Opinion
C.A. No. 04C-08-039 (MJB).
Submitted: July 19, 2006.
Decided: October 19, 2006
Upon Plaintiff's Motion for New Trial DENIED.
Upon Defendant's Motion for Costs GRANTED.
Joseph J. Rhoades, Esquire, Law Offices of Joseph J. Rhoades, Attorney for Plaintiff.
Nancy C. Cobb, Esquire, Chrissinger Baumberger, Attorney for Defendant.
OPINION AND ORDER
I. INTRODUCTION
This is a personal injury action arising from injuries Kimberly Bordley allegedly sustained in a slip and fall incident in a Red Lobster restaurant. Ms. Bordley claimed damages exceeding $100,000 and certified the case out of compulsory arbitration. After a two-day trial, on July 6, 2006, the jury rendered a verdict for the Defendant. On July 18, 2006, Plaintiff filed the instant Motion for a New Trial and Defendant filed the instant Motion for Costs. For the reasons that follow Plaintiff's Motion for a New Trial is DENIED, and Defendant's Motion for Costs is GRANTED.
II. FACTUAL BACKGROUND
Ms. Bordley's injuries allegedly occurred on or about November 16, 2002, when she was a patron at a Red Lobster restaurant. Plaintiff alleges that on a rainy day Red Lobster negligently failed to place mats on the floor of the bathrooms and that as a result of the negligence, Ms. Bordley fell on the wet floor and sustained serious injuries. At trial, Ms. Bordley testified that on November 16, 2006, she and her mother went to the Red Lobster restaurant and while there, she excused herself to use the ladies room. According to Ms. Bordley, as she was exiting one of the stalls in the bathroom she slipped and fell on the wet floor and suffered injuries. Ms. Bordley testified that as she left the bathroom, she observed a schedule on the back of the door which indicated that the restroom had not been cleaned in over two hours. Ms. Bordley also testified that after she reported the incident, and, within a short period of time, she noticed the floor had been cleaned.
Ms. Laznik, the restaurant manager, testified that she does not remember anything about the incident on November 16, 2006. She stated, however, that the restaurant rule was that the hosts would check the bathrooms every fifteen minutes and if it required extensive cleaning they would notify the manager. Ms. Laznik also testified that there is a canopy outside the restaurant and carpeting in the lobby which would normally absorb water from patrons on rainy days and prevent accumulation of water indoors.
During the afternoon session on the second day of trial, at 3:40 p.m., the Court held a sidebar conference on scheduling. Counsel for Plaintiff requested that closing arguments and instructions to the jury be given the next morning because the jury would have little, if any, time to deliberate if summations and instructions were given that afternoon. The Court decided to allow the matter to go to the jury that day. The Court informed the jury that summations and jury instructions generally take about twenty minutes each and therefore deliberations would likely begin at about 4:45 p.m. The jury was then asked whether it presented a problem for anyone to stay after 5 p.m. The answer was in the negative. The Court emphasized that there is no time limitation on the deliberations and that although the Court would suspend deliberations at 5:45 p.m. that evening, the jury would be free to come back the following day to continue. The jury decided to begin deliberations that afternoon.
See Transcript of Trial at 325:
The Court: If you find your deliberations are progressing and you want to remain after five, we will allow you to do that, but I won't allow you to remain beyond a quarter to six or so because we don't have the accommodations for that, beyond an extension, so. And as I said there's no time limit on your deliberations. If you don't conclude them then we will allow you to come back tomorrow and continue with those deliberations.
As noted above, the Court gave the jury cautionary instructions not to rush through the deliberative process. The jury went into deliberations at 5:10 p.m. and returned a verdict at 5:50 p.m. The jury found that Defendant was not negligent, and thus did not address the remaining questions on the verdict sheet. In the instant Motion for a New Trial, Plaintiff contends a new trial is warranted because the conditions under which the jury deliberated resulted in an ill-conceived verdict that was not the product of a thoughtful, deliberate process.
III. PLAINTIFF'S MOTION FOR NEW TRIAL
A jury's verdict is presumed to be correct and will not be set aside unless it is clear that the verdict was the result of passion, prejudice, partiality or corruption; or that it was manifestly in disregard of the evidence or applicable rules of law. The Court will not upset the verdict of a jury unless the evidence preponderates so heavily against the jury verdict that a reasonable juror could not have reached the result. Haste or shortness of time taken by a jury in arriving at its verdict has no effect upon the validity of the verdict and does not, standing alone, substantiate a claim of unreasonableness. In certain cases involving complex or highly technical issues, however, too brief a deliberation can be cause for a new trial.
Storey v. Castner, 314 A.2d 187, 193 (Del. 1973).
Storey v. Camper, 401 A.2d 458, 465 (Del. 1979).
Moore v. State, 1992 WL 354222 (Del.Supr.).
See, e.g., Connell Ltd. Partnership v. Citisteel USA, Inc., 1995 WL 656810 (Del.Supr.).
Plaintiff here argues that the deliberation was too short and as a result the jury made a hasty decision which was not the product of a thoughtful, deliberate process. The Court finds no evidence in support of Plaintiff's contention. The trial only lasted one and half days and involved a slip and fall claim. There were few witnesses and the expert testimony did not involve complex scientific matters warranting a lengthy discussion between the jurors. Furthermore, there is no evidence that the jury felt rushed and therefore made a hasty decision. In fact, the Court specifically questioned the jurors about any constraints or plans that they may have after 5:00 p.m. The jury decided to begin deliberations that afternoon, fully aware that they may return the next day to continue deliberations.
The Court also finds that the jury's finding of no negligence is supported by the weight of the evidence. There was undisputed testimony that the entry way of the restaurant was covered by carpet and that all patrons who entered the restaurant had to walk on the carpeted area in order to be seated. Consequently, the jury may have concluded that placement of mats was unnecessary under the conditions. The jury simply chose to accept Defendant's evidence over that of the Plaintiff, and the Court's function is not to substitute its judgment for the judgment of the jury. Because no evidence exists to indicate the jury acted unreasonably or with prejudice in rendering its verdict, Plaintiff's mere assertion that forty minutes of deliberation is insufficient to render a fair verdict does not warrant a new trial. Accordingly, the Motion for a New Trial is DENIED.
Luciani v. Adams, 2003 WL 262500 (Del.Super.).
IV. DEFENDANT'S MOTION FOR COSTS
On July 18, 2006, Red Lobster filed the instant Motion for Costs requesting the following:
Expert fee for David C. Stephens, M.D.: $1,700
Transcript fee of Dr. Stephens' testimony: $518.20
Court filing fees: $316.50
Subpoena service fees: $80.00
Totaling: $2,614.70
In response, Plaintiff contends that final judgment does not necessarily lead to costs being awarded to the prevailing party and that there are times when it is right and just and fair for the defendant to bear the cost of the successful defense. However, Plaintiff does not offer any explanation as to why, in this case, Defendant is not entitled to costs. Plaintiff further argues that the cost of e-filing and subpoena services are not the type of recoverable costs intended by the Court Rules. Defendant has filed a Reply which will be stricken pursuant to Court Rules. Expert Witness Fees
Del. Super. Ct. N.C.C. Civ. Case Mgmt. Plan § 4(A)(4) ("No Reply permitted by moving party.").
The award of costs for expert witness testimony is committed to the sound discretion of the trial court. In determining reasonable reimbursement for expert costs, the Court must "recognize that a significant disruption to a physician's practice occurs when a physician is called to testify as an expert witness and that such testimony is important to the Court since it assists the trier of fact and serves a significant public interest." Nevertheless, there is no fixed formula to determine reasonable expert fees. In previous cases it has been stated that "when a physician testifies as an expert, 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."
Sweren v. Sheehy, 2001 WL 1783076 (Del.Super.).
Id.
Dunning v. Barnes, 2002 WL 31814525 (Del.Super.).
In this case, Defendant claims $1,700 for Dr. Stephens' testimony, taken in the doctor's office for presentation at trial without the need for his attendance, which lasted approximately two hours. This Court has previously awarded expert witness fees as costs based on recommendations by the Medico-Legal Affairs Committee of the Medical Society of Delaware. The 2006 recommendation for expert witness fees for a deposition lasting up to two hours is $1,000-$2,000. Finding there was no excessive inconvenience or intrusion into the doctor's schedule, the Court will award $1,000 for the expert fee.
Deposition Transcript Fees
Superior Court Civil Rule 54(f) provides that "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." Thus, as long as the transcript was admitted into evidence, the cost of preparing the transcript may be recoverable. In this case, it is undisputed that the transcript was admitted into evidence. Therefore, the Court will award $518.20 for the cost of deposition transcripts.
Court Filing and Subpoena Service Fees
Superior Court Civil Rule 54(d) provides that "[e]xcept where express provision therefore is made either in a statute or in these Rules, costs shall be allowed as of course to the prevailing party unless the Court otherwise directs." Determining when costs should be awarded is therefore a matter of judicial discretion.
In the instant case, the Defendant incurred $316.50 in e-filing fees as a result of Plaintiff's decision to certify the case out of arbitration, thereby subjecting it to the Court's e-filing mandates. Likewise, Defendant incurred $80.00 in subpoena service fees as part of the filing costs. The Defendant as the prevailing party is entitled to recover these fees as court costs. Therefore, the Defendant will be awarded costs in the amount of $316.50 for e-filing fees, and $80.00 for subpoena service fees.
See Del. Super. Ct. Admin. Dir. 2003-7. (requiring that all non-arbitration civil actions be filed using Lexis Nexis File and Serve e-filing system).
See Super. Ct. Civ. R. 77(h).
V. CONCLUSION
Plaintiff's Motion for a New Trial is DENIED. Defendant's Motion for Costs is GRANTED and fees are awarded in the following amounts: $1,000 for expert fees, $518.20 for transcript fees, $316.50 for e-filing fees, and $80.00 for subpoena service fees.