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Conforto v. Toscano

Court of Appeals of Louisiana, Fifth Circuit

December 13, 2017

CARLO CONFORTO
v.
DYLAN TOSCANO, UNITED SERVICES AUTOMOBILE ASSOCIATION AND ALLSTATE INSURANCE COMPANY

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 711-301, DIVISION "G" HONORABLE E. ADRIAN ADAMS, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, CARLO CONFORTO Laurence D. Cohen

          COUNSEL FOR DEFENDANT/APPELLEE, DYLAN TOSCANO AND USAA CASUALTY INSURANCE COMPANY T. Gregory Schafer

          Panel composed of Judges Robert M. Murphy, Stephen J. Windhorst, and Hans J. Liljeberg

          STEPHEN J. WINDHORST JUDGE.

         Appellant, Carlo Conforto, appeals the trial court's September 22, 2016 judgment, [1] granting his motion to tax costs against appellees, Dylan Toscano and United Services Automobile Association.[2] For the reasons that follow, we affirm.

         Facts and Procedural History

         On March 18, 2011, appellant was involved in a motor vehicle accident and as a result sustained injuries. Appellant filed a petition for damages against appellees on February 10, 2012. A jury trial was held March 28 through March 30, 2016, wherein judgment was rendered in favor of appellant in the amount of $145, 708.36 plus legal interest from the date of judicial demand and all court costs.

         At the trial on the merits, appellant inquired into how the trial court would like to handle expert witness fees when he had his first expert witness on the stand. After a bench conference with opposing counsel and the trial court, it was agreed that the expert witness fees would be addressed after trial at a motion to tax costs.[3]

         On April 26, 2016, appellees filed a motion for JNOV and/or new trial, which was denied by the trial court on July 11, 2016. Appellant filed a rule to tax costs on August 9, 2016, wherein he requested expert witness fees for Dr. Rand Voorhies, Dr. Donald Dietz, Dr. Peter Zimmerman, Dr. Samuel Greenburg, and Nathaniel Fentress. After a hearing, the trial court issued judgment granting appellant's motion on September 22, 2016. The judgment awarded expert witness fees to appellant for four of the five experts called to testify at trial. The trial court did not award an expert witness fee for one expert, Dr. Samuel Greenburg, appellant's treating physician. This appeal followed.

         Discussion

         La. C.C.P. art. 1920 authorizes the taxing of costs.[4] Further, La. R.S. 13:3666 authorizes expert witness fees to be taxed as costs and provides in pertinent part:

A. Witnesses called to testify in court only to an opinion founded on special study or experience in any branch of science, or to make scientific or professional examinations, and to state the results thereof, shall receive additional compensation, to be fixed by the court, with reference to the value of time employed and the degree of learning or skill required.
B. The court shall determine the amount of the fees of said expert witnesses which are to be taxed as costs to be paid by ...

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