December 19, 1994, this Court issued its amended findings of
fact and conclusions of law and judgment. The Court
determined that claimant was entitled to costs. Petitioner,
Lucy Osborne, submitted her statement of costs, seeking costs
in the amount of $3, 935.35. Respondent filed its objections
to statement of costs, disputing the following charges:
Prep time & attendance (Dewey deposition)
Fees for exemplification & copies
Expert witness fee: Mike Anderson
Prep time (Murphy deposition)
Depositions (Candi Nordhagen)
petitioner corrected the amount of her request for copies of
exhibits from $150 to $15, adjusting her total request for
costs downward to $3, 800.35.
witness fees were addressed by this Court in Kloepfer v.
Lumbermens Mutual Casualty Co., in its order denying
petitioner's request for redetermination of costs issued
June 22, 1994. The Court denied expert witness fees in excess
of $10, stating:
Petitioner further argues that Witty v. Pluid, 220
Mont. 272, 273, 714 P.2d 169 (1986), in which the Supreme
Court held that expert witness fees are limited to $10 per
day per witness, concerned costs in a district court
proceeding and is therefore inapplicable to the Workers'
Compensation Court. However, in Baeta v. State
Compensation Mutual Insurance Fund, 254 Mont. 487, 839
P.2d 566, (1992), the Supreme Court held that the same
cost statute governing district court proceedings (§
25-10-201, MCA) is applicable to proceedings in
the Workers' Compensation Court. In
Witty the Court specifically considered the fees
which may be awarded to experts under section 25-10-201. It
determined that the section does not permit a fee greater
than $10 because section 26-2-505, MCA, provides that
"[a]n expert is a witness and receives the same
compensation as a witness" and section 26-2-501, MCA,
provides that a witness is entitled to $10 for each day of
attendance at trial. [Emphasis added.]
Witty petitioner is limited to the ten
dollar ($10) witness fee for expert Anderson.
Thayer v. Hicks, 243 Mont. 138, 158, 793 P.2d 784
(1990), the Supreme Court discussed costs, writing:
Not all litigation expenses that may properly be billed to a
client may necessarily be recovered from the opposing party.
Only those costs delineated in sec. 25-10-201, MCA, may be
charged to the opposing party unless the item of expense is
taken out of sec. 25-10-201, MCA, by a more specialized
statute, by stipulation of the parties or by rule of court.
Luppold v. Lewis, 172 Mont. 280, 292, 563 P.2d 538,
prevailing party has the burden of proving that each
disbursement that does not fall within the statutory list is
within the purview of the statute.
25-10-201, MCA, is applicable to the Workers'
Compensation Court. Baeta v. State Compensation Mutual
Insurance Fund, 254 Mont. 487, 839 P.2d 566 (1992).
does not argue that the disputed costs for preparation time
are governed by a special statute. Rather, she contends that
Rule 26(b)(4)(c) Mont.R.Civ.P. provides that the person
taking the deposition is responsible for all costs incurred,
including preparation time. The rule provides in pertinent
(C) Unless manifest injustice would result, (i) the court
shall require that the party seeking discovery pay the expert
a reasonable fee for time spent in responding to discovery
under subdivisions (b)(4)(A)(ii) and (b)(4)(B) of this rule;
and (ii) with respect to discovery obtained under subdivision
(b)(4)(A)(ii) of this rule the court may require, and with
respect to discovery obtained under sudivision (b)(4)(B) of
this rule the court shall require the party seeking discovery
to pay the other party a fair portion of the fees and
expenses reasonably incurred by the latter party in obtaining
facts and opinions from the expert.
asks the Court to apply the rule to fees charged by Dr.
Murphy for the time spent preparing for his deposition.
Assuming for purposes of this case that the rule applies to
expert witnesses depositions taken in connection with cases
pending before this Court, the rule does not benefit
petitioner. It applies where a party deposes or seeks
additional discovery from the opposing party's expert
witness. Both Dr. Murphy's and Dr. Dewey's
depositions were taken at petitioners behest. notice of
preparation deposition (December 10, 1993); notice of