Opinion
C.A. No. N13C-02-176 FSS
11-18-2015
JOSEPH STARKEY, an individual, and CYNTHIA STARKEY, an individual, Plaintiffs, v. LIBERTY MUTUAL FIRE INSURANCE COMPANY, a foreign corporation, Defendant.
Upon Defendant's Motion for Judgment Notwithstanding the Verdict or, in the Alternative, Motion for a New Trial - DENIED; Plaintiffs' Motion for Costs - GRANTED in part, DENIED in part;
ORDER
Upon Defendant's Motion for Judgment Notwithstanding the Verdict or, in the Alternative, Motion for a New Trial - DENIED; Plaintiffs' Motion for Costs - GRANTED in part, DENIED in part; Plaintiffs' Motion to Recover Interest - GRANTED in part, DENIED in part.
1. Plaintiffs were injured in a collision with an uninsured/under-insured driver. On May 14, 2015, the jury found the other driver entirely liable, awarding $230,000 in damages to each Plaintiff for personal injury and the cost of care for their adult child with special needs, which care Plaintiffs are now largely unable to provide because of the collision's aftereffects.
2. Plaintiffs, as the prevailing party, have moved for reasonable costs and prejudgment interest. Defendant contests Plaintiffs' requests as being excessive, unsupported, and untimely. Additionally, Defendant challenges the liability finding and the size of the award based on the child care component. As to the former, Defendant claims, based on the undisputed evidence, it is entitled to judgment as a matter of law that Plaintiff Joseph Starkey was contributorily negligent. As to the latter, Defendant argues Plaintiffs' nursing care expert's opinions were inadmissible under D.R.E.s 403 and 703.
3. The collision happened because the other driver crossed the center line on Route 1. Joseph Starkey was driving and Cynthia Starkey, his wife, was his passenger. Undeniably, the collision happened quickly. The fact on which Defendant exclusively relies to blame Joseph is his admission that he did not see the other driver until Cynthia screamed. By then, as Joseph admits, it was too late for him to swerve and avoid the collision. From that, Defendant argues the jury had to infer that Joseph was not maintaining a proper lookout. He should have seen the other car at least as soon as his passenger.
4. While there is logic to Defendant's position, especially considering the other driver and the Starkeys' relative positions, Joseph testified that he was paying attention, and there was no scientific evidence supporting Defendant's claim that he was not maintaining a proper lookout. In a non-science case, the jury was in the best position to assess liability. The court cannot conclude, as a matter of law, the jury's liability finding was probably incorrect. Again, it all happened in an instant.
5. Defendant's damages argument stems from a nursing care expert's opinion about what it would cost to provide equivalent care for Plaintiffs' adult child's special needs. Defendant's argument is three-pronged.
6. First, as to damages, Defendant argues Plaintiffs were not entitled to damages because,
Plaintiffs failed to present any evidence or testimony reflecting that they have a legal obligation to care for their ADULT special needs son.Defendant provides no law limiting damages that way. Plaintiffs proved that before the collision, they were living with and caring for their son, day-to-day. That was their daily existence. After the collision, and but-for the collision, Plaintiffs were unable to conduct their daily activities as they had. In order for them to now do what they did before, Plaintiffs need professional help and equipment. The court rejects the subtexts to Defendant's motion, which are that Plaintiffs are only entitled to compensation for things they are obligated to do, and Plaintiffs' care for their son was not part of their life's enjoyment.
7. Defendant's second objection to the damages award is that it was based on expert testimony violating D.R.E. 703 and Daubert. Plaintiffs relied on a nurse's expert opinion about the cost of replacing Plaintiffs' services to their child with professional care and equipment. That sort of opinion does not lend itself to Daubert analysis. The jury heard the witness's credentials, her opinions' basis. She was subjected to cross-examination highlighting her work's infirmities, along the lines Defendant now presents. So, for example, the jury was aware that the expert had not consulted with Plaintiffs' physicians. Of course, Defendant never disputed the assumption that the child's condition was permanent and unlikely to improve with time.
8. Finally, Defendant argues the expert's testimony was inadmissible under D.R.E. 403 because its probative value was outweighed by the risk of unfair prejudice. Defendant's concern about D.R.E. 403 is not far-fetched. A significant aspect of the run-up to trial involved the court's concern about the risk of unfair prejudice and Plaintiffs' persistent efforts to benefit from that. For example, Plaintiffs unsuccessfully attempted to have the child present in the courtroom in his hospital bed throughout the trial, and so on. In the end, the court took significant steps to minimize the significant risk of unfair prejudice, although the court did not eliminate the risk entirely. It is unclear whether the jury took into account that even without having been injured, Plaintiffs were inevitably going to need help as they aged.
9. The above notwithstanding, the nurse's descriptions of Plaintiffs' services and the child's needs were highly probative on the fundamental, damages question. Without the nurse's testimony, including her touching and problematic descriptions of Plaintiffs' family dynamics, the jury would have had to speculate, relying largely on Plaintiffs' opinions of what was necessary. It also bears mention that despite Defendant's protestations about the expert's reliability, Defendant presented no counter-expert. Thus, no expert suggested Plaintiffs' expert's opinions are incorrect.
10. As mentioned, Plaintiffs timely filed a motion for expert and court costs under Superior Court Civil Rule 54. Specifically, Plaintiffs request $3,500.00 for Dr. Bakst's expert testimony, $2,200.00 for Dr. Bakst's video deposition, $306.00 for production of Dr. Bakst's video deposition, $3,000.00 for Dr. Batterman's expert testimony, $3,500.00 for nurse Alisa Dayanim's testimony, $790.00 for Mr. Measley's testimony, and $1,048.00 for court costs. Plaintiffs also request pre-judgment and post-judgment interest under 6 Del. C. § 2301(d).
11. Mostly, Defendant does not object to Plaintiffs' court costs: the Complaint Filing Fee, the Service of Process Fee, and the Trial Fee to Prothonotary. Defendant does, however, object to the Lexis File & Serve E-Filing Fees, $658, because Plaintiffs provide no explanation as to how the fees were determined.
12. Defendant objects to Plaintiffs' medical expert costs. Although agreeing that Dr. Bakst's video production fee is reasonable, Defendant contends that the $2,200 for Dr. Bakst's video testimony, relating solely to Joseph's injuries, is not supported by the documents Plaintiffs submitted. Moreover, Defendant contends that the $3,500 fee for Dr. Bakst's live testimony, relating to Cynthia's injuries, is excessive.
13. Defendant further objects to Plaintiffs' engineer expert's fee. Defendant argues Dr. Batterman's testimony duplicated that of Dr. Bakst and Dr. Stephens. Alternatively, if reimbursed, Dr. Batterman's fee should be reduced because Plaintiffs provided "no documentation and/or explanation as to the amount of time for travel. Therefore, based upon what was represented by the Plaintiffs . . . the most that can be awarded is 1¼ hours of testifying at the hourly rate within the range."
14. Defendant also objects to Plaintiffs' economist expert's fee, arguing Plaintiffs should not be compensated for trial preparation. Defendant argues it is "unreasonable to award the Plaintiffs $2,000.00 for an economist who only testifies for 16 minutes." Defendant suggests that Plaintiffs are entitled to $52.00 for Mr. Measley's expert testimony.
15. Lastly, Defendant objects to nurse Dayanim's expert costs as excessive, contending that an hourly rate of $600.00 ($10/minute) is reasonable. Defendant also argues Plaintiffs failed to submit any information regarding the expert's travel. Therefore, because Ms. Dayanim testified for approximately 45 minutes, Defendant requests that her fee be capped at $450.00.
16. Superior Court Civil Rule 54(d) permits costs "as of course to the prevailing party upon application to the Court within ten (10) days of the entry of final judgment." Amounts awarded and denying costs are matters of judicial discretion.
Super. Ct. Civ. R. 54(d).
See Donovan v. Del. Water & Air Res. Comm'n, 358 A.2d 717, 722-723 (Del. 1976).
17. Expert witness fees are recoverable. But, these fees are "limited to time spent attending court for the purpose of testifying" and reasonable costs incurred traveling to and from the courthouse. When an expert doctor testifies "for three hours or less, a minimum witness fee should be allowed based upon a flat amount for a one-half day interruption in the physician's usual schedule." But, one party "should not be responsible for its opponent's choice of an unnecessary, exorbitant expert."
See 10 Del. C. § 8906.
Moyer v. Saunders, Civ. A. No. N10C-02-069 WCC, 2013 WL 4138116 (Del. Super. July 24, 2013).
Sliwinski v. Duncan, 608 A.2d 730, at *3 (Del. 1992) (TABLE) ("This flat fee would "adequate[ly] cover the transportation and waiting time for a local physician and would result in the uniform treatment of many of the witness fees submitted by physicians.").
Olson v. A-Del Constr. Co., Inc., C.A. No. N12C-03-219 FSS, 2014 WL 1325909, at *1 (Del. Super. Feb. 12, 2014) (citing McMillan v. Masten Lumber & Supply Co., C.A. No. 97C-01-089 FSS (Del. Super. Sep. 29, 2000)).
18. Defendant does not object to the video production fee, for which Plaintiffs provided an invoice. As Defendant pointed out, however, the only support Plaintiffs submitted for either testimony fees was a letter confirming that funds were received for the trial testimony. Therefore, as for the video deposition, Plaintiffs have left the court on its own to figure that out, which it declines to do.
19. Plaintiffs will recover a fee for Dr. Bakst's one-hour trial testimony. Based on the range of expert fees discussed in similar cases from this jurisdiction, $3,500 is high. Accordingly, the court will award to Plaintiffs the $306 fee video production fee and $2,500 for Dr. Bakst's expert trial testimony.
See Dean-Seeney v. State Farm Mut. Auto. Ins. Co., C.A. No. 04C-01-105 CLS, 2007 WL 3380119, *3 (Del. Super. Apr. 19, 2007) ("Plaintiff's request for $3,000 in medical expert fees . . . and $2,5000 . . . is exceedingly high. . . Plaintiff is only entitled to collect $2,000 per doctor."); Smith v. Greif, No. C.A. N11C-06-098 PRW, 2015 WL 1598084, *2 (Del. Super. Apr. 10, 2015) ("Medico-Legal Affairs Committee Medico-Legal Affairs Committee of the Medical Society of Delaware's recommendation, adjusted for inflation in 2013, suggests a current reasonable rate for a physician to testify at a flat fee of between $2,028 and $3,512.76.").
20. Defendant offers no authority for disallowing Dr. Batterman's fee for being cumulative. Moreover, the court has previously addressed Defendant's argument. Over objection, the court admitted the majority of Dr. Batterman's testimony, excluding as cumulative only his opinion on child care. "As his testimony was allowed, his fee is reimbursable." But, just as his testimony was limited, his fee too will be limited.
Kaczmarczyk v. Liberty Mutual Fire Ins. Co., C.A. No. N11C-12-132 FSS, 2014 WL 1316192, at *2 (Del. Super. Feb. 12, 2014) ("[T]he court tacitly addressed Defendant's [cumulative] argument when it admitted Dr. Bandera's testimony over objection. As his testimony was allowed, his fee is compensable.").
21. Dr. Batterman's hourly rate is $500. He logged six hours while attending court to testify, including traveling 82 miles round-trip. He incurred $16 in tolls and parking. The hourly expert engineer fee scale ranges from $186.39 to $245.29. Plaintiffs will be reimbursed for 3 hours at the hourly engineer fee of $250.00 (3 x $250 = $750) and 3 hours at the reduced, traveling fee of $175.00 (3 x $125 = $375), for a total expert fee of $1,125.00.
See Greif, 2015 WL 1598084, at *2 (reasonable fee was $245 due to unique nature of expert's testimony) (citing Smith v. Greif, C.A. No. N11C-06-098 MMJ, 2013 WL 1093002, *1 (Del. Super. Feb. 21, 2013) (recognizing "this may be the first instance in Delaware in which this Court has permitted the testimony of a biomechanical engineer expert in an automobile accident case")).
Wilson v. James, C.A. No. 07C-04-025 PLA, 2010 WL 2683023, *3 (Del. Super. June 11, 2010) (halving the expert's hourly fee to adjust for travel reimbursements) (citing Dunning v. Barnes, No. Civ.A. 98C-02-045, 2002 WL 31814525, *at 4 (Del. Super. Nov. 4, 2002) ("[A]n expert's reasonable and ordinary traveling expenses may be reimbursed. However, costs should not be accessed [sic] at the expert's hourly testifying rate.")).
22. The parties seem to agree that for Dayanim, the reasonable hourly rate is $600 for testimony and $250 for travel. Furthermore, it appears Dayanim testified for about 45 minutes and has an office in Bala Cynwyd, Pennsylvania. Other than that, though, the court can tell only that Dayanim requested $3,500 for "trial testimony and travel expenses," the balance of which would be "returned when the case is resolved." Again, based on the information before it, the court will award to Plaintiff $1,000.
23. As to Measely, first, Plaintiffs are requesting $790, not $2,000. Second, although the invoice includes preparation time and Plaintiffs were billed for that time, Plaintiffs' $790 request is for only the two hours surrounding Measley's testimony (2 hours at $390 per hour), excluding traveling from Philadelphia. Moreover, although he testified for only 16 minutes, he is entitled to be compensated for the reasonable time spent waiting to testify. Accordingly, an expert fee of $790 is reasonable here.
Pl.'s Mot. to Recover Costs. Ex. A9. (Invoice for $987.50, equaling 2 hours of testimony and .5 hours preparation).
See Sliwinski v. Duncan, 608 A.2d 730, *3 (Del. 1992) (TABLE) (allowing a minimum fee for testimony lasting less than three hours so the expert can be adequately reimbursed for waiting time); Plauche v. Doctors for Emergency Servs., P.A., No. Civ.A.99C-07-115 WCC, 2002 WL 31008045, *2 (Del. Super. Aug. 30, 2002) (approving 3 out of 6.75 hours of courthouse time since most of the time was not related to testifying).
Compare Plauche, 2002 WL 31008045, at *2 (finding it reasonable for defendant to pay for 3 hours of courthouse time, not 6.75 hours as plaintiff requested, and therefore awarded plaintiff $1,200 (3 hours at $400 per hour)), with Slattery v. Pettinaro Constr. Co. Inc., N12C-11-252 FSS (Del. Super. Apr. 30, 2015) (ORDER) (capping the expert's fee at $800 (2 hours at $400.00 per hour) where plaintiff insisted that another witness testify while the expert waited).
24. Finally, Defendant's only gripe with Plaintiffs' court cost request is with the Lexis E-Filing Fees because there is no explanation as to what the "amount 'means' in terms of what was done and/or how it is associated with the case." The court is not persuaded. The supporting document Plaintiffs submitted for this request is of the same nature and has as much explanation as the documents Plaintiffs submitted supporting their other court costs, to which Defendant has no objection. Accordingly, Plaintiffs may recover $1,048.00 in court costs.
See Prof'l Investig. & Consulting Agency, Inc. v. Hewlett-Packard Co., C.A. No. N12C-06-196 MMJ CCLD, 2015 WL 1417329, *11 (Del. Super. Mar. 23, 2015) (rejecting defendant's argument that plaintiff's request for costs was improper because plaintiff "did not identify what the filing fee was for").
25. Defendant argues that Plaintiffs' interest request is untimely since appeal periods have not expired and a final judgment has yet to be entered. Moreover, Defendant argues that § 2301(d) requires the settlement offer to remain open for 30 days before trial, and because the 30th day was a Sunday, the next day is counted as the 30th day, which happens to be the first day of trial. Therefore, the demand was not open for the full, required 30 days.
26. As to pre-judgment interest, Plaintiffs are entitled to interest as of the jury verdict's entry, regardless of whether there are pending post-trial motions, if the § 2301(d) requirements are met. On April 10, 2015, Plaintiffs sent a written settlement offer to Defendant. Trial began May 11, 2015. Defendant is correct, counting 30 days from April 10th to May 11th lands on the Sunday before trial. But, counting 30 days back from the day of trial, as the court reads the statute, lands on Saturday, April 11th, making the Friday, April 10th, the cut-off for 30 days before trial. Plaintiffs sent their written demand on April 10, 2015, so there is no timeliness issue. Besides, so long as the demand arrived 30 days prior to the trial date, including the trial date, the court would call it timely. Accordingly, Plaintiffs are entitled to pre-judgment interest.
See Citadel Holding Corp. v. Roven, 603 A.2d 818, 826 (Del. 1973) (holding that pre-judgment interest is determined from the date payment is due); Watkins v. Beatrice Cos., Inc., 560 A.2d 1016 (Del. 1989) ("[I]nterest on the Fund should have accrued during the pendency of appeals."). --------
27. Post-judgment interest on the judgment's full amount, including pre-judgment interest, is routinely granted but is at the court's discretion. Where any appeal is decided or the time for appeal has passed, Plaintiffs have leave to file for post-judgment interest.
For the foregoing reasons, Defendant's Motion for Judgment Notwithstanding the Verdict or, in the Alternative, Motion for a New Trial is DENIED. Plaintiffs' Motion for Pre-judgment Interest is GRANTED, and Plaintiffs SHALL submit a further order within five days of this order's date. Plaintiffs' Motion for Post-Judgment Interest is DENIED without prejudice to its renewal within ten days of a mandate's receipt or the appeal period's end. Plaintiffs' Motion for Costs is GRANTED, in part, and Plaintiffs shall recover the following costs:
| Dr. Bakst's Trial Testimony: | $2,500.00 |
| Dr. Bakst's Video Deposition: | $000.00 |
| Dr. Bakst's Video Dep Production: | $306.00 |
| Dr. Batterman's Trial Testimony: | $1,125.00 |
| Nurse Dayanim's Trial Testimony: | $1,000.00 |
| Mr. Mealey's Trial Testimony: | $790.00 |
| Court Costs: | $1,048.00 |
| Total Costs Awarded: | $6,769.00 |
IT IS SO ORDERED. Date: November 18, 2015
/s/ Fred S. Silverman
Judge cc: Prothonotary (Civil)
Arthur M. Krawitz, Esquire
Tara E. Bustard, Esquire
Ronald W. Hartnett, Jr., Esquire