ROBERTA LENSKI V CHELSEA COMMUNITY HOSPITAL
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STATE OF MICHIGAN
COURT OF APPEALS
ROBERTA LENSKI,
UNPUBLISHED
August 14, 2008
Plaintiff-Appellee,
v
No. 275995
Washtenaw Circuit Court
LC No. 04-000457-NM
CHELSEA COMMUNITY HOSPITAL and
MANCHESTER FAMILY PRACTICE,
Defendants,
and
DORI TAMAGNE, M.D.,
Defendant-Appellant.
Before: Saad, C.J., and Fort Hood and Borrello, JJ.
PER CURIAM.
Defendant Dori Tamagne, M.D., appeals as of right from a combined judgment of no
cause of action in her favor and order and judgment awarding her $1,170 in taxed costs against
plaintiff. On appeal, defendant challenges the trial court’s lesser award of costs instead of the
full amount ($22,525.90) she had requested. We vacate the award of taxed costs and remand the
case to a different trial judge to determine an appropriate award of taxed costs in favor of
defendant. This case has been decided without oral argument under MCR 7.214(E).
This Court reviews a trial court’s ruling on a motion for taxable costs under MCR 2.625
for an abuse of discretion. Ivezaj v Auto Club Ins Ass’n, 275 Mich App 349, 367; 737 NW2d
807 (2007). Generally, a decision is not an abuse of discretion if it constitutes a reasonable and
principled outcome. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006).
Defendant argues that the trial court abused its discretion in failing to award the full
amount of taxable costs she requested. While we do not agree that defendant was entitled to the
full amount of taxable costs, we do agree that the trial court abused its discretion by failing to
award defendant’s motion fee costs and in its treatment of her expert witness fees.
Initially, we reject defendant’s argument that the trial court erred by failing to place in
writing its reasons for failing to award the full amount of taxable costs sought by defendant.
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MCR 2.625(A)(1) provides that such costs will be allowed to the prevailing party “unless
prohibited by statute or by these rules or unless the court directs otherwise, for reasons stated in
writing and filed in the action.” However, the trial court did not refuse to award costs to
defendant as the prevailing party. Rather, it awarded defendant a lesser amount of such costs
than she requested. By the plain language of MCR 2.625(A)(1) a trial court is only required to
state in writing its reasons for denying taxable costs to a prevailing party, i.e., for refusing to
award any such costs to the party, not for awarding a lesser amount of such costs than the party
requested.
Turning to the substance of the trial court’s decisions regarding taxable costs, the trial
court failed to award defendant the $80 in motion fees she requested. Under MCL
600.2529(1)(e) and (2) motion fees are taxable as costs. The trial court did not specifically
address the requested motion fees at the motion hearing, but it did express that defendant was
entitled to the “statutory fees.” It appears undisputed that defendant actually paid $80 in motion
fees. Because (1) the trial court expressed that it would allow defendant to recover the “statutory
fees,” (2), the taxation of motion fees as costs is authorized by MCL 600.2529, and (3) the trial
court’s award reflects that it allowed defendant to tax the larger amount of $170 in trial costs, the
failure to include $80 in motion fees in the award of taxable costs appears to be an oversight.
Thus, we conclude that the trial court abused its discretion by failing to award defendant the $80
in motion fees as part of the award of taxable costs because there was no reasonable and
principled basis for failing to award this amount.
However, defendant has not established that the trial court abused its discretion in
refusing to award her $3,714.90 in costs for the deposition testimony of Billy Joe Page, D.O.,
Debra Spicehandler, M.D., and David Cox, M.D. MCL 600.2549 provides:
Reasonable and actual fees paid for depositions of witnesses filed in any
clerk’s office and for the certified copies of documents or papers recorded or filed
in any public office shall be allowed in the taxation of costs only if, at the trial or
when damages were assessed, the depositions were read in evidence, except for
impeachment purposes, or the documents or papers were necessarily used.
Thus, by the plain statutory language, a requirement for the taxation of such costs is that the
relevant depositions must have been filed in a clerk’s office. Portelli v I.R. Constr Products Co,
Inc, 218 Mich App 591, 606-607; 554 NW2d 591 (1996). The depositions of Dr. Page and Dr.
Spicehandler are not included in the record and, accordingly, there is no indication that those
depositions were filed with the clerk’s office. Therefore, the trial court properly refused to
award defendant costs for the depositions of Dr. Page and Dr. Spicehandler.1 The deposition of
Dr. Cox was filed with the clerk’s office below because it is attached to defendant’s motion to
strike portions of the trial testimony of Dr. Cox, who is described in the motion as plaintiff’s
standard of care expert. However, in addition to the deposition transcript having been filed with
1
Notably, defendant asserts that Dr. Spicehandler’s deposition was filed as an exhibit to her
motion to strike Dr. Spicehandler’s standard of care testimony, but that deposition is not actually
attached to this motion in the record.
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the clerk’s office, by the plain language of MCL 600.2549, costs may be taxed under that
statutory provision for the costs of the deposition only if the deposition was “read in evidence,
except for impeachment purposes.” Plaintiff indicates that any information from the deposition
transcripts at issue was only used for impeachment purposes. Defendant does not dispute this,
but rather seems to incorrectly assert that the cost of Dr. Cox’s deposition transcript was taxable
merely because it was filed in the lower court record. Defendant has not provided transcripts of
the trial, but it seems unlikely that defendant would have had the deposition testimony of Dr.
Cox, one of plaintiff’s experts, read into evidence for anything other than impeachment purposes.
Accordingly, there is no basis to conclude that the trial court abused its discretion in refusing to
award costs for Dr. Cox’s deposition testimony.
However, we hold that the trial court abused its discretion with regard to the amount of
expert witness fees it awarded as taxable costs. The trial court awarded only $1,000 rather than
the $18,561 requested by defendant. The trial court’s essential rationale for awarding only
$1,000 was that each of defendant’s two experts should have been “able to say what you have to
say in two hours.” That conclusion was unreasonable because it allowed recovery of a fee only
for the time that the trial court subjectively determined each expert’s trial testimony should have
taken. It included no allowance for the preparation time an expert would plainly need in advance
of trial, which is properly included in an award of expert witness fees. See Rickwalt v Richfield
Lakes Corp, 246 Mich App 450, 466-467; 633 NW2d 418 (2001) (upholding a trial court’s
award of expert witness fees that included recovery for time the expert spent in preparation for
testimony). Thus, the trial court abused its discretion in determining the amount of expert
witness fees defendant was entitled to include in her taxed costs. Defendant requests that this
Court hold she is simply entitled to recover the entire $18,561 in expert witness fees. However,
it does not follow from the trial court’s abuse of discretion in determining the amount of expert
witness fees that defendant was necessarily entitled to recover the full amount of such fees.
Rather, because this is a discretionary decision for the trial court, we must remand the case for
the trial court to determine an appropriate amount of expert witness fees to award.
We further hold that this case shall be remanded to a different judge because, here, the
judge made clear that he would “have difficulty in putting aside previously expressed views”
about his aversion to awarding costs to a prevailing defendant in a medical malpractice action.
Bayati v Bayati, 264 Mich App 595, 602-603; 691 NW2d 812 (2004). At the hearing on
defendant’s motion to tax costs, when defense counsel asked the trial court to use its discretion to
award the full amount requested, the trial court responded, “I have a fairly standard response on
that,” and shortly thereafter stated, “Fairly standard discretion.” Thereafter, the trial judge
questioned defense counsel about his client’s motivation to seek costs, suggesting that it was a
maneuver to avoid an appeal. The judge further insinuated that defendant sought recovery of the
statutorily-permitted costs to extract “a pound of flesh” from plaintiff, opining to defense counsel
that “[y]ou have all the law on your side and then you still come in and try to run their nose in it.
I can’t believe it . . . .” In an even more blatant expression of his predisposition against
defendant, the trial judge commented to defense counsel that “your clients have done this
marvelous job of getting the Legislature to put all the law on their side and then you want to
come in and rub their nose in it.” The judge then characterized defendant’s motion for costs as
“a terrible thing.” Moreover, when ruling on defendant’s request for expert witness fees, the trial
judge refused to award any more than $500 per witness, observing that, “I have yet to meet
anybody in any of these case[s] where a physician can’t state their view in two—in—it shouldn’t
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take more than two hours.” The judge then advised defense counsel that, with regard to plaintiff,
he “ought to let this poor woman go home and lick her wounds.”
We view the trial judge’s remarks in this case as egregiously biased and simply
injudicious.2 The Code of Judicial Conduct, Canon 2(B), requires that a judge “respect and
observe the law” and act at all times to “promote public confidence in the integrity and
impartiality of the judiciary.” Indeed, it is fundamental that “due process in civil cases requires
an impartial decisionmaker.” Cummings v Wayne Co, 210 Mich App 249, 253; 533 NW2d 13
(1995). It is the essence of impartiality that a judge interpret and apply the law without bias. A
judge is not a policy-maker and must not limit a party’s rights under the law based on his
disagreement with the policy underlying the Legislature’s promulgation of that law. Rather, a
judge must, in conduct and discourse, give all assurances of objectivity to satisfy the public of
the integrity of the judicial process.
Here, the opposite occurred. Not only did the trial judge’s comments express a clear
prejudice against defendant and, indeed, any prevailing defendant in a medical malpractice
action, they evidence a disturbing inclination to flout a prevailing party’s entitlement to costs
under Michigan law. This judge’s paternalistic bias in favor of plaintiff also calls into question
his ability to engage in a proper analysis of defendant’s legal entitlement to recover costs as the
prevailing party. Clearly, “reassignment [to a different judge] is advisable to preserve the
appearance of justice” which, under these egregious circumstances, would outweigh any “waste
or duplication.” Bayati, supra at 602-603. It is clear that under Michigan law a prevailing
defendant in a medical malpractice action is allowed to tax certain costs. A hearing on a motion
to tax such costs must be directed at evaluating the request under the law, not at the trial judge’s
subjectively negative view of the underlying law allowing taxation of costs. Further, the trial
judge’s treatment of the expert witness fees claimed by defendant—a matter clearly involving
considerable discretion—by limiting the time for which he would allow fees to be recovered to
an arbitrary amount of two hours per expert, strongly suggests that the judge inappropriately
attempted to use his discretion to severely limit the award of taxable costs rather than attempting
to fairly determine an amount of expert witness fees. Accordingly, while our decision to remand
to a different judge may involve some duplication because the new judge will not be as familiar
with the case, we firmly believe that the reasons to question the original judge’s ability to fairly
handle this matter and the appearance of justice outweigh any such concern.
We vacate the judgment being appealed in part, specifically with regard to the amount of
taxable costs awarded to defendant, and remand the case to a different trial judge for an
appropriate determination of an award of taxable costs in defendant’s favor. This award should
include the $170 in trial costs previously awarded as well as the $80 in motion fees requested by
2
“Bias or prejudice has been defined as ‘an attitude or state of mind that belies an aversion or
hostility of a kind or degree that a fair-minded person could not entirely set aside when judging
certain persons or causes.’ ” Cain v Michigan Dept of Corrections, 451 Mich 470, 495 n 29;
548 NW2d 210 (1996), quoting United States v Conforte, 624 F2d 869, 881 (CA 9, 1980).
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defendant. The trial court should also determine an appropriate amount of expert witness fees to
include in the award. However, the award should not include any amount for the costs of the
depositions at issue in this appeal. We do not retain jurisdiction.
/s/ Henry William Saad
/s/ Karen M. Fort Hood
/s/ Stephen L. Borrello
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