Summary
awarding $700 in costs for a one hour and ten minute trial deposition of a medical expert
Summary of this case from Miller v. McLeanOpinion
C.A. No. 03C-05-021 RFS.
Submitted: May 5, 2005.
Decided: July 12, 2005.
ORDER
Upon careful review of the filings in the above captioned matter, Plaintiffs' Gregory L. Tolson and Carol Ann Tolson's ("the Tolsons") Motion to Recover Costs is granted in the amount of $1515.00. It appears to the Court that:
1) On May 19, 2003, the Tolsons filed a Complaint against Dennis Chorman ("Chorman") for injuries resulting from an automobile accident. Arbitration was held in this case on October 23, 2003. The Arbitrator awarded a total of $15,000.00 to the Plaintiffs ($14,000.00 to Gregory Tolson and $1,000 to Carol Ann). Subsequently, Defendant Chorman demanded a trial de novo, which was held on April 4, 2005. That same day, the jury returned a verdict in favor of the Plaintiff, Gregory Tolson, in the amount of $50,000.00. Pursuant to 6 Del. C. § 2301(d), the Court also awarded $12,000.00 in interest to the Plaintiffs.
6 Del. C. § 2301(d) provides:
In any tort action for compensatory damages in the Superior Court or the Court of Common Pleas seeking monetary relief for bodily injuries, death or property damage, interest shall be added to any final judgment entered for damages awarded, calculated at the rate established in subsection (a) of this section, commencing from the date of injury, provided that prior to trial the plaintiff had extended to defendant a written settlement demand valid for a minimum of 30 days in an amount less than the amount of damages upon which the judgment was entered.
2) On April 14, 2005, the Plaintiffs timely filed this Motion to Recover Costs. They seek to recover the following:
Complaint Filing Fee . . . . . . . . . . . . . . . . . . . . . . . . . . $175.00 Service of Process Fee . . . . . . . . . . . . . . . . . . . . . . . . . $30.00 Reimbursement of Arbitrator's Fee . . . . . . . . . . . . . . . . . . . . $200.00 Expert Witness Fee for the videotape deposition of Dr. Asit Upadhyay . $1,400.00 Video Costs to present testimony of Dr. Upadhyay . . . . . . . . . . . . $410.00 Transcript Costs for deposition transcript of Dr. Upadhyay . . . . . . . $388.56 ________ Total Costs $2,603.56
Under 10 Del. C. § 5101 and under Superior Court Civil Rule 54(d), the Court may award costs to the prevailing party in an action. An award of costs is a matter of judicial discretion. Donovan v. Delaware Water Air Resources Comm'n, 358 A.2d 717, 722-23 (Del. 1976).
10 Del. C. § 5101 provides:
In a court of law, whether of original jurisdiction or of error, upon a voluntary or involuntary discontinuance or dismissal of the action, there shall be judgment for costs for the defendant. Generally a party for whom final judgment in any civil action, or on a writ of error upon a judgment is given in such action, shall recover, against the adverse party, costs of suit, to be awarded by the court.
Superior Court Civil Rule 54(d) states:
Except when express provision therefor is made either in a statute or in these Rules or in the Rules of the Supreme Court, costs shall be allowed as of course to the prevailing party upon application to the Court within ten (10) days of the entry of final judgment unless the Court otherwise directs.
3) Since Gregory Tolson was the prevailing party in this case, the Court may, in its discretion award him certain costs. The Tolsons first request compensation for the Complaint filing fee and the service of process fee. Court fees, such as those, are routinely awarded to successful litigants. See Casson v. Halpen, 2001 WL 1474791, at * 3 (Del.Super.Ct.). The Court will award the Plaintiffs the $205.00 in Court fees.
4) Similarly, "[i]f the party who demands a trial de novo fails to obtain a verdict from the jury or judgment from the Court, exclusive of interest and costs, more favorable to the party than the arbitrator's order, that party shall be assessed the costs of the arbitration. . . ." Super. Ct. Civ. R. 16.1(k)(11)(D)(iii). Thus, Mr. Tolson is also entitled to the $200.00 in arbitration costs. It was Chorman who sought a trial de novo, and the jury award was less favorable to him than the money awarded at the arbitration.
5) As for the expert witness fees the Plaintiffs are seeking, 10 Del. C. § 8906 states that such fees "shall be fixed by the court in its discretion, and such fees so fixed shall be taxed as part of the costs in each case. . . ." Superior Court Civil Rule 54(h) further provides that "[f]ees for expert witnesses testifying on deposition shall be taxed as costs pursuant to 10 Del. C. § 8906 only where the deposition is introduced into evidence." The Plaintiffs are asking for $1400.00 for the taking of Dr. Upadhyay's one hour video deposition.
There is no definitive formula for determining a proper award of expert witness fees for videotaped deposition testimony. This Court has previously relied upon a study performed in 1995 by the Medical Society of Delaware's Medico-Legal Affairs Committee. See, e.g., Kerr v. Onsusko, 2004 WL 2744607, at * 1 (Del.Super.Ct.); Midcap v. Sears, Roebuck and Co., 2004 WL 1588343, at *3 (Del.Super.Ct.). That study found that a reasonable fee ranged from $500 to $900 for a two-hour deposition given by a physician. In Midcap, 2004 WL 1588343, at *3, the Court adjusted the numbers from the 1995 study adding a 34.2% increase based upon the medical care price index available from the U.S. Bureau of Statistics. That Court estimated that in 2004 a reasonable fee for a two hour deposition would range from $671 to $1,207.
The Plaintiffs in Midcap attempted to recover $2500 for a deposition that was less than two hours long and that occurred via telephone. There, the Court awarded them costs of $750.00. Similarly, in Kerr, 2004 WL 2744607, at *1, the Court, following the same formula, awarded the Plaintiff $600 for a one hour and ten minute trial deposition of an orthopedic surgeon. The surgeon was deposed at his office. The Plaintiff had requested $1800 in costs for the deposition.
Here too, the Plaintiffs' request for $1400 is excessive. Dr. Upadhyay's deposition was an hour long and occurred at his office. Based on the numbers given in the 1995 Medico-Legal Affairs Committee study, and reviewing the medical price index for the years 1996 to 2004, and up until the month of May in 2005, the Court finds that Plaintiffs should be awarded $700 for Dr. Upadhyay's deposition. See U.S. Department of Labor, Bureau of Labor Statistics, Archived News Releases for Consumer Price Index, at http://www.bls.gov/schedule/archives/cpi_nr.htm (last visited July 11, 2005).
6) Finally, the Tolson's have also requested payment of the video presentation costs and the costs for the transcript of the deposition. The transcript, however, was not submitted into evidence. Superior Court Civil Rule 54(f) provides that only fees for transcripts submitted into evidence may be awarded as costs to the prevailing party. See Dunning v. Barnes, 2002 WL 31814525, at *3 (Del.Super.Ct.) (awarding costs only for the deposition transcripts which were actually entered into evidence in the trial). In addition, the deposition was introduced through video. This Court has consistently held in similar cases, that the costs of the transcript are duplicative of the video costs. Kerr, 2004 WL 2744607, at * 1; Midcap, 2004 WL 1588343, at * 4; Fellenbaum v. Ciamaricone, 2002 WL 31357917, at *6 (Del.Super.Ct.); Cimino v. Cherry, 2001 WL 589038, at *2 (Del.Super.Ct.); Cubberly v. Orr, 1995 WL 654144, at *2 (Del.Super.Ct.).
Rule 54(f) provides:
The fees paid court reporters for the Court's copy of transcripts of depositions shall not be taxable costs unless introduced into evidence. Fees for other copies of such transcripts shall not be taxable costs. The production and playback costs associated with any videotape deposition may also be taxable as costs if the video deposition is introduced into evidence.
7) Considering the foregoing, the Court finds that the Plaintiffs are entitled to an award of costs, totaling $1515-$175 for the Complaint filing fee, $30 for the service of process fee, $200 for the Arbitrator's fee, $700 for the taking of the videotape deposition of Dr. Upadhyay, and $410 for the video costs to present his testimony.
IT IS SO ORDERED.