Opinion
C.A. No. 97C-03-191 HLA
Date Submitted: July 3, 2001
Date Decided: September 19, 2001
Upon Defendants' Motion For Costs Denied.
ORDER
On this 19th day of September, 2001, upon consideration of the Motion for Costs filed by Sohair S. Michail, M.D. ("Defendant"), it appears to the Court that:
(1) In this Motion for Costs Defendant request that the following costs be taxed against Plaintiffs: 1) costs associates with photocopying medical records of plaintiff Cheryl Radka; and 2) expert witness fees for the trial testimony of his expert Dr. Barry Corke.
(2) Rule 68 provides consequences for when an Offer of Judgment is not accepted, the relevant provision states that "[i]f the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after making the offer." On May 10, 2001 Defendant made an Offer of Judgment in the amount of $10,000.00. Plaintiffs rejected this offer and were not successful at trial. However, to meet the requirements of Rule 68, the Offer of Judgment must be individualized as to each Plaintiff. From the materials provided to the Court with regard to the Motion for Costs it is apparent that this offer was not individualized as to each Plaintiff. There was only one Offer of Judgment to Plaintiffs in the amount of $10,000.00 which was not individualized, but rather grouped to multiple Plaintiffs to reject or accept as a whole group. Therefore, the Court at this juncture and under this rule denies costs to the Defendant.
Super. Ct. Civ.R. 68.
Smith v. Sante Volpe, Del. Super., C.A. No. 82C-DE-5, Babiarz, J. (Jan. 31, 1992) (Mem. Op.).
(3) Under Superior Court Civil Rule 54(d) the award of costs to the prevailing party is a matter of judicial discretion. In relevant part, rule 54(d) states that "[e]xcept when express provision therefor is made either in a statute or in these Rules . . . costs shall be allowed as a matter of course to the prevailing party upon application to the Court within ten (10) days of the entry of final judgment unless the Court otherwise directs." The Court will consider each case's individual circumstances when assessing an equitable award of costs.
See Donovan v. Delaware Water and Air Resources Comm'n, Del. Supr., 358 A.2d 717, 722-83 (1976).
Super. Ct. Civ.R. 54.
Turner v. Mehrtens, Del. Super., C.A. No. 96C-12-004, Witham, J. (June 9, 1999) (ORDER) (citing Newton v. Devlin, Del. Super., C.A. No. 88C-OC-136, Gebelein, J. (May 21, 1992) (ORDER)).
(4) Plaintiffs argue in their response that some of the costs requested by the Defendant are not recoverable pursuant to Delaware law. The Court agrees. It is well settled in Delaware, that the costs of photocopying are not recoverable under Rule 54(d).
See Ripsom v. Beaver Blacktop, Inc., Del. Super., C.A. No. 83C-AU-128, Poppiti, J. (Dec. 4, 1989) (ORDER); Maconi v. Price Motorcars, Del. Super., C.A. No. 91C-08-178, Del Pesco, J. (Dec. 1, 1993) (ORDER).
Therefore, the Court denied the $60.00 cost as to the photocopying of medical records.
(5) The award of expert fees as costs is governed by 10 Del. C. § 8906 which states:
The fees for witnesses testifying as experts or in the capacity of professionals in cases in the Superior Court . . . 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.
See 10 Del. C. § 8906.
The allowable expert witness fees are limited to time spent in attendance at the Court for the purpose of testifying. Time testifying includes a reasonable time for travel, time waiting to testify, and actual time spent testifying. Superior Court Civil Rule 54(d) affords the Court discretion to assess costs. The Plaintiffs argue that in the instant case it would unfair to tax costs against them; instead the Defendants should be required to bear the costs of a successful defense. This Court agrees.
9.88 Acres of Land v. State, Del. Supr., 274 A.2d 139, 141 (1971).
Stevenson v. Henning, Del. Supr., 268 A.2d 872, 874-75 (1970).
Donovan v. Delaware Water Air Resources, Del. Supr., 358 A.2d 717 (1976).
For the foregoing reasons Defendant's Motion for costs is hereby DENIED
IT IS SO ORDERED.