Opinion
No. HHB CV 02 0518171 S
January 23, 2006
MEMORANDUM OF DECISION ON OBJECTION TO DEFENDANT'S MOTION FOR REVIEW OF TAXATION OF COSTS
On January 5, 2006, this court issued its order granting, absent objection, the defendant's motion for review of taxation of costs (motion) (#122). The court has reviewed the plaintiff's subsequently filed objection to the motion, dated January 11, 2006.
In the objection, the plaintiff states that he does not dispute the reasonableness of the hourly fee of approximately $450.00 per hour sought by the defendant's experts concerning this medical malpractice case. Rather, he asserts that the costs awarded concerning Dr. Morris Traube, a board certified gastroenterologist, should not exceed $8,700.00. In the motion, the defendant seeks $13,700.00 for Dr. Traube's services.
Dr. Traube's curriculum vitae was presented as Defendant's Exhibit V. At the time of trial, according to his curriculum vitae, he was a professor of medicine and associate chair for clinical affairs at the New York University School of Medicine and section chief for gastroenterology at the NYU Medical Center/Tisch Hospital in New York City.
The plaintiff challenges the amount of time claimed to have been spent by Dr. Traube on September 8 and 9, 2005, in the midst of the trial, as excessive. In Dr. Traube's letter to defense counsel, dated September 19, 2005, a copy of which is annexed to the motion ("Dr. Traube's letter"), he lists eleven hours for each of those days (2:15 p.m. to 1:15 a.m. on September 8, 7:45 a.m. to 6:45 p.m. on September 9). The plaintiff contends that the time claimed for September 8, 2005 is not reasonable, in that Dr. Traube did not testify on that day, and travel time from New York to Waterbury is included. In particular, the plaintiff notes that the time period listed is for 2:15 p.m. to 1:15 a.m. As to the time claimed for September 9, 2005, the plaintiff asserts that Dr Traube testified for only a portion of that day. For each day, a flat rate of $5,000.00 was billed.
According to Dr. Traube's letter, the time on both days included travel, from New York to Waterbury on September 8 and from New Britain Superior Court to New York on September 9. For September 8, he also lists "review of newly received email documents re plaintiff's court testimony and re my proposed testimony . . . consultation in your office; and further review of medical records and deposition transcripts in final preparation for my trial testimony on Sept 9 . . ." For September 9, he also lists consultation in defense counsel's office, and trial testimony. See Dr. Traube's letter.
General Statute § 52-260(f) provides that "[w]hen any practitioner of the healing arts . . . 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 . . . and taxed as part of the costs in lieu of all other witness fees payable to such practitioner of the healing arts . . ." There is a split of authority in the Superior Court as to whether expert preparation time should be included in the costs awarded. See Flores v. Jenison, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 01-0278648 S (June 23, 2004, Frazzini, J.) ( 37 Conn. L. Rptr. 328), n. 2 (collecting cases). This court agrees with the analysis stated there.
"Consistency in interpreting General Statutes § 52-260(f) and Practice Book § 13-4 would dictate that an opponent or non-prevailing party be required to pay both for actual time testifying and for time spent preparing to testify. This court can see no reason why reasonable travel time to and from court and time reasonably spent in court waiting to testify are not also part of `a reasonable fee to be paid to the practitioner.' " Flores v. Jenison, supra." It makes no sense for the statute to prevent an expert from receiving payment for its preparation, travel, or waiting time; doing so would only lead to experts charging a fee for testifying that took into consideration the fact they could not receive payment for time spent preparing, traveling or waiting." Id. See also Lamphere v. Norwich Anesthesia Associates, Superior Court, judicial district of New London at New London, Docket No. 534970 (May 13, 1999, Mihalakos, J.) (permitting reasonable compensation for preparation time and travel time).
"[T]rials are 90% preparation and 10% presentation." (Internal quotation marks omitted.) Lidman. v. Nugent, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV96-0052905S (March 13, 2001, Flynn, J.) ( 29 Conn. L. Rptr. 450). The court is unpersuaded by the plaintiff's contention that the time claimed by Dr. Traube for September 8 is unreasonable or excessive. Travel from New York to Waterbury takes significant time; it cannot be accomplished in minutes. Also, it is unsurprising that Dr. Traube would be preparing with defense counsel well into the night on the eve of his trial testimony and for additional time early the next morning. The issues involved the standard of care concerning a flexible sigmoidoscopy. Review of numerous medical records and other documents was required. On September 8, since defense counsel was representing the defendant on trial before this court in New Britain until it adjourned at 4:51 p.m., the preparation for testifying to which Dr. Traube refers must have occurred after that time of the day.
On September 9, the court proceedings in the morning included the continuing testimony on direct examination of a witness called by the plaintiff on the previous day. After that testimony concluded, Dr. Traube's testimony for the defense (out of order by agreement) began at 11:42 a.m. Thus, the time he spent waiting to testify was less than two hours. His testimony concluded at about 4:20 p.m. He then traveled back to New York. The time claimed for this day (7:45 a.m. to 6:45 p.m.) is reasonable also.
The court finds that the amount of time claimed to have been expended by Dr. Traube is reasonable.
CONCLUSION
For the foregoing reasons, the objection is overruled. It is so ordered.