Tara Jefferson Robinson and Norrence Robinson, Individually and on Behalf of Their Minor Child, S.R. v. Daryl Mitchell

Judgment rendered August 27, 2025.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 56,364-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

TARA JEFFERSON ROBINSON Plaintiffs-Appellants
AND NORRENCE ROBINSON,
INDIVIDUALLY AND ON
BEHALF OF THEIR MINOR
CHILD, S.R.

versus

DARYL MITCHELL, ET AL Defendants-Appellees

*****

Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 603,276

Honorable Brady D. O’Callaghan, Judge

*****

LAW OFFICE OF SUSAN E. HAMM Counsel for Appellants
By: Susan E. Hamm

MCNEW, KING & LANDRY, LLP Counsel for Appellee,
By: Brady D. King, II Louisiana Patient’s
Compensation Fund

LIZ MURRILL Counsel for Appellee,
Attorney General State of Louisiana

DAVID HYLAND NELSON
Assistant Attorney General

*****

Before COX, STEPHENS, and HUNTER, JJ.

STEPHENS, J.,

The plaintiffs, Tara Robinson and Norrence Robinson, individually

and on behalf of their minor child, S.R. (hereinafter “the plaintiffs” or “the

Robinsons”), have appealed from an order signed on February 5, 2024, by

the Honorable Brady O’Callaghan, Judge, of the First Judicial District Court,

Parish of Caddo, State of Louisiana, denying them an award of expert fees

and costs incurred in this medical malpractice action due to counsel’s failure

to abide by deadlines set by the trial judge. On appeal, the plaintiffs urge

this Court to assess expert fees and costs or, alternatively, reverse and

remand the matter to the trial court to do so. For the reasons set forth below,

we affirm the judgment of the trial court.

FACTS/PROCEDURAL HISTORY

In their medical malpractice suit, the plaintiffs named as defendants

Dr. Daryl Mitchell and Dr. Cynthia Montgomery, APMC, d/b/a Mitchell &

Montgomery, M.D.S, and Daryl Mitchell, M.D. After the plaintiffs settled

with the physician defendants, the Louisiana Patient’s Compensation Fund

Oversight Board (the “PCF” or the “Fund”) was made a defendant. The

plaintiffs’ claims proceeded to a jury trial in September 2022.

On September 30, 2022, the jury found that the physician defendants

breached the applicable standard of care. The jury did not award any

damages to Tara Robinson for past medical expenses incurred, past lost

wages, custodial care (of S.R.), or future lost wages. The jury did not award

any damages to Norrence Robinson. The jury also rejected the plaintiffs’

claim for future medical expenses and related benefits. The jury found that

the breach in the standard of care deprived Tara Robinson of a chance to

decide to terminate her pregnancy and/or lose a chance to prepare for having

a child with disabilities. The jury awarded Mrs. Robinson $500,000 in

general damages.

The parties then litigated the form and substance of the judgment to be

rendered by the trial court, and an amended judgment on the jury verdict was

entered on April 11, 2023. As it relates to the instant appeal, the judgment

ordered that court costs to be assessed to the PCF were to be determined by

rule to show cause to be set by the trial court.

Thereafter, counsel for the PCF requested that plaintiffs’ counsel make

a demand for all costs they would ask the trial court to assess against the

PCF. On June 6, 2023, plaintiffs’ counsel provided a letter outlining court

costs and their claim for attorney fees without providing any supporting

evidence such as affidavits, invoices, or proof of payment. PCF’s counsel

promptly emailed plaintiffs’ counsel asking for invoices and supporting

documentation. On June 13, 2023, plaintiffs’ counsel advised defense

counsel she was “working on it.” Follow-up emails by the PCF’s attorney

requesting support for the expert witness fees requested were sent on June

15, 20, and 26, July 6 and 17, and August 15, 2023.

On August 22, 2023, the PCF’s counsel emailed plaintiffs’ attorney

once again seeking the requested information and advising that the Fund

would seek a status conference to establish deadlines if the requested

information was not provided. The PCF filed a motion to set a status

conference, and a conference was held on September 8, 2023 (almost one

year since the jury’s verdict had been rendered). On September 14, 2023,

the trial court issued an order that “Plaintiffs shall file any motion and

evidence seeking to cast the PCF in judgment for cost[s] on or before

October 20, 2023. The PCF shall file any opposition to the plaintiffs’
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motion to tax cost[s] on or before November 10, 2023. The hearing, if

needed, on plaintiffs’ motion to tax costs shall be November 27, 2023…”

Nothing was filed by the plaintiffs by the deadline of October 20,

2023. On November 2, 2023, the PCF timely filed its “Motion to Allocate

and Tax Clerk of Court Cost[s].” In its supporting memorandum, the PCF

noted the plaintiffs’ failure to file a motion to tax costs or evidence in

support thereof by the deadline set by the trial court, and asked the trial court

to dismiss any claims the plaintiffs might untimely assert.

On the day set for the hearing, November 27, 2023, the plaintiffs filed

a “Plaintiffs’ Memorandum in Support of Cost[s]” without a motion to set

such costs. At the hearing, the trial court granted the PCF’s motion to

allocate court costs. The record shows that no action was taken regarding

the plaintiffs’ memorandum in support of costs, and they took no steps to file

a motion to tax costs or set said motion (since it didn’t exist) for hearing.1

On December 13, 2023, the Fund filed an opposition to the plaintiffs’

memorandum in support of her expert fees and costs. According to the PCF,

since the plaintiffs failed to file a motion and supporting evidence on or

before the trial court’s October 20, 2023, deadline, their claims should be

dismissed as untimely. In the alternative, the Fund argued that the plaintiffs

failed to properly support the claims for costs sought in their “motion.” The

hearing on the PCF’s opposition was set for January 29, 2024. On January

22, 2024, the plaintiffs filed an opposition to the PCF’s pleading contesting

1
The record does contain a “Motion for Telephone Status Conference and Motion
to Continue” fax-filed by plaintiffs’ counsel on November 22, 2023, asking the trial court
to continue the hearing set for November 27, 2023, and hold a telephone status
conference on the motion to continue filed by plaintiffs. The November 22, 2023, fax-
filed motion was not served on the Fund, nor was an order signed in connection
therewith, but instead, it was found to be moot by the trial court as it was addressed in
open court at the hearing on November 27, 2023.
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their request for expert fees and costs. At the hearing on January 29, 2024,

the trial court denied plaintiffs’ request to tax expert fees and costs.

Plaintiffs have appealed from the order denying them an award of expert

fees and costs.

DISCUSSION

Plaintiffs’ Argument

Plaintiffs’ first assignment of error is that the trial court erred in not

considering the expert affidavits of their witnesses based solely on timing of

when plaintiffs’ counsel provided the affidavits. According to the plaintiffs,

the circumstances around the trial court’s refusal to consider the affidavits do

not support such a harsh action, and the defendants were not prejudiced. In

this case, plaintiffs contend that they did not ignore and/or intentionally

disregard the trial court’s order. Plaintiffs’ counsel urges that at the time of

the status conference at which the trial court set the dates, she was either

preparing for and/or in multiple trials. Counsel concedes that she did miss

the trial court’s deadline.

Plaintiffs point out that defense counsel has had the breakdown of

plaintiffs’ experts costs since at least November 27, 2023 (except for Dr.

Bagnell’s trial appearance cost, which they got on December 6, 2023). The

only issue before the trial court on November 27, 2023, was clerk of court

costs, upon which the trial court ruled. Plaintiffs’ counsel asserts that the

violations did not prejudice the PCF; the plaintiffs were asking for costs, not

the Fund. According to plaintiffs, the PCF had deposed the experts, had

been provided with their fee schedules and was aware, even before trial, of

what areas of medicine each expert would testify in, and the substance of

each expert’s opinion. Defendant understood the time involved in presenting
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testimony. What resulted in this case from the delay was simply the PCF

having to delay its payment of costs until a later date.

In their second assignment of error, the plaintiffs urge that the trial

court erred in not assessing expert fees and costs because the judge was the

presiding judge during the entire trial and thus in a position to observe the

expert witnesses as they testified regarding their methods and findings.

According to the plaintiffs, under the circumstances, by considering

the testimony of the experts and the exhibits introduced at trial, the trial

court should be able to assign costs to out-of-court time spent by certain

experts.

The plaintiffs assert that the trial court’s erroneous ruling excluding

their expert’s affidavits as evidence at the hearing to tax expert fees and

costs foreclosed any findings of fact as to the fees and costs they incurred in

litigating their claim. They ask this Court to either assess the expert fees and

costs, since the record providing the testimony of the experts at trial is more

than sufficient for assigning costs, or reverse the trial court’s ruling and

remand the matter for further proceedings.

Defendant’s Argument

The PCF urges that the trial court’s dismissal of the plaintiffs’

motion/memorandum to tax costs, based on their failure to abide by the

court-imposed deadlines, was reasonable and not an abuse of the trial court’s

discretion.

According to the PCF, the trial court set a reasonable October 20,

2023, deadline by which the plaintiffs were to file their motion and

supporting evidence. Even after the Fund filed its own motion to allocate

and tax costs, the plaintiffs failed to either file their own motion or seek an
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extension within which to do so. It was not until the day of the scheduled

hearing, November 27, 2023, that the plaintiffs filed any pleadings, and then

it was a memorandum in support of costs without the required motion.

The PCF contends that the plaintiffs were recalcitrant and

uncooperative for many months in providing the necessary information for

resolution of the issue of expert fees and related costs, which caused it to

incur “significant” legal fees and costs. The trial court based its ruling on

the totality of the circumstances—the plaintiffs’ failure to reasonably place

the issue before the trial court, which necessitated a status conference and

scheduling order, followed by the plaintiffs’ inability to abide by that

scheduling order.

The Fund urges this Court to affirm the trial court’s dismissal of the

plaintiffs’ motion (memorandum) as the trial court did not abuse its

discretion to set and enforce deadlines. In the alternative, the PCF argues

that the plaintiffs’ request to tax witness fees and costs should be denied on

the merits. In this case, the plaintiffs did not present testimony in support of

their claims, but instead rested on affidavits. If this Court decides to

consider these affidavits, the defendant points out that they nonetheless do

not support the award of any fees.

The PCF urges this Court to uphold the trial court’s dismissal of the

plaintiffs’ request, via an untimely filed memorandum, to tax expert fees and

costs.

Applicable Legal Principles

La. C.C.P. art. 1920 provides for the taxing of costs after trial. While

it is the general rule to tax the party cast in judgment, article 1920 affords

the trial court discretion in the matter. Specifically, La. C.C.P. art. 1920
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provides, “[e]xcept as otherwise provided by law, the court may render

judgment for costs, or any party thereof, against any party, as it may

consider equitable.” A determination of what is “equitable” requires a case-

by-case analysis and review of the facts involved. Gurney as Trustee of

Gurney Family Trust v. McCoy, 24-0382 (La. App. 1 Cir. 11/13/24), 405 So.

3d 940, writ denied, 24-01511 (La. 2/25/25), 401 So. 3d 661; Collier v.

Board of Supervisors of Louisiana State University and Agricultural and

Mechanical College, 23-1211 (La. App. 1 Cir. 7/22/24), 395 So. 3d 6, writ

denied, 24-01049 (La. 12/11/24), 396 So. 3d 966.

Courts have great discretion in assessing court costs and expert fees.

Aucoin v. Southern Quality Homes, LLC, 07-1014 (La. 2/26/08), 984 So. 2d

685; Cajun Electric Power Co-op. v. Owens-Corning Fiberglass Corp., 616

So. 2d 645 (La. 1993).

The trial court can assess costs based on its discretionary authority

alone. Green v. East Carroll Parish School District/Board, 56,011 (La. App.

2 Cir. 12/18/24), 402 So. 3d 702, writ denied, 25-00153 (La. 4/15/25), 406

So. 3d 426; Saunders v. Hollis, 44,490 (La. App. 2 Cir. 8/19/09), 17 So. 3d

482, writ denied, 09-2221 (La. 12/18/09), 23 So. 3d 945. On review, a trial

court’s assessment of costs can be reversed only upon a showing of abuse of

discretion. Succession of Thomas, 55,974 (La. App. 2 Cir. 12/18/24), 401

So. 3d 1277; Saunders, supra.

The following is excerpted from the trial court’s oral reasons for

ruling on plaintiffs’ November 27, 2023, “Memorandum in Support of

Costs”2:

2
At the hearing, the parties and the trial court refer to this pleading as a motion;
however, it was a memorandum in caption and form.
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[T]here was apparently some delay in getting this material
exchanged. And the Court was asked to conduct a status
conference in September of last year…. And my recollection is
that it was exactly this delay that was complained of, which is
why the Court awarded more than 30 days for compliance…. I
think that was done in consultation with both counsel. And I
don’t think that it was objected to timely. There was no
objection filed [by plaintiffs’ counsel] that because of other trial
pressures or other obligations that the month and a week delays
would be in any way unreasonable for the Court to expect
compliance. And it was a deadline for filing [a motion to tax
costs/set expert witness fees]. So based on the Court’s own
Order, the fact that no timely objection was made to that Order,
nor was the request for extension made before the deadline
passed, … for the Court’s Orders to be meaningful[,] the Court
is going to enforce its own scheduling Order, find that the
November 27th filing was improvidently and untimely made
and beyond the scope of the deadline set by the Court…. So I
will dismiss, deny the motion filed by plaintiff[s] for costs as
untimely and decline to accept any evidence as … untimely
filed.

Plaintiffs’ counsel not only disregarded the trial court’s deadlines, she

failed to file a motion to set costs and expert witness fees at all; what she

filed instead was a memorandum which typically accompanies a motion and

order, and this was not filed until November 27, 2023, the date of the

hearing set for the motion to set court costs filed by the PCF. Typically,

expert witness fees are established either during trial through each expert’s

testimony outside the presence of the jury or by a motion pursuant to a rule

to show cause brought by the prevailing party. See La. R.S. 13:3666(B).3

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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 form a part of the final judgment in the cause.

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Having opted not to establish the amount of expert fees during trial,

plaintiffs’ counsel needed to timely file a motion to set the expert witness

fees, but she did not do so, despite being prompted by the PCF’s emails and

the reasonable deadlines by the trial court. After the October 20, 2023,

deadline was set, all the plaintiffs’ attorney had to do was make the trial

court aware of her workload by timely filing a motion for continuance or

extension of time (which this trial court in all likelihood would have

granted). We do not find an abuse of the trial court’s discretion in this case.

Based on our finding that the trial court did not abuse its discretion in

denying plaintiffs’ motion to tax costs due to its untimeliness, we do not

reach their second assignment of error.

CONCLUSION

For the reasons set forth above, the judgment of the trial court is

affirmed. Costs are assessed to the plaintiffs, Tara Robinson and Norrence

Robinson, individually and on behalf of their minor child, S.R.

AFFIRMED.

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