Taxable costs & attorney fees; MCL 600.2421b(1); MCL 600.2164(1); Van Elslander v Thomas Sebold & Assoc, Inc; Waiver of issue as to the applicability of the fee schedule under MCL 500.3157 for medical services

In Docket No. 367653, the court affirmed the trial court’s judgment for plaintiff. In Docket No. 371964, it affirmed in part the trial court’s opinion and order as to plaintiff’s renewed motion for taxable costs and attorney fees as to all taxable costs, except those related to the deposition fees of the three expert physician witnesses, which it vacated and remanded for further consideration of the reduction in the costs awarded. It affirmed the portion of the opinion and order as to attorney fees. Plaintiff argued that the trial court erred by not awarding it all the taxable costs and attorney fees requested. On appeal, it only contested the costs awarded for the depositions of three expert physician witnesses. Plaintiff’s “renewed motion for taxable costs and attorney fees omitted an itemized explanation of the costs associated with obtaining the depositions of the expert physicians. Instead, the verified bill of costs reflected the total payments made to each witness.” This omission likely explained “the trial court’s reference to the absence of the minimal appearance fee or hourly rate for” Drs. N, P, and G. Plaintiff tried “to remedy this deficiency by attaching affidavits from the expert physicians affirming the overall costs associated with their depositions, in addition to the ‘legal fee schedules’ of Dr. [P] and Dr. [G], to its motion for reconsideration. Notably, however, the trial court did not provide any explanation, either in its initial opinion and order partially granting plaintiff’s motion for taxable costs and attorney fees, or in its subsequent order partially granting plaintiff’s motion for reconsideration, as to why the expenses of the expert witnesses were unreasonable or why $500 was deemed a sufficient hourly fee for each witness. Likewise, [it] did not address plaintiff’s exhibits reflecting the costs of the expert physician witness depositions, including the . . . affidavits, fee schedules, or the witnesses’ respective testimonies. Rather, the trial court broadly concluded that $500 constituted a sufficient hourly rate for each physician. Thus, [it] abused its discretion by neither adequately explaining the unreasonableness of plaintiff’s expert witness fees nor justifying $500 as a proper hourly alternative.” Plaintiff also challenged the trial court’s award of attorney fees under MCL 500.3148 on several grounds. But the court held that “the trial court did not abuse its discretion, or otherwise err, by apportioning fees, based on the subsection of benefits found to be overdue by the jury, particularly in light of the complexities surrounding the applicability of the fee schedule under MCL 500.3157 to charges incurred after” 3/15/21. The court also rejected plaintiff’s arguments “that the attorney fees awarded were unreasonable and constituted an abuse of discretion” and that the trial court did not “properly calculate the reasonable number of hours expended in the case.”