Award of Expert Witness Fees Abusive: Nevada Supreme Court

Courts abuse their discretion if they award excessive expert witness fees without justification, the Nevada Supreme Court has ruled. Without justification by the court, Nevada law allows for the recovery of expert witnesses' "reasonable fees", reasonable fees being up to $1,500.

In the case of Khoury v. Seastrand, (2016 Jul 28, Nev. Supreme Court), Margaret Seastrand brought a personal injury lawsuit against Raymond Riad Khoury to recover medical expenses after Khoury's car rear-ended hers. Seastrand had received extensive medical treatments, including surgeries, and stated during voir dire that she was seeking $2 million in damages.

Seastrand had multiple expert witnesses testify, including Dr. Jeffrey Gross, a neurological surgeon and neurology expert witness, with a fellowship in spinal biomechanics. After the jury returned a verdict of over $700,000, Seastrand filed a memorandum of costs for over $125,000 and a motion for attorney fees, both of which Khoury opposed. The district court awarded Seastrand $75,000 for costs and denied her attorney fees.

Khoury appealed on multiple grounds, including the admission of Gross' expert testimony, excluding evidence of the amount Seastrand's medical providers received for the sale of her medical liens, excluding evidence of her medical liens, awarding costs to Seastrand and other claims.

Gross had testified that Seastrand's prior injuries were unrelated to her neck and more likely related to her heart or anxiety, or both. Khoury argued that Gross was required to disclose that opinion in an expert witness report.

The Supreme Court disagree, noting that Gross had disclosed his opinion in a supplemental report which directly addressed the opinion of one of Khoury's experts, Dr. John Siegler, who had opined that Seastrand's doctor visits in 2007 indicated that she had a history of cervical and lumbar pain. Gross had testified that Siegler had "conveniently omitted" the fact Seastrand's medical records showed that the episode of tingling in the upper extremities was related to chest pain and stress. The Supreme Court found no abuse of discretion in allowing the testimony.

Khoury also challenged the testimony of Seastrand's treating physician, Dr. Muir, arguing that his opinion on the cause of Seastrand's injuries and on the treatment provided by Dr. Marjorie E. Belsky should have been precluded because Seastrand failed to have an expert witness report from Muir and did not disclose him as an expert witness. The Supreme Court reviewed Muir's opinions and found that they were formed during the course of Seastrand's treatment, making them exempt from the expert witness requirements.

Khoury argued as well that the district court abused its discretion when it refused to admit evidence of the amount that Seastrand's medical providers received for the sale of her medical liens to a third party, evidence Khoury sought to use to prove the reasonable amount of Seastrand's medical costs and to prove bias on the part of Seastrand's treating physicians.

The Supreme Court agreed with the district court on the inadmissability of the amount of the medical liens, finding the amount to be "irrelevant to a jury's determination" and likely lead to jury confusion.¹ The Court did find, however, that the district court did abuse its discretion in excluding evidence of the medical liens to prove bias, although it found the error harmless.

Lastly, Khoury argued that the district court erred when it awarded costs to Seastrand without any justification, and the Supreme Court agreed. The Court quoted Nevada law (NRS 18.005) that allows for the recovery of reasonable fees for up to five expert witnesses and not more than $1,500 per witness. The district court had awarded $42,750 in expert witness fees for Seastrand's five expert witnesses and did not state a basis for its award.

The Supreme Court found that Khoury's new trial motion was properly denied by the district court, as was that court's refusal to declare a mistrial. The Supreme Court did however remand the case to the district court to resolve the issue of expert witness fees.