Opinion
C.A. No. 09C-04-021 FSS.
Submitted: January 3, 2011.
Decided: April 14, 2011.
Upon Plaintiffs' Motion for Costs — GRANTED, in part.
ORDER
1. Plaintiffs move for $3,927.49 in costs after a jury awarded them $27,000.00, which was $2,000.00 higher than Defendants' offer of judgment. The costs are associated with two expert witnesses' testimony. Plaintiffs spent $2,475.00 to depose their medical expert, Dr. Barry Bakst, on videotape. Plaintiffs spent another $582.49 for a transcript of Dr. Bakst's testimony, and another $510.00 for a videotape of the deposition. Plaintiffs also spent $360.00 on Robert F. Minnehan, an economist.
2. In response, Defendant Samuels contends, and it is now undisputed, that she had an agreement with Plaintiff "that if Defendant Samuels waived her closing statement, Plaintiff would not pursue costs associated with this action against Defendant Samuels." That leaves Defendant Milburn the sole target of Plaintiffs' motion. Defendant Milburn has not responded to Plaintiffs' motion. And so, the motion is unopposed.
3. Under Rule 68, a defendant risks liability for costs if he makes an offer of judgement that turns out to be lower than the jury's award. Under Rule 54(d), however, the amount, if any, is left to the court's discretion. Generally, a party can seek reasonable costs for expert witnesses who testify at trial. In cases involving the video deposition of an expert, the court has not hesitated to withhold costs spent on transcripts because it is duplicative of the video tape.
Super. Ct. Civ. R. 68.
Super. Ct. Civ. R. 54(d).
10 Del. C. § 8906.
See e.g., Mulford v. Haas, 2001 WL 541023 (Del. Super. April 25, 2001).
4. Here, taking the Samuels settlement into account, when the eligible costs are halved, each Defendant is taxed $1,672.50. The court will not award the $582.49 Plaintiffs spent for the duplicative deposition transcript. That leaves $3,345.00, or $1,672.50 per Defendant. As mentioned, Defendant Samuels's claim that Plaintiff would not seek costs is unrefuted, and Milburn should not have to cover it all.
5. For the foregoing reasons, Plaintiffs' motion for costs is GRANTED, in part, as to Defendant Milburn, in the amount of $1,672.50.
IT IS SO ORDERED.