Opinion
C.A. No. 11C-04-050 JRJ
01-28-2013
RE: Katina Williams, as Next Friend of Kendall Watts, a minor v. Marie E. Rivas
Judge
Samuel D. Pratcher, III, Esq.
Weik, Nitsche, & Dougherty
305 North Union Street, 2nd Floor
P.O. Box 2324
Wilmington, DE 19899
Matthew E. O'Byrne, Esq.
Casarino, Christman, Shalk,
Ransom & Doss, P.A.
405 N. King Street, Suite 300
P.O. Box 1276
Wilmington, DE 19899
Upon Plaintiff's Motion for Costs: GRANTED in part and DENIED in part Dear Counsel:
This decides Plaintiff's Motion for Costs filed pursuant to 10 Del. C. § 8906 and Superior Court Civil Rule 54.
The jury returned a verdict in favor of the Plaintiff on November 20, 2012.During trial, the videotaped trial deposition of Dr. William C. Atkins, Plaintiff's expert, was played for the jury. Plaintiff seeks as costs Dr. Atkins' trial deposition fee of $2,500.00 and Wilcox & Fetzer, LTD's $560.00 charge for travel, attendance and videotaping of the deposition.
The jury attributed 54.5% of the negligence to Defendant and 45.5% to Plaintiff. The jury awarded Plaintiff $2,700.00 which, reduced by 45.5% comparative negligence, resulted in Plaintiff receiving $1,228.50.
Defendant objects to Dr. Atkins' fee, arguing it is "unreasonable for the testimony of a pain management physician who testified for approximately 35-40 minutes in his own office . . . ." Defendant argues that Wilcox & Fetzer's fee is unreasonable and excessive because Dr. Atkins' video trial deposition lasted less than one hour.
Pursuant to Delaware Superior Court Civil Rule of Procedure 54(d), "costs shall be allowed as of course to the prevailing party upon application to the Court... unless the Court otherwise directs." The determination of whether costs should be awarded in a civil suit is a matter of judicial discretion. 10 Del. C. § 8906 of the Delaware Code provides:
See Rosenberg v. Crichton, 2011 WL 5316771, at *1 (Del. Super. Sept. 23, 2011) and Jacques v. Lacrosse Homes, Inc., 2010 WL 3515463, at *1 (Del. Super. Aug. 27, 2010).
the fees for witnesses testifying as experts...in the Superior Court . . . 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 and shall be collected and paid as other witness fees are now collected and paid.
In Miller v. Williams, the Court held that the prevailing party may only recover fees associated with an expert's time spent testifying or waiting to testify, along with reasonable travel expenses. In that case, defendant sought $5,500.00 for one expert's testimony and $2,500.00 for another. The Court in Miller found that the $5,500.00 fee was excessive because the expert testified for less than two hours in the comfort of his own office. The Court awarded $1,500.00 as a reasonable rate for his testimony as opposed to the $5,500.00 sought, and held that that amount was consistent with other opinions of the Court. The Court in Miller found that the fee request of $2,500.00 for the other expert was excessive because the expert testified at trial for approximately 60 minutes. Taking into account reasonable travel expenses, the Court determined that $1,500.00 was a reasonable fee for the second expert.
2012 WL 3573336, at *2 (Del. Super. Aug. 21, 2012).
Id. at *1.
Id. at *2.
Id.
Id.
Id.
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In this case, Dr. Atkins' videotaped deposition was taken in his own office and lasted only 40 minutes. Because Dr. Atkins was not required to travel to court, and further because his testimony lasted only 40 minutes, the Court will not award as costs the entirety of Dr. Atkins' deposition fee of $2,500.00. The Court will award $1,500.00 for Dr. Atkins' trial deposition.
With respect to the Wilcox & Fetzer charge, the Court does not find the Wilcox & Fetzer fee of $560.00 unreasonable or excessive.
In sum, Plaintiff's Motion for Costs is GRANTED in part and DENIED in part. Plaintiff is awarded $2,060.00.
IT IS SO ORDERED.
Very truly yours,
Jan R. Jurden
Judge
JRJ:mls cc: Prothonotary