Opinion
C.A. No. 98C-04-127 RRC
Submitted: April 11, 2001
Decided: May 24, 2001
Upon plaintiff's bill of costs. Granted in Part, Denied in Part.
This 24th day of May, 2001, upon consideration of the submissions of the parties and the record of the proceedings below, it appears to this Court that:
1. Catherine Cimino, ("Plaintiff') brought suit against Danielle Cherry ("Defendant") for personal injuries sustained from an automobile accident, which occurred on February 5, 1997 on Churchman's Road, Newark, Delaware.
2. The case proceeded to trial on March 5, 6, and 7, 2001. During the trial, Plaintiff's expert medical witness, Dr. Frank E. Falco testified. Defendant's expert witness, Dr. Stacey H. Berner, testified by videotaped deposition. At the close of the evidence, the jury found in favor of Plaintiff and awarded damages to Plaintiff in the amount of $3,000.
3. On March 19, 2001, Plaintiff filed a Bill of Costs pursuant to Superior Court Civil Rule 54 against Defendant. Plaintiff seeks to recover total court costs in the amount of $460, expert witness fees for Dr. Frank E. Falco in the amount of $3,500, the fees charged for the videotaping the deposition of Dr. Stacey H. Berner in the amount of $275.50 (the court reporter fee), $40 (the video deposition fee); $300 (the costs incurred for counsel to attend Dr. Berner's deposition), and lastly the trial transcripts of Defense Counsel James Haley, Jr. Esquire's opening statement in the amount of $20.50.
Plaintiff asserts that Dr. Falco's $3,500 fee is reasonable even though this requested fee is greater than the fee set by this Court in a pretrial ruling for Dr. Stacey H. Berner, as Dr. Falco actually attended the trial as opposed to testifying by a videotaped deposition. Dr. Berner, Defendant's expert witness, testified by videotaped deposition. Plaintiff further contends that obtaining a transcription of defense counsel's opening statement was "necessary" in order to proceed with this case and thus is a cost which Defendant should incur. The total amount Plaintiff seeks in costs taxable to Defendant is $4,596.
Plaintiff's Bill of Costs at 1-3.
4. Defendant asserts that Dr. Falco's expert witness fee, in the amount of $3,500, is excessive. Moreover, Defendant contends that Dr. Falco's fee should not exceed the court ordered limitation which was placed upon Dr. Stacey H. Berner's fee. Defendant also objects to the fees requested with regards to the video deposition of Dr. Berner and the Court Reporter's transcription fee. Defendant asserts these fees should not be costs taxed to Defendant because "Plaintiff. never introduced Dr. Berner's deposition into evidence." Defendant also objects to the transcription fee for Defense counsel's opening statement as a cost as this transcription "was not necessary for Plaintiff to prosecute Plaintiff's case" and thus the "transcription of defense counsel's opening statement was superfluous." In the aggregate, Defendant asserts that the allowable costs, which Plaintiff should be awarded, is $2160.
This Court signed an Order on June 6, 2000 stating that Dr. Berner's fee, who testified by videotaped deposition, would be limited to $800 for the first hour and $300 for each subsequent hour thereafter. Cimino v. Cherry, Del. Super., C.A. No. 98C-04-127, Cooch, J. (June 6, 2000) (ORDER).
Defendant's Opposition at 2.
Defendant's Opposition at 3-4.
Defendant's Opposition at 4.
5. Awarding court costs to a prevailing party is a matter of judicial discretion intended to reimburse the prevailing party for expenses unnecessarily incurred in the assertion of its rights in court. This Court has authority to award costs to a prevailing party in a lawsuit so long as that party makes an application to this Court within ten days after a final judgment has been entered. The fees for expert witnesses who testify by deposition may also be included as costs awarded to a prevailing party provided the deposition is "introduced into evidence." Similarly this Court has discretion "to fix the fees for witnesses testifying as experts or in the capacity of professionals . . . and such fees so fixed shall be taxed as part of the costs in each case and shall be collected and paid as other witness fees are now collected and paid." In the case at bar, Plaintiff is entitled to certain costs as Plaintiff was the prevailing party at trial. However, certain costs are not allowable costs.
Zakrzewski v. Dailey, Del. Super., C.A. No. 98C-02-302, Cooch, J. (November 6, 2000) (ORDER) at 5.
Super. Ct. Civ. R. 54(d).
Super. Ct. Civ. R. 54(h).
10 Del. C. § 8906.
Donovan v. Delaware Water and Air Resources Comm., Del. Supr., 358 A.2d 717, 725 (1976).
6. Initially, this Court notes that Defendant does not dispute the amount of total court costs which amount to $460. Thus, this item shall be awarded to Plaintiff in the amount claimed without further discussion.
7. Plaintiff first seeks, as an allowable costs, an expert witness fee of $3500 for Dr. Falco. Defendant objects to that amount and asserts that "Dr. Falco's fee should be limited to $800 for the first hour and $300 for the following two hours" (that being the amount allowed for Dr. Berner in a pre-trial ruling). Plaintiff contends in her Reply that "the Court should take notice that there is a different focus and reason for determining an expert's costs at deposition compared to that at trial [and that] the Court has often limited the compensation to the expert as to that which is deemed reasonable, given that depositions routinely are done at the expert witness's offices at the expert's convenience."
Defendant's Opposition at ¶ 3.
Plaintiff's Reply at 2.
According to Plaintiff, Dr. Falco was in court one trial day from approximately 10:00 a.m. until 3:00 p.m. Plaintiffs counsel questioned Dr. Falco from 10:00 a.m. to 12:00 noon. Defense counsel then cross-examined Dr. Falco from 12:00 to 12:40 p.m., and again from 2:00 p.m. to 3:00 p.m. Defendant calculates Dr. Falco's time in a less precise manner, but both Plaintiff's and Defendant's recitation of the time is generally equal. Absent evidence to the contrary, this Court accepts Plaintiff's calculation of time as correct and estimates the amount of time spent in court by Dr. Falco to be approximately four hours.
Defendant stated generally that "Dr. Falco testified for 3 hours — 2 hours on direct and 1 hour on cross." Defendant's Opposition at ¶ 3.
8. An expert's fee is recoverable as a cost of litigation, but is limited to the time necessarily spent in actual attendance upon the Court for the purpose of testifying. "Attendance includes a reasonable time for traveling to and from the courthouse, waiting to testify, and testifying."
Deardorff v. Paul, Del. Super., C.A. No. 96C-10-260 Toliver, J. (Apr. 27, 2000) (Op. and Order).
Sliwinski v. Duncan, Del. Supr., No. 260, 1991, Christie, C.J. (Jan. 15, 1992)(ORDER) at 3.
In determining the fee Dr. Falco is entitled to be paid, this Court does not agree with Defendant's contention that the rate applied to Dr. Berner's fee is "the law of the case." However, this Court also finds that the fee of $3,500 is unsubstantiated by Plaintiff in its Bill of Costs and in her Reply. In determining what amount is reasonable to award Plaintiff in its Bill of Costs for Dr. Falco, this Court also notes that Plaintiff did not supply this Court with Dr. Falco's hourly rate. Additionally, since Plaintiff failed to supply this Court with any basis upon which this Court could calculate a reasonable fee to award Plaintiff, this Court shall in its discretion utilize the limitation imposed upon Dr. Berner's videotaped deposition as a basis to determine allowable costs for Dr. Falco.
Plaintiff's Bill of Costs merely quotes 10 Del. C. § 8906 and thereafter states that "[p]laintiff seeks to recover the following expert costs: Dr. Frank Falco trial testimony $3,500."
Applying the limitation of $800 for the first hour and $300 for every hour thereafter, this Court finds that an allowable cost for Dr. Falco's fee is $1,700.
Little v. Morgan, Del. Super., C.A. No. 86C-AP-1, Toliver, J. (April 10, 1991) (Letter Op.) at 2 (holding that Plaintiff's expert was entitled to $250 an hour, which was the expert's hourly rate, for the six hours that expert spent in court plus travel time to the courthouse.) See also Re v. Gannett Co., Del Super., C.A. No. 81C-SE-65, Poppeti, J. (Feb. 20, 1990) (holding that expert witness fees should be based upon a per hour basis rather than a daily fee, particularly where the expert do [sic] not testify for a full day. The Court established the expert's rate as $150 per hour.).
9. Plaintiff next contends that the videotaped deposition fees (the court reporter fee for transcribing the deposition, the videotape cost, and the cost for counsel to attend the deposition) are taxable to Defendant as costs of this litigation. "The fees paid court reporters for the Court's copy of transcripts of depositions shall not be taxable costs unless introduced into evidence [and] [flees for other copies of such transcripts shall not be taxable as costs." Previous Delaware case law contradicts Plaintiff's assertion that both the deposition transcription and videotape fees are allowable costs. In Bejger v. Shreeve, this Court held that the costs of deposition transcripts for two different physicians who testified were not allowable costs "[b]ecause the testimony of [the expert medical witness's] was introduced through videotape, [and] transcription was duplicative and would be borne by defendant [the party seeking to recover costs]." Moreover, in Cubberly v. Orr, this Court held that when a plaintiff requested costs associated with the transcription of depositions introduced at trial, "[t]hese costs are taxable [h]owever the Court will not allow plaintiffs to recover for the transcription of the depositions of [the experts witnesses] [b]ecause the testimony of these experts was introduced through videotape, transcription was duplicative and will be borne by plaintiffs."
Super. Ct. Civ. R. 54(f).
Bejger v. Shreeve, Del. Super., C.A. No. 95C-06-104, Cooch, J. (Apr. 15, 1997) (ORDER).
Bejger v. Shreeve at 7 (citing Cubberly v. Orr, Del Super., C.A. No. 94C-03-171, Del Pesco, J. (Oct. 24, 1995)(Order) at 4; Buck v. Anderson, Del. Super., C.A. No. 93 C-05-113, Del Pesco, J. (Sept. 7, 1994)).
Cubberly at 4.
10. For the above stated reasons, this Court finds that Plaintiff's are entitled to the following costs for litigating the above matter:
Court costs.....................................................$460. Videotaped Deposition fee........................................$40. Dr. Falco's expert witness fee................................$1,700. Transcript for Court Reporter fee.................................$0. Costs for Plaintiff's counsel to attend Dr. Berner's Deposition..$300. Defense Counsel, James Haley, Jr., Esquire's Opening Statement....$0.
Total.........................................................$2,500.
11. For the foregoing reasons, Plaintiff's Bill of Costs is GRANTED in part and DENIED in part.
IT IS SO ORDERED.