Opinion
No. DBD CV 06 5001440 S
December 24, 2008
MEMORANDUM OF DECISION RE MOTION FOR REVIEW OF TAXATION OF COSTS
This action arose out of allegations of medical malpractice. Following trial and a jury verdict for the defendants, a bill of costs was filed by the defendant (#150) seeking a total of $9,924.55. An objection to the bill of costs was filed by the plaintiff (#151) and the defendants responded by filing an amended bill of costs (#152) deleting part of its claim and reducing the amount sought to $5,572.34. Subsequent to the taxation of costs by the clerk, the plaintiff filed a motion for review of taxation of costs pursuant to Practice Book § 18-5(b). The parties appeared before the court on December 15, 2008, and argument was heard on the following issues: (1) whether under General Statutes § 52-257(a)(3) a $200 allowance should be awarded the defendant for the trial of a difficult or extraordinary case; (2) the reasonable fee for the trial testimony of defendants' expert witness pursuant to General Statutes § 52-260(f); and (3) whether General Statutes § 52-257(b)(5) allows a reasonable amount to be awarded for the photographic enlargement of medical records that had been admitted into evidence as exhibits and which were then used for the convenience of the witnesses, the jury and the court.
I
"The general rule of law known as the American rule is that attorneys fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception . . . This rule is generally followed throughout the country . . . There are [a] few exceptions. For example, a specific contractual term may provide for recovery of attorneys fees and costs . . . or a statute may confer such rights." (Internal quotation marks omitted.) TES Franchising, LLC v. Feldman, 286 Conn. 132, 148-49, 943 A.2d 406 (2008). "It is a settled principle of our common law that parties are required to bear their own litigation expenses, except as otherwise provided by statute." (Internal quotation marks omitted.) Northeast Ct. Economic Alliance, Inc. v. ATC Partnership, 272 Conn. 14, 48, 861 A.2d 473 (2004). Furthermore, "[b]ecause [c]osts are the creature of statute . . . unless the statute clearly provides for them courts cannot tax them." (Internal quotation marks omitted.) Smith v. Andrews, 289 Conn. 61, 81, 959 A.2d 597 (2008). Therefore, the issue to be addressed is the determination of the statutory construction of both General Statutes §§ 52-257 and 52-260. Alswanger v. Smego, Superior Court, complex litigation docket at Stamford-Norwalk at Stamford, Docket No. X05 CV 92 0125294 (October 12, 2001, Tierney, J.). "An examination of General Statutes § 52-257 . . . reveals that most of the awards are automatic assessments, not involving the discretion of the court. The principal exceptions to this general rule are subsection (d) concerning minor specific matters and subsection (e) reserving to the court its time-honored discretion in taxing costs in actions in which equitable relief is granted." (Internal quotation marks omitted.) Fengler v. Northwest Connecticut Homes, Inc., 215 Conn. 286, 291, 575 A.2d 696 (1990). "This is a medical malpractice action and did not involve equitable issues." Alswanger v. Smego, supra, Superior Court, Docket No. X05 CV 92 0125294. In this case, the statutory authority claimed for awarding costs is found in General Statutes § 52-257 and § 52-260(f).
General Statutes § 52-257(a) generally sets forth the costs available to the prevailing party in a civil action in which the demand is not less than $15,000. Section 52-257(a)(3) allows "in difficult or extraordinary cases in Superior Court, where a defense has been interposed, a further allowance, in the discretion of the court, not to exceed two hundred dollars." Subsection (b) further provides, in relevant part: "(b) Parties shall also receive . . . (5) for maps, plans, mechanical drawings and photographs, necessary or convenient in the trial of any action, a reasonable sum; . . ."
General Statutes § 52-260(f) provides: "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 20-87h, 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 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 or real estate appraiser."
II
The defendant seeks an additional allowance of $200 under General Statutes § 52-257(a)(3) on the basis that the medical malpractice action was a difficult or extraordinary case. The matter was tried before a jury over the course of six days. Each party presented one expert witness in support of their position. While the matter involved the need for expert testimony relative to the provision of anesthesia and related medical procedures, the court does not find that it constituted a difficult or extraordinary case. The court notes that were expert testimony in a matter the lynch pin to a finding that a case is difficult or extraordinary, then every medical malpractice action, given the requirement of such testimony in those matters, would fit that definition and would justify an additional allowance. The statute clearly provides for exceptional cases and such was not the case here. Accordingly, no additional allowance is awarded.
III
Additionally, the plaintiff objects to the fees claimed by the plaintiff's expert, Dr. Sheila Barnett, relative to her testimony at trial. The defendants contend that such fees are allowable pursuant to § 52-260(f) and have produced an invoice establishing that Dr. Barnett charged a flat rate of $4,000 for her one day of testimony. Our Supreme Court has clarified the split of authority that had existed in the lower courts relative to the awarding of fees and expenses charged by an expert in preparation for her trial testimony by ruling that there is no statutory authorization to allow them as costs. Smith v. Andrews, supra, 289 Conn. 61. In this instance however, the defendants' has made no claim as to her preparation fees and expenses, but rather only to her trial testimony. Such a claim is to be judged based on the seven factors set forth in Fisher-Price, Inc. v. Safety 1st, Inc., 217 F.R.D. 329, 333 (D.Del. 2003). The application of these criteria in Connecticut has been analyzed by Judge Bellis in Brought v. Batson, Superior Court, judicial district of Danbury, Docket No. CV 02 0347176 (December 17, 2003, Bellis, J.) (36 Conn. L. Rptr. 189), and more recently by Judge Corradino in Flis v. Connecticut Gastroenterology Consultants, P.C., Superior Court, judicial district of New Haven, Docket No. CV 020469142 (July 13, 2007, Corradino, J.) (43 Conn. L. Rptr. 774). Those factors are: "(1) witness's area of expertise; (2) expert's training and education; (3) prevailing rates of other comparably respected available experts; (4) complexity of the discovery responses provided; (5) fee actually charged to party who retained the expert; (6) fees traditionally charged by experts on related matters; (7) other relevant factors." Flis v. Connecticut Gastroenterology Consultants, P.C., supra, 43 Conn. L. Rptr. 775. The court notes that Dr. Barnett was present in court to testify on only one date for approximately two and one-half hours. She testified at trial that in order to appear as an expert witness she had to take a vacation day from work which cost her $1,000. In her invoice, she reflected a regular hourly rate of $400 for all other work on the file. In considering the factors set forth in Fisher-Price, Inc. v. Safety 1st, Inc., along with all available information, the court finds the fee of $4,000 to be excessive and awards a fee of $2,000 representing her lost income for the day coupled with a reasonable hourly rate of $400.
IV
Lastly, the plaintiff has objected to the defendants' claim of $1,077.34 for the photographic enlargement of copies of medical records that were introduced as exhibits at trial. The photos were presented for reference to witnesses, the court and the jury during the course of the presentation of evidence and argument. The plaintiff does not challenge the reasonableness of the costs, but rather argues that the "fee is not for enlarged photographs but for enlarged medical records" and that the statute does not allow the recovery of such a cost. The court is unpersuaded. The enlargements were used to enable the witnesses, jury and court to better see what was being discussed, thereby aiding the jury in the performance of its duty. Other superior court cases have found the enlargement of records and/or photographs to be a statutorily allowable cost. Mayette v. Froeb, Superior Court, judicial district of New Britain, Docket No. CV 05 4006433 (February 16, 2007, Shapiro, J.); Hernandez v. Marquez, Superior Court, judicial district of Fairfield, Docket No. 377482, (January 5, 2004, Levin, J.); The fees totaling $1,077.34 shall be allowed as costs to the plaintiff pursuant to § 52-257(b)(5) as they are found to have been "necessary or convenient" in the trial of this action. (Emphasis added.)
V
In conclusion, the costs claimed by the defendants in Section II shall be disallowed, those in Section III partially allowed, and in Section IV fully allowed.
So ordered.