N.M. Stat. § 38-6-4 (2026)

A. Witnesses shall be allowed no fees for services, but shall receive per diem
expense and mileage at the rate specified for nonsalaried public officers as provided in
the Per Diem and Mileage Act [10-8-1 to 10-8-8 NMSA 1978] for that time in which
attendance is required, with certification of the clerk of the court.

   B. The district judge in any civil case pending in the district court may order the
payment of a reasonable fee, to be taxed as costs, in addition to the per diem and
mileage as provided for in Subsection A of this section, for any witness who qualifies as
an expert and who testifies in the cause in person or by deposition. The additional
compensation shall include a reasonable fee to compensate the witness for the time
required in preparation or investigation prior to the giving of the witness's testimony. The
expert witness fee which may be allowed by the court shall be limited to one expert
regarding liability and one expert regarding damages unless the court finds that
additional expert testimony was reasonably necessary to the prevailing party and the
expert testimony was not cumulative.

    C. The provisions of this section shall apply only to cases filed on or after its
effective date.

History: Laws 1887, ch. 40, § 1; C.L. 1897, § 1810; Code 1915, § 5898; C.S. 1929, §
155-104; 1941 Comp., § 20-104; 1953 Comp., § 20-1-4; Laws 1959, ch. 62, § 1; 1971,
ch. 139, § 1; 1975, ch. 105, § 1; 1983, ch. 189, § 1.

                                      ANNOTATIONS

Compiler's notes. — The reference to the effective date in Subsection C means the
effective date of Laws 1983, Chapter 189, which was June 17, 1983.

Cross references. — For limitation on taxation of costs, see 39-2-9 NMSA 1978.

For fees for witnesses in workers' compensation cases, see 52-5-7 NMSA 1978.

Expert costs. — An expert was forced to wait for the production of the documents,
which he needed to prepare for the testimony that he later gave. Any costs that were
incurred as a result of the delay are recoverable under Section 38-6-4B NMSA 1978. H-
B-S P’ship v. Aircoa Hospitality Services, Inc., 2008-NMCA-013, 143 N.M. 404, 176
P.3d 1136.

Where expert testimony was reasonably necessary, as part of the mix of information the
district court needed, it should be recompensed. Primetime Hospitality, Inc. v. City of
Albuquerque, 2009-NMSC-011, 146 N.M. 1, 206 P.3d 112.

Expert witness fees in summary judgment. — Where defendants obtained summary
judgment in a toxic tort action, defendants were entitled to recover expert witness fees
for witnesses whose affidavits and testimony were material to the award of summary
judgment for defendants and to the exclusion of the testimony of plaintiff’s expert
witnesses and whose testimony was not cumulative. Andrews v. United States Steel
Corp., 2011-NMCA-032, 149 N.M. 461, 250 P.3d 887.

Expert witnesses' fees are treated as costs and are taxed upon entry of judgment
to the prevailing party, not at the time a complaint is filed. Mantz v. Follingstad, 1972-
NMCA-164, 84 N.M. 473, 505 P.2d 68, overruled on other grounds by Peralta v.
Martinez, 1977-NMCA-040, 90 N.M. 391, 564 P.2d 194.

Separate finding of reasonable necessity for multiple witnesses. — The court did
not abuse its discretion in allowing the fees of two expert witnesses as costs. A
separate finding of "reasonable necessity" was not required, since it could be inferred
that this section was considered by the court. Ulibarri v. Gee, 1987-NMSC-113, 106
N.M. 637, 748 P.2d 10.

Expert's expenses allowed as costs. — Expense of a survey made preparatory for
trial, and upon which the surveyor testified, is properly allowed as costs. Ulibarri
Landscaping Material, Inc. v. Colony Materials, Inc., 1981-NMCA-148, 97 N.M. 266, 639
P.2d 75, cert. denied, 98 N.M. 50, 644 P.2d 1039.

Allowance of an expert witness fee was reasonable based on testimony that, in addition
to the time the witness spent preparing for and testifying at trial, he spent additional time
analyzing and investigating reports prepared by other party's expert witness. Key v.
Chrysler Motors Corp., 1999-NMCA-028, 127 N.M. 38, 976 P.2d 523, aff'd in part, 2000-
NMSC-010, 128 N.M. 739, 998 P.2d 575.

Award of costs for fees of expert witnesses who do not testify in person or in a
deposition is not authorized by New Mexico statute. Fernandez v. Espanola Pub. Sch.
Dist., 2004-NMCA-068, 135 N.M. 677, 92 P.3d 689, aff'd, 2005-NMSC-026, 138 N.M.
283, 119 P.3d 163.

Because none of the plaintiffs’ expert witnesses had testified in the cause either in
person or in a deposition prior to the time that plaintiffs had accepted defendants’ offer
of judgment, the court lacked discretion to award costs under the express language of
Subsection B of this section. Fernandez v. Espanola Pub. Sch. Dist., 2004-NMCA-068,
135 N.M. 677, 92 P.3d 689, aff'd, 2005-NMSC-026, 138 N.M. 283, 119 P.3d 163.
Physicians appearing as expert witnesses. — Fees paid to physicians who testified
as expert witnesses at trial or served as consulting experts to plaintiff were properly
awarded as costs against defendant. Gillingham v. Reliable Chevrolet, 1998-NMCA-
143, 126 N.M. 30, 966 P.2d 197.

Costs allowed in case of fraudulent claim. — In an action to quiet title to property,
where a claim was based upon a document expressly found to have been forged by
defendant, the trial court's order denying an award of costs for plaintiff's expert witness
and imposition of sanctions against defendant was reversed and remanded for
reconsideration. Martinez v. Martinez, 1997-NMCA-096, 123 N.M. 816, 945 P.2d 1034.

Case resting on Workers’ Compensation Act was not controlling authority for a
case interpreting Subsection B of this section. Fernandez v. Espanola Pub. Sch. Dist.,
2004-NMCA-068, 135 N.M. 677, 92 P.3d 689, aff'd, 2005-NMSC-026, 138 N.M. 283,
119 P.3d 163.

Use of court fund for payment of expert witnesses. — A district court in the
administration of justice may use its court fund to pay for expert witnesses regardless or
whether or not such an expert is testifying for the prosecution. Further, this section does
not set a limitation on this fee. Perhaps, however, the fee set out in this section would
furnish a good guideline for the district court to use in setting the fees for that expert
which must be paid from the court fund. 1966 Op. Att'y Gen. No. 66-14.

Law reviews. — For article, "Rule 68 Offers of Judgment: Lessons From the New
Mexico Experience," see 39 N.M.L. Rev. 349 (2009).

For article, "Settlement Without Sacrifice: The Recovery of Expert Witness Fees as
Costs Under New Mexico's Rule 1-068," see 38 N.M.L. Rev. 655 (2008).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 20 Am. Jur. 2d Costs § 54; 81 Am. Jur.
2d Witnesses §§ 68 to 74.

Detention: right of witness detained in custody for future appearance to fees for such
detention, 50 A.L.R.2d 1439.

Corporate litigant, allowance, as taxable costs, of witness fees and mileage of
stockholders, directors, officers, and employees of, 57 A.L.R.2d 1243.

Allowance of mileage or witness fees with respect to witnesses who were not called to
testify or not permitted to do so when called, 22 A.L.R.3d 675.

Contingent fee informant testimony in state prosecutions, 57 A.L.R.4th 643.

Requirements, under Rule 45(c) of Federal Rules of Civil Procedure and Rule 17(d) of
Federal Rules of Criminal Procedure, relating to service of subpoena and tender of
witness fees and mileage allowance, 77 A.L.R. Fed. 863.
20 C.J.S. Costs §§ 107 to 117; 97 C.J.S. Witnesses §§ 35 to 48.