IN THE SUPREME COURT OF NORTH CAROLINA

No. 330PA14

FILED 6 NOVEMBER 2015

KEEN LASSITER, as Guardian ad Litem for JAKARI BAIZE, a minor

v.

NORTH CAROLINA BAPTIST HOSPITALS, INCORPORATED a/k/a NORTH 

CAROLINA BAPTIST HOSPITAL, WAKE FOREST UNIVERSITY HEALTH 

SCIENCES, TERRY DANIEL, M.D., and DAYSPRING FAMILY MEDICINE 

ASSOCIATES, PLLC

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision 

of the Court of Appeals, ___ N.C. App. ___, 761 S.E.2d 720 (2014), reversing and 

remanding orders entered on 9 September 2013 by Judge Thomas H. Lock in Superior

Court, Johnston County. Heard in the Supreme Court on 1 September 2015.

Crabtree, Carpenter & Connolly, PLLC, by Charles F. Carpenter; and Edwards 

& Edwards, L.L.P., by Joseph T. Edwards and Sharron R. Edwards, for 

plaintiff-appellee.

Carruthers & Roth, P.A., by Norman F. Klick, Jr., Richard L. Vanore, and 

Robert N. Young, for defendant-appellants Terry Daniel, M.D. and Dayspring 

Family Medicine Associates, PLLC; and Wilson Helms & Cartledge, LLP, by G. 

Gray Wilson and Linda L. Helms, for defendant-appellants North Carolina 

Baptist Hospitals, Incorporated a/k/a North Carolina Baptist Hospital and 

Wake Forest University Health Sciences. 

ERVIN, Justice.

In this case we are required to determine whether defendants North Carolina 

Baptist Hospitals, Incorporated a/k/a North Carolina Baptist Hospital and Wake 

Forest University Health Sciences (collectively, “defendants NCBH and WFUHS”),

and defendants Terry Daniel, M.D. and Dayspring Family Medicine Associates, 
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PLLC (collectively, “defendants Daniel and Dayspring”) were required to obtain the 

issuance of subpoenas directed to certain individuals who had been identified as 

planning to provide expert testimony on behalf of plaintiff Keen Lassiter, as guardian 

ad litem for Jakari Baize, as a prerequisite for being awarded the fees that defendants 

paid for the “actual time [that the expert witnesses] spent providing [deposition] 

testimony” as costs. N.C.G.S. § 7A-305(d)(11) (2013). On 5 August 2014, a unanimous 

panel of the Court of Appeals filed an opinion concluding that the trial court had erred 

by awarding the relevant expert witness fees as costs because defendants were 

statutorily required to subpoena the expert witnesses in question as a prerequisite 

for obtaining such relief. Lassiter ex rel. Baize v. N.C. Baptist Hosps., Inc., ___ N.C. 

App. ___, ___, 761 S.E.2d 720, 724 (2014) (citing Stark v. Ford Motor Co., 226 N.C. 

App. 80, 84, 739 S.E.2d 172, 176 (citing Jarrell v. Charlotte–Mecklenburg Hosp. Auth., 

206 N.C. App. 559, 563, 698 S.E.2d 190, 193 (2010) (concluding that N.C.G.S § 7A314 “limits the trial court’s broader discretionary power under [N.C.G.S.] § 7A305(d)(11) to award expert fees as costs only when the expert is under subpoena”)),

disc. rev. denied, 367 N.C. 240, 748 S.E.2d 321 (2013)). After reviewing the relevant 

statutory provisions, we conclude that the General Assembly eliminated the

traditional subpoena requirement associated with the taxing of certain expert 

witness fees as costs in civil actions by adding subdivision (11) to N.C.G.S. § 7A-305(d)

(stating that “[r]easonable and necessary fees of expert witnesses solely for actual 

time spent providing testimony at trial, deposition, or other proceedings” are 
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“assessable or recoverable” as costs) in 2007, see Act of July 3, 2007, ch. 212, sec. 3, 

2007 N.C. Sess. Laws (Reg. Sess. 2007) 339, 339-40, and that the Court of Appeals’ 

decision should be reversed.

On 8 December 2010, Chinatha Clark, as guardian ad litem for her son, Jakari 

Baize,1 filed a complaint in Superior Court, Pitt County,

2 against defendants based 

on their alleged individual and collective failure to properly treat Jakari for a severe

case of jaundice that resulted in serious complications and left Jakari permanently 

disabled. In February 2011, defendants NCBH and WFUHS and defendants Daniel 

and Dayspring, respectively, filed separate answers in which they denied that 

Jakari’s injuries had resulted from any negligence on their part. Subsequently, 

defendants NCBH and WFUHS and defendants Daniel and Dayspring filed separate

motions asking the trial court to schedule a discovery conference and enter a 

discovery scheduling order as required by N.C.G.S. § 1A-1, Rule 26(f1).

On 13 February 2012, a hearing was held before Judge Marvin K. Blount, III

to address a number of issues, including the entry of a discovery scheduling order. 

Two days later, counsel for defendants Daniel and Dayspring sent a draft discovery 

scheduling order to the trial court coordinator for the Superior Court, Johnston 

County, for consideration by Judge Blount. On 25 April 2012, the trial court 

 

1 At some unspecified point before entry of the 28 November 2011 order, Keen Lassiter 

was substituted for Ms. Clark as Jakari’s guardian ad litem.

2 On 28 November 2011, “upon motion of defendants,” venue in this case was 

transferred to the Superior Court, Johnston County.
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coordinator contacted counsel for the parties to inform them that, while Judge Blount 

had not yet entered a discovery scheduling order, he would do so as soon as possible.

According to the draft discovery scheduling order transmitted to Judge Blount 

by counsel for defendants Daniel and Dayspring, plaintiff was required to designate

all expert witnesses whom he intended to call at trial on or before 1 May 2012 and to 

“make [his] expert witnesses available for deposition upon request by any party on or 

before August 15, 2012.” Although Judge Blount had not, by that point, entered a 

discovery scheduling order, plaintiff identified ten expert witnesses whom he 

expected to call at trial during May 2012 before plaintiff withdrew one of those expert 

witnesses on 6 July 2012.

On 15 October 2012, Judge Blount entered a discovery scheduling order that,

among other things, extended the date by which plaintiff’s designated expert 

witnesses must be made available for deposition from 15 August 2012 to 15 November 

2012. In addition, the discovery scheduling order provided that (1) “[e]xperts not 

designated and made available for deposition in accordance with this [o]rder shall not 

be permitted to testify at trial”; (2) “[a]ll designated expert witnesses shall reasonably 

be made available for a discovery deposition upon request by any party”; (3) “[a] party 

desiring to depose another party’s expert witness shall pay the expert a reasonable 

hourly rate for the expert’s actual time testifying at the deposition”; and (4), if a 

dispute concerning the amount of compensation to be paid to an expert witness for 

deposition-related testimony arises, “the deposition shall be taken, and thereafter the 
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[c]ourt, upon motion filed by any party, shall establish a reasonable hourly rate for 

the expert’s actual time testifying at the deposition.” Moreover, the discovery 

scheduling order required that all discovery be completed by 3 October 2013, that the 

mandatory mediation conference be held by 17 October 2013, and that the case be set 

for trial on or after 20 January 2014. Finally, the discovery scheduling order 

permitted modification of the “schedule and deadline dates set forth [t]herein . . . only 

by the written consent of counsel for all parties with the [c]ourt’s consent or by order 

of the [c]ourt for good cause shown.”

Prior to the 15 November 2012 deadline, defendants deposed (1) Kitty CarterWicker, M.D. on 27 July 2012;

3 (2) Thomas Hegyi, M.D. on 3 August 2012; (3) Richard 

Inwood, M.D. on 22 August and 13 September 2012; and (4) Marcus Hermansen, M.D.

on 25 September 2012. On 20 December 2012, plaintiff filed a Motion to Amend 

Discovery Scheduling Order in which he sought the entry of an order extending the 

deadline by which he could make his remaining experts available for deposition from 

15 November 2012 to 31 January 2013. On 27 December 2012, all defendants filed a 

Motion to Strike and Exclude Certain Expert[ ] Witnesses Designated by Plaintiff in 

which they argued that plaintiff had violated the discovery scheduling order by failing

to provide dates upon which defendants could depose Richard C. Lussky, M.D.; J.C. 

Poindexter, Jr., Ph.D.; Lois Johnson, M.D.; Ann T. Neulicht, M.D.; and Steven 

 

3 Defendants also deposed Dr. Carter-Wicker on 4 December 2012.
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Shapiro, M.D. prior to 15 November 2012, and that these witnesses should be

precluded from testifying at trial “as expressly ordered in the Discovery Scheduling 

Order.” In January 2013, plaintiff responded to defendants’ motion by offering an 

explanation for the delays that had occurred during the discovery process and 

asserting that defendants had failed to make two important treating physicians 

available for deposition in a timely manner.

A hearing concerning the issues raised by these competing motions was held 

before Judge William R. Pittman at the 14 January 2013 term of the Superior Court, 

Johnston County. On the same date, Judge Pittman entered an order denying 

plaintiff’s motion to amend and allowing defendants’ motion to preclude certain of 

plaintiff’s expert witnesses from testifying at trial. More specifically, Judge Pittman 

ordered that Drs. Lussky, Poindexter, and Neulicht be precluded from testifying at 

trial, allowed Dr. Shapiro to testify as a treating physician while precluding him from 

testifying as an expert witness, and stated that, if Dr. Johnson had not been made 

available for deposition by 1 March 2013, her trial testimony would be precluded as 

well.

On 4 February 2013, the trial court entered an amended discovery scheduling 

order, under which the 15 November 2012 deadline by which plaintiff was required 

to make his expert witnesses available for deposition remained in effect. On 21 

February 2013, plaintiff filed a motion seeking to have the deadline by which Dr. 

Johnson had to be made available for deposition extended or, in the alternative, to 
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have Dr. Johnson replaced with another expert witness. On 4 March 2013, 

defendants filed a motion to preclude Dr. Johnson from testifying at trial on grounds

that plaintiff “has not offered any dates for Dr. Johnson’s deposition and has not made 

her available for deposition by March 1, 2013.” On 11 April 2013, Judge Pittman

entered an order allowing defendants’ motion.

On 22 July 2013, plaintiff voluntarily dismissed all claims against all 

defendants without prejudice pursuant to N.C.G.S. § 1A-1, Rule 41(a). On 2 August 

2013, defendants Daniel and Dayspring filed a motion seeking the entry of an order

taxing costs against plaintiff in the dismissed case pursuant to N.C.G.S. § 1A-1, Rule 

41(d)4 including “reasonable and necessary expenses for stenographic and 

videographic services [related to the taking of depositions], the cost of deposition 

transcripts, travel expenses of defense counsel for depositions and expert witness fees 

for the depositions of plaintiff[’s] expert witnesses in the total amount of $39,749.60.” 

On the same date, defendants NCBH and WFUHS filed a motion seeking to have

“reasonable and necessary costs in the amount of $29,609.80” incurred in “the 

preparation and defense of [plaintiff’s] action” taxed against plaintiff pursuant to 

Rule 41(d).

 

4 Although costs in civil actions are ordinarily taxed to one party or the other pursuant 

to N.C.G.S. § 6-20, which provides that such an award is discretionary with the trial judge 

subject to the limitations set out in N.C.G.S. § 7A-305(d), the costs at issue here were subject 

to being taxed against plaintiff pursuant to N.C.G.S. § 1A-1, Rule 41(d), which makes the 

taxing of costs mandatory when a plaintiff has voluntarily dismissed an action pursuant to 

Rule 41(a). See N.C.G.S. §§ 1A-1, Rule 41, 6-20 (2013).
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After conducting a hearing to consider the issues raised by defendants’ motions

on 26 August 2013, the trial court entered orders on 9 September 20135 determining 

that (1) the “expenses [defendants had] incurred for video conferencing, stenographic 

preparation of a deposition summary and room rent” should not be taxed against 

plaintiff because those expenses “were not reasonable and necessary”; (2) defendants 

had “incurred expenses recoverable under [section] 7A-305 for stenographic and 

videographic services and expert witness fees for depositions of expert witnesses [that 

defendants had] taken”; and (3) “in light of the language of the Discovery Scheduling 

Orders,” the expert witnesses “did not need to be subpoenaed” for these expert 

witness fee costs to be taxed against plaintiffs.

6 Based upon these determinations, 

the trial court taxed $23,799.61 in costs in favor of defendants NCBH and WFUHS,

and $24,738.76 in costs in favor of defendants Daniel and Dayspring. Plaintiff 

appealed from the trial court’s 9 September 2013 orders to the Court of Appeals.7

 

5 The language quoted in the text of this opinion is taken from the order that the trial 

court entered in response to the motion filed by defendants NCBH and WFUHS. The order 

entered in response to the motion filed by defendants Daniel and Dayspring, while 

substantively identical, is worded somewhat differently.

6 According to the 9 September 2013 orders, all defendants withdrew their requests 

“for taxation of . . . travel expenses.”

7 More specifically, plaintiff appealed “from that portion of” the trial court’s orders 

that “grant[ed] expert witness fees to” defendants for the time the experts actually spent 

testifying during the depositions and not from that portion of the trial court’s orders that 

taxed the costs of the stenographic and videographic services to plaintiff.
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“The sole issue on appeal [before the Court of Appeals was] whether the trial 

court erred by granting expert witness fees” for the actual time that the experts

plaintiff had designated spent testifying during their respective depositions “as costs 

to defendants pursuant to section 7A-305 of the North Carolina General Statutes.” 

Lassiter, ___ N.C. App. at ___, 761 S.E.2d at 722. In resolving this issue, the Court 

of Appeals began by discussing the interplay between N.C.G.S. §§ 6-20, 7A-305(d)(11), 

and 7A-314, and concluded that under existing law “before a trial court may assess 

expert witness testimony fees as costs, the testimony must be (1) reasonable, (2) 

necessary, and (3) given while under subpoena.” Id. at ___, 761 S.E.2d at 723 (quoting 

Peters v. Pennington, 210 N.C. App. 1, 26, 707 S.E.2d 724, 741 (2011)).

After making this determination, the court addressed defendants’ contention 

that the discovery scheduling orders “eliminated the need to subpoena [the] expert 

witnesses for deposition” as a precondition for taxing the expert witness fees incurred 

in the course of taking these depositions as costs. Id. at ___, 761 S.E.2d at 723. In 

plaintiff’s view, since the discovery scheduling orders “did not modify or waive the 

[subpoena] requirement” and since “the parties [had] not [otherwise] waive[d] the 

subpoena requirement, the trial court erred by granting expert witness fees” at issue 

here given defendants’ failure to subpoena these witnesses. Id. at ___, 761 S.E.2d at 

723. Defendants, on the other hand, argued that the trial court had correctly 

concluded that the discovery scheduling orders had the effect of altering the 
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traditional rule that a party is not entitled to recover costs associated with testimony 

given by a witness who had not been placed under subpoena.

In their briefs before the Court of Appeals, plaintiff and defendants relied upon

Jarrell v. Charlotte–Mecklenburg Hospital Authority, in which the plaintiffs 

challenged an order awarding costs “associated with out-of-state expert witnesses” on 

the ground that the subpoenas sent to the expert witnesses in question were 

ineffective to compel their attendance. Jarrell, 206 N.C. App. 559, 560-61, 698 S.E.2d 

190, 191 (2010). In response, the defendants in Jarrell asserted that the effectiveness 

of the subpoenas that had been served on these expert witnesses was irrelevant given 

that the discovery scheduling order governing the case provided that “ ‘[a]ll parties 

agree that experts need not be issued a subpoena either for deposition or for trial and 

waive that requirement of the statute as it may affect the recovery of costs.’ ” Id. at 

561, 698 S.E.2d at 192 (alteration in original). Although the Court in Jarrell agreed

“that the express terms of the [discovery scheduling order] would render inapplicable 

the statutory provisions detailing recovery of expert witness costs,” the Court of 

Appeals declined to decide the case on that basis because that argument had not been 

raised before the trial court. Id. at 561-62, 698 S.E.2d at 192. In addition, the Court 

of Appeals concluded that “[N.C.G.S.] § 7A-314 limits the trial court’s broader 

discretionary power under [N.C.G.S.] § 7A-305(d)(11) to award expert fees as costs 

only when the expert is under subpoena.” Id. at 563, 698 S.E.2d at 193. (citing Krauss

v. Wayne Cty. Dep’t of Soc. Servs., 347 N.C. 371, 378, 493 S.E.2d 428, 433 (1997)). 
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Instead, after finding that the plaintiffs lacked standing to challenge the validity of 

the subpoenas served on the nonparty expert witnesses, the Court of Appeals upheld 

the taxing of the challenged expert witness fees to the plaintiffs as costs. Id. at 564-

65, 698 S.E.2d at 194.

The Court of Appeals distinguished this case from Jarrell on the grounds that 

(1) subpoenas had been issued for the expert witnesses in Jarrell and (2) the discovery 

scheduling order in Jarrell explicitly waived the otherwise-applicable subpoena 

requirement. Lassiter, ___ N.C. App. at ___, 761 S.E.2d at 723-24. On the other hand, 

the expert witnesses at issue in this case were not placed under subpoena and the 

discovery scheduling orders merely required plaintiff to “ ‘make [his] expert witnesses 

available for deposition upon request by any party on or before November 15, 2012.’ ” 

Id. at ___, 761 S.E.2d at 724 (alteration in original). Given the absence of any 

indication “that the expert witnesses at issue did not need to be issued subpoenas for 

deposition or for trial,” the Court of Appeals declined to treat the discovery scheduling 

orders “as a waiver of the statutory requirements detailing recovery of expert witness 

costs.” Id. at ___, 761 S.E.2d at 724. Thus, the court held that the trial court 

erroneously awarded costs associated with fees paid to expert witnesses who had not 

been placed under subpoena and remanded this case to the trial court for a proper 

determination of the amount of costs that should be taxed in favor of defendants. Id.

at ___, 761 S.E.2d at 724.
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On 9 September 2014, defendants petitioned for discretionary review of the 

Court of Appeals’ decision. On 9 April 2015, we allowed the petition. As was the case 

before the Court of Appeals, the sole issue before this Court is whether defendants’ 

failure to subpoena the expert witnesses identified by plaintiff pursuant to the 

discovery scheduling orders precluded the trial court from taxing plaintiff with the 

costs of “[r]easonable and necessary fees of expert witnesses” incurred “solely for 

actual time spent providing testimony at . . . deposition” pursuant to N.C.G.S. § 7A305(d)(11).

In their briefs before this Court, defendants argue that their failure to 

subpoena the relevant expert witnesses did not preclude an award of costs in their

favor because (1) the discovery scheduling orders waived or eliminated the subpoena

requirement that the Court of Appeals has deemed applicable in civil actions by 

virtue of N.C.G.S. §§ 7A-314(a) and 7A-314(d) and (2) N.C.G.S. § 7A-305(d)(11) 

obviates the necessity for the issuance of a subpoena as a prerequisite for an award 

of expert witness fees as costs pursuant to that statute. On the other hand, plaintiff 

contends that the discovery scheduling orders in this case did not obviate the need 

for defendants to subpoena the expert witnesses at issue here because: (1) no 

language similar to that contained in the discovery scheduling orders before the Court 

of Appeals in Jarrell is present here and N.C.G.S. § 1A-1, Rule 26(f1) contains no 

indication that the General Assembly intended for the enactment of that provision to 

have the effect of eliminating the traditional subpoena requirement and (2) the 
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enactment of N.C.G.S. § 7A-305(d)(11) did not, as Jarrell and its progeny indicate, 

have the effect of eliminating the traditional subpoena requirement either.

8

At common law neither party recovered costs in a civil 

action and each party paid his own witnesses. Today in 

this State, “all costs are given in a court of law [by] virtue 

of some statute.” The simple but definitive statement of 

the rule is: “[C]osts in this State, are entirely creatures of 

legislation, and without this they do not exist.”

City of Charlotte v. McNeely, 281 N.C. 684, 691, 190 S.E.2d 179, 185 (1972) (second

alteration in original) (citations omitted). As a result of the fact that “[a]n award of 

costs is an exercise of [the] statutory authority[,] if the statute is misinterpreted, the 

judgment is erroneous.” Id. at 691, 190 S.E.2d at 185 (quoting State ex rel. Morris v. 

Shinn, 262 N.C. 88, 89, 136 S.E.2d 244, 245 (1964)). In other words, when the validity 

of an award of costs hinges upon the extent to which the trial court properly 

interpreted the applicable statutory provisions, the issue before the appellate court

is one of statutory construction, which is subject to de novo review. See In re D.S., 

364 N.C. 184, 187, 694 S.E.2d 758, 760 (2010) (stating that “[q]uestions of statutory 

interpretation are questions of law and are reviewed de novo” (citing Brown v. Flowe, 

349 N.C. 520, 523, 507 S.E.2d 894, 896 (1998))).

According to N.C.G.S. § 7A-305, which governs the recovery of costs in civil 

actions:

 

8 Plaintiff does not appear to contend that the costs awarded by the trial court 

exceeded an amount that was “[r]easonable and necessary” under N.C.G.S. § 7A-305(d)(11) 

in the event that no subpoena was required as a prerequisite for the taxing of the relevant

expert witness fees as costs.
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(d) The following expenses, when incurred, are 

assessable or recoverable, as the case may be. The 

expenses set forth in this subsection are complete and 

exclusive and constitute a limit on the trial court's 

discretion to tax costs pursuant to [N.C.]G.S. [§] 6-20:

(1) Witness fees, as provided by law.

. . . .

(11) Reasonable and necessary fees of expert 

witnesses solely for actual time spent 

providing testimony at trial, deposition, or 

other proceedings.

N.C.G.S. § 7A-305(d)(1), (11) (2013). Similarly, N.C.G.S. § 7A-314, which applies to 

all types of actions, provides, in pertinent part, that:

(a) A witness under subpoena, bound over, or 

recognized, other than a salaried State, county, or 

municipal law-enforcement officer, or an out-of-state 

witness in a criminal case, whether to testify before the 

court, Judicial Standards Commission, jury of view, 

magistrate, clerk, referee, commissioner, appraiser, or 

arbitrator shall be entitled to receive five dollars ($5.00) 

per day, or fraction thereof, during his attendance . . . .

(b) A witness entitled to the fee set forth in 

subsection (a) of this section . . . shall be entitled to receive 

reimbursement for travel expenses as [set forth in 

subsection (b)] . . . .

. . . .

(d) An expert witness, other than a salaried 

State, county, or municipal law-enforcement officer, shall 

receive such compensation and allowances as the court, or 

the Judicial Standards Commission, in its discretion, may 

authorize.
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Id. § 7A-314(a), (b), (d) (2013). In defendants’ view, the General Assembly’s decision 

to add subdivision (11) to N.C.G.S. § 7A-305(d), effective 1 August 2007, without 

including the reference to “as provided by law” contained in N.C.G.S. § 7A-305(d)(1),

decoupled N.C.G.S. § 7A-305(d)(11) from N.C.G.S. § 7A-314 so as to explicitly allow

trial judges to tax “[r]easonable and necessary fees of expert witnesses solely for 

actual time spent providing testimony at trial, deposition, or other proceedings” as 

costs regardless of whether the expert witness in question had been placed under 

subpoena. Plaintiff, on the other hand, contends that defendants’ argument is

contrary to decisions by the Court of Appeals, such as Jarrell, and that interpreting

the relevant statutory provisions so as to eliminate any link between N.C.G.S. § 7A305(d)(11) and N.C.G.S. § 7A-314 would “effectively nullif[y]” the provisions of 

N.C.G.S. § 7A-314 relating to expert witness fees discussed by this Court in State v. 

Johnson, 282 N.C. 1, 26-28, 191 S.E.2d 641, 658-59 (1972). We find defendants’ 

argument to be the more persuasive of the two.

In Johnson, which arose from a condemnation proceeding initiated by the State 

and which was decided several decades before enactment of N.C.G.S. § 7A-305(d)(11), 

this Court considered, among other things, whether the trial court erred by taxing

fees for four expert witnesses who had testified at trial without having been placed 

under subpoena as costs against the State. 282 N.C. at 26-28, 191 S.E.2d at 658-59. 

In reversing the trial court’s award, we stated that N.C.G.S. § 7A-314(a) “makes a 

witness fee for any witness, except those specifically exempted therein, dependent 
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upon his having been subpoenaed to testify in the case” and “fixes his fee at $5.00 per 

day”; that, with respect “to expert witnesses,” N.C.G.S. § 7A-314(d) “modifies 

[N.C.G.S. § 7A-314(a)] by permitting the court, in its discretion, to increase . . . 

compensation and allowances” for expert witnesses; and that this “modification 

relates only to the amount of an expert witness’s fee” and accordingly, “does not 

abrogate the requirement that all witnesses must be subpoenaed before they are 

entitled to compensation” pursuant to N.C.G.S. § 7A-314. Id. at 27-28, 191 S.E.2d at 

659 (citing N.C.G.S. § 7A-314 (Supp. 1971)).

9

As noted in Jarrell, the Court of Appeals has consistently stated, in the 

aftermath of Johnson,

10 that even though such “fees were not specifically provided for 

under N.C.[G.S.] § 7A-305(d), . . . ‘expert witness fees could be taxed as costs when a 

witness has been subpoenaed.’ ” Jarrell, 206 N.C. App. at 562, 698 S.E.2d at 192 

 

9 In view of our determination that the expert witnesses whose fees were at issue in 

Johnson were not “entitled to compensation” for their testimony pursuant to N.C.G.S. § 7A314 because their attendance had not been compelled by subpoena, we did not specify the 

statutory authority under which expert witness fees payable to subpoenaed witnesses could 

have been taxed as costs against the State. 282 N.C. at 28, 191 S.E.2d at 659.

10 Although Johnson marked the first occasion on which this Court analyzed the 

subpoena requirement in the context of N.C.G.S. § 7A-314, Johnson was only the latest in a 

long line of cases holding that witness fees were only recoverable as costs when the testimony 

in question was compelled by a subpoena. E.g., McNeely, 281 N.C. at 692, 190 S.E.2d at 186 

(stating that “[t]he losing party is taxed with the costs of his adversary’s witness only if the 

witness was subpoenaed and examined or tendered” (citing N.C.G.S. § 6-53 (1969)); Chadwick 

v. Life Ins. Co. of Va., 158 N.C. 318, 320, 158 N.C. 380, 381, 74 S.E. 115, 116 (1912) (stating 

that, “[b]y statute, the losing party is taxed with the costs of the witnesses of the winning 

party, but to prevent oppression only two witnesses of the winning side to each material fact 

can be taxed against the losing side, and then only if subpoenaed and examined or tendered”

(citations omitted)).
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(quoting Bennett v. Equity Residential, 192 N.C. App. 512, 516, 665 S.E.2d 514, 517 

(2008) (emphasis omitted) (quoting Vaden v. Dombrowski, 187 N.C. App. 433, 440, 

653 S.E.2d 543, 547 (2007))). More specifically, the Court in Jarrell noted that prior 

panels of the Court of Appeals had concluded that expert witness fees constituted 

recoverable costs pursuant to N.C.G.S. § 7A-305(d)(1), which allows taxing “witness 

fees . . . as costs as provided by law” and reasoned that the reference to “as provided 

by law” contained in N.C.G.S. § 7A-305(d)(1) referred to N.C.G.S. § 7A-314. Id. at 

562, 698 S.E.2d at 192 (citing Vaden, 187 N.C. App. at 440, 653 S.E.2d at 547). The 

court further noted that the Court of Appeals had previously held that N.C.G.S. § 7A305(d)(1) should “be read in conjunction with [N.C.G.S.] § 7A-314, which governs fees 

for witnesses” so as to limit awardable expert witness fees to amounts paid to

witnesses who have testified subject to a subpoena. Id. at 562, 698 S.E.2d at 192

(quoting Morgan v. Steiner, 173 N.C. App. 577, 583, 619 S.E.2d 516, 520 (2005), disc.

rev. denied, 360 N.C. 648, 636 S.E.2d 808 (2006)). In reliance on this line of authority, 

the Court in Jarrell determined that the 2007 General Assembly had amended 

N.C.G.S. § 7A-305(d) in response to “ ‘inconsistencies within [Court of Appeals’] case 

law’ ” regarding “the propriety of taxing certain costs” and had “supplement[ed] the 

witness fees allowed under” N.C.G.S. § 7A-305(d)(1) “by adding a specific provision 

for expert fees” in N.C.G.S. § 7A-305(d)(11). Id. at 562, 698 S.E.2d at 192 (quoting 

Vaden, 187 N.C. App. at 438 n.3, 653 S.E.2d at 546 n.3). As a result, the Court in 

Jarrell concluded that, like N.C.G.S. § 7A-305(d)(1), “[N.C.G.S.] § 7A-305(d)(11) must 
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be understood in light of [N.C.G.S.] § 7A-314” so that, in order to recover amounts 

paid to expert witnesses for actual time spent testifying as authorized by N.C.G.S. § 

7A-305(d)(11) as costs, the expert witness whose testimony generated the relevant 

fees had to have testified while subject to subpoena. Id. at 562-63, 698 S.E.2d at 192-

93.

Although the General Assembly certainly intended for the 2007 amendments 

to N.C.G.S. § 7A-305(d) to clarify the identity and amounts of taxable costs in civil 

actions, we believe that the enactment of N.C.G.S. § 7A-305(d)(11) served an 

additional purpose, which was to establish that “[r]easonable and necessary [expert 

witness] fees . . . solely for actual time spent providing testimony at trial, deposition,

or other proceedings” are taxable as costs in civil actions and that, given the omission 

of “as provided by law,” such expert witness fees are taxable as costs even though the 

expert testimony is not compelled by a subpoena. See ch. 212, sec. 3, 2007 N.C. Sess. 

Laws (Reg. Sess. 2007) at 339-40 (captioned “An Act to Clarify the Court’s Discretion 

to Allow Court Costs.”). We do not believe, as plaintiff argues, that giving 

determinative effect to the omission from N.C.G.S. § 7A-305(d)(11) of any reference 

to “as provided by law” as contained in N.C.G.S. § 7A-305(d)(1) “effectively nullifie[s]”

the expert witness provisions of N.C.G.S. § 7A-314.

11 Unlike N.C.G.S. § 7A-305(d), 

 

11 On the contrary, plaintiff’s argument effectively adds the reference to “as provided 

by law” contained in N.C.G.S. § 7A-305(d)(1) into N.C.G.S. § 7A-305(d)(11) even though no 

such language appears in N.C.G.S. § 7A-305(d)(11).
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which governs the taxing of costs in civil actions, N.C.G.S. § 7A-314 applies to other 

types of legal proceedings, including special proceedings and criminal actions, as well. 

As a result, the enactment of N.C.G.S. § 7A-305(d)(11) has no effect on the awarding 

of expert witness fees as costs or the taxing of costs in any proceeding other than in

a civil action. In view of the fact that the General Assembly did not repeal or 

otherwise alter N.C.G.S. § 7A-305(d)(1) or N.C.G.S. § 7A-314, a trial court also has 

the authority in a civil action to award additional expert witness-related costs, such 

as amounts related to travel pursuant to N.C.G.S. § 7A-314(b) or incurred for time 

spent in attendance at trial or some other proceeding pursuant to N.C.G.S. § 7A314(d), provided that the expert witness testified pursuant to subpoena.

12 As a result, 

adopting the construction of N.C.G.S. § 7A-305(d)(11) that we deem appropriate does 

not render N.C.G.S. § 7A-314 without any effect.

Thus, we conclude that the enactment of N.C.G.S. § 7A-305(d)(11) in 2007

allows for the taxing of “[r]easonable and necessary fees of expert witnesses solely 

for actual time spent providing testimony at trial, deposition, or other proceedings”

 

12 The existence of multiple options for awarding costs associated with expert 

testimony discussed in the text was short-lived. With respect to “motions or applications for 

costs filed on or after” 1 October 2015, the General Assembly has amended N.C.G.S. § 7A314(d) to provide that, “[s]ubject to the specific limitations set forth in [N.C.]G.S. [§] 7A305(d)(11), an expert witness, other than a salaried State, county, or municipal lawenforcement officer, shall receive such compensation and allowances as the court, or the 

Judicial Standards Commission, in its discretion may authorize.” Act of July 15, 2015, ch.

153, sec. 2, 3, 2015 3 Adv. Legis. Serv. 12, 14 (LexisNexis) (captioned “An Act Amending the 

Rules of Civil Procedure to Modernize Discovery of Expert Witness and Clarifying Expert 

Witness Costs in Civil Actions.”).
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without requiring the party seeking to obtain the taxing of such costs to demonstrate

that the expert witnesses in question testified subject to a subpoena.

13 To the extent 

that Jarrell and its progeny suggest that the subpoena requirement established in 

N.C.G.S. § 7A-314 applies to expert witness fees taxed as costs pursuant to N.C.G.S. 

§ 7A-305(d)(11), those decisions are overruled. As a result, given that the trial court 

correctly taxed expert witness fees in accordance with N.C.G.S. § 7A-305(d)(11) 

against plaintiff, albeit for reasons other than those we have deemed persuasive in 

this opinion, the decision of the Court of Appeals is reversed.

REVERSED.

 

13 In light of our determination that the enactment of N.C.G.S. § 7A-305(d)(11) 

eliminated the requirement that expert witnesses be subpoenaed as a precondition for an 

award of expert witness fees as costs, we need not address the validity of defendants’ 

contention that the trial court correctly determined that the discovery scheduling order and 

the provisions of N.C.G.S. § 1A-1, Rule 26(f1) obviated the necessity for the issuance of 

subpoenas to compel the deposition testimony of plaintiff’s designated expert witnesses.