Opinion
No. CV-02-0813312-S
October 27, 2009
RULING ON PLAINTIFF'S OBJECTION TO THE DEFENDANT'S BILL OF COSTS
The jury returned a verdict in favor of the defendant in this medical malpractice action on November 5, 2008. On November 20, 2008 the defendant filed a Bill of Costs. The plaintiff's Objection to the Bill of Costs is dated December 9, 2008. However, the envelope containing the Objection which was sent to defense counsel was postmarked December 23, 2008.
The defendant argues that the Objection was not timely filed because if was not filed within fourteen days after the defendant filed the Bill of Costs. This argument is based on Practice Book § 18-5(a), which provides that the clerk may tax costs within fourteen days after filing unless objection is filed. That section does imply that any objection to a bill of costs should be filed within 14 days. However, it does not contain the strict limitation which the defendant urges. Section 18-5(b) states that: "Either party may move the judicial authority for a review of the taxation by the clerk by filing a motion for review of taxation of costs within twenty days of the issuance of the notice of taxation by the clerk." In this case there was no taxation by the clerk, so the twenty-day limitation period did not commence to run. Moreover, it does not appear that the defendant was in any way prejudiced due to the timing of the plaintiff's objection.
The defendant seeks $50 for pre-trial proceedings and $75 for the trial of an issue of fact. The plaintiff does not object to these. The defendant also seeks $350 for his jury claim. The plaintiff objects to this because it is not mentioned in Connecticut General Statutes § 52-257. However, such a fee is allowed under Connecticut General Statutes § 52-258, which provides:
The jury fee in civil actions shall be three hundred fifty dollars to be paid at the time the case is claimed for the jury by the party at whose request the case is placed upon the jury docket. The jury fee shall be taxed in favor of the party paying the jury fee in the bill of costs in the action, if final judgment thereon is rendered in his favor.
Based on the foregoing statute the objection is overruled and the defendant may recover $350 for his jury fee.
The defendant claims $210 for seven in-state depositions and $120 for three out-of-state depositions. The plaintiff only objects to $60 of the total $210 amount. The defendant sought $90 because Dr. Salm was deposed by the plaintiff three separate times. The plaintiff argues that although the deposition of Dr. Salm spanned three days, apparently due to the volume of her counsel's questions, it was one very long deposition and, therefore, warrants only $30. The defendant argues that he was required to clear his schedule for three entire days and considers, therefore, that he should receive the statutory fee for three depositions. The court agrees with the defendant and, therefore, the objection to the extra $60 fee for the three depositions of the defendant is overruled.
The defendant also seeks transcript fees for Dr. Charish, the plaintiff's expert witness in the amounts of $1,400 and $2,988.85 and transcript fees for Colleen Brophy, MD, $2,155.07, Walter Kernan, MD, $26.50 and David Salm, MD, $95.40. The defendant argues that the transcripts were used in a hearing in a Porter hearing ( State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997)) and, therefore, fees for the transcripts are a recoverable cost. The plaintiff argues that she was the successful party in the Porter hearing and that such costs are not allowed under § 52-257 or any other statute. The court agrees. The objection to the transcript fees (items 6 and 7 on the Bill of Costs) is sustained.
The defendant withdrew his claims for the transcripts for Skinner and Fendley also listed in item 7 of the Bill of Costs.
The defendant also seeks to recover for the deposition preparation, $4,200, trial preparation, $5,950, and trial testimony, $2,800, for Thomas Traill, MD, the defendant's expert cardiologist from Johns Hopkins Medical School and for the deposition preparation, $6,187.50, trial preparation, $2,812.50, and trial testimony, $4,000, for Walter Kernan, MD, the defendant's expert in internal medicine from Yale University Medical School.
The plaintiff objects to the trial testimony fees on the grounds that the defendant should have inquired of those witnesses as to their hourly fees out of the presence of the jury and did not, and, therefore should recover no fee. The defendant argues that the court was present during the trial to observe the witnesses and that their fees per hour were clearly reasonable and lower than those of the plaintiff's expert witness. The court finds that the fees of Drs. Traill and Kernan for their trial testimony was quite reasonable and, therefore, the objection to those fees is overruled.
The issue of recovery for deposition preparation was recently considered by our Supreme Court in Levesque v. Bristol Hospital, Inc., 286 Conn. 234, 943 A.2d 430 (2008). In that medical malpractice case the prevailing defendant sought to recover for the time his expert spent in preparing for his deposition. The trial court awarded the defendant that fee and that award was upheld by the Supreme Court, which based its ruling on Practice Book § 13-4(3). The Court stated that that section is broad enough to include payment of a reasonable fee not only for testimony but also for preparation. The court further stated:
Indeed, as one federal District Court has noted in analyzing the identical language of rule 26(b)(4)(C)(i) of the Federal Rules of Civil Procedure, "[t]ime spent preparing for a deposition is, literally speaking, time spent in responding to discovery . . ." Collins v. Woodridge, 197 F.R.D. 354, 357 (N.D. Ill. 1999). Furthermore, it is an entirely foreseeable consequence of noticing the deposition of an expert witness that the expert will devote at least some time to preparing for his or her deposition.
Levesque v. Bristol Hospital, Inc., 286 Conn. at 258-59.
[T]he time that an expert spends in preparing for his or her deposition falls within the purview of Practice Book § 13-4(3) because, if it did not, the party taking the deposition could do so without having to consider the expert's fee for time spent in preparing for the deposition. Indeed, as the court in Rolfe [v. New Britain General Hospital, 47 Conn.Sup. 296, 302, 790 A.2d 1194 (2001)] noted, the cost associated with the time that an expert spends preparing to be deposed is "incurred only because of [the] actions of the opposing party, who is in control of the entire process from the decision to depose the expert to the scope of the material subpoenaed for the deposition, and, thus, the scope of matters into which inquiry will be made as to the length and detail of the questioning at the deposition . . . [I]t [therefore] is counterproductive to the goal of the speedy and efficient determination of litigation [on] its merits . . . to permit the parties to take all the depositions they want without responsibility for the costs generated by those depositions." (Citation omitted; internal quotation marks omitted.) Rolfe v. New Britain General Hospital, supra, 308.
Levesque v. Bristol Hospital, Inc., 286 Conn. at 259-60.
The defendant argued that Drs. Traill and Kernan spent more time than usual preparing for their depositions because the plaintiff requested that they produce all medical literature, etc. on which their opinions were based. The location and production of those documents required by the plaintiff was time consuming. The plaintiff having chosen to proceed as she did with the document production she requested of the experts must bear the reasonable expense that such requests generated.
For the foregoing reasons, the objections to the fees of Drs. Traill and Kernan for deposition preparation are overruled.
The fees of Drs. Traill and Kernan for trial preparation and travel present a different issue. In Smith v. Andrews, 289 Conn. 61, 959 A.2d 597 (2008), the Court considered for the first time the question of whether costs for the trial preparation time of a defendants' experts can be taxed to a plaintiff who did not recover more than the offer of judgment. The Court specifically considered Connecticut General Statutes § 52-260(f) as the relevant statute. That statute provides:
(f) When any practitioner of the healing arts, as defined in section 20-1, dentist, registered nurse, advanced practice registered nurse or licensed practical nurse, as defined in section 20-87a, psychologist or real estate appraiser gives expert testimony in any action or proceeding, including by means of a deposition, the court shall determine a reasonable fee to be paid to such practitioner of the healing arts, dentist, registered nurse, advanced practice registered nurse, licensed practical nurse, psychologist or real estate appraiser and taxed as part of the costs in lieu of all other witness fees payable to such practitioner of the healing arts, dentist, registered nurse, advanced practice registered nurse, licensed practical nurse, psychologist or real estate appraiser.
The Court in Smith stated, "it is clear that the language of § 52-260(f) neither authorizes a reasonable fee for an expert's trial preparation time as distinguished from his or her in court trial testimony, nor expressly authorizes costs for an expert's travel, transportation and hotel costs." Smith v. Andrews, 289 Conn. at 87. The Court further stated, "Accordingly, absent such an express legislative provision, we find no reason to abrogate this state's long-standing adherence to the American rule that litigants are responsible for the payment of their own litigation expenses." Id.
The plaintiff's objection to the trial preparation fee for Drs. Traill and Kernan is sustained based on the holding of Smith.
The defendant seeks to recover $428.24 for cost of copying exhibits. Section 52-257(b)(5), allows a reasonable sum for "maps, plans, mechanical drawings and photographs, necessary or convenient in the trial of any action." This section is broad enough to include the cost in question. Therefore, the court overrules the plaintiff's objection to that cost. The defendant has withdrawn its request for item 9 on the Bill of Costs.
In summary, the court has awarded the plaintiff costs in the total amount of $18,420.74 and has not allowed the remainder of the amount set forth in the defendant's Bill of Costs.