N THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

January 9, 2019 Session

MAURICE PINSON v. DAVID KENT DEBOER M.D. ET AL.

Appeal from the Circuit Court for Davidson County

No. 13C2897 Kelvin D. Jones, Judge

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No. M2018-00593-COA-R3-CV

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Appeal of an award of discretionary costs to Defendants in healthcare liability action that

had been voluntarily dismissed. The trial court initially awarded Defendants, inter alia, 

expert witness fees for medical providers who had treated Plaintiff, expenses for 

videotaped depositions, and costs for the travel time and deposition preparation time for 

Plaintiff’s vocational expert. On Plaintiff’s motion, the court modified the award to 

exclude videographer expenses, expenses attendant to the vocational expert’s deposition, 

and other court reporter expenses. We modify the award to exclude the witness fees for 

the providers who treated Plaintiff and to include the court reporter fee for the deposition 

of Plaintiff’s vocational expert; vacate the portion of the award that reduces the amount 

of court reporter fees and expenses and remand the case for reconsideration of the award; 

and reverse the order to the extent it requires the Plaintiff to post a bond or pay 

discretionary costs prior to re-filing the suit. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Modified in 

Part, Reversed in Part, and Affirmed in Part; Case Remanded for Further 

Proceedings

RICHARD H. DINKINS, J., delivered the opinion of the court, in which ANDY D. BENNETT

and W. NEAL MCBRAYER, JJ., joined.

Luvell L. Glanton, Nashville, Tennessee, for the appellant, Maurice Pinson.

Phillip North, Edward A. Hadley, and Brent A. Kinney, Nashville, Tennessee, for the 

appellees, David Kent DeBoer, M.D., and Southern Sports Medicine & Orthopaedic 

Center, P. C..

07/30/2019
2

OPINION

I. FACTUAL AND PROCEDURAL HISTORY

Maurice Pinson filed a healthcare liability action against Dr. David DeBoer and

Southern Sports Medicine & Orthopaedic Center, P.C., d/b/a Southern Joint Replacement 

Institute, (“Defendants”) on July 19, 2013. Mr. Pinson (“Plaintiff”) alleged, inter alia, 

that Dr. DeBoer performed knee replacement surgery on both of his knees on August 19, 

2010, improperly installed the knee replacements, and “failed to provide appropriate and 

reasonable care” to Plaintiff; in due course, the case was set for trial on November 2, 

2017. 

On October 3, 2017, Plaintiff filed a Notice of Voluntary Dismissal and gave

Defendants notice, pursuant to Tennessee Code Annotated section 29-26-121, of his 

intent to re-file the action on October 5; the court entered an Order of Voluntary 

Dismissal on October 10. Defendants moved the court, pursuant to Tennessee Rule of 

Civil Procedure 54.04 and Tennessee Code Annotated section 20-12-101 and 20-12-110,

for an award of discretionary costs in the total amount of $17,356.31 on October 18; in 

the motion, Defendants asked the court to require Plaintiff to pay the discretionary costs 

prior to proceeding with the new action. Plaintiff responded to the motion, requesting 

that the court reserve ruling on the motion “until such time as there is a prevailing party 

in the re-filed action” and opposing the request that the new action be stayed pending 

payment of the judgment. On November 27, the court entered an order granting the 

motion and awarding Defendants a judgment in the amount of $17,356.31; the court 

declined to stay the proceedings in any new action until Plaintiff paid the costs of the 

dismissed action. 

On December 1, 2017, Plaintiff moved to alter or amend the judgment by reducing 

the award by $8,641.19.

1

 The court entered an order on March 16, 2018, reducing the 

amount of costs awarded to $9,736.12, holding that $7,620.19 was not recoverable.2The 

court ordered that Plaintiff pay the modified award or post a bond in that amount prior to 

re-filing the suit. 

Both sides appeal. Plaintiff contends that the court erred in awarding costs for the 

depositions of Drs. William Kurtz and Stuart Smith and Physician Assistant Bryn 

Southards, who had treated the Plaintiff, and in requiring that Plaintiff pay the judgment 

 

1

 Plaintiff contended that $3,675.00 for deposition fees charged by Drs. Kurtz and Smith, and P.A. 

Southards, $4,166.19 in fees for videotaped depositions, and $800.00 in travel expenses for Plaintiff’s 

vocational expert to attend a deposition were not properly awardable. 

2

 The reduction was apportioned between $4,166.19 for videographer fees and $800.00 for preparation 

fees and travel expenses for Plaintiff’s vocational expert; the court did not explain the allocation of the 

remaining $2,654.00 but stated that the previous award for Drs. Kurtz and Smith and P.A. Southards 

would remain. 
3

or post a bond for the costs prior to re-filing the action. Defendants contend that the court

abused its discretion in reducing the judgment. Defendants agree with Plaintiff that the 

court erred in requiring that Plaintiff pay the costs or post a bond prior to filing the new 

action but argue that the court may stay the action until Plaintiff pays the award. 

II. ANALYSIS

A. STANDARD OF REVIEW

The issues raised call for us to consider Tennessee Rules of Civil Procedure 

54.04,3governing the assessment of costs, and 41.04,

4

governing payment of costs in an 

action that was previously dismissed. “Awarding costs in accordance with Tenn. R. Civ. 

P. 54.04(2), like awarding other costs, is within the trial court’s reasonable discretion.” 

Mass. Mut. Life Ins. Co. v. Jefferson, 104 S.W.3d 13, 35 (Tenn. Ct. App. 2002) (citing

Perdue v. Green Branch Mining Co., 837 S.W.2d 56, 60 (Tenn. 1992)). “Accordingly, 

we employ a deferential standard when reviewing a trial court’s decision either to grant 

or to deny motions to assess these costs. . . . Because these decisions are discretionary, 

we are generally disinclined to second-guess a trial court’s decision unless the trial court 

has abused its discretion.” Mass. Mut. Life. Ins. Co., 104 S.W.3d at 35 (citing Scholz v. 

S.B. Int’l, Inc., 40 S.W.3d 78, 84 (Tenn. Ct. App. 2000); Woodlawn Mem’l Park, Inc. v. 

Keith, 70 S.W.3d 691, 698 (Tenn. 2002); Stalsworth v. Grummons, 36 S.W.3d 832, 836 

(Tenn. Ct. App. 2000); Mitchell v. Smith, 779 S.W.2d 384, 392 (Tenn. Ct. App. 1989)).

Decisions awarding costs under Rule 41.04 are governed by the same standard of review

applicable to Rule 54.04. J.P. Morgan Chase Bank v. Franklin National Bank, No. 

M2005-02088-COA-R3-CV, 2007 WL 2316450, at *3 (Tenn. Ct. App. Aug. 13, 2007). 

This deferential standard of review was explained in Lee Medical, Inc. v. Beecher:

 

3

 Rule 54.04 states in pertinent part:

(2) Costs not included in the bill of costs prepared by the clerk are allowable only in the court’s 

discretion. Discretionary costs allowable are: reasonable and necessary court reporter expenses for 

depositions or trials, reasonable and necessary expert witness fees for depositions (or stipulated 

reports) and for trials, reasonable and necessary interpreter fees not paid pursuant to Tennessee 

Supreme Court Rule 42, and guardian ad litem fees; travel expenses are not allowable 

discretionary costs. Subject to Rule 41.04, a party requesting discretionary costs shall file and

serve a motion within thirty (30) days after entry of judgment. The trial court retains jurisdiction 

over a motion for discretionary costs even though a party has filed a notice of appeal. The court 

may tax discretionary costs at the time of voluntary dismissal. . . .

4

 Rule 41.04 states:

If a plaintiff who has once dismissed an action in any court commences an action based upon or

including the same claim against the same defendant, the Court may make such order for the

payment of costs of the action previously dismissed as it may deem proper and may stay the 

proceedings in the new action until the plaintiff has complied with the order.
4

Discretionary decisions must take the applicable law and relevant facts into 

account. An abuse of discretion occurs when a court strays beyond the 

applicable legal standards or when it fails to properly consider the factors 

customarily used to guide the particular discretionary decision. A court 

abuses its discretion when it causes an injustice to the party challenging the 

decision by (1) applying an incorrect legal standard, (2) reaching an 

illogical or unreasonable decision, or (3) basing its decision on a clearly 

erroneous assessment of the evidence. 

312 S.W.3d 515, 524 (Tenn. 2010) (internal citations omitted).

B. EXPERT WITNESS FEES FOR TREATING PHYSICIANS

We first address Plaintiff’s contention regarding the award of discretionary costs 

as to Dr. Smith, Dr. Kurtz, and Ms. Southards. The Plaintiff argues “Dr. Stuart Smith, 

Dr. William Kurtz, and Bryn Southards, P.A.’s roles in this case were as treating 

physicians and/or medical providers of the Plaintiff, and are therefore considered fact 

witnesses.” The Plaintiff asserts that treating physicians are typically considered fact 

witnesses and that, “a legal distinction is made between physicians who testify based 

solely on facts gained by their actual treatment of a patient (fact witnesses) and 

physicians who give opinions based upon facts and/or material furnished to them during 

the course of litigation (expert witnesses).”

In response, Defendants argue that Rule 54.04(2) of the Tennessee Rules of Civil 

Procedure does not distinguish between “experts” for purposes of Rule 265and “experts” 

for purposes of Tennessee Rules of Evidence 701 and 702.6 The Defendants argue that 

 

5

Rule 26.02(4)(A)(i) of the Tennessee Rules of Civil Procedure states: 

A party may through interrogatories require any other party to identify each person whom the 

other party expects to call as an expert witness at trial, to state the subject matter on which the 

expert is expected to testify, and to state the substance of the facts and opinions to which the 

expert is expected to testify and a summary of the grounds for each opinion. In addition, upon 

request in an interrogatory, for each person so identified, the party shall disclose the witness’s 

qualifications (including a list of all publications authored in the previous ten years), a list of all 

other cases in which, during the previous four years, the witness testified as an expert, and a 

statement of the compensation to be paid for the study and testimony in the case. 

6

Rule 701(a) of the Tennessee Rules of Evidence states: 

If a witness is not testifying as an expert, the witness’s testimony in the form of opinions or

inferences is limited to those opinions or inferences which are 

(1) rationally based on the perception of the witness and 

(2) helpful to a clear understanding of the witness’s testimony or the determination of a fact in 

issue.

Rule 702 states: “If scientific, technical, or other specialized knowledge will substantially assist the trier of fact to 

understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, 

experience, training, or education may testify in the form of an opinion or otherwise.”
5

Dr. Smith, Dr. Kurtz, and Ms. Southards, P.A., are experts within the meaning of 

Tennessee Rules of Evidence 702 because “the testimony of Ms. Southards, Dr. Smith, 

and Dr. Kurtz would certainly help the jury to understand the causes of the types of injury 

alleged by Plaintiff and whether Plaintiff’s subsequent treatment/surgeries, or need for 

future treatment/surgeries, was a result of Dr. DeBoer’s alleged negligence.”

In the case of White v. Vanderbilt University, plaintiff sought review from directed 

verdicts and a jury verdict entered in plaintiff’s medical malpractice action. 21 S.W.3d 

215, 219 (Tenn. Ct. App. 1999). The court stated:

[E]xperts who were not specifically retained in anticipation of litigation or 

in preparation for trial, such as regular employees of a party or treating 

physicians . . . do not fit within Tenn. R. Civ. P. 26.02(4)(A) or 

26.02(4)(B), [and thus] their identity, as well as their facts and opinions, are 

freely discoverable as with any ordinary witness.

Id. at 224.

Similarly, in Parks v. Royal Insurance Co. of America, a worker’s compensation 

case, Plaintiff appealed the trial court’s award of a psychologist’s witness fee as a 

discretionary cost. No. W2000-02778-WC-R3-CV, 2001 WL 1584107, at *9 (Tenn. 

Workers Comp. Panel Dec. 4, 2001). On appeal, the panel differentiated between “fact” 

witnesses and “expert” witnesses and found that “because Dr. Ciocca testified as a fact 

witness, rather than an expert witness, his fee [wa]s not recoverable as costs. The award 

of costs [wa]s reduced by the amount of his fee.” Id.

The Supreme Court considered the distinction between a fact witness and expert

witness for purposes of Rule 54.04(2) in Miles v. Marshall C. Voss Health Care Center,

and ruled: 

In the instant case, the trial court allowed as discretionary costs assessed 

against the employer the charges made by a vocational rehabilitation expert 

for examining the injured employee and testifying in her behalf at trial.

* * *

This Court has not before addressed the question of whether the charges of 

a vocational disability and rehabilitation expert for examining an employee 

and for testifying are recoverable as discretionary costs.

There is no question that Dr. Colvin served as an expert witness. In fact, the 

parties stipulated at trial that he was qualified to testify as a vocational 

disability expert. There is also no doubt that his trial testimony was 

important to the trial court’s assessment of the extent of the employee’s 

vocational disability. He was the only vocational expert to testify in the 

case. The Court referred to Dr. Colvin’s testimony in its opinion and the 

Court’s finding of permanent total disability was consistent with Dr. 
6

Colvin’s finding. Thus, Dr. Colvin was a “necessary expert” within the 

meaning of Rule 54.04(2).

However, the rule specifically limits discretionary costs with regard to 

expert witnesses to their fees for testifying. The record reveals that Dr. 

Colvin met with the employee one time for the purpose of evaluating her 

disability. He also spent time reviewing the medical proof as part of his 

evaluation. He testified in person at the trial. He charged $750 for his 

services. The employee’s motion for discretionary costs does not indicate 

how much of Dr. Colvin’s fee was for his evaluation, and how much was 

for his appearance and testimony at trial. Since, as indicated above, the 

portion of the fee charged for evaluating the employee is not recoverable 

under Rule 54.04(2), but the portion of the fee charged for his trial 

testimony is recoverable as discretionary cost, the case must be remanded 

to the trial court to make this determination.

896 S.W.2d 773, 776 (Tenn. 1995) (citations omitted).

The record shows that at all times prior to the dismissal of the case, Defendants 

argued that Drs. Kurtz and Smith and P.A. Southards could only testify as fact, and not 

expert, witnesses.7 Consistent with this characterization, these witnesses did not give any 

opinions or observations outside of their personal evaluations and treatment of the 

Plaintiff in their depositions. Thus, they are fact witnesses, not expert witnesses. In 

accordance with the cases discussed previously, the fees for these witnesses are not 

recoverable as discretionary costs under Rule 54.04. Accordingly, we modify the award 

of discretionary costs to exclude the $900.00 fee of Dr. Kurtz, the $1,875.00 fee of Dr. 

Smith, and the $900.00 fee of P.A. Southards. 

 

7

 Prior to the voluntary dismissal, Defendants filed a motion in limine, requesting “an Order prohibiting 

Plaintiff from introducing into evidence the testimony of Dr. Kurtz, who has testified by two depositions 

as a treating physician.” Defendants filed a second motion in limine regarding Dr. Stuart Smith’s 

testimony on the grounds of speculation, asserting:

Plaintiffs sought testimony from Dr. Smith that exceeded the scope of his role as a 

treating physician and crossed into the scope of a Tenn. Rule of Civil Procedure 26 

testifying expert. Because Plaintiff did not provide a disclosure of opinions from Dr. 

Smith pursuant to TRCP 26, this testimony should be excluded.

The Defendants further contended that any of Dr. Smith’s testimony regarding the standard of care that 

came from his knowledge or training, rather than personal treatment of the Defendant, should be

excluded, as Dr. Smith was not retained as an expert witness in anticipation of litigation, but rather was 

testifying as a treating physician. 
7

C. REDUCTION IN AWARD OF DISCRETIONARY COSTS

In the Order on Plaintiff’s motion to alter the award the court held:

$7,620.19 of the previously-awarded discretionary costs are not 

recoverable, including $4,166.19 for the videographer fees, $800.00 for 

Plaintiff’s vocational expert Linda Jones’s fee for deposition preparation 

and travel expenses, and court reporter expenses for postage, e-transcripts, 

and copies. The cost of $3,675.00 for depositions of Dr. Stuart Smith, Dr. 

Kurtz, and Bryn Southards, P.A., shall remain, as previously ordered on 

November 27, 2017. 

Defendants acknowledge that the expense of a videographer is not within the costs listed 

as recoverable in Rule 54 but argue that those fees “are reasonable and necessary and 

should be recoverable”; that they should be awarded the fee which they paid to Linda 

Jones; and that the trial court abused its discretion in sua sponte deducting $2,654.00 in 

other expenses.

8

 We discuss the cost items in order; as noted earlier, we review the 

award under the abuse of discretion standard.

With respect to the videographer fees, Defendants argue that “[p]resentation of a 

video is more effective that merely reading from a transcript because the video shows the 

witness’ demeanor, cooperation, pauses between questions, answers, and thoughts, and 

yields great insight to the jury who must decide the credibility of the witness.” This 

argument is without merit inasmuch as it ignores the fact that Rule 54.04(2) lists which 

discretionary costs are recoverable, and the list does not include videographer fees. It 

does appear, however, that the court reporter fee for the deposition of Linda Jones, which 

the record shows was not a video deposition, was included in the amount disallowed as a 

recoverable cost by the trial court and should be reinstated.

With respect to the travel expense and preparation fee of Ms. Jones, the affidavit 

that counsel for Defendants filed in support of the motion for discretionary costs includes 

an entry of $1,000.00 paid to Vocational Economics, Inc., for Ms. Jones’ deposition.

9

 

The court initially awarded the $1,000.00 shown in counsel’s affidavit, and at the hearing 

on the motion to alter or amend, counsel for the parties agreed that the bill was actually 

 

8

Plaintiff moved the court to reduce the award by $8,641.19, consisting of: $3,675.00 for the fees of Drs. 

Kurtz and Smith and P.A. Southards, $4,166.19 in videographer fees, and the fee of $800.00 for time 

spent by Linda Jones, Plaintiff’s vocational expert, in preparation for her deposition. 

9

 On the invoice from Vocational Economics, the time for preparation for the deposition and giving the 

deposition are each two hours; the deposition rate is $400.00 per hour and the preparation rate is $250 per 

hour. The rate for preparation has been crossed out and the word and figures “Total = $800.00” are

handwritten.
8

$800.00. Defendant’s counsel went further and explained that the bill had been paid by 

mistake.10 

Rule 54.04(2) does not provide for recovery of travel or preparation expenses. 

The rule expressly states “travel expenses are not allowable discretionary costs.” 

Defendant’s counsel acknowledges the bill for which reimbursement is sought is one that 

he mistakenly paid; however, this amount is not recoverable from Plaintiff as a 

discretionary cost. The trial court did not abuse its discretion in disallowing this expense. 

Next, Defendants argue that the trial court abused its discretion in not 

distinguishing between the videographer fees and the regular court reporter expenses 

when it reduced the award. We have previously held that the attendance fees for Dr. 

Kurtz, Dr. Smith, and Ms. Southards were not recoverable as costs due to their status as 

fact witnesses; however, the non-videotape court reporter fees for these witnesses are 

recoverable as discretionary costs pursuant to Rule 54.04(2). From the affidavit of 

Defendants’ counsel, the only court reporter fees included for either of these witnesses 

are for depositions of Dr. Kurtz on February 17, 2016, in the amount of $155.75, and an 

undated deposition expense of $496.00; neither expense distinguishes the charge for 

videotape from a regular deposition. It is apparent that the court ruled on the basis of the 

evidence in the record, and we have not been cited to any countervailing evidence. While 

there may have been a separate charge for the videotape and regular depositions, such is 

not apparent from the record, and we cannot conclude on the record presented that the 

court abused its discretion. 

Lastly, Defendants argue that the trial court abused its discretion in reducing the

award for the costs attributed to court reporter expenses for postage, e-transcripts, and 

copies. Defendants allege “the trial court gave no explanation for why it was reducing the 

discretionary costs award by an additional $2,654.00; instead, the trial court simply 

announced during the hearing that it was deducting some postage and fees for copies and 

e-transcripts.”

There is no cost breakdown provided for computing court reporter fees other than 

the court’s explanation during the hearing on the Motion to Amend that “the initial award 

was $17,356.31...we deducted some of the postage that were invoiced on some of the 

bills...and e-transcripts on portions of them...but we also deducted some court reporter 

 

10

 At the hearing on the motion, counsel for Defendants explained: 

Here’s what happened with Linda Jones. She’s an expert witness, vocational expert. She 

does this. She -- she knows the drill. So does Mr. Glanton. We had an off-the-record 

discussion. I said: You bill me for your time for on the record. That’s what’s customary. 

She didn’t do that. She billed me for her prep time and her travel expense, and that’s 

wrong. I -- trusting them as familiar with the way this works, I didn’t review her bill. And 

so I paid it voluntarily at the time of the deposition. And then when I presented my 

Motion for Discretionary Costs, I realized: Wait a minute, I never should have paid that 

in the first place. I’m entitled to that money back.
9

attendance fees, transcript fees...so internally we came up with that number after we 

deducted the postage and transcript fees.”

Defendants attached invoices of copy, transcript, and postage expenses in support 

of the Motion for Discretionary Costs. Nothing in the record indicates the expenses 

incurred were not reasonable or necessary for trial preparation. We believe that the costs 

for postage, e-transcript, and copies are recoverable as court reporter fees pursuant to 

Rule 54.04(2) and were reasonable and necessary in trial preparation; however, the court 

did not itemize the computation of the court reporter expenses or how the $2,654.00 

reduction was reached. Accordingly, we vacate this portion of the judgment and remand 

the case for the court to reconsider the award of court reporter expenses and to include all 

amounts properly recoverable under Rule 54.04(2). 

D. REQUIREMENT THAT PLAINTIFF PAY COSTS PRIOR TO RE-FILING SUIT

As noted earlier, after reducing the initial award of costs pursuant to the motion to 

alter or amend, the court ordered that Plaintiff pay the modified award or post a bond in 

that amount prior to re-filing the suit. On appeal, both parties agree that Rule 41.04 does 

not require the costs to be paid prior to the suit being refiled; we agree with the parties in 

this regard. Accordingly, we reverse the trial court’s order that Plaintiff must pay the 

costs or post a bond prior to re-filing.

Defendants contend, however, that it is within the court’s discretion to stay the 

proceedings in the new case until the costs are paid and that the court should do so. As 

noted earlier, Rule 41.04 allows that, when a suit is refiled, the trial court “may make 

such order for the payment of costs of the previously dismissed action as it may deem 

proper,” and the court may “stay the proceedings in the new action until the plaintiff has 

complied with the order.” Thus, Defendants’ request is premature inasmuch as the 

refiling of the action is a prerequisite for the court make any order relative to the payment 

of costs, including staying the proceeding. 

III. CONCLUSION

For the foregoing reasons, we modify the award of discretionary costs to exclude 

the $900.00 fees of Dr. Kurtz, the $1875.00 fee of Dr. Smith, and the $900.00 fee of P.A.

Southards, and to include $743.65 for the deposition of Ms. Jones, which this results in a 

net reduction in the award of $2,931.35; we vacate that portion of the order reducing the 

costs award by $2,654.00 for court reporter expenses and remand the case for the court to 

reconsider the award, and to include all amounts properly recoverable under Rule 

54.04(2); we reverse the order to the extent it may be construed as requiring Plaintiff to 

pay the discretionary costs or post a bond prior to refiling suit. 

RICHARD H. DINKINS, JUDGE