Opinion
No. TTD CV 09 500 45 68 S
September 14, 2011
MEMORANDUM OF DECISION
The defendant, Robert Dutton, prevailed after a jury trial and submitted a bill of costs. The plaintiff timely objected to the bill of costs, however the clerk assessed the costs as requested. The plaintiff moves for review as provided under Practice Book § 18-5(b).
Witness Fees
General Statutes § 52-257(b)(1) entitles a prevailing party to recoup as an item of costs "the witness' legal fee and mileage," for each witness attending court. The plaintiff objects to the defendant's request for fees relating to witnesses who were subpoenaed but never attended the trial. However, the defendant requests no such fees.
Instead, the defendant seeks reimbursement under § 52-257(b)(7) for service of the subpoenas. The defendant makes no claim for money payable to a witness. He claims as an item of costs the marshal fee attendant to the service of the subpoena as permitted by General Statutes § 52-261. That statute allows recoupment in costs of the fees actually and reasonably expended for that purpose. There is no requirement that the witness subpoenaed actually attend trial.
Defense counsel represents to the court that the witnesses who are the subject of the plaintiff's objection, Lynn Maston and Nick Caito, were summoned as potential authentication witnesses with respect to certain records. Apparently, no authentication issue arose at trial necessitating their testimony. In the absence of evidence to the contrary, when reviewing a bill of costs assessment the court may presume a witness was summoned in good faith and with the reasonable expectation that the witness would testify if necessary. Davis v. Hodge, 6 Conn.Sup. 261, 262 (1938).
The clerk properly allowed these fees as an element of costs.
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Extraordinary Case Fees
Under § 52-257(a)(3), a fee of $200 may be assessed, in the discretion of the court, "in difficult or extraordinary cases . . . where a defense has been interposed." The defendant claims this fee, and the plaintiff objects on the basis that this litigation merely involved a motor vehicle accident with personal injury tort allegations. The court determines that this was not a typical motor vehicle tort action and allows the $200 fee.Although the case sought damages for injuries from a motor vehicle accident, the plaintiff complicated the issue by including a recklessness count. The trial was a battle of accident reconstructionists rather than one involving only eyewitness testimony. Several motions in limine, including a Porter hearing, had to be decided. Also, the plaintiff belatedly disclosed an expert which required a hearing to determine whether sanctions were appropriate. The evidence traversed six days of trial. Despite the mundane nature of the cause of action, a case may still present voluminous pleadings and complex issues. Hartzell v. Acme Wire Co., 5 Conn.Sup. 330, 331 (1937).
Expert Witness Fees
The defendant claims as part of his costs, $3,617.50 for the trial testimony of his accident reconstruction engineer, Mike Cei. The plaintiff objects to portions of this fee. However, the court identifies a more fundamental impediment to this claim. A prevailing party is not entitled to any expert witness fees as an element of costs for accident reconstruction testimony.
The defendant cites as authority for his request § 52-257(b)(1). That subsection merely entitles the prevailing party to "the witness' legal fee and mileage." The witness' legal fees are set forth in § 52-260. That statute allows for expert witness fees for certain, enumerated professionals only. Miller v. Guimaraes, 78 Conn.App. 760, 783 (2003). Accident reconstruction engineers are absent from that list. No recovery of costs is permitted for such an expert except as is allowed for any other witness. Smith v. Andrews, 289 Conn. 61, 82-83 (2008). Consequently, the court denies the expert witness fees as requested for Mike Cei. The defendant is entitled to the ordinary fees otherwise allowed for the testimony of any witness.