Opinion
C.A. No. 04C-08-144-PLA.
December 5, 2007.
Margaret F. England, Esquire, Karen L. Turner, Esquire, Eckert Seamans Cherin Mellott, LLC, Wilmington, DE.
L. Vincent Ramunno, Esquire, David R. Scerba, Esquire, Ramunno, Ramunno Scerba, PA, Wilmington, DE
Dear Counsel:
Upon consideration, the Court has decided to GRANT IN PART and DENY IN PART Defendant's Motion for Costs pursuant to Superior Court Civil Rule 54. Following a jury trial in May 2006, the jury entered a verdict for the defendant on May 19, 2006. The jury verdict was affirmed by the Delaware Supreme Court on June 18, 2007.
Spencer v. Wal-Mart Stores East, LP, 930 A.2d 881 (Del. June 18, 2007).
Plaintiff filed this Motion for Costs in 2006, but the Court delayed decision until after the appeal had been resolved. Defendant has now renoticed the Motion for Costs. Defendant has moved for certain costs associated with expert witness deposition transcript costs, charges for expert witness testimony, and mediation costs, pursuant to Delaware Superior Court Civil Rule 54, 10 Del. C. § 5101 and 10 Del. C. § 8906.
Docket 61.
Based on the plain language of Rule 54 and cases that have interpreted the Rule, the Court is satisfied that Defendant is entitled to some of the requested costs in this case.
A. Witness Deposition Transcript Costs
Defendant requests $2,252.25 in costs related to the transcript costs of depositions of Julius Pereira, Dr. Peter Bandera, Dr. Bruce Katz, Dr. Demetrios Zerefos, and Dr. Richard Katz. Superior Court Rule 54(f) states that the fees paid court reporters for the Court's copy of transcripts of depositions shall not be taxable costs unless introduced into evidence. The Rule further provides that fees for additional copies of these transcripts shall not be taxable costs. The witness deposition transcript of Julius Pereira was not introduced into evidence. Therefore, this expense is denied.
The costs to obtain expert witness deposition transcripts of Doctors Peter Bandera and Demetrios Zerefos, in the total amount of $296.70, however, are awarded. These costs are properly recoverable because the deposition transcripts were admitted into evidence.
Defendant also requests costs in the amount of $1,620.04 for the expert witness deposition transcripts of Dr. Bruce Katz and Dr. Richard Katz. Both doctors testified by video tape, and these were presented into evidence at trial. This Court has held that where an expert witness's videotaped deposition is introduced into evidence at trial, the production cost of the videotape is recoverable. A transcript of the video, however, would be duplicative of other costs permitted under Rule 54(f), and these costs are not recoverable.
Fellenbaum v. Ciamaricone, 2002 WL 31357917, at *6 (Del.Super.Ct. Oct. 16, 2002).
B. Expert Witness Testimony Costs
Defendant next seeks payment in the total amount of $7,423.34 for the fees charged by Defendant's expert witnesses, Dr. Richard Katz, Paul O.G. Heppner Jr., and Barbara Stevenson. Fees for expert witnesses testifying by deposition are recoverable under Rule 54(h) and 10 Del. C. § 8906. Such fees are limited, however, to time necessarily spent in attendance at the Court for actual time spent testifying, or waiting to testify, as well as reasonable travel expenses. Fees for "orientation" or consulting or advising a party during trial are not recoverable, nor are any activities in preparation for trial.
Cimino v. Cherry, 2001 WL 589038, at *2 (Del.Super.Ct. May 24, 2001).
Defendant has provided invoices from those expert witnesses who testified in this case. All but one include itemizations. The invoice from Dr. Richard Katz indicates a flat fee of $3,000 for two hours of "review of medical file, discussion and video deposition." The fee at issue here is a flat fee, and the Court is unable to determine the amount of time spent generating recoverable fees. Because some of Dr. Katz's fees are recoverable as "actual time spent testifying," the Court will exercise its discretion and determines that $1,500 is a reasonable amount.
Defendant also seeks costs totaling $1,459.88 for the witness fees of Barbara Stevenson. Rule 54(e) provides:
If at any time during the progress of an action it appears to the Court that . . . any party unnecessarily swells the record or causes other unnecessary expense, the Court may, in its discretion, order such unnecessary expense to be taxed against the party causing same. . . .
Super. Ct. Civ. R. 54(e).
In her complaint, Plaintiff claimed unspecified damages for "loss of earning capacity . . . for an indefinite time in the future." Defendant had an interest in analyzing and rebutting the extent of damages related to potential future wage losses before the jury. To that end, Ms. Stevenson's expert testimony qualifies as recoverable under Rule 54.
However, Ms. Stevenson's bill contains a number of costs not recoverable under Rule 54. Ms. Stevenson's invoice, as presented by Defendant, includes fees dating back nearly three months before her testimony. Costs not related to time spent waiting to testify, testifying, or traveling to and from the courthouse for the purpose of testifying are not recoverable under Rule 54. Ms. Stevenson's invoice indicates professional testimony time of .2 hours on May 16, 2006, .1 hours on May 17, and .2 hours on May 18. The Court records indicate that Ms. Stevenson only testified on May 18. The Court will therefore allow .2 hours of testimony time at her hourly rate of $82.00. Ms. Stevenson additionally bills wait and travel time. While time spent testifying and waiting to testify are recoverable, travel expenses may not be compensated at an expert's hourly testifying rate. Ms. Stevenson indicates no wait time on May 16, but a total of 4.8 hours waiting between May 17 and 18. The Court grants this time at her rate of $82.00 per hour for a total of $393.60. Ms. Stevenson also bills a total of 3.4 hours for travel time for both the 17th and 18th of May. The Court grants this time at half her hourly rate for a total of $139.40, plus $51.04 in reasonable travel expenses. Defendant accordingly is awarded $600.44 for Ms. Stevenson's testimony.
McKinney v. Brandywine Court Condo. Council, Inc., 2004 WL 2191033, at *3 (Del.Super.Ct. Aug. 12, 2004).
See Russo v. Medlab Clinical Testing, Inc., 2001 WL 34082277, at *4 (Del.Super.Ct. Nov. 14, 2001) (citing Stevenson v. Henning, 268 A.2d 872, 874 (Del.Super.Ct. 1970)).
Defendant next presents the bill of Paul Heppner in the amount of $2,963.46 for two separate days of trial testimony, consultation, and a site visit. As noted above, only costs for time spent testifying, waiting to testify, or traveling to or from the courthouse are recoverable. If Heppner had traveled to court both days with the expectation that he was to testify, but only testified for one of those days, his costs may include the time he spent waiting both days. The Court notes that such an interpretation of Mr. Heppner's invoice is reasonable due to the overrun of Plaintiff's case into the time set aside for Defendant. It is entirely likely that Mr. Heppner had to return to Court the following day to give his testimony. Costs for consultation or site visitation, however, are not recoverable. The Court therefore awards $1,920.00 for time spent waiting and testifying over the 16th and the 17th, as well as $203.46 in reasonable travel costs for a total of $2,123.46 for the cost of Mr. Heppner's testimony.
McKinney, 2004 WL 2191033 at *3.
C. Mediation Costs
Defendant presents costs of $150.00 related to mediation in the Superior Court. It is undisputed that the attempt to resolve this case through mediation failed, that an offer of judgment for $100,000 was made by Defendant and subsequently rejected by Plaintiff, and that a trial by jury found for Defendant and awarded no damages to Plaintiff. Given these facts, this Court concludes that the mediation cost sought by Defendant must be granted.
For the foregoing reasons, the Court permits the Defendant to recover costs in the total amount of $4,670.60. Therefore, Defendant's Motion for Costs is hereby GRANTED IN PART/DENIED IN PART.
IT IS SO ORDERED.