Lloyd Falgout v. American Alternative Insurance Corporation, Bayou Cane Fire Protection District, and Kenneth Himel

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2023 CA 1261

LLOYD FALGOUT

VERSUS

AMERICAN ALTERNATIVE INSURANCE CORPORATION, BAYOU
CANE FIRE PROTECTION DISTRICT, AND KENNETH RIMEL

JUN 2 7 2024
Judgment Rendered:

Appealed from the
32nd Judicial District Court
In and for the Parish of Terrebonne
State of Louisiana
Docket No. 189008

The Honorable Timothy C. Ellender Jr., Judge Presiding

Tommy J. Badeaux Counsel for Plaintiff/Appellee,
Metairie, Louisiana Lloyd Falgout

Joseph L. Waitz, Jr.
Houma, Louisiana

T. Gregory Schafer Counsel for Defendants/ Appellants,
Timothy G. Schafer American Alternative Insurance
New Orleans, Louisiana Corporation, Kenneth Himel, and
Bayou Cane Fire Protection District
Danna E. Schwab
Patricia Reeves Floyd
Houma, Louisiana

BEFORE: McCLENDON, HESTER, AND MILLER, JJ.

MILLER, J.

This matter is before us on appeal by defendants, American Alternative
Insurance Corporation (" AAIC"), Bayou Cane Fire Protection District (" Bayou

Cane"), and Kenneth Himel (" Himel"), from an August 8, 2023 judgment of the

trial court granting Lloyd Falgout' s motion to tax costs, and awarding same, as a

result of the trial court' s August 10, 2023 judgment awarding Falgout past medical
expenses,
future medical expenses, pain and suffering for shoulder injuries, and

pain and suffering for neck and back injuries.' For the following reasons, we

amend in part and affirm as amended.

FACTS AND PROCEDURAL HISTORY

The facts and procedural history of this case are more fully developed in the
companion case to this appeal, Lloyd Falgout v. American Alternative Insurance

Corporation, Bayou Cane Fire District, and Kenneth Himel, 2023- 1291 ( La. App.

Is' Cir. So. 3d _, also handed down this date. Therein, we affirmed

the trial court' s August 10, 2023 judgment awarding Falgout $ 1, 186, 198. 19.

Pertinent to this appeal, Falgout filed a " Motion to Tax Costs and Judicial

Interest," seeking a total of $
43, 536.25. 2 After a hearing, the trial court awarded
Falgout taxable costs in the amount of $20, 178. 25, which included $ 1, 850. 00 for

G. Randolph Rice, PhD ( economics expert); $
3, 500.00 for Larry S. Stokes, PhD

life care planning and vocational rehabilitation expert); $ 1, 500.00 for Samer

1 The trial court rendered its judgment on the merits in open court on June 21, 2023, and signed
the judgment on August 10, 2023. The trial court rendered its judgment on the motion to tax
costs in open court on July 24, 2023, and signed the judgment on August 8, 2023.

2 On January 30, 2024, the appellants filed a motion to allow reference to documents that are
contained in the record of the appellants' companion appeal ( 2023 CA 1291) and a motion for a
second extension of time of file their brief. The motion for a second extension of time was signed
by this court on January 30, 2024. However, no action was taken on the motion to allow
reference to documents that are contained in the record of the appellants' companion appeal
2023 CA 1291).
Thereafter, on February 9, 2024, the appellee filed a motion for leave to use the
record in 2023 CA 1291. The motion was granted, allowing the appellee to use and cite the
record in 2023 CA 1291 in the instant appeal. We note that Uniform Rules of Louisiana Courts
of Appeal, Rule 2- 1. 14 provides that "[ a] ny record lodged in the Court of Appeal may, with
leave of court, be used, without necessity of duplication, in any other appeal or writ application."
Further, on March 5, 2024, the appeals in 2023 CA 1261 and 2023 CA 1291 were consolidated
for argument and submission only.

2

Shamieh, NID ( orthopedist); $ 3, 000. 00 for Douglas Lurie, MD ( orthopedist);

2, 000.00 for Neil Duplantier, NM (orthopedist); $ 2, 000. 00 for Christopher Cenac,

Jr., MD ( orthopedist and independent medical evaluation); $ 305. 89 for medical

records costs; and $ 6,022. 36 for court costs and deposition costs. The trial court

signed its judgment on August 8, 2023.

AAIC, Bayou Cane, and Himel appealed, contending the trial court erred in

awarding Falgout costs for several expert witnesses and the trial court erred in

awarding costs of the transcript of a deposition that was not introduced at trial.

Thereafter, Falgout filed an answer to the appeal, asserting the trial court erred in
the amount of costs awarded, and the award should be increased to $ 43, 536. 25,

plus judicial interest from the date of demand until the judgment is paid in fu11. 3

DISCUSSION

AAIC, Bayou Cane, and Himel seek a decrease in the amount of costs

awarded, while Falgout seeks for the amount to be increased. Louisiana law

provides that party cast in judgment will generally be assessed with all costs of the

litigation, including its own and those of the prevailing party. See La. C. C. P. art.
1920.
The trial court has great discretion in awarding costs, including expert

witness fees, deposition costs, exhibit costs, and related expenses. Harris v. City of
Baton Rouge, 2016- 0163 ( La. App. 1St Cir. 12/ 22/ 16), 209 So. 3d 405, 408, writ

denied, 2017- 00155 ( La. 3/ 31/ 17), 217 So. 3d 360. On appeal, the trial court' s

assessment of costs will not be disturbed absent an abuse of discretion. Royer v.

Our Lady of the Lake Hospital, Inc., 2017- 1763 ( La. App. 1St Cir. 2/ 22/ 19), 2019

WL 850576, * 3 ( unpublished).

In their first assignment of error, AAIC, Bayou Cane, and Himel argue

Falgout failed to carry his burden of proof regarding three of the expert fees sought

3 We note that Falgout' s answer also contains arguments regarding the August 10, 2023
judgment. However, that judgment is not before us in this appeal ( 2023 CA 1261), so those
arguments will not be considered.

3

in his motion to tax costs. Taxable costs are defined narrowly by positive law in
La. R.S. 13: 4533 to include " costs of the clerk, sheriff, witness' fees, costs of

taking depositions and copies of acts used on the trial, and all other costs allowed

by the court[.]" Further, the taxing of expert witness fees is governed by La. R.S.
13: 3666, which provides, in pertinent part:

A. Witnesses called to testify in court only to an opinion founded on
special study or experience in any branch of science, or to make
scientific or professional examinations, and to state the results thereof,
shall receive additional compensation, to be fixed by the court, with
reference to the value of time employed and the degree of learning or
skill required.

B. The court shall determine the amount of the fees of said expert
witnesses which are to be taxed as costs to be paid by the party cast in
judgment either:

1) From the testimony of the expert relative to his time rendered and
the cost of his services adduced upon the trial of the cause, outside the
presence of the jury, the court shall determine the amount thereof and
include same.

2)
By rule to show cause brought by the party in whose favor a
judgment is rendered against the party cast in judgment for the
purpose of determining the amount of the expert fees to be paid by the
party cast in judgment, which rule upon being made absolute by the
trial court shall for a part of the final judgment in the cause.

Expert witnesses are entitled to reasonable compensation for their time in

court and for preparatory work done. Kelly McHugh and Associates, Inc. v RPDE

Development, LLC, 2019- 0709 ( La. App. I" Cir. 3/ 5/ 20), 300 So. 3d 417, 428. A

trial court can fix expert witness fees based upon its own observations and

evidence presented at trial. See Smith v. Roussel, 2000- 1672 ( La. App. Pt Cir.

6/ 22/ 01),
808 So. 2d 726, 730. Factors to be considered by the trial court in setting
an expert witness fee include the time spent testifying, time spent in preparatory
work for trial, time spent away from regular duties while waiting to testify, the
extent and nature of the work performed, and the knowledge, attainments and skill

of the expert. Bourgeois V. Heritage Manor of Houma, 96- 0135 ( La. App. Pt Cir.

2/ 14/ 97), 691 So. 2d 703, 708. Additional considerations include the helpfulness of

M

the expert' s report and testimony to the trial court, the amount in controversy, the

complexity of the problem addressed by the expert, and awards to experts in

similar cases. Dakmak v. Baton Rouge City Police Department, 2012- 1850 ( La.

App. 1st Cir. 9/ 4/ 14), 153 So. 3d 511, 514.

Although a party can tax the reasonable cost of time spent by the expert in

gathering facts necessary for his testimony, he may not include the time spent in

consultation which only assists the attorney in preparation for the litigation. In

assessing expert witness fees, the trial court should not consider agreements

between an expert witness and the party calling him concerning fees, the expert' s
statements concerning his charges, nor the actual fees paid. See Dakmak, 153 So.

3d at 514; Rincon v. Owens Collision & Repair Service Center, LLC, 2018- 0383

La. App. 1st Cir. 9/ 21/ 18), 359 So. 3d 990, 1003.

In his motion to tax costs, Falgout sought for the trial court to award him

expert witness costs and fees, including $ 1, 850. 00 for Dr. Rice; $ 11, 358. 00 for Dr.

Stokes; and $ 12, 000.00 for Dr. Shamieh. After a hearing, the trial court awarded

Falgout $ 1, 850. 00 for Dr. Rice; $ 3, 500.00 for Dr. Stokes; and $ 1, 500. 00 for Dr.

Shamieh.

AAIC, Bayou Cane, and Himel contend the awards for Dr. Rice and Dr.

Stokes were excessive considering the amount of time they testified at trial. Dr.

Rice was retained to provide information regarding Falgout' s future lost wages and

was accepted by the trial court as an expert in the field of economics. At trial, he

testified regarding Falgout' s future lost wages. In addition to his trial testimony,
Dr. Rice prepared a report, which was admitted at trial. Next, Dr. Stokes is a

medical vocational rehabilitation counselor and was accepted by the trial court as

an expert in life care planning and vocational rehabilitation. Dr. Stokes also

prepared a report and testified at trial. Last, Dr. Shamieh did not testify at trial.

5

While Falgout attached invoices and bills of his expert witnesses to his

motion to tax costs, those documents were not admitted into evidence at the

hearing. Even if those invoices and bills would have been admitted, the assertion of

an attorney and the bill of an expert do not support an award for the total time of an

expert, both in court and outside of court. See WaMpold v. Fisher, 2001- 0808 ( La.

App. I" Cir. 6/ 26/ 02), 837 So. 2d 638, 640. Rather, the expert must testify at the

trial of the contradictory rule to tax costs and be subject to cross- examination,

unless there is some stipulation between the parties. Id. No expert witnesses were

present to testify at the hearing on Falgout' s motion and there were no stipulations

between the parties. Thus, the trial court was required to fix the expert witness

costs based upon its own observations and the evidence presented at trial. See

Smith, 808 So. 2d at 730. In rendering its judgment, the trial court indicated that it

observed each expert' s participation or lack thereof when awarding costs. Both Dr.

Rice and Dr. Stokes testified live at trial and prepared reports in preparation for

trial. After a review of the record, we find no abuse of discretion in the trial court' s

award of $1, 850.00 for Dr. Rice and $ 3, 500. 00 for Dr. Stokes.

AAIC, Bayou Cane, and Himel also contend the award for Dr. Shamieh was

excessive since he did not testify at trial. On the other hand, Falgout argues that the

testimony of Dr. Shamieh was " instrumental in the development of the case and

was not introduced for the sake of efficiency[.]" Since Dr. Shamieh did not testify

live at trial, and his testimony was not perpetuated by deposition, we find the trial

court abused its discretion in awarding Falgout expert witness costs of $1, 500. 00

for Dr. Shamieh. Thus, the portion of the August 8, 2023 judgment that awarded

Falgout $ 1, 500. 00 as expert witness costs for Dr. Shamieh is amended from

1, 500. 00 to $ 0. 00.

In their second assignment of error, AAIC, Bayou Cane, and Himel contend

the trial court erred in awarding Falgout costs of the transcript of a deposition

Me

taken of a representative of Medport, LLC because it was not introduced into

evidence at trial.
In order to determine whether the cost of the deposition in

question is taxable as costs against the defendants, it is necessary that it falls within
the purview of La. R.S. 13: 4533.

Louisiana Revised Statutes 13: 4533, which was previously discussed, is

explicit and must be held to include all depositions, whether taken for proof of a

claim or the defense of a claim, or for discovery purposes, provided the depositions

are used on the trial. The Legislature intended that introduction and acceptance of

depositions in evidence would constitute such use. If a deposition is not so used at
trial, the cost of that deposition,
including the deponent' s fee for giving the
deposition, may not be taxed as costs. See A.B. S. Services, Inc. v. James

Construction Group, L.L.C., 2020- 0841 ( La. App. Pt Cir. 7/ 22/ 21), 2021 WL

3087879, * 9 ( unpublished), writ denied, 2021- 01635 ( La. 1/ 12/ 22), 330 So. 3d

624.

Our review of the record reveals that the deposition of the representative of
Medport, LLC was not used at trial. Thus, under La. R.S. 13: 4533, the cost of that

deposition, including the deponent' s fee for giving the deposition, may not be

taxed as costs. Therefore, the trial court abused its discretion in awarding Falgout
costs for the Medport, LLC deposition. Falgout sought court costs and deposition
costs in the amount of $6, 022. 36, and the trial court awarded that amount in full.

Included in the $ 6, 022. 36 was $ 478. 90 for the Medport, LLC deposition.'

Therefore, we amend the August 8, 2023 judgment to award Falgout court costs

and deposition costs in the amount of $5, 543. 46, which is the total amount of court
costs and deposition costs sought minus the amount of the Medport, LLC

deposition.

4 While the trial court did not indicate the amount awarded for the Medport, LLC deposition in
its judgment, both Falgout and AAIC, Bayou Cane, and Himel agree that the amount awarded by
the trial court for the Medport, LLC deposition was $ 478. 90.

7

In his answer to the appeal, Falgout contends he is aggrieved by the trial
court' s failure to award the full amount of costs incurred plus judicial interest and

seeks for the award of costs to be increased to $ 43, 536. 25, plus judicial interest

from the date of demand until the judgment is paid in full. As discussed above,

under La. R.S. 13: 3666, La. R.S. 13: 4533, and La. C.C. P. art. 1920, a trial court

has great discretion in awarding costs, including expert witness fees, deposition
costs, exhibit costs, and related expenses, and the trial court' s assessment of costs

can be reversed by this court only upon a showing of an abuse of discretion.
Suprun v. Louisiana Farm Bureau Mutual Insurance Company, 2009- 1555 ( La.

App. 1St Cir. 4/ 30/ 10), 40 So. 3d 261, 267.

We have determined above that the trial court did not abuse its discretion in

awarding expert witness costs for Dr. Rice and Dr. Stokes. Additionally, we have

determined that the trial court did abuse its discretion in awarding Falgout costs for
Dr. Shamieh due to a lack of evidence. Further, we note that the trial court awarded

Falgout the full amount of costs sought for Dr. Cenac. Therefore, we must

determine whether the trial court abused its discretion in the amount of expert

witness costs it awarded Falgout for Dr. Lurie and Dr. Duplantier.5

No evidence was introduced at the hearing on the motion to tax costs. The

trial court was required to fix the expert witness fees based upon its own

observations and the evidence presented at trial. Neither doctor testified live at

trial, but both of their depositions were admitted into evidence. Experts who testify
by deposition are entitled to have their expert witness fees taxed as costs, just as

are experts who testify at trial, provided their depositions have been introduced

into evidence. Smith, 808 So. 2d at 730- 31. The trial court indicated that it

observed each expert' s participation or lack thereof when awarding costs, and the

costs awarded are sufficient in light of work performed by each expert. After
5 We note that the $43, 536.25 sought by Falgout also includes medical records costs of $305. 89,
which the trial court awarded in full.

E

review of the record, we find that the trial court did not abuse its discretion in

awarding Falgout expert witness costs of $1, 500. 00 for Dr. Lurie and $ 2, 000. 00 for

Dr. Duplantier. As such, Falgout' s answer to the appeal is denied.

CONCLUSION

For the above and foregoing reasons, the August 8, 2023 judgment of the

trial court is amended in part and affirmed as amended. The trial court' s award of

expert witness costs for Dr. Shamieh is amended from $ 1, 500. 00 to $ 0. 00, and the

trial court' s award for court costs and deposition costs is amended from $ 6, 022. 36

to $
5, 543. 46. The remainder of the August 8, 2023 judgment of the trial court is

affirmed. The answer to the appeal filed by Lloyd Falgout is denied. Costs of this

appeal in the amount of $956. 00 are assessed one- half to Lloyd Falgout and one-

half to American Alternative Insurance Corporation, Bayou Cane Fire Protection

District, and Kenneth Himel.

E,