VICKNAIR III v. PLAISANCE (2025)

In this medical malpractice appeal, the defendant, Dr. Kevin M. Plaisance, appeals a judgment of the trial court that granted in part and denied in part the plaintiff's motion to tax costs. Dr. Plaisance also challenges the amounts of the plaintiff's expert witness expenses.¹ For the following reasons, we affirm.

BACKGROUND

In 2015, Andrea Vicknair (“Andrea”) was 33 years old and pregnant with her second child. The defendant, Dr. Kevin Plaisance, was her obstetrician. At her 29th week prenatal appointment on May 13, 2015, Andrea presented with elevated blood pressure and protein in her urine. Andrea was admitted to St. Tammany Parish Hospital (the “hospital”) and diagnosed with preeclampsia. Testing revealed low amniotic fluid, which prompted Dr. Plaisance to deliver Andrea's daughter, Mae Bella Vicknair (“Mae”), via emergency cesarean section on May 15, 2015. Mae weighed just over two pounds at birth and was admitted to the Neonatal Intensive Care Unit. Andrea continued to experience high blood pressure in the days leading to her discharge on May 19, 2015. On May 24, 2015, Andrea died at home. The cause of Andrea's death was aortic dissection.

Thereafter, a request for a Medical Review Panel (MRP) was filed alleging negligence on the part of Dr. Plaisance and the hospital. The MRP convened on August 21, 2017, and found that Dr. Plaisance breached the standard of care in his treatment of Andrea. Specifically, the MRP found “[i]t was a deviation from the standard of care to discharge a postpartum patient with uncontrolled hypertension for a period of less than 24 hours.” However, the MRP was unable to determine causation, noting that it could not conclude whether Dr. Plaisance's breach of the standard of care was a “factor of the resultant damages.” The MRP found no breach of the standard of care on the part of the hospital or its employees.

On November 16, 2017, Andrea's husband, Randy P. Vicknair, Jr. (Randy, Jr.), individually and on behalf of Randy P. Vicknair, III (“Randy, III”), and Mae, filed this medical malpractice suit against Dr. Plaisance and the hospital, alleging that Dr. Plaisance was negligent in his treatment of Andrea regarding stabilization of her blood pressure and caused or contributed to her death by aortic dissection.² On June 17, 2020, the trial court signed an order substituting Capital First Trust Company, Inc., as the Trustee of the Randy P. Vicknair, III Irrevocable Settlement Trust and as the Trustee of the Mae B. Vicknair Irrevocable Settlement Trust, as the plaintiff herein. Randy, Jr. voluntarily dismissed his individual claim.

A four-day jury trial began on August 28, 2023. Pertinent to this appeal, the plaintiff presented the video deposition testimony of Dr. Michael Litrel, an expert in obstetrics and gynecology; Dr. Eric Kraut, an expert in critical care medicine, a general surgeon, and a medical professor at John Hopkins University; and Dr. Jonathon Arden, an expert in forensic pathology. Following trial, the jury returned a verdict in favor of the plaintiff and allocated 75 percent fault to Andrea and 25 percent fault to Dr. Plaisance.³ The jury awarded $3,400,000 in damages: $1,200,000 to Randy, III, and $2,200,000 to Mae. On September 28, 2023, the trial court rendered judgment adopting the jury's verdict and reducing the damage award commensurate with the allocation of fault. The damage award was further reduced to the statutory cap of $500,000, in accordance with La. R.S. 40:1231.2. The PCF intervened in October of 2023. Pursuant to a motion for new trial filed by Dr. Plaisance, a final amended judgment was rendered on January 29, 2024. The judgment reduced Dr. Plaisance's liability to $100,000 plus taxable costs and legal interest, and imposed liability on the PCF for the remaining $400,000, plus taxable costs and legal interest.

On October 11, 2023, the plaintiff filed a motion to tax costs in the amount of $63,463.42, representing $30,882.00 for Dr. Kraut, $2,577.80 for Dr. Litrel, and $11,988.25 for Dr. Arden. The matter was set for hearing on January 18, 2024, at which time the matter was reset to March 27, 2024, to allow for the taking of evidence on the plaintiff's experts’ pretrial out of court work. After the January 18, 2024 hearing, the plaintiff conducted post-trial depositions via Zoom with each expert regarding costs.

At the March 27, 2024 hearing, counsel for the plaintiff added $7,290.50 to his initial cost request for the post-trial Zoom depositions of the three experts, resulting in an amended total cost request of $70,753.92. After argument of counsel, the trial judge rendered an oral ruling, followed by a written judgment of April 4, 2024, as follows: Dr. Kraut's fee was reduced by $15,000.00, making the fee awarded $15,882.00; the amount of $7,290.50 for post-trial depositions was reduced to a maximum of $1,000.00 per expert, for a total of $2,550.00 ($1,000.00 for Dr. Kraut, $1,000.00 for Dr. Litrel, and the requested $550.00 for Dr. Arden); the total requested amount of costs was again reduced to exclude all trial preparation costs (including materials, binder, and poster boards, etc.) and costs of depositions not used at trial, for a remaining taxable cost of $27,630.47. The expert fees requested for Drs. Litrel and Arden ⁴ were not reduced. The preceding expert witness fees and costs awarded in the April 4, 2024 judgment total $46,062.47, cast in full against Dr. Plaisance. This appeal by Dr. Plaisance followed.

DISCUSSION

On appeal, Dr. Plaisance argues that it was error for the trial court to cast him with 100 percent of the costs when the jury found him to be 25 percent at fault. Dr. Plaisance also challenges the amounts of the plaintiff's expert witness expenses for the pretrial and trial work of Drs. Kraut, Arden, and Litrel, in the amounts of $15,882.00, $11,988.25, and $2,577.80, respectively, and post-trial expert fees of $1,000.00, $550.00, and $1,000.00, respectively. We will first address the assignment of error regarding the expert witness expenses.

Expert witness expenses

The governing statutory provisions regulating the recovery of court costs are La. C.C.P. art. 1920, La. R.S. 13:4533, and La. R.S. 13:3666. Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause. Further, except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party as it may consider equitable. La. C.C.P. art. 1920. According to La. R.S. 13:4533, “[t]he costs of the clerk, sheriff, witness’ fees, costs of taking depositions and copies of acts used on the trial, and all other costs allowed by the court, shall be taxed as costs.” Expert witness’ fees and the costs of medical reports and hospital records are also to be taxed as costs, pursuant to the provisions of La. R.S. 13:3666. See Boleware v. City of Bogalusa, 2001-1014 (La. App. 1 Cir. 12/20/02), 83 7 So. 2d 71, 73-74. “Article 1920 does not mean that there are no guidelines to govern the taxing of costs.” Watters v. Department of Social Services, 2008-0977 (La. App. 4 Cir. 06/16/09), 15 So. 3d 1128, 1162, writs denied, 2009-1651, 2009-1638, (La. 10/30/09), 21 So. 3d 291, 29, quoting Johnson v. Marshall, 202 So. 2d 465, 469 (La. App. 1 Cir. 1967). The only costs which can be taxed against a litigant are those specifically provided for by statute. State Through Department of Highways v. Salemi, 249 La. 1078, 1082, 193 So. 2d 252, 253 (1966); Town of Walker v. Stafford, 2001-2188 (La. App. 1 Cir. 10/18/02), 833 So. 2d 349, 356, writs denied, 2003-0441, 2003-0524 (La. 04/25/03), 842 So. 2d 405.

The trial court is required to determine the reasonable amount of expert witness fees to be taxed as court costs based on “the value of time employed and the degree of learning or skill required.” La. R.S. 13:3666(A). The amount billed by the expert is not determinative of the reasonable amount taxable as costs. Yuspeh v. Koch, 2002-1179 (La. App. 5 Cir. 05/28/03), 848 So. 2d 96, 98. The district court may award the full amount charged by an expert witness if the amount is reasonable in light of the many factors considered in fixing expert witness fees, such as time spent in preparatory work for trial, the extent and nature of the work performed, the knowledge, attainments, and skill of the expert, and the helpfulness of the expert's report and opinion to the district court. Reynolds v. Louisiana Department of Transp., 2015-1304 (La. App. 1 Cir. 04/13/16), 194 So. 3d 56, 61. See also Albin v. Illinois Cent. Gulf R. Co., 607 So. 2d 844, 845-46 (La. App. 1 Cir. 1992). Fees of expert witnesses may be reduced if expenses were needlessly or excessively incurred. Wampold v. Fisher, 2001-0808 (La. App. 1 Cir. 06/26/02), 837 So. 2d 638, 640.

Under La. R.S. 13:3666 and 13:4533, as well as La. C.C.P. art. 1920, the trial court has great discretion in awarding costs, including expert witness fees, deposition costs, exhibit costs, and related expenses. Carr & Assocs., Inc. v. Jones, 2022-0946 (La. App. 1 Cir. 05/10/23), 368 So. 3d 593, 600-01, writ denied, 2023-00795 (La. 10/03/23), 370 So. 3d 1075.

In the case sub judice, Dr. Plaisance argues that the trial court abused its discretion in taxing him with expert witness fees that were not recoverable, not proven, and excessive. We disagree. We find no abuse of discretion in the trial court's determination of the reasonable expenses for expert witnesses. The trial court took into consideration the preparatory work, time away from duties, the extent and nature of the work performed, and the knowledge, skill, and attainments of the experts. See Reynolds, 194 So. 3d 56, 61. The trial court reviewed each item of the plaintiff's requested costs and made appropriate deductions and reductions within its broad discretion.

First, regarding the amount of expert fees for pretrial and trial work, the trial court reduced by almost half the fee requested for Dr. Kraut. The trial court was cognizant of the import of Dr. Kraut's testimony to the plaintiff's case and his high level of expertise contrasted with the fact that Dr. Kraut did not travel to provide live testimony. Reducing Dr. Kraut's expert fee by half, or $15,000.00, was not an abuse of discretion. We further find that the record supports Drs. Arden's and Litrel's requested pretrial and trial work fees and the trial court did not abuse its discretion by declining to reduce those fees. The trial court also properly reduced the total pretrial and trial work costs requested of $63,463.42 by the cost for depositions not used at trial, and trial preparation costs, for a total remaining taxable cost of $27,630.47.

Regarding post-trial depositions to allow the plaintiff to produce evidence of pretrial out-of-court expert fees, we are not persuaded by Dr. Plaisance's argument that the amount of fees was not proven due to the absence of an in-person contradictory hearing. A contradictory hearing was initially set for January 18, 2024, but was continued to March 27, 2024, to allow the plaintiff to produce evidence of the expert fees. The record indicates that the parties consented to video depositions of Drs. Kraut, Litrel, and Arden via Zoom, with cross-examination, in order to reduce costs. We conclude it was well within the trial court's discretion to tax reduced post-trial expert fees, with a maximum of $1,000.00 per expert, considering the short duration of the Zoom depositions and limited content thereof.

Costs cast against Dr. Plaisance

Dr. Plaisance argues that he should not have been cast with 100 percent of the costs when he was allocated only 25 percent of the fault. The plaintiff correctly points out that there is no jurisprudence requiring costs to mirror allocation of fault. Rather, except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable pursuant to La. C.C.P. art. 1920, which has been liberally interpreted as granting broad discretion to the trial court. Carr & Associates, Inc. v. Jones, 2022-0946 (La. App. 1 Cir. 05/10/23), 368 So.3d 593, 603, writ denied, 2023-00795 (La. 10/03/23), 370 So. 3d 107. See also Rideau v. State Farm Mut. Auto. Ins. Co., 2006-0894 (La. App. 1 Cir. 08/29/07), 970 So. 2d 564, 581, writ denied, 2007-2228 (La. 1/11/08), 972 So. 2d 1168 (finding no abuse of discretion in the trial court's decision to impose the costs of court on the defendants where there was an apportionment of fault); Gauthier v. Wilson, 2004-2527 (La. App. 1 Cir. 11/4/05), 927 So. 2d 383, 390, writ denied, 2005-2402 (La. 3/31/06), 925 So. 2d 125 8 (finding no abuse of discretion in the trial court's taxing the insurer defendant with all costs after jury allocation of only partial fault to the defendant's insured).

On appellate review, only a showing of an abuse of discretion warrants reversal of the trial court's cost allocation. Thibodeaux v. USAA Cas. Ins. Co., 93-223 8 (La. App. 1 Cir. 11/10/94), 647 So. 2d 351, 362. We find no such abuse of discretion in this case. Dr. Plaisance was cast in judgment for breaching the standard of care and contributing to Andrea's death by failing to properly manage her continued hypertension after the premature birth of Mae by cesarean section and by discharging Andrea while her blood pressure remained dangerously elevated. In this suit on behalf of Andrea's two young children, we find the decision made by the trial court to cast Dr. Plaisance with all costs to be within the trial court's discretion.

CONCLUSION

For the foregoing reasons, the trial court's April 4, 2024 judgment is affirmed. Costs of this appeal are assessed to the defendant, Kevin M. Plaisance, M.D.

AFFIRMED.

FOOTNOTES

1.   Dr. Plaisance and the intervenors, the Louisiana Patient's Compensation Fund and the Louisiana Patient's Compensation Fund Oversight Board (collectively, PCF), also appealed the jury verdict in favor of the plaintiff. See Vicknair v. Plaisance, et. al, 2024-1168 (La. App. 1 Cir. —/—/—), ––– So. 3d –––– (also decided this date), wherein this Court affirmed the judgment in favor of the plaintiff. The two appeals were consolidated by this Court for argument and submission only.In assignment of error number one in the instant appeal, Dr. Plaisance submits that the taxing of costs against him should be reversed if this Court reverses the jury verdict and renders judgment in his favor, finding him zero percent at fault. Because of our holding in 2024 CA 1168 affirming the jury verdict, we pretermit any discussion of the first assignment of error.

2.   On March 8, 2019, the trial court granted the plaintiff's motion to dismiss the hospital as a defendant.

3.   Regarding the jury's allocation of 75 percent fault to Andrea, we note that there was evidence presented at trial that Andrea possibly had a history of taking her son's Adderall, conflicting evidence as to whether she may or may not have been compliant in taking her prescribed blood pressure medication post-discharge, and that she did not go to the emergency room when she began experiencing chest pains post discharge.

4.   The record indicates that Dr. Litrel waived his trial testimony fee of $10,000.00. Counsel for the plaintiff advised the trial judge in open court that Dr. Litrel waived his fee for the benefit of Andrea's children.

BALFOUR, J.

McClendon, J., concurs.