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holding that "awarding costs for the videotaping of a deposition introduced at trial and the preparation of the transcript are duplicative, and therefore both are not permitted."
Summary of this case from Bishop v. Progressive Direct Ins. Co.Opinion
C.A. No. 04C-06-013 (JTV).
Submitted: February 22, 2007.
Decided: May 31, 2007.
Upon Consideration of Defendant's Motion For Costs GRANTED in Part DENIED in Part.
Wayne N. Elliott, Esq., and D. Benjamin Snyder, Esq., Prickett, Jones Elliott, Dover, Delaware. Attorney for Plaintiffs.
Diane M. Andrews, Esq., Elzufon, Austin, Reardon, Tarlov Mondell, P.A., Wilmington, Delaware. Attorney for Defendants.
ORDER
Upon consideration of the defendant's motion for costs, the plaintiff's opposition, and the record of the case, it appears that:
1. This is a medical negligence action. Trial was held between January 8, 2007 and January 25, 2007. Witnesses called by the defendant included the following: Dr. Sperling, Dr. Hastings, Dr. Hocutt, Mr. Danahy, Mr. Stackhouse, Dr. Elliott, Ms. Ricker, P.A., Dr. Grobman, and Dr. Mark. At the conclusion of the trial, the jury found that the defendant committed medical negligence in connection with her treatment of the plaintiff. The jury also found that her negligence was a proximate cause of injury to plaintiff. However, the jury also found that the plaintiff was negligent in a way that was a proximate cause of her injury. They found that the plaintiff's contributory negligence was 65% of the total negligence. Accordingly, the plaintiff did not receive any damages.
2. Generally, the prevailing party in a civil action is entitled to be awarded costs agains t the adverse party. "The fees for witnesses testifying as experts . . . 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." Witness fees granted under this provision are limited to time spent in court for the purpose of testifying but not for listening to other witnesses for orientation or consultation with a party. "This Court has found that although reasonable and ordinary traveling expenses of an expert may be reimbursed, `costs should not be accessed [sic] at the expert's hourly rate.'" "An award for travel time at one-half or less than one-half of an expert's hourly rate is common."
10 Del. C. § 8906.
State v. 0.0673 Acres of Land, 224 A.2d 598 (Del. 1970).
Bailey v. Beebe Med. Ctr., Inc., 2005 Del. Super. LEXIS 292 citing Dunning v. Barnes, 2002 Del. Super. LEXIS 487, citing Burns v. Scott, 1998 Del. Super. Ct. LEXIS 130.
Id. at *21.
3. The plaintiffs do not object to the costs sought by defendants for the expert testimony of John Danahy, Robert Stackhouse, or Brett Elliott, M.D. Therefore, these costs will be awarded without further analysis. They total $1709.
4. Melinda Ricker, P.A., Dr. Grobman, and Dr. Mark all testified as fact witnesses. This Court has stated that "[t]he prevailing party cannot recover costs for an expert's time when that expert testifies as a fact witness." For this reason, the request for fees for these witnesses is denied.
Deardorff Assoc., Inc. v. Paul v. Brown, 2000 WL 1211077 (Del.Super.) citing Connolly v. Labowitz, 1987 Del. Super. LEXIS 1407.
5. That brings the Court to Doctor's Sperling, Hastings and Hocutt. The plaintiff contends that the defendant should not be awarded any expert witness fees for these witnesses, because the jury concluded that Dr. Viola was negligent in a manner which proximately caused injury to the plaintiff. In other words, the plaintiff contends that the defendant did not prevail upon the issues upon which these witnesses testified. However, the defendant did prevail in the action, and I believe that some award of expert fees for these witnesses should, therefore, be allowed. However, I am not inclined to award the amounts requested by the defendants. The Court has recently stated that a reasonable allowance for a testifying, physician expert is $1,870.70 to $2,590.20 for half a day for court appearances. Using these figures as a guide, I exercise my discretion to award $1,870 for each of these three doctors. I reach this decision understanding that their time on the day of their court appearance may have exceeded one-half day.
Foley v. Elkton Plaza Associates, 2007 Del. Super. LEXIS 80 (Del.Super. 2007).
6. The defendant has also requested reimbursement for the video deposition and transcript of Dr. Mark. This includes costs for a DVD copy, a VHS copy, and editing. Superior Court Civil Rule 54 does permit a plaintiff to recover the cost of preparing the Court's copy of a deposition. However, previous decisions by this Court have concluded that awarding costs for the videotaping of a deposition introduced at trial and the preparation of the transcript are duplicative, and therefore both are not permitted. Because the plaintiff introduced the deposition video at trial, she is not permitted to be reimbursed for the transcript. Thus, the amount requested by plaintiff is reduced by $227.15. Following this reasoning, the DVD and VHS copies are also duplicative and plaintiff will not be reimbursed for the costs further reducing the amount by $90. Finally, the costs for editing the video are not taxable costs, reducing the amount to $330 for the video deposition of Dr. Mark.
Cimino v. Cherry, 2001 Del. Super. LEXIS 181, *9 ( citing Cubberly v. Orr, 1995 Del. Super. LEXIS 469, *6 and Bejger v. Shreeve, 1997 Del. Super. LEXIS 306, *11).
7. Therefore, fees and costs are awarded in the amount of $7,649. The defendant's motion is granted in part and denied in part.
IT IS SO ORDERED.