Summary
holding that "a reasonable range for depositions is . . . between about $650 and $1150 for a two-hour deposition"
Summary of this case from Hales v. WingOpinion
C.A. No. 00C-06-231 RRC
Submitted: July 18, 2002
Decided: October 16, 2002
On Plaintiff's Amended Motion for New Trial. DENIED.
On Defendant Paul J. Ciamaricone's Motion for Costs. GRANTED IN PART, DENIED IN PART.
Elwood T. Eveland, Jr., Esquire, Haase Eveland, Attorney for Plaintiff
Ransford B. Palmer, Jr., Esquire, Bouchelle Palmer, Attorney for Defendant Needam M. Shah
Bruce W. McCullough, Esquire, McCullough McKenty, P.A., Attorney for Defendant Paul J. Ciamaricone
Dear Counsel:
This automobile personal injury action was tried before a jury on April 1st and 2d 2002. Plaintiff William Fellenbaum ("Plaintiff") had settled with defendant Needam M. Shah ("defendant Shah") pretrial before proceeding against defendant Paul J. Ciamaricone ("defendant Ciamaricone") alone. Despite this settlement, the jury found that defendant Shah was wholly liable for the collision underlying Plaintiff's alleged injuries and then awarded Plaintiff $500 in damages. Plaintiff now moves this Court to enter an order granting him a new trial pursuant to Superior Court Civil Rule 59, on grounds that the jury rendered its verdict against the "great weight" of the evidence. Prior to trial, defendant Ciamaricone had served an offer of judgment on Plaintiff in the amount of $10,001. Because the jury found defendant Ciamaricone not to have been liable for Plaintiff's injuries, defendant Ciamaricone now moves this Court to enter an order awarding him costs and expert witness fees in the amount of $4,047.50, pursuant to Superior Court Civil Rule 68. For the reasons that follow, Plaintiff's motion is denied and defendant Ciamaricone's motion is granted in part and denied in part.
Superior Court Civil Rule 59 provides in pertinent part that a new trial "may be granted as to all or any of the parties and on all or part of the issues in an action in which there has been a trial for any of the reasons for which new trials have heretofore been granted in the Superior Court."
Plaintiff responded with a $37,500 counteroffer. See Pretrial Stipulation, Dkt. #35.
Superior Court Civil Rule 68 provides in pertinent part that "[i]f the judgment finally obtained by the . . . [party to which an offer of judgment was made] is not more favorable than the offer [itself], the. . .[party to which the offer was made] must pay the costs incurred after the making of the offer."
FACTUAL AND PROCEDURAL HISTORY
On July 7, 1998, Plaintiff was involved in a motor vehicle collision while riding as a passenger in a pickup truck driven by defendant Ciamaricone. The collision occurred when Ciamaricone's vehicle struck from behind a vehicle being driven by defendant Shah. Plaintiff and defendant Ciamaricone were returning to a worksite after purchasing lunch at a nearby convenience store; at the time, Ciamaricone was Plaintiff's foreman on a contracted-for painting job in a residential development. The collision of the two vehicles dented defendant Ciamaricone's pickup truck and tore off defendant Shah's bumper cover. Following the collision, the two vehicles were driven into a nearby parking lot where defendants Ciamaricone and Shah as well as Plaintiff waited for the police to arrive. Defendant Ciamaricone was then issued a citation for disregarding a traffic-control device in violation of title 21, section 4107 of the Delaware Code, which citation Ciamaricone voluntarily paid at a later time.
At trial, four persons testified as to the source of the collision. Plaintiff testified under direct examination as follows:
Mr. Eveland: What happened after you got lunch at the Wawa? Plaintiff: We were leaving to go back to the job, to make a left going towards Maryland on Route 40. Coming towards the intersection, from what I saw, the light [in the direction the pickup was traveling] was green. Ahead, coming towards the intersection a little closer two cars could come across, or started to come across. I remember. . .[defendant Ciamaricone] saying, "They'll move," as he was speeding up towards the intersection. I really didn't notice the light after that, but I seen [sic] that we were going to probably hit a car. I grabbed the dashboard, I was getting ready for it. So we hit the back of, the back of the last car that crossed. And it just, it jerked me around in the seat pretty good. And we went through the intersection and turned around and went back to the accident where it happened.
Trial Tr. of 4/1/02 at 6-7 (Ex. "G" to Pl.'s Am. Mot.).
Defendant Ciamaricone testified under direct examination as follows:
Mr. McCullough: And tell the jury as you remember what happened as you approached that intersection [where the collision occurred]? Defendant Ciamaricone: Well, when I made the turn coming out of the. . .[convenience store] that turned going towards Maryland, we were probably approximately at the McDonald's, and that's when I noticed the light was green. I proceeded, and I had noticed Mr. Shah edge out, like, hesitate. And then when I started driving, I slowed down, and then he just all of a sudden darted as if he was trying to make it, and then that's when the collision happened. I swerved, I did slow down and swerved clipping his rear bumper, but there was nothing else I could do.
Trial Tr. of 4/1/02 at 75 (Ex. "G" to Pl.'s Am. Mot.).
Defendant Shah, who was not present at trial, had his deposition read into evidence, the pertinent portions of which follow:
Mr. Eveland: . And when you first came up in the [turning] lane to the point where you stopped, what color was the traffic light [facing you]? Defendant Shah: Red. Mr. Eveland: Do you know how long after you came into the lane it remained red? Defendant Shah: Until it turned green. Mr. Eveland: Well, was that a matter of seconds, a matter of minutes? Defendant Shah: I do not remember. Mr. Eveland: . Do you have any recollection of how long you were aware the light was green before you entered into the intersection? Defendant Shah: Can you repeat the question? Mr. Eveland: Do you recall how long the light controlling the traffic in your direction was green prior to the time you entered the intersection? Defendant Shah: No, I don't recall the specific amount of time that the light was green.
Mr. Eveland: Do you have any specific recollection of anyone delaying in moving forward or anyone moving forward very quickly from the light? Defendant Shah: No. My recollection was traffic moved as usual, pretty spontaneously after the light turned green. Mr. Eveland: When did you first see the vehicle that was involved in the collision? Defendant Shah: I believe I saw it just as it approached and then grazed my bumper.
Mr. Eveland: From the time that your vehicle began moving forward in the left-hand turn lane, can you tell me what you did in the operation of your vehicle up until the moment of the collision? Defendant Shah: Yes. I again looked up at the light and I saw that it was still green. I continued forward, noted that there were several other stopped cars in the intersection and then proceeded forward.
Mr. Eveland: When you say that there were several other stopped cars in the intersection, what do you mean by that? Defendant Shah: The intersection was, I believe, three lanes wide and at least two of the lanes that were there had cars in them.
Mr. Eveland: In observing this, had you looked to the right or were they in your plain view and you looked straightforward? Defendant Shah: I did gaze left and right but they were obviously visible.
Shah Dep. at 12-14 (Ex. "B" to Pl.'s Am. Mot.).
Finally, Ms. Nancy C. Edwards, an eyewitness to the collision who had been behind defendant Shah, testified under direct examination as follows:
Mr. Eveland: . Now were you in a — in which of the lanes were you in?
Ms. Edwards: I was in the far right [of two possible] turn[ing] lane[s] preparing to make a left turn. . . . .
Mr. Eveland: . What did you see, hear, and otherwise perceive on the day of this incident as it took place? Ms. Edwards: Well, I noticed that I had the green arrow, and I started to proceed, but I noticed that the westbound traffic [which defendant Ciamaricone was part of], two lanes had stopped where as [sic] a red truck proceeded through the intersection, so I hesitated. Mr. Eveland: . Were you the first person in line at this turning lane? Ms. Edwards: No, sir. Mr. Eveland: How many cars were in front of you? Ms. Edwards: Could have been one, maybe two. Mr. Eveland: . When you first pulled into this turn lane, can you tell me whether the light was red, yellow or green? Ms. Edwards: I believe it to be red. Mr. Eveland: So you came to stop for a period of time? Ms. Edwards: Yes. Mr. Eveland: . Can you tell us what happened once the red truck entered the intersection on that day? Ms. Edwards: Well, as I saw it made contact, I held up. . . . . Mr. Eveland: . Very good. How many — I just want you to clarify this — as I understand it, your testimony is that — let me draw back and take this one step at a time. How many lanes were going westbound in the direction that Mr. Ciamaricone was going? Ms. Edwards: I believe three. Mr. Eveland: . How many lanes were there traffic in? Ms. Edwards: Including the turn lanes? Mr. Eveland: No, just the straight-ahead lanes. Ms. Edwards: You mean how many cars, approximately? Mr. Eveland: No, no, no. How many lanes had cars in them? In other words — Ms. Edwards: All three of them. Mr. Eveland: All three of them. And how many lanes were there in which cars were moving? Ms. Edwards: I'm not sure I understand the question. Mr. Eveland: . Were there lanes — what were the cars doing in each of those three lanes? Ms. Edwards: Well, they had come to a stop. Mr. Eveland: All of them? Ms. Edwards: Yes. Except for Mr. Ciamaricone.
Trial Tr. of 4/1/02 at 66-68 (Ex. "G" to Pl.'s Am. Mot.).
Trial Tr. of 4/1/02 at 70 (Ex. "G" to Pl.'s Am. Mot.).
None of the parties attempted to introduce into evidence the fact that defendant Ciamaricone had received and voluntarily paid a traffic citation relating to the subject collision. Also, there was no demonstrative evidence at trial illustrating the intersection within which the collision occurred. (Plaintiff had withdrawn an earlier-proposed trial exhibit consisting of the diagram of the accident scene prepared by the Delaware State Police.)
Counsel for defendant Ciamaricone has represented in his response to Plaintiff's motion for a new trial that Ciamaricone "paid the citation. . .simply because he could not afford to take time off from work to contest it. . . ." Def. Ciamaricone's "Answer" to Pl.'s Mot. § 4.
Defendant Ciamaricone had objected on hearsay grounds.
Plaintiff now contends that "[o]n the issues of liability and damages, the jury's verdict is contradictory to virtually uncontroverted evidence." In support of that assertion, Plaintiff argues that "[t]he overwhelming evidence adduced from the testimony was that. . .[defendant] Shah proceeded. . .with a green light and. . .[defendant] Ciamaricone proceeded through a red light and struck the Shah vehicle." Plaintiff states that because the verdict rendered in this case was "the product of an unreasonable jury," it "should be overturned and a new trial ordered."
Pl.'s Am. Mot. § 4.
Pl.'s Am. Mot. § 5.
Pl.'s Am. Mot. at 5.
In response, defendant Ciamaricone argues that "[t]here was evidence of liability on the part of both drivers and the jury chose to credit the evidence establishing liability on the part of defendant Needham M. Shah. . . ." Defendant Ciamaricone contends that "the jury disagree[d] [with Plaintiff's contention] that. . .[defendant Ciamaricone] and not defendant Shah entered the relevant intersection against a red light. . . ." Defendant Ciamaricone argues "[t]he verdict of the jury appears to have resulted from an acceptance of the evidence adduced by [his] counsel. . . ."
Def. Ciamaricone's "Answer" to Pl.'s Mot. § 4.
Def. Ciamaricone's "Answer" to Pl.'s Mot. § 5.
Def. Ciamaricone's "Answer" to Pl.'s Mot. at 8.
THE STANDARD OF REVIEW FOR MOTIONS FOR NEW TRIALS
When considering a motion for a new trial, the jury's verdict is presumed to be correct. The Court must determine whether the jury's verdict is against the great weight of the evidence. A jury's verdict should not be disturbed unless it is manifest that it was the result of passion, prejudice, partiality or corruption, or that it was clearly in disregard of the evidence or applicable rules of law. When a case "involve[d] a controverted question of fact in which the evidence [wa]s conflicting and out of the conflict may [have] be[en] gathered sufficient evidence to [have] support[ed] a verdict for either party, the issue of fact will be left severely to the jury, and the [C]ourt will neither direct nor disturb the verdict upon the ground that it [wa]s against the evidence, though it would have drawn from the testimony a conclusion different from that drawn by the jury. . . ." "[E]normous deference" is given to jury verdicts under Delaware law.PLAINTIFF IS NOT ENTITLED TO A NEW TRIAL
This case ultimately came down to the credibility of the witnesses at trial. The jury was so instructed when it was read the "Credibility of Witnesses — Conflicting Testimony" jury instruction. That instruction provided, in pertinent part, "[i]f you find the testimony contradictory, you must try to reconcile it, if reasonably possible, so as to make one harmonious story of it all," and where that is not possible, "then it is your duty and privilege to believe the testimony that, in your judgment, is most believable and disregard any testimony that, in your judgment, is not believable."Here, there was conflicting evidence regarding which defendant had the green light at the time of the collision. While Nancy Edwards did unequivocally state that she remembered that all of the traffic coming from defendant Ciamaricone's direction had been stopped except for Ciamaricone's vehicle itself, there was testimony from other witnesses (including Plaintiff) that would indicate that defendant Ciamaricone had a green light and thus proceeded lawfully. Specifically, Plaintiff testified that when coming towards the intersection where the collision occurred, from what he saw, "the light [in the direction defendant Ciamaricone's pickup was traveling] was green." And defendant Ciamaricone himself testified that when coming out of the convenience store parking lot, he specifically "noticed the light was green."
Despite this testimony, however, defendant Ciamaricone was issued the citation that he voluntarily paid, which, if introduced into evidence, would have been an admission that the jury may have considered as evidence of fault. See e.g. Merkins v. Nichols, C.A. No. 89C-SE-201 BB, 1991 WL 18103 (Del.Super. Feb. 6, 1991); White v. Clark, C.A. No. 95C-01-107 JOH, 1998 WL 960735 (Del.Super. Dec. 16, 1998).
Trial Tr. of 4/1/02 at 6-7 (Ex."G" to Pl.'s Am. Mot.).
Trial Tr. of 4/1/02 at 75 (Ex. "G" to Pl.'s Am. Mot.).
As stated, "enormous deference" is given to a jury's findings under Delaware law, particularly where the crucial issue in a case rests upon contraverted evidence. Because the Court finds that the conflicting testimony introduced at trial could have sufficiently supported a verdict for either party, "the issue of fact will be left severely to the jury." The jury's verdict cannot therefore be said to be against the "great weight" of the evidence, and Plaintiff's Motion for New Trial is accordingly DENIED.
DEFENDANT CIAMARICONE IS ENTITLED TO SOME OF THE COSTS HE NOW SEEKS TO RECOVER
Storey, 401 A.2d at 462 (citation omitted).
Having found that Plaintiff is not entitled to a new trial on the issue of fault as determined by the jury, the Court need not reach the issue of the amount of damages that the jury awarded to Plaintiff.
Defendant Ciamaricone, having made Plaintiff an offer of judgment more than 10 days before trial (which offer Plaintiff rejected and which was greater than the verdict that the jury subsequently rendered in Plaintiff's favor), now moves under Superior Court Civil Rule 68 for an award of the costs that he incurred in conducting a videotape deposition of a medical expert after he had made Plaintiff the offer. As part of that award and pursuant to Superior Court Civil Rule 54(f), defendant Ciamaricone also seeks to recover the fees associated with the production costs of that videotaped deposition, as well as the costs of transcribing same. Defendant Ciamaricone has submitted bills reflecting the following amounts that he now seeks to recover:
Superior Court Civil Rule 54 (f) provides that "fees paid court reporters for the Court's copy of transcripts of depositions. . .[are] taxable. . .[if] introduced into evidence," and "production and playback costs associated with any videotape deposition may also be taxable as costs if the video deposition is introduced into evidence."
Because the Court awards defendant Ciamaricone those costs to which he is entitled under Superior Court Civil Rule 68, consideration of Superior Court Rule 54 is unnecessary.
Deposition of Karl Rosenfeld, M.D., F.A.C.S. $3,400.00 Videotape production fee of tape played at trial 390.00 Transcription fee of videotape introduced at trial 257.50 _________ Total $4,047.50
In response, Plaintiff "concedes that [d]efendant [Ciamaricone] has followed the appropriate procedures to obtain costs pursuant to Rules 54 and 68 of the Superior Court Civil Rules[,]" but he argues that the fees requested are excessive. In support of this assertion, Plaintiff points to the fact that defendant Ciamaricone "fails to elucidate the hours spent by Dr. Rosenfeld in regard to a deposition that ran less than one hour in Dr. Rosenfeld's office. . . ." Finally, Plaintiff contends that defendant Ciamaricone's treatment of both the videotaping and transcribing of Dr. Rosenfeld's deposition as taxable costs is duplicative, and thus Plaintiff requests that any potential award of costs by the Court "include only one of these. . . ."
Pl.'s Resp. to Def.'s Mot. for Costs § 2.
Pl.'s Resp. to Def.'s Mot. for Costs § 3.
Pl.'s Resp. to Def.'s Mot. for Costs § 4.
Under Superior Court Civil Rule 68, an award of costs is "mandatory." Superior Court Civil Rule 68 does not define costs, but the term commonly refers to "all costs properly awardable under relevant substantive statutes or others authority `considered within the scope' of. . .[that rule]." 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. . . ." Traditionally, there was no fixed formula used by this Court when determining the amount to be paid to an expert.
Mulford v. Haas, C.A. No. 98C-12-296 JRS, 2001 WL 541023, at *4 (Del.Super. Apr. 25, 2001).
Bejger v. Shreeve, C.A. No. 95C-06-104 RRC, 1997 WL 524064, at *2 (Del.Super. May 7, 1997) (citations omitted).
DEL CODE ANN. tit. 10, § 8906 (1999).
Sliwinski v. Duncan, No. 260, 1991, 1992 WL 21132, at *2 (Del. Jan. 15, 1992).
Despite a lack of a fixed formula to determine reasonable expert fees, this Court has often referred for guidance to studies of the Medico-Legal Affairs Committee of the Medical Society of Delaware. In the past, this Court has referred to a study published by that committee in 1995, and has adjusted that study's figures upwards appropriately using the medical price care index published by the United States Bureau of Labor Statistics. That study advised that a reasonable range of fees for depositions (in 1994) was from $500 to $900 for a two-hour deposition; since then, the medical price index has grown by approximately 29% as of the end of 2001. A reasonable range for depositions is therefore currently between about $650 and $1150 for a two-hour deposition.
Dunkle v. Prettyman, C.A. No. 99C-10-265 JRS, 2002 WL 833375, at *3 (Del.Super. May 1, 2002) (citation omitted).
Gerken v. Atkinson, C.A. No. 00C-12-047 JTV, 2002 WL 1832322, at *2 (Del.Super. Aug. 8, 2002).
Here, the invoice which defendant Ciamaricone has submitted indicates that Dr. Rosenfeld was deposed at 5:30 p.m. on Thursday, March 14, 2002 (more than 10 days before trial and after Plaintiff had rejected the offer of judgment), but does not indicate how long that deposition lasted; Dr. Rosenfeld apparently charged a flat fee. Plaintiff has represented that the deposition lasted less than one hour. "Absent evidence to the contrary, this Court accepts Plaintiff's calculation of time as correct. . . ." Taking into account the fact that Dr. Rosenfeld's deposition took place after regular working hours (presumably so as not to disturb his schedule), this Court finds a calculation of $325 to be a reasonable amount to award as costs to defendant Ciamaricone as recoverable expert fees.
Cimino v. Cherry, 98C-04-127 RRC, 2001 WL 589038, at *2 (Del.Super. May 24, 2001).
Regarding the videotape production fee and transcription cost, this Court has previously held that the transcribing of a videotaped depositions is duplicative and will therefore be borne by the party trying to recover the transcription fee as a cost. Defendant Ciamaricone is therefore not entitled to the $257.50 charged to transcribe Dr. Rosenfeld's videotaped deposition, but is entitled to recover only the $390 in production fees associated with the videotaping.
Cubberly v. Orr, C.A. No. 94C-03-171 SLD, 1995 WL 654144, at *2 (Del.Super. Oct. 24, 1995) (citation omitted).
In sum, defendant Ciamaricone is entitled to the following amounts as costs he can recover under Superior Court Civil Rule 68:
Deposition of Karl Rosenfeld, M.D., F.A.C.S. $325.00 Videotape production fee of tape played at trial 390.00 ______ Total $715.00