### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE August 9, 2001 Session
KATY WILSON, ET AL 

### . v. DICKSON COUNTY, TENNESSEE, ET AL 

### .

Appeal from the Circuit Court for Dickson County No. CV1090 Allen Wallace, Judge

No. M2000-02680-COA-R3-CV - Filed October 25, 2001

This is a GTLA acti

on for damages

for wrongful de

ath caused by

the admitted neg

lig e nce of a paramedic, (who en

joyed no i mmu nit y) em plo yed b y the cou nty, whi ch en joye d im mun ity. Pecuniary damages of $385,000 for the value of the decedent’s life were awarded, together with a separate award of $500,00

0 for “consortium

-type dama

ges.” As aga

inst the County

and its ambulance service, the total award cannot exceed $130,000. A

s against the par

amedic the awar

d is limited only by the standard of reasonablene ss. The total award is reduced to $500,000.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed in Part and Modified in Part

W ILLI AM H. I NMAN , S R

. J., delivered the opinion of the court, in which W ILLI AM B. C AIN and P ATRICIA J. C OTTRELL , J.J., joined.

William C. M ood y, Nashville, Tenne ssee, for the app

ellants, Dickson County, Tennessee; Dickson County Ambulance Service; and David Cline.
Walter W. Bussart, Lewisburg, Tennessee, for the appellee, Katy Wilson.

Paul G. Summers, Att

orney General

and Reporter; Michael E. Moore, Solicitor General; and Heather C. Ross, Senior Counsel, for the intervenor, State of Tennessee.

OPINION

This is an action for damages fo r the alleged w

rongful death

of Clayton Wilson who suffered

a heart attack at his home in the early morning hours of November 20 , 199 7 and died in the emergency

room of a hospital. He was 51 years old, and was survived by his widow, Katy Wilson, and two children.-2-

Responding to a 911 call, Donald Tinsley, an EMT, and David Cline, a paramedic, both of whom were employed by

the Dickson County Ambulance Service, arrived at the residence. Clayton Wilson was breathing, and oxygen was administered. He was c arried by stretcher to the ambulance and transported t

o a hospital.

The ambulance was e

quipped with a car

diac defibrillat

or which admittedl

y was n ot used

. The failure of the paramedic, David Cline, to use the defibrillator is the basis of this litigation.

The complaint alleged

that the defendant

David Cline was negligent and deviated from the recognized

standard of car

e in Dickson County

in the care and tr

eatment of Clay

ton Wilson in

that he failed to

use the defibrillator, failed to intubate Mr. Wilson, failed to call the emergency room and in other particula

rs.

The factual pattern need not be labored in light of the admission of David Cline that he was negligent in failing to take a monitor/defibrillator into the Wilson residence. His counsel concedes that Cline was neglig

ent, but not proximate

ly so, and doe

s not question the ap

plicabilit y of the doctrine of respondent superior wit h res pect to t he A mbu lan ce S ervi ce an d Di cks on C oun ty.

Because the Governmenta

l Tort Liabi lity Act was implicated, T.C.A. § 29-20-205 et seq., the case was tried w

ithout a jury. The trial judge found that the admitted negligence of David Cline, contrary to the insistence of the defendants, was the proximate cause of the de ath of Mr. Wilson.
Judgmentfor $385,000, described as representing the pecuniary value of the life of Mr. Wilson, and $500,000 representing damages for the loss of con sortium, was awar

ded the plaintiffs

. The defendants appeal, presenting for review the issues discussed in seriatim . Our review is de novo

on the record ac companied w ith a presu mption th at the judgm ent is cor rect unless the evidence otherwise preponderates. Rule 13(d), T.R.A.P . The presumptive correctness principle does not apply to questions of law.

Issue One

Does the preponderance of the evidence support the trial judge’s finding that the negligence of the defendants proximately caused the death of Clay ton Wilson?

The testimony of D

onald Tinsley

is likely pivotal. He manuscripted an account of the event

soon after leaving the hospital, and his testimony tracks the recorded account. We have reproduced his account as an Ap

pendix to th

is opinion. Suffice to say that the opinion of Dr. Smith to an importantextent ass umed as true the statements of Mr. Tinsley, while the other experts tended1 Mr. Tinsley was awar e that not everything that could be done for Mr. Wilson was done. He attributes the derelic tion to Cline bec ause of his ad vanced tra ining. His awareness was so acute that

he wrote the appended document shortly after leaving the hospit al. Tinsley admitted that he knew t he defibrill

ator should have been

taken into the hous e. He blames C line for this failure. It seem s to us that Tinsley ha d a like duty with re spect to the defi brill ator, wh

ich ten ds to detract from the somewhat lavish praise heaped upon him for his r ecitation.

-3- otherwise. 1 Dr. Smith believed that Mr. Wilson had a 60-70 percent chan ce of survival had the defibrillator been used.

To recount somewha

t, this is a me dical ma

lpractice case governed by the provisions of T.C.A. § 29-26-115 e t s eq. The plaintiff has the burden of proving that as a proximate result of Cline’s negligence the decedent suffered injuries which would not otherwise have oc curred. T.C.A. § 29-26-115(a)(3). Reduced to simple terms, the plaintiff says her husband suffered a car

diac arrest, which would not have bee n fata l had th e paramedic acted appropriately. The defe ndants say that

even had Mr. Wilson been defibrillated, he would have died anyway. The opinion of

the Supreme Court in Kilpatrick v. Bryant , 868 S.W.2d 594 (Tenn. 1993) settles the legal issue. The Court held “. . . the rule requiring causation be proved by a preponde rance of the evidence dictates that plaintiffs demonstrate that the negligence more likely than not caused the injury. ” [Emphasi s in origi nal].

Dr. Smith testified o

rally, as c ontrasted with Dr

s. McMurray and Fesmire who testified by video depositions. With respect to the depositional testimony we are as well situated as the trial judge to judge o

f their worth

and weight, but w

ith respect to the t

estimony of D

r. Smith the rule is dif fere nt b ecau se t he t ria l ju dge o bse rved his man ner, mie n, a tti tud e and cred ibi lit y.

Suffice to say that th

e trial judge exto

lled Dr. Smith and his

t estimo ny while finding considerable fault with Drs. McMurray and Fesmire.

Dr. Smith is a board-certified, peripatetic practitioner and professor of emergency medicine licensed in four

states including Tennessee. He testified that he had an appointment as a professor of emergency medicine at the University of Tennessee at Chattanooga, and served a s Chairman of the Emergency

Department at Er

langer Hospita

l in Chattanooga.

His qualifications as an expert in emergency medicine were not questioned.

Dr. Smith reviewed the

historicity

of the apparent heart attack suffered by Mr. Wilson. When asked to “tell the court what you understand to be th

e circumstance

s involved in Mr. Wilson ’s death on November 20, 1997,” he responded, without objection, at great length:

A. Well at approximately 1:00 a.m., he awakened his wife saying that he didn’t feel well. He was not ve

ry specifi c apparently

in what he relate

d, just that he didn’tfeel good. He got

up, got out

of bed and walke

d around a little bit

, said he felt – I think

he went to

the bathroom, said he felt better. Came back, got back in b ed ag ain den ying a ny s pecific complaints because his wife sort of queried him being a nurse. And he laid in bed for a few minutes and then got up again saying he didn’t feel well. Got up, walked ar ound a little bit more.-4- Laid back down still saying he didn’t feel well, told her that he love d her. An d app arently she turned to call the ambulance and became aw are of something going on in

the bed behind her. She turned back over and he was having what

she described as a grand mal seizure.

A t that point he became unresponsive, unconscious and remained that wa y from that point on.

She then called EMS to summons an ambulance and then started to perform CPR on him wh ile he was in bed because she couldn’t feel a pulse. She’s maintained that he continued to breathe, but she could not feel a pulse.

She then summoned her daughter down from upstairs, had her call their – or I g uess it was his son who lived approximately a third of a mile awa y , something like that, to come h elp her do CPR because he was such a big man she couldn’t g e t him out of bed. And she knew to maximize the efficiency of CPR she n eeded him

on a hard surfac

e. She continued to

do CPR compressions apparently while he was in the bed.

The son arrived, they put him on the floor and

then started doing two person CPR. Although, they said tha t he continued to

breathe spontaneously during this period of time.

Then a second call wa

s placed to EMS, I

think by the da

ughter, just basi

cally wondering where the ambulance was. It seemed like it had been an extraordinarily

long period of tim

e for the ambulance, most e verybody feels, and at that time informe

d EMS that now CPR was in progress as opp

osed to

–apparently

it had been initiall

y logged in as respiratory

dist ress and no w they were told it was

a full code, CPR in progress.
Approximately

two to three minutes later EMS arrived a nd there’s some debate exactly whe

n th e CPR was stopped by Ms. Wilson and her son, but somewhere around the time the EMS unit arr ived t hey stopped and the paramedic

and EMT came in, and again there’s see min gly a little bit of debate here of exactly what

happened. One version is the paramedic went on in with Mr. Wilson and the EMT stopped to talk briefly with, I’m assuming it was the son, and

then came into the room, was told to go back out to the rig and get the stretcher and a backboard, a full length backboard.

And during that period of time the paramedic was primarily focusing on the airway apparently, bagging the patient with what w e call a bag va lve mask apparatus hoo ked to o xyge n. A nd c ame back in, the y con tin ued CPR bri efl y, then put him on the backboard, put him on the stretcher and t ook him back-5- out to the back of

the rig, the ambu

lance truck, wha

tever you w

ant to call it, and then apparently

intermittently

performed CPR

while attempting to start an IV.

The EMT tried twice to start an IV, was unsuc cessful, and the p

aramedic intubated the patient. Ther e’s so me de bate on whether or not that was successful,

but anyw ay, was managing the a irway. The

y were inte

rmittently doing compressions during this.
They hooked him up to

a monitor which supposedly showed asystole on two different leads, but we have

no strip that

I’m aware o

f that would substan

tiate

one way or the other that, and then they transported him to the hospital.
And apparently in the interim there are a couple of notes that upon arr ival at the scene when the ambulance got to the house, Mr. Wilson was still pink and

warm. And then when he got to the emergency depa rtment, the notes there clearly indicate he was deeply

cyanotic, blue, so there had been a significant change, deterioration in his coloring during that period of time.
They briefly worked

on him in the emergency department, but it was felt due to the length of

him being down and the condition upon which he presented, being deeply cya

notic, et cetera, that

he was probably

not resuscitatible and they I think quit after approximately eleven minutes.
They had g

iven a couple of r

ounds of medicatio

ns but felt like it wa

s pretty futile at that time. The monitor at that time did show that he was in asystole.
The first rhythm strip that I saw looks like he might have had actually what

we call an ann eal v entricular rhythm with very slow sporadic sponta neous heartbeats, but were not perfusing, not doing anything to maintain life.
Q. Dr. Smith, based upon your education, training and experience as a n emergency

room physician, based upon your review of the recor d s and the fact that you just s

t ate d, do you hav

e an opinion based

upon a reasonabl

e degree of medical certainty

as to what happen ed to Clay Wil son that ev ening?

A. Well when I

was first – let

me make that addition. I want to add something to the clinical scen

e and this hit me last night while I was reviewing documents.

I n both Mr. Cline’s deposition and in Ms. Wilson’s deposition, they bot h clearly state that Mr. Wilson’s pupils were constricted. And to me that’s very significant

and I can’t believe

I hadn’t pick

ed up on this

earlier, but it jus

t hit-6- me like a bolt of lightening last night.
Pupils are very sensitive to oxygen supplied to the bra in, and when you cut that o xygen supply off, in approximately 45 seconds the pupils will dilat e , you’ll hav e t he classic fixed dilated pupils, and nowhere is that mentioned.

In fact, specifically the

opposite is mentioned from the standpoint of what his pupil condition was at the house. And to me that is very consistent with the EMT saying that he

was pink and warm

at the scene, be

cause to me his brain was being perfused

at the time they

got to the house be

cause that’s the

only

was these pupils stay constricted.

And I almost forgot it again, but that’s something I wanted to make sure I put in there, because that to me is crucial here from the standpoint of survivability

of the brain. So now that said, I for got yo ur q ues tio n, I’ m so rry.
Q. What do you thin

k happened to Clay

Wilson that night?

A. Well when I first read the chart, really two things went thr ough my mind

. The first one which I really rather rapidly dismissed was the thought that he might have had an acute bleed into his brain. Certainly that can happen.

We have these

little weaknesses in our blood vessels called aneurysm. And there are about 20 people in here, so approximately four people in here have them alr eady. About 20 percent o f the population ha

ve them; fortunately they don’t all burst.

But in my experie

nce, several thi

ngs don’t f

it with that having happened. One, I’ve never had a

patient or

their family relay to me that somebody had thi s feel ing – and I’ll bet he was having a feeling of impending doom although that was never said – but I’ve never had anybody present with a history of just where they didn’t

feel good, got

up, walked aroun

d a little bit, felt better, laid back down and didn’t feel food, got up walked and then had a seizure and went out. Just never had that history

in 30 years of practice.

And I’ve had folks who – we are alway s told if somebody pres ents with a
s eiz ure and unconscious, you worry about a stroke , and I’ve evaluated probably a couple of thousand people in that scenario, and rarely do we even fin d a stroke in that setting. So that, number one, it just didn’t fit the scenario.

And two, this thing with the pupils and usua lly you ’ll get one pupil dilated if you have a massive stroke. One at least, sometimes two, but usually at-7- least one because most of the pressure will be on one side of the brain and it will effect the third

optic nerve and d

ilate it. So that just didn’t fit to me.

So then I went to

the other most likel

y cause of sudden death in

a relatively young man, and 51 is y

ounger all the ti

me, and that’s,

of course, acute cardiac

co ll apse, and I would sa

y that this sce

nario is much more

compatible with that.

Just because – lots of patients both have told me themselves and families have related later that, you know, well they weren’t feeling good, they got up, they wal ked around , they felt better, came back, laid back down, may have done that once, mayb

e done it three or

four times during

the course

of a short period of time

and then they went out type thing. And so that’s much more compatible

with my experi

ence as far as h

ow patients freq uently present.

So looking at

all of that, I came to the conclusion that I thought it was much more likely t

hat this was a car

diac event as opp

osed to a neurolog

ic event.
Q. Is that what laymen would just call a heart attack?

A.. Well some folks will call it a stroke and mea

n either one of tho

se s o sometimes that gets kind of gray, but y es.
My conclusion was it w

as cardiac and

in the lay pop

ula tion th at would primarily mean they had a hea rt attack.
Q. What is the most common thing that happens in that scen ario to the heart? What happens?

A. Well when you ac utely block o

r either totally

or parti all y block the blood supply to apart of the heart, that muscle becomes very irritated, and the he art
musc le ha s its own built-in pacing machine, if you will, so it wants to beat rhythmicall

y on its own. And the famous frog experiment when you cut the heart out and lay it on a table and it continues to beat for a long period of time, well that’s what he

art muscle in the hu

man is li ke, it’s made to beat. And when you take awa

y some of that blood supply, that muscle becomes irritated and sometimes it causes pain, we call angina; sometimes it doesn’t

cause anything th

at the patient can really specifically feel necessarily. But then it reaches a certain point where instead of beating in a ry

thmatic fashion, it just sort of starts to quiver and we call that fibrillation.

You can have atrial-fibrillation which is usually not fat a l, you reduce the amount of blood you

r hear t pumps by abo

ut 15 percent. I

n some people-8- that’s crucial, but most

of the time atrial-fibrillation is not fatal.

But if you take that down to the ventricles, the larger ventri

cles, that pumps most of the blood in the human heart, if they start to qui ver and are not effectively circulating blood, then you die if that’s left untreated. That may very well have been what happened to him.

The only thing that makes me wonder if he didn’t complet ely fibr illate but maybe had an episode where he had became extremely

slow in his heartbe

at, and we call the (sic) bradycard i a, is that he continued to be pink and warm and supposedly to breathe.

Well, if you’re p

ure fibrillation,

you’re not g

oing to continue to breathe unless the CPR is superb, and that is possible. I have had actually had several patients who we had them on a heart monitor, the

y were fib rillating, but whi

le we were doing t

heir CPR, they were

awake and talking to us. And then we would stop to defibrillat

e them and th

ey would go unconscious again, and then we’d start back up and they would wake right back up a gain. And

that’s

a really unpleasant feeling especially when you can’t get them out of that.
So it’s possible that he could have been fibrillating and with excellent CPR remained pink, continued to breathe, et cetera, and we’ll never know.

Dr. Smith further testified, without objection, the “only thing they [the paramedic and technician] absolutely

had to take in [the house] was the monitor defibrillator. . . . And for them to go in there with an airway kit is just ridiculous.” [Emphasis added]. Further,

“the fact that he never even got put on a monitor until they

actually g

ot him back out to the truck

which is somewhere around 10 to 12 minutes after they arrived . . . didn’t get the potentially definitive care.”

When asked if

the paramedic a

nd technician ha

d used a defibrill

ator on Mr. Wilson wha

t his chances were of surviving, Dr. Smith replied “I’d say 60 to 70 percent,” and “ tha t he would have been close to if not totally normal neurologically .”

On cross-examination, Dr. Smith testified that Mr. Wilson had some degreeof underlying coronary heat disease; tha t 50 percent of fi rst heart attack

s are fatal; that

“we know absolute

ly nothing about his heart attack”; that it is impossible to determine Mr. Wilson’s life expectancy; “that without an autopsy

there is no way

to really know for sure what happened to him.” On redirect, he reiterated his opinion that Mr. Wilson suffered a cardiac event.2 We think th e trial judge ina

dvertent ly used t he term “

pecuniary

value” wh

en “economi

c loss” w as int

ended, because the awar

d of $385 ,000 is derived from the opinion of the economist, Dr. John Moore, that the value of the decede nt’s e arning cap acity was $37 5,000 to which was ad ded funera l expenses. If the court intend ed the awar d to compe nsate the plaint

iffs f or the pecuniary val

ue of their decedent’s l i fe, a s dist ingui shed f

rom econom ic loss , the additional

award of $500,0 00 for “co nsortium type damage s” would am ount to a double recove ry, since damages for loss of consortium are en

compassed in an award for pecuniary d amages. Hill v . Cit y of Germanto wn , 31 S.W.3d 234 (T enn. 2000) (“[L]oss of co nsortium da mages in a wr ongful death claim are wholly cont ained within the award for wrongful death.”); Jordan v. B aptist Three Rivers Hospital , 984 S.W.2d 593 (Tenn. 1999) (“[L]oss of consortium damages are recoverable by a decedent’s family as part of t he pecuniary value of a decedent’s lif e”).

-9- Dr. Brian McMurra

y, also boar

d-certified in e

mergency medicine, testifi

ed th at the mos t likely explanation for the

death of Mr. Wilson was ventricular fibrillation, and that even had he been defibrillated his chance of survival was nonexistent.

Dr. Francis Fesmir

e, al so board-certified, testified that in his opinion Mr. Wilson suffered a subarachnoid hemorrhage which the paramedic could not have treated.

The defendants argue that the testimony of

Dr. Smith, and the c

onclusions derive

d from it, is speculative and t

hus unfair, beca

use the bur den is a lwa ys on the pla int iff to p rov e her case by a preponderance

of all the evidence. But a contrary conclusion would y ield the same argument, from

a different perspective, thus giving rise to the salutary concept that appellate courts do not exercise original jurisdict ion but must defer to findings of trial judges that are supported by preponde rant evidence. We are fran k to say that the evidence on the issue of causation, or loss of chance of survival, is troublesomely close, but we can not find th at the evidence preponderates against the finding of the trial judge.

Issues Two and Three

The plaintiffs were award ed $385, 000 for the “pecuniary value” of the decede nt’s life. 2 Defendants

argue that

this award is exces sive, since the de cedent, a farme

r, suffered a loss of income for eight of the last nine years of his life. Moreover, the defe ndant s argue that had Mr. Wilson

surv ived, his life expectancy is unknown, and his ability to work is likewise unknown. Thus, th e defendants arg

ue, the pecuniar

y value is limited to funeral expenses. The trial judge approved the testimony of D

r. John Moore, an ec

onomist, that the va

lue of Mr. Wilson’s earning capacity was $375,926. See, Spencer v. A-1 Crane Services Inc. , 880 S.W.2d 938 (Tenn. 1994). The evidence does not preponderate against the award of damages for the ec onomic loss incurred by the plaintiffs.

The trial court then made a separate award of $500,000 for “ consort ium-type” d

amages, citing Jordon v. Baptist Three Rivers Hospital , 984 S.W.2d 593 (Tenn. 1999). As explained below,

we do not beli eve the tria l judge intended to awar d a double recove

ry, since loss of consortium is a factor to be considered

in a determination of the pecuniary value of a life. In his determination of the “pecuniary value” of the decedent’s life the trial cou

rt prima facie

did not consider the factor of los s of con sor tiu m, b ut, as s tat ed, con sid ered the iss ue s epar ate ly.-10-

The award of a recovery

for wrongful de

ath is based on many

factors, includi

ng age, heal

th and strength, capacity for work, personal habits, loss of consortium, and the like. The decedent was described as wel l-e duc ate d, h app y, jo lly, a conservationist, sober and industrious. The dark side was the state of his health immediately before his heart attack, and what would have be

en the state of his health had he surv ived, ass uming proper care and treatment. To avoid the obvious specter of speculation, since a monetary value cannot be placed with exactness on any of t he factors to b e considered, it has consistently been held in Tennessee t hat the amo unt of a reco very is to a large extent discretionary with the trial judge. See, Spencer v. A-1 Crane Service’s Inc. , 880 S.W.2d 938 (Tenn. 1994).

The trial judge did not articulate his reason(s) for the amount of the award for loss of consortium. We think it evident that when considered as a factor

in a determination of the pecuniary value of the decedent’s life, the award is excessive.

The decedent obvious

ly suffere d a disabling atta

ck. Had he surviv

ed, the extent of his disability ca

nnot be known. His li

fe expectancy

is unknown; his capacity for life is unknown; the quality of his life is unknow

n; whether he wou

ld have continued

to be companionable or

fatherly is unknown; whether h e could have provided spousal or paternal attention, guidance or care, protection, training, affection or love is unknown. The defendants correctly ar gue that the burde n of proving loss of consortium is upon the plaintiffs, and this case is perilously close to a complete absence of proof other than that

afforded by a presumption of continued consortium had the decedent survived. The testimony of Dr. Smith offers some support for loss of consortium damages [“60 percent chance of survival with minimal neur ological dama ge”] while conc

eding a lack of

reasonable def

initiveness. We think, and so hold, that a recovery of $500,000 as damages for

the wrongful death of Mr. Wilson is justified by the evidence.

Issue Four

T.C.A. § 29-20-310(b) removes the immunity of a governmental employ er who is a health

care practitioner, as is the defenda nt Cline. The defe

ndants argue th

at this statute violates the equal protection provisions of the Te nnessee and Unite

d States Constitutions . This argume nt h as been resolved by

the Western Sectio

n of this court in Todd and State of Tennessee v. We

akley County d/ b/a/Weakley County Nursing Home, et al , No. 02A01-9708- CV-00197 (Tenn. A

pp. July 16
, 1998), which held that the statute was constitutional. The defendants raise an issue not involved in Todd
, which questions the constitutionality

of T.C.A. § 29-20- 310 because a he alt h practitioner employed by the State is immune from personal liability under T.C.A. § 9-8-307. The de fendants argue that since the health practitioner is employed b y the C ounty - rather than by the State - he enj oys no immunity and thus is denied equal protection. This argument overlooks the fact that

Mr. Cline is treated no differently than other paramedics similarly situated.-11- Issue Five

This issue poses the question of whether the provisions of T.C.A. 29-20-311 were violated by the entry of a judgment exceeding the “mini mum amount o f insurance coverage for death” specified in T.C.A. § 29-20-403.
T.C.A. § 29-20-404(a) provides that

A governmental e

ntity or the in

surer of such g

overnmental enti

ty shall not be

held liable for any claim arising under state law, for which the g overnmental entity has immunity under the provisio

ns of this Chapter un

less t he gov ernmental entity has wai ved its imm uni ty.

T.C.A. § 29-20-403(b)(2)(A) provides for minimum limits of not less than $130,000.00 for

. . . death of any one person, unless the governmental entity has waived its immunity. Dickson County has not waived its

immunity by

the purchase

of a policy o

f insurance bec

ause the policy

did not expressly so provide, T.C.A. § 29-20-404. See, Colburn v. City of Dyersbur g , 774 S.W.2d 610 (Tenn. Ct. App. 1989), and hence is liable only to the extent of $130,000. The total judgmen t, as to the defendant Cline, is reduced to $500,000.

Issue Six

Defendants

question the award of $18,662.96 for discretiona ry costs. Rule

54.04 T.R.C.P. controls. It provides, as relevant here, that discretionary costs allowable are: (1) reasonable and necessary court reporter expenses for depositions an d trials; ( 2) reasonable and necessary expert witness fees for depositions and trial. The fees of Rieback Consultants, $3802.50, are not allowable; the fee of Dr. Earl Smith, “for post-depo time spent,” $1,690, is not allowable; the travel expenses of Dr. Smith and Dr. Moore, $2,259.08, are not allowable. An a ward of $4,000 fo r the court appearance

of Dr. Smith of less than t wo hours is excessive by $2,000 and is there

fore partially disallowed. The judgment awarding discretionary costs is acc ordingly modified.

T he judgment is affirmed in part and modified in part. The case is remanded for al l appropriate purposes. One-half of the costs are assessed to the plaintiffs; one-half of the costs are
ass ess ed t o th e def end ant s, a ll j oin tly a nd s ever all y.

___________________________________ WILLIA M H. INMAN, SENIOR JUDGE