Rockingham

No. 7069

#### State of New Hampshire v. Barry J. Wilson and Rosalie C. Wilson

February 28, 1975

*100*Warren B. Rudman,*attorney general, and *Michael P. Bentley,*assistant attorney general (Mr. *Bentley*orally), for the State.

*Shaines, Madrigan & McEachern*and *Sanford Roberts (Mr. Paul M. McEachern*orally) for the defendants.

Kenison, C.J.

This dispute stems from an appeal by defendants from an award of damages by the New Hampshire Commission of Eminent Domain pursuant to RSA 498-A:27 (Supp. 1973). Trial by jury in the Rockingham County Superior Court resulted in a verdict for defendants *(Dunfey,*J.). Relying on the provisions of RSA 525:14-a, defendants filed their taxation of costs (RSA 525:20) totalling $1167 which included $400 for an appraisal; $680 for pretrial conference work, updating the initial appraisal report and court appearance by an expert witness; $52 for transcribing portions of testimony before the eminent domain commission; and $35 for printing the reserved case.

The State appealed to the superior court from the clerk’s decision to allow in full defendants’ taxation of costs. RSA 525:14-a; RSA 491:App. R. 83 (Supp. 1973). At a hearing before the court defendants waived their claims for the $400 appraisal fee and for the $35 printing fee. The State excepted to the court’s order that “[e]xpert witness fees [be] allowed in the sum of $680 together with transcript costs in the sum of $52 in accordance with the provisions of RSA 525:14-a.”

*101The questions in this case are whether the prevailing party in an eminent domain proceeding may recover the costs for an expert witness in preparation for trial and for a transcript of testimony under the provisions of RSA 525:14-a.

I. Fees of Expert Witnesses in Preparation for Trial

Absent statute the prevailing party in civil litigation in this country must pay the fees of his own expert witness. Note, 58 Cornell L. Rev. 1222 (1973); 8 J. Wigmore, Evidence, § 2203, at 142 (1961). There is no doubt that in this State, a defendant who prevails in an eminent domain action may recover expert witness fees against the State. RSA 233:17; *Hayes v. State,*109 N.H. 353, 356, 252 A.2d 431, 434 (1969). RSA 525:14-a (Costs: Witnesses) provides in part that “[t]here shall be allowed in bills of cost taxed in the superior court: For expert witness fees, actual costs shall be allowed by the clerk of the superior court as set forth in an affidavit of counsel unless the opposing party requests a hearing regarding expert witness fees within ten days after the filing thereof in which case the court, after hearing, shall determine the amount of expert witness fees to be allowed.” What fees are to be permitted is in the discretion of the trial court. *Vezina v. Amoskeag Realty Co.,*110 N.H. 66, 69, 260 A.2d 115, 117-18 (1969); *Medico v. Almsay,*108 N.H. 324, 234 A.2d 527, 528 (1967); *McLaughlin v. Union-Leader,*100 N.H. 367, 127 A.2d 269, 273 (1956); *cf.*J. Moore, Federal Practice, § 54.71, at 1376 (1974).

The State’s position is that expert witness fees taxable to the losing party under RSA 525:14-a are restricted to “court work” *(i.e.,*time incidental to appearing and testifying in court), not including trial preparation such as pretrial conferences or updating reports prepared before trial. Defendants contend that the provision in RSA 525:14-a for “actual costs” is not so limited but may include trial preparation at the discretion of the trial court.

While the trial court’s determination of the extent of recovery for expert witness fees in an award of costs is discretionary, the history in this State of paying witnesses in general and experts in particular provides definite parameters to the permissible scope of that discretion. *See Medico v. Almsay,*108 N.H. 324, 325, 234 A.2d 527, 528 (1967). The need for compensation was recognized at an early date in this State as well as in England. Laws of 1792, ch. 47; 5 Eliz. 1, ch. 9, § 12 (1562). Although in England the extent of compensation was measured by a “reasonable sum of money lor his [the witness’s] costs and charges .. . .” *(Id.),*the prevailing practice in this country has been to prescribe specific rates *102by statute. *See*RSA 525:14-a; 8 J. Wigmore, Evidence, § 2202, at 136 (1961); *Gunnison v. Gunnison,*41 N.H. 121, 128 (1860). The statutory tradition has been uniform in limiting compensation to travel and appearances in court. 8 J. Wigmore, Evidence *supra; see Kirke v. County,*76 N.H. 181, 183, 80 A. 1046, 1047 (1911); *Bliss v. Brainard,*42 N.H. 255, 256 (1860).

Prior to 1967 both expert and regular witnesses were compensated at the same nominal rate in this State. Abbey, *Taxation of Costs in New Hampshire,*5 N.H.B.J. 114, 121 (1963). In 1967 the original version of RSA 525:14-a was enacted, providing that no expert witness fees would be allowed as part of the taxation of costs except upon “motion and order of the court.” Laws 1967, 404:3. The apparent purpose of this statute was to “permit the successful litigant to recover as costs the reasonable charges made by expert witnesses in lieu of the former nominal fees allowed.” *Vezina v. Amoskeag Realty Co.,*110 N.H. 66, 69, 260 A.2d 115, 118 (1969). Upon recommendation of the judicial council, RSA 525:14-a was amended to its present form in order to permit the clerk of the court in the first instance to tax expert witness fees in the amount of “actual costs”. N.H. Judicial Council, Thirteenth Biennial Report 60 (1970); *see*N.H.S. Jour. 740-41 (1969).

But the term “actual costs” was not meant to include all fees paid an expert witness. Nor have we so interpreted the statute. *Manchester Housing Auth. v. Belcourt,*111 N.H. 367, 370, 285 A.2d 364, 366 (1971); *Vezina v. Amoskeag Realty Co.,*110 N.H. 66, 69, 260 A.2d 115, 117-18 (1969). In *Manchester Housing Authority*this court specifically held that an appraisal fee is not recoverable as a taxable cost under RSA 525:14-a. *Id.*A fortiori, defendants in this action may not recover that portion of the $680 allowed by the superior court allocable to updating the initial appraisal report.

We agree with the State that “reasonable charges” *(Vezina v. Amoskeag Realty Co. supra)*for an expert witness are limited to charges made incidental to appearing and testifying before judicial or administrative bodies. Accordingly, we hold that defendants may not recover that part of the $680 awarded by the trial court attributable to pretrial conference work by the expert.

While it may seem anomalous not to allow recovery of costs for the pretrial preparation made by experts, that result is dictated by the conservative history of compensating witnesses in this State. *Tau Chapter v. Durham,*112 N.H. 233, 236-37, 293 A.2d 592, *103593-94 (1972). Inherent in the distinction between treatment of expert and regular witnesses in RSA 525:14-a is the recognition that an expert’s services are more costly. What makes them so is the obvious fact that the expert must be prepared at trial to render an opinion which a layman is incapable of giving. The allowance of relatively high remuneration for services rendered in testifying is deemed to be payment for preparing that testimony. *Stevenson v. Henning,*268 A.2d 872, 874 (Del. 1970); *State Highway Dep’t v. Lots Nos. 133, 134 & 135,*238 A.2d 837, 838-39 (Del. 1968); *see*4A Nichols, Eminent Domain, § 14.249, at 14-358 (J. Sackman ed. 1974).

II. Transcript Costs

Part of the costs allowed by the superior court was $52 for transcribing a portion of the testimony before the eminent domain commission. RSA 525:14-a permits the actual cost of a transcript to be included in the bill of costs. Although the State maintains that the provision is applicable only where a transcript of lower court proceedings is made for submission to the supreme court as part of the reserved case, the language of the statute is not so narrowly worded nor does the State offer any authority to sustain its interpretation. Had defendants taken depositions to obtain the requisite testimony, the costs for so doing could have been allowed by the superior court. RSA 517:20. Under the specific language of RSA 525:14-a, it was within the discretion of the court to permit $52 for actual costs of transcripts. *Hayes v. State,*109 N.H. 353, 356, 252 A.2d 431, 434 (1969); *D’Amours v. Hills,*96 N.H. 498, 499, 79 A.2d 348, 349 (1951).

The case is remanded to the superior court for a determination of what portion of the $680 charge for expert witness fees is attributable to court-related work as we have defined that term in part I of this opinion.

*Remanded.*

All concurred.

*108March 5, 1975. Representative Joseph M. Eaton, District No. 1, filed a memorandum.