In a recent decision by the Richmond Circuit Court, the court determined that the Va. Code § 8.01-380(C) does not allow recovery of defense witness fees for a nonsuit taken by the plaintiff at trial. What is most striking about the Richmond Circuit Court’s ruling is the lack of discretion for awarding fees at all if the nonsuit is taken during trial. This means, according to the Court’s ruling, a plaintiff can simply wait to take their first nonsuit at trial and it has virtually no risk of paying expert witness fees. In light of this ruling, plaintiffs are afforded the opportunity to literally settle the case “on the court house steps” without the Va. Code § 8.01-380(C) fee provision hanging over their heads.
Va. Code § 8.01-380(C) reads:
C. If notice to take a nonsuit of right is given to the opposing party within seven days of trial, the court in its discretion may assess against the nonsuiting party reasonable witness fees and travel costs of expert witnesses scheduled to appear at trial, which are actually incurred by the opposing party solely by reason of the failure to give notice at least seven days prior to trial. The court shall have the authority to determine the reasonableness of expert witness fees and travel costs.
