Opinion
No. 106,222.
2012-06-8
Elizabeth LUMPKIN, Surviving Spouse and Heir–at–Law of William H. Lumpkin, Deceased, Appellant, v. Keith KENTCH, M.D., and Arnold Graham, M.D., Appellees.
Appeal from Shawnee District Court; Franklin R. Theis, Judge. William J. Skepnek, of the Skepnek Law Firm P.A., of Lawrence, for appellant. Nathan D. Leadstrom and Harold S. Youngentob, of Goodell, Stratton, Edmonds & Palmer, L.L.P., of Topeka, for appellee.
Appeal from Shawnee District Court; Franklin R. Theis, Judge.
William J. Skepnek, of the Skepnek Law Firm P.A., of Lawrence, for appellant. Nathan D. Leadstrom and Harold S. Youngentob, of Goodell, Stratton, Edmonds & Palmer, L.L.P., of Topeka, for appellee.
Before GREENE, C.J., LEBEN and STANDRIDGE, JJ.
MEMORANDUM OPINION
LEBEN, J.
Elizabeth Lumpkin filed a wrongful-death lawsuit alleging medical malpractice against two doctors after her husband died. But when Lumpkin's medical expert witness gave deposition testimony for use at trial, the testimony didn't go well because the expert was physically impaired and himself near death.
So Lumpkin's attorney asked the court to allow her to substitute a new expert witness, something the district court agreed to do conditioned on Lumpkin paying for the defendants' extra costs caused by allowing the substitution. After the trial was held (which resulted in a defense verdict), Lumpkin argued that the extra defense costs incurred because of the substitution of a new expert witness couldn't be assessed against her because she hadn't agreed to do so and the assessment of such costs wasn't authorized by statute. The district court disagreed, assessing $15,850.50, and Lumpkin appealed.
We conclude that Lumpkin's attorney agreed to the conditional approval of her motion to substitute expert witnesses. Having agreed to that order, she cannot now contest it on appeal.
Factual Background
William “Hank” Lumpkin died of a heart attack in 2003. His widow, Elizabeth Lumpkin, filed a wrongful-death lawsuit in 2004 for medical malpractice against two physicians, Keith Kentch and Arnold Graham.
Lumpkin hired Dr. Edmund Sonnenblick as her expert witness in the case. The court ordered that she provide an expert-witness disclosure under K.S.A. 60–226(b)(6) providing the key points Sonnenblick would make. The parties took a discovery deposition of Sonnenblick in November 2006.
As trial approached, Sonnenblick fell into ill health. He died in September 2007, and his deposition was taken for use at trial in August 2007. Lumpkin's attorney, William Skepnek, concluded that Sonnenblick hadn't done well in the deposition; Lumpkin moved to substitute a new expert witness.
At a hearing held on that motion, the court noted that Dr. Sonnenblick had seemed “bothered and tired and flustered” at the deposition, and the court said it had “doubts whether the Doctor—[a]nd I would have to infer it's because of his physical condition—wasn't [at] the top of his game.” But the court also recognized that allowing a substitution this late in the process would cause additional expense to the defendants. That resulted in this exchange between the court and Skepnek:
The Court: “Well, are you willing to cover the defense's costs for the new witness?”
Mr. Skepnek: “Well, Your Honor, certainly, any sort of reasonable expense that we have caused by this, I would be happy to—to do that. You know, I think perhaps that we could—we could reimburse them for their expenses in going to take this deposition, that would be a measure of it.... But I think—I don't think that would be unfair. But ‘unfair’ would be to not give us a chance to put our case on. And, Your Honor, in all candor, we can't win this case with Doctor Sonnenblick's testimony.”
After some further discussion, the court confirmed what it believed was an agreement by Lumpkin's counsel to pay the defendants' extra expense caused by allowing a new expert witness:
The Court: “And I think that if you covered the costs of it, because it was your bad choice, even though you're not responsible for Doctor Sonnenblick's results and his death or anything, you're still the cause of the extra expense; so, if you are willing to compensate their extra costs, then I don't see any harm.”
Mr. Skepnek: “And again, Your Honor, as I've said, we are, and I will be happy to meet with Mr. Youngentob, [and] work that out .” (Emphasis added.)
Defense counsel then brought up an unanswered question—would he be reimbursed for the costs of the Sonnenblick depositions or the cost of deposing the new expert or both? The court quickly replied that it would not be both, but that the court didn't want the defense “to double your expense.” Skepnek then made this suggestion:
Mr. Skepnek: “Your Honor, what I propose is this: I will designate my expert witness and we will make arrangements to depose—I am sure Mr. Youngentob will want to depose that expert witness. He deposes the expert witness and then we will figure out between us what is fair so that he ends up in the position he would have ended up had there just been one expert witness. And we will work that out; and, if we don't, the Court can ... solve our problems for us. But I'm—we're not going to have—I don't think we're going to have that problem.
“I understand that the court's saying that the defense shouldn't have to—shouldn't lose money on this deal ... And my purpose in meeting with Mr. Youngentob to work it out is to—is to get them in the position where it didn't cost them any more money for the Court to do what the Court's done today [in granting the motion to substitute a new expert witness].”
The court then agreed, “That's my intent.” Ultimately, the court granted Lumpkin's motion to substitute a new expert witness for Sonnenblick “at Plaintiff's cost.”
A jury found no one at fault for Lumpkin's death, and the court entered judgment for the defendants, who then sought to recover the costs associated with the expert-witness substitution. Lumpkin objected, but the court assessed $15,850.50 in total costs, including attorney fees incurred in preparing for and taking a discovery deposition of the new expert.
Lumpkin has appealed to this court.
Analysis
Lumpkin contends that the district court exceeded its authority by awarding any attorney fees to the defendants. Lumpkin argues that attorney fees may only be awarded under statutory authority or by an agreement between the parties, and Lumpkin contends that neither is present here.
Lumpkin is correct, of course, that the “American Rule” provides that each party is responsible for its own attorney fees in the absence of statutory or contractual authorization. Robinson v. City of Wichita Retirement Bd. of Trustees, 291 Kan. 266, 279, 241 P.3d 15 (2010). Thus, a court may not award attorney fees without statutory authority or the parties' agreement. Unruh v. Purina Mills, 289 Kan. 1185, 1200, 221 P.3d 1130 (2009).
The district court may have had statutory authority here. K.S.A. 60–237 provides that if a party fails to identify an expert witness as required by K.S.A. 60–226(b)(6), then the party may not use that witness at trial “unless the failure was substantially justified or is harmless.” In addition to or instead of precluding the witness' testimony, the court “[m]ay order payment of the reasonable expenses, including attorney's fees, caused by the failure ....“ K.S.A. 60–237(c)(l)(A). The district court had ordered Lumpkin to disclose her expert witness under K.S.A. 60–226(b)(6), and the new expert wasn't disclosed under the originally established deadline. But that wasn't Lumpkin's fault—no one could have foreseen Dr. Sonnenblick's illness and death. So it might be that this statute doesn't allow a sanction where “the failure was substantially justified,” which may be our case.
Another potential source of statutory authority is K.S.A. 60–216, which gives the district court authority to enter a variety of pretrial orders, including ones providing discovery deadlines and witness disclosures. If those orders aren't complied with, the court again has authority to order a party to pay the reasonable expenses, including attorney fees, incurred be because of noncompliance with a court order. That may be applicable here in that Lumpkin didn't disclose her new expert within the originally established schedule. Even though Lumpkin's request was reasonable and ultimately granted, K.S.A. 60–216 may provide authority to condition the granting of a motion to substitute expert witnesses on the payment of the costs, including attorney fees, incurred by the opposing party as a result. Accordingly, several federal courts have imposed attorney fees as a condition for allowing a request to substitute expert witnesses. E.g., Assaf v. Cottrell, 2012 WL 245196, at *5 (N.D.Ill.2012) (unpublished opinion) (“Imposed cost-sharing is a standard method of alleviating prejudice.”); Vincent v. Omiflight Helicopters, Inc., 2009 WL 4262578, at *5 (E.D.Wis.2009) (unpublished opinion); Lithuanian Commerce Corp. v. Sara Lee Hosiery, 177 F.R.D. 205, 208 (D.N.J.1997); see also Estate of Awsienko v. Tempe St. Luke's Medical Center, LP, 2011 WL 5591587, at *6 (Ariz.Ct.App.2011) (unpublished opinion) (finding no abuse of discretion when district court conditioned grant of motion to substitute expert witness on plaintiffs payment of attorney fees incurred to defendant).
We conclude, however, that we need not decide whether the district court's order was authorized by K.S.A. 60–216 or K.S.A. 60–237 because it was agreed to by Lumpkin's counsel in the court hearing at which the motion to substitute a new expert was granted. An agreement serves as valid authority for a court to award fees. See Unruh, 289 Kan. at 1200;Kirkpatrick, 289 Kan. at 572. Moreover, a party may not take a position on appeal inconsistent with the one taken before the district court. State v. Murphy, 278 Kan. 228, 229, 91 P.3d 1232 (2004).
In its written order taxing costs, the district court said that it granted the motion to substitute expert “on Plaintiff's agreement to pay any additional, duplicative costs incurred by the Defendants in preparing for a new expert witness.” The court's finding is supported by the transcript of the hearing on Lumpkin's motion to substitute a new expert, a transcript that we have carefully studied.
Lumpkin essentially asserts two factual defenses to the district court's conclusion. First, Lumpkin suggests that while her attorney may have agreed to pay the defendant's out-of-pocket expenses, like transcript-preparation fees, he didn't agree to pay attorney fees. Second, she suggests that her attorney agreed only to meet to try to work out an agreed reimbursement, not to the payment of whatever amount the court might later award. We do not agree with her reading of the transcript.
As to the first claim—that her attorney's statements shouldn't be read as an agreement to pay attorney fees in addition to other out-of-pocket costs—we note that defense counsel noted early in the hearing that significant attorney fees would be incurred. When the court asked what “the approximate cost [would be] to you to go through the expert discovery again,” defense counsel initially said $3,000 to $5,000. The court then clarified that it meant to include the attorney's time as well: “No, I mean your time, too. Your time and going over the expert reports and—on the other side and participate in the deposition.” Defense counsel then estimated $7,500 in additional expenses, an amount that certainly didn't merely consist of transcript fees and other out-of-pocket costs.
That discussion came before the sections we have already quoted in which the court asked Lumpkin's attorney whether she was “willing to cover the defense's cost for the new witness,” to which her attorney said, “[C]ertainly, any sort of reasonable expense that we have caused by this, I would be happy to—to do that .” Later, when the court said, “[S]o, if you are willing to compensate their extra costs, then I don't see any harm,” Lumpkin's attorney replied, “And again, Your Honor, as I've said, we are....”
In context, the court had been discussing with counsel both out-of-pocket expenses and defendants' reasonable attorney fees before these exchanges. The court also noted in its later ruling that this “was understood and agreed to by Plaintiff['s] experienced and seasoned counsel.” We find the discussion between counsel and the court to be clear that both out-of-pocket expenses and reasonable attorney fees were being discussed, and Lumpkin's counsel gave the court authority to award both.
Lumpkin's second claim—that her attorney agreed only to meet to try to get an agreement—is also contrary to our reading of the transcript as a whole. True, her counsel agreed to meet with defense counsel in an attempt to agree upon the amount of any reimbursement. But that did not condition the court's authority to award fees and expenses on some later agreement. The court conditioned its grant of the motion on reimbursement of defendants' extra fees and expenses, and Lumpkin proceeded to substitute a new expert witness after that ruling. As the district court also noted, “Had the Plaintiff[ ] had any doubts as to [the] scope [of the court's order] or, otherwise, sought to narrow it, then that burden of clarification rested with [the plaintiff].”
Lumpkin has not challenged the amount of the district court's award on appeal; she has challenged only the court's authority to assess it. We conclude that the district court was authorized to do so based upon her attorney's statements in open court. (We also note that she has made no claim on appeal that her attorney's statements exceeded his authority.)
The district court's judgment is therefore affirmed.