2023 New Mexico Statutes › Chapter 38 - Trials › Article 6 - Witnesses and Their Competency › Section 38-6-4 - Per diem and mileage for witnesses.

A. Witnesses shall be allowed no fees for services, but shall receive per diem expense and mileage at the rate specified for nonsalaried public officers as provided in the Per Diem and Mileage Act [10-8-1 to 10-8-8 NMSA 1978] for that time in which attendance is required, with certification of the clerk of the court.
B. The district judge in any civil case pending in the district court may order the payment of a reasonable fee, to be taxed as costs, in addition to the per diem and mileage as provided for in Subsection A of this section, for any witness who qualifies as an expert and who testifies in the cause in person or by deposition. The additional compensation shall include a reasonable fee to compensate the witness for the time required in preparation or investigation prior to the giving of the witness's testimony. The expert witness fee which may be allowed by the court shall be limited to one expert regarding liability and one expert regarding damages unless the court finds that additional expert testimony was reasonably necessary to the prevailing party and the expert testimony was not cumulative.
C. The provisions of this section shall apply only to cases filed on or after its effective date.
History:
Laws 1887, ch. 40, § 1; C.L. 1897, § 1810; Code 1915, § 5898; C.S. 1929, § 155-104; 1941 Comp., § 20-104; 1953 Comp., § 20-1-4; Laws 1959, ch. 62, § 1; 1971, ch. 139, § 1; 1975, ch. 105, § 1; 1983, ch. 189, § 1.
ANNOTATIONS
Compiler's notes.
— The reference to the effective date in Subsection C means the effective date of Laws 1983, Chapter 189, which was June 17, 1983.
Cross references.
— For limitation on taxation of costs,
see
39-2-9 NMSA 1978.
For fees for witnesses in workers' compensation cases,
see
52-5-7 NMSA 1978.
Expert costs.
— An expert was forced to wait for the production of the documents, which he needed to prepare for the testimony that he later gave. Any costs that were incurred as a result of the delay are recoverable under Section 38-6-4B NMSA 1978.
H-B-S P'ship v. Aircoa Hospitality Services, Inc.
, 2008-NMCA-013, 143 N.M. 404, 176 P.3d 1136.
Where expert testimony was reasonably necessary, as part of the mix of information the district court needed, it should be recompensed.
Primetime Hospitality, Inc. v. City of Albuquerque
, 2009-NMSC-011, 146 N.M. 1, 206 P.3d 112.
Expert witness fees in summary judgment.
— Where defendants obtained summary judgment in a toxic tort action, defendants were entitled to recover expert witness fees for witnesses whose affidavits and testimony were material to the award of summary judgment for defendants and to the exclusion of the testimony of plaintiff's expert witnesses and whose testimony was not cumulative.
Andrews v. United States Steel Corp.
, 2011-NMCA-032, 149 N.M. 461, 250 P.3d 887.
Expert witnesses' fees are treated as costs and are taxed upon entry of judgment to the prevailing party,
not at the time a complaint is filed.
Mantz v. Follingstad
, 1972-NMCA-164, 84 N.M. 473, 505 P.2d 68,
overruled on other grounds by
Peralta v. Martinez
, 1977-NMCA-040, 90 N.M. 391, 564 P.2d 194.
Separate finding of reasonable necessity for multiple witnesses.
— The court did not abuse its discretion in allowing the fees of two expert witnesses as costs. A separate finding of "reasonable necessity" was not required, since it could be inferred that this section was considered by the court.
Ulibarri v. Gee
, 1987-NMSC-113, 106 N.M. 637, 748 P.2d 10.
Expert's expenses allowed as costs.
— Expense of a survey made preparatory for trial, and upon which the surveyor testified, is properly allowed as costs.
Ulibarri Landscaping Material, Inc. v. Colony Materials, Inc.
, 1981-NMCA-148, 97 N.M. 266, 639 P.2d 75, cert. denied, 98 N.M. 50, 644 P.2d 1039.
Allowance of an expert witness fee was reasonable based on testimony that, in addition to the time the witness spent preparing for and testifying at trial, he spent additional time analyzing and investigating reports prepared by other party's expert witness.
Key v. Chrysler Motors Corp.
, 1999-NMCA-028, 127 N.M. 38, 976 P.2d 523,
aff'd in part
, 2000-NMSC-010, 128 N.M. 739, 998 P.2d 575.
Award of costs for fees of expert witnesses who do not testify
in person or in a deposition is not authorized by New Mexico statute.
Fernandez v. Espanola Pub. Sch. Dist.
, 2004-NMCA-068, 135 N.M. 677, 92 P.3d 689,
aff'd
, 2005-NMSC-026, 138 N.M. 283, 119 P.3d 163.
Because none of the plaintiffs' expert witnesses had testified in the cause either in person or in a deposition prior to the time that plaintiffs had accepted defendants' offer of judgment, the court lacked discretion to award costs under the express language of Subsection B of this section.
Fernandez v. Espanola Pub. Sch. Dist.
, 2004-NMCA-068, 135 N.M. 677, 92 P.3d 689,
aff'd
, 2005-NMSC-026, 138 N.M. 283, 119 P.3d 163.
Physicians appearing as expert witnesses.
— Fees paid to physicians who testified as expert witnesses at trial or served as consulting experts to plaintiff were properly awarded as costs against defendant.
Gillingham v. Reliable Chevrolet
, 1998-NMCA-143, 126 N.M. 30, 966 P.2d 197.
Costs allowed in case of fraudulent claim.
— In an action to quiet title to property, where a claim was based upon a document expressly found to have been forged by defendant, the trial court's order denying an award of costs for plaintiff's expert witness and imposition of sanctions against defendant was reversed and remanded for reconsideration.
Martinez v. Martinez
, 1997-NMCA-096, 123 N.M. 816, 945 P.2d 1034.
Case resting on Workers' Compensation Act was not controlling authority
for a case interpreting Subsection B of this section.
Fernandez v. Espanola Pub. Sch. Dist.
, 2004-NMCA-068, 135 N.M. 677, 92 P.3d 689,
aff'd
, 2005-NMSC-026, 138 N.M. 283, 119 P.3d 163.
Use of court fund for payment of expert witnesses.
— A district court in the administration of justice may use its court fund to pay for expert witnesses regardless or whether or not such an expert is testifying for the prosecution. Further, this section does not set a limitation on this fee. Perhaps, however, the fee set out in this section would furnish a good guideline for the district court to use in setting the fees for that expert which must be paid from the court fund. 1966 Op. Att'y Gen. No. 66-14.
Law reviews.
— For article, "Rule 68 Offers of Judgment: Lessons From the New Mexico Experience," see 39 N.M.L. Rev. 349 (2009).
For article, "Settlement Without Sacrifice: The Recovery of Expert Witness Fees as Costs Under New Mexico's Rule 1-068," see 38 N.M.L. Rev. 655 (2008).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
20 Am. Jur. 2d Costs § 54; 81 Am. Jur. 2d Witnesses §§ 68 to 74.
Detention: right of witness detained in custody for future appearance to fees for such detention, 50 A.L.R.2d 1439.
Corporate litigant, allowance, as taxable costs, of witness fees and mileage of stockholders, directors, officers, and employees of, 57 A.L.R.2d 1243.
Allowance of mileage or witness fees with respect to witnesses who were not called to testify or not permitted to do so when called, 22 A.L.R.3d 675.
Contingent fee informant testimony in state prosecutions, 57 A.L.R.4th 643.
Requirements, under Rule 45(c) of Federal Rules of Civil Procedure and Rule 17(d) of Federal Rules of Criminal Procedure, relating to service of subpoena and tender of witness fees and mileage allowance, 77 A.L.R. Fed. 863.
20 C.J.S. Costs §§ 107 to 117; 97 C.J.S. Witnesses §§ 35 to 48.