCR 2.114
Plaintiff lastly argues that the trial court erred by declining to sanction defendants pursuant to MCR 2.114. We disagree.
A
We review for clear error the trial court’s determination whether to impose sanctions under MCR 2.114.
Contel Sys Corp v Gores,
B
Plaintiff contends that because there was no arguable legal basis for taxing certain of the costs sought by defendants in this case, the trial court should have sanctioned defendants under MCR 2.114. Pursuant to MCR 2.114(D), an attorney is under an affirmative duty to conduct a reasonable inquiry into both the factual and legal basis of a document before it is signed.
LaRose Market, Inc v Sylvan Ctr, Inc,
The taxation of costs in civil actions is generally governed by chapter 24 of the Eevised Judicature Act, MCL 600.2401
et seq.
Many of the statutes contained in this chapter are written in a cumbersome manner, and several of the statutes refer to other statutes to define
VII. CONCLUSION
In Docket No. 277983, we affirm the jury’s verdict of no cause of action. No error occurred requiring reversal. In Docket No. 279595, we affirm the trial court’s specific award of expert witness fees and the trial court’s denial of plaintiffs request to sanction defendants. However, we reverse the trial court’s order taxing costs to the extent that it allows the taxation of $3,629.07 in improper expenses. On remand, the trial court shall modify the order taxing costs accordingly, by decreasing the amount of taxable costs from $10,768.18 to $7,139.11.
Affirmed in part, reversed in part, and remanded for modification of the order taxing costs consistent with this opinion. We do not retain jurisdiction. No costs under MCR 7.219, neither party having prevailed in full.
Notes
Because plaintiffs testimony concerning his past marijuana use was relevant only as it related to his cognitive abilities, mental state, and medical condition, a request for a limiting instruction would have been appropriate. MRE 105; see also
Wood v State,
See M Civ JI 36.11.
See M Civ JI 36.02.
In particular, defendants sought $239.80 for “Dr. Hankenson— Transcript Fee”; $974.25 for “Dr. Branca and Dr. Andary Transcript Fees”; $41.06 for “Dr. Hankenson — Video Copy”; $1,031.50 for “Deposition Transcript of Dr. Brian Chodoroff”; and $395 for “Videotape of Dr. Chodoroff.”
MCL 600.2549 does allow for the taxation of costs “for the certified copies of documents or papers recorded or filed in any public office” if “the documents or papers were necessarily used.” However, there is simply no indication that the $300 at issue here was spent for certified copies of official public documents.