Cost of doctor for aborted trial not reimbursable

Court Limits Availability of Expert Witness Cancellation Fees as Recoverable Costs

The question of what costs are recoverable when a trial is adjourned due to circumstances beyond the parties’ control has significant financial implications for litigants in New York civil practice. While CPLR § 8301 authorizes courts to award costs in certain situations, the scope of that authority is limited by statute and case law. This decision addresses whether expert witness cancellation fees constitute recoverable costs when a trial is adjourned due to defense counsel’s illness—a common occurrence that can impose substantial financial burdens on plaintiffs who have prepared witnesses for trial. If you’re dealing with a no-fault insurance defense matter, an experienced attorney can help protect your rights.

New York’s cost-shifting rules distinguish sharply between “costs” (which are routinely taxable under CPLR Article 83) and “expenses” or “disbursements” (which generally are not recoverable absent statutory authorization or contractual agreement). Taxable costs traditionally include items such as filing fees, clerk’s fees, and witness fees as prescribed by statute. However, expert witness fees—particularly cancellation fees incurred when an expert is prepared to testify but the trial is unexpectedly postponed—occupy an uncertain position within this framework.

The tension between fairness and legal authority is evident in cases like this one. From an equitable standpoint, plaintiffs should not bear the financial burden of expert cancellation fees when the adjournment results from the defendant’s attorney’s illness rather than any fault of the plaintiffs. However, New York courts have consistently held that sympathetic circumstances alone cannot justify awarding costs that lack a statutory or rule-based foundation.

Case Background

“This negligence action seeks damages for injuries sustained by decedent when she fell on defendants’ premises in the City of Binghamton, Broome County. On the morning that the trial was scheduled to commence, defendants’ counsel appeared and requested an adjournment on the ground that he was ill and unable to proceed. Supreme Court granted the adjournment. Plaintiffs then moved for costs, seeking reimbursement for cancellation fees paid to two experts who had been scheduled to testify at trial. The court granted the motion, directing defendants to reimburse plaintiffs in the amount of $6,900. Defendants appeal.”

…

“In sum, Supreme Court premised the award of costs solely upon the harm caused to plaintiffs by the cancellation fees, rather than any type of misconduct by defendants or their counsel. Although the concern is understandable, for the reasons stated above the governing rules do not authorize the award, and no sound alternative basis has been enunciated. Accordingly, the order must be reversed. Defendants’ remaining arguments are rendered academic by this determination.”

Jason Tenenbaum’s Analysis

It should be noted that the issue here was not bad faith or santionable conduct; rather, it was a defense attorney who was ill or otherwise not ready to proceed. The court this nullified a judgment for costs

Legal Significance

This Appellate Division decision reinforces the strict limitations on recoverable costs in New York civil litigation. The court’s reversal of the trial court’s award underscores several critical principles. First, trial courts lack inherent authority to award costs beyond those specifically authorized by statute or court rule. CPLR § 8301(a) permits courts to award costs to the “prevailing party,” but expert witness cancellation fees do not fall within the enumerated categories of taxable costs.

Second, equitable considerations—no matter how compelling—cannot overcome the absence of statutory authorization for cost awards. The Appellate Division acknowledged that the trial court’s concern was “understandable” given that plaintiffs incurred $6,900 in cancellation fees through no fault of their own. However, sympathy for a party’s financial hardship does not provide a legal basis for imposing costs on the opposing party when no statute or rule authorizes such an award.

Third, the decision implicitly distinguishes between adjournments caused by attorney misconduct or bad faith and those resulting from legitimate circumstances such as illness. Had the adjournment resulted from sanctionable conduct—such as deliberate delay tactics, failure to prepare, or frivolous motions—the court might have possessed authority under CPLR § 8303-a or its inherent supervisory powers to impose financial sanctions. However, an attorney’s unexpected illness does not constitute misconduct warranting sanctions.

Practical Implications

For plaintiffs’ attorneys, this decision highlights the importance of advance planning to mitigate the financial risks associated with trial adjournments. Potential strategies include: (1) negotiating expert witness agreements that provide for reduced cancellation fees or permit rescheduling without additional charges; (2) seeking stipulations from opposing counsel regarding cost-sharing in the event of last-minute adjournments; and (3) building expert witness fees into settlement calculations to account for the risk of adjournment.

For defense attorneys, the decision provides protection against unanticipated cost awards when legitimate circumstances require adjournments. Defense counsel need not fear that an unexpected illness or unavoidable scheduling conflict will expose their clients to liability for the opposing party’s expert witness fees, provided the adjournment request is made in good faith.

Trial courts should also take note that, while the decision limits their authority to award expert witness cancellation fees as costs, they retain discretion in scheduling and managing trials to minimize the risk of last-minute adjournments.

Key Takeaway

Expert witness cancellation fees are not recoverable as costs in New York when a trial is adjourned due to defense counsel’s illness, even where the adjournment causes financial hardship to the plaintiff. Trial courts lack statutory authority to award such costs absent bad faith or sanctionable conduct.

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