Opinion
C.A. No. 99C-03-162.
Date submitted: April 19, 2005.
Date decided: July 29, 2005.
Upon Consideration of Defendant/Appellant Lang's Motion for Reconsideration of Costs.
GRANTED.John E. Sullivan, Esquire, James J. Woods, Jr., Esquire, Sullivan and Woods, LLC, Wilmington, Delaware. Attorneys for Plaintiff.
Louis B. Ferrara, Esquire, Ferrara, Haley Bevis, Wilmington, Delaware. Attorney for Defendant.
ORDER
1. This is a personally injury case with a lengthy procedural history. The first jury trial took place on April 18-20, 2001. The jury entered a defense verdict. Subsequently, Plaintiff Danielle M. Lang ("Lang") timely filed a Motion for a New Trial. The Motion was granted by the Honorable Susan C. Del Pesco on August 13, 2001. Defendant Alicia Morant ("Morant") offered a judgment of $5000 plus costs pursuant to Superior Court Civil Rule 68. Lang did not accept this offer. The second jury trial was held before this Court on October 6-8, 2003. The jury entered a Plaintiff's verdict in the amount of $25,000. Lang timely appealed this verdict on November 6, 2003. Upon appeal, the Delaware Supreme Court vacated the order of a new trial, all subsequent rulings, and the verdict from the second trial. The case was remanded to this Court with instructions to "reinstate the original jury verdict and enter judgment for Lang." This Court denied Lang's Motion for Costs because the second jury trial before this Court was vacated. Lang has timely filed a Motion for Reargument. This Court now grants the Motion for Reconsideration of costs in order to remedy the Defendant for costs incurred from the first jury trial with Judge Del Pesco.
Lang v. Morant, Del. Supr., ___ A.2d ___, No. 545, 2003, Steele, C.J. (January 13, 2005).
2. Delaware Superior Court Civil Rule 54 ("Rule 54") reads in pertinent part "costs shall be allowed . . . to the prevailing party upon application to the Court within ten (10) days of the entry of final judgment unless the court otherwise directs." Lang, as the prevailing party in the first trial, has requested reimbursement for the following:
Super. Ct. Civ. R. 54(d).
(1) Deposition transcript of Dr. Frank Falco (introduced at trial) $155.25
(2) Expert Witness Fee, Richard I. Katz, MD $3000.00
(3) Travel Expenses for Dr. Katz $800.00
(4) Supreme Court filing fee $300.00
(5) Transcripts for Appellant's appendix $662.00
(6) Superior Court Prothonotary appeal preparation fee $100.00
3. The award of costs for expert witness testimony is committed to the sound discretion of the trial court. When 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." There is no fixed formula to determine reasonable expert fees. Nevertheless, in 2002, the court held that a fee of $1,800 was appropriate for expert medical testimony that lasted about an hour and a half plus travel time for a total of a half-day of the witness' time. The travel time costs, however, should not be accessed at the expert's hourly testifying rate.
In Burns v. Scott, the court held that $500 was excessive for five hours of travel time. As a result, the court adjusted the travel time amount to $250 for five hours. Moreover, in Dunning, the court held that $800 was excessive for four hours of travel time and reduced the cost to $250. Costs recoverable also include the trial request fee paid at the time that an appeal is taken from arbitration.
See Donovan v. Delaware Water Air Res. Comm'n., 358 A.2d 717, 723 (Del.Supr. 1976); 10 Del C. § 8906 (1999).
Sliwinski v. Duncan, 1992 WL 21132 at *3 (Del.Supr.).
Id. at *2.
Dunkle v. Prettyman, 2002 WL 833375 at *4 (Del.Super.).
Dunning v. Barnes, 2002 WL 31814525 *4 (Del.Super.).
1998 WL 281214 (Del.Super.).
Nygaard v. Lucchesi, 654 A.2d 410, 412 (Del.Super. 1994).
4. Lang's request of $800 for Dr. Katz's travel time is exceedingly high. Dr. Katz traveled from Pennsylvania to testify. In light of the above-mentioned cases, Dr. Katz's award is reduced to $250.
5. Lang's request of $3000 for Dr. Katz's testimony is also excessive. This Court has previously awarded $2000 for expert testimony. Therefore, Lang is entitled to $2000.
6. Lang's request that he be awarded costs for Dr. Falco's trial deposition transcript is granted. A party who pays for the transcript to be transcribed and entered into evidence, may recover the cost. Therefore, $155.25 is recoverable.
See Midcap v. Sears, Roebuck and Co., 2004 WL 1588343 *4.
7. The Supreme Court filing fee of $300 is recoverable. Supreme Court Rule 20(g) states that "[i]f a judgment of the trial court is reversed and costs are assessed against the appellee, the Clerk shall certify in the mandate the filing fee collected under paragraph (a) [provision concerning the nonrefundable filing fee] in this Court which is to be collected in the trial court for reimbursement of the party who paid the filing fee." The Supreme Court reversed the Superior Court's ruling. Therefore, Appellee/Plaintiff Morant must reimburse Lang for the $300 filing fee.
8. Lang's request of $100 for the Superior Court appeal fee and $662 for his appeal appendix are granted. According to Supreme Court Rule 20(d) "if a judgment is reversed, costs shall be taxed against the appellee . . . [t]he costs shall normally include the amounts charged for fees under paragraph (b) of this rule and such other expenses as shall be incurred and certified by the Clerk of this Court, or the clerk of the trial court." This Court's ruling was vacated and remanded back to Superior Court. Accordingly, Appellee/Plaintiff Morant is taxed with the costs incurred by Lang in preparation for her appeal.
9. In sum, Lang is awarded $3,312 as the prevailing party in the first jury trial.
IT IS SO ORDERED.