Opinion
C.A. No. 99C-12-019
Submitted: August 27, 2001
Decided: November 14, 2001
Lisa M. Anderson, Esquire, Betts Betts, P.A.
James M. Drnec, Esquire, Morris, James, Hitchens Williams, LLP
Dear Counsel:
This is the Court's decision on Plaintiff Jennifer Russo's Amended Motion for a New Trial and Defendant Medlab Clinical Testing, Inc.'s Motion for Costs.
FACTUAL AND PROCEDURAL STATEMENT
Russo went to Medlab to have a blood specimen taken. After Dora Snowden, a Medlab phlebotomist, took Russo's blood specimen, Russo left the office, fainted, and fell face-first on the pavement just outside the office door. Russo suffered multiple injuries to her face, jaw, teeth, neck, mouth, lip, arms and legs. Russo then filed suit against Medlab, alleging that Ms. Snowden had negligently taken the blood specimen.
Following a three-day trial, a 12 person jury unanimously found that Medlab was not liable for Russo's injuries. Russo then filed a Motion and Amended Motion for a New Trial, arguing that Medlab's counsel made unfairly prejudicial statements during his closing argument, denying her a fair trial. Medlab filed a Motion for Costs pursuant to Superior Court Civil Rule 54 and 10 Del. C. § 8906.
DISCUSSION OF LEGAL ISSUES
A. Russo's Motion For A New Trial
1. Medlab's Statements Regarding Allyson McCabe
Russo asserts two separate arguments in her Amended Motion for a New Trial. She first argues that Medlab's attorney, James M. Drnec, Esquire, made improper statements in his closing argument by continually referring to anticipated statements of a non-appearing witness, Allyson McCabe. She further alleges that Mr. Drnec "repeatedly asked the jury to remember what he had told them that this witness was going to say during the trial." See Plaintiff's Amended Motion For New Trial dated August 14, 2001. Russo continues that "[i]t is the memory of the undersigned that Mr. Drnec made a reference to this non-evidence at least three or four times during his closing, placing great importance on what he said she was going to testify about (but did not)."
The Delaware Supreme Court has promulgated a two-step analysis to determine whether counsel has made an improper argument. Hughes v. State, Del. Supr., 437 A.2d 559, 571 (1981). The first step requires the Court to determine whether Mr. Drnec's remarks were improper. Id. The second step requires the Court to determine if the improper remarks sufficiently prejudiced Russo. Id. This requires the Court to conduct a three-prong analysis considering the closeness of the case, the centrality of the issue affected by the alleged error, and the steps taken to mitigate the error. Id. See also Trump v. State, Del. Supr., 753 A.2d 963, 964-965 (2000).
Although the Hughes standard was applied in the context of a criminal proceeding, it finds ready application in the civil arena as well. DeAngelis v. Harrison, Del. Supr., 628 A.2d 77, 80 (1993).
Applying this standard, the first step is to determine whether Mr. Drnec's statements regarding Allyson McCabe were improper. The Delaware Supreme Court has specified the types of improper behavior which may lead to a new trial: factual statements not supported by evidence, comments on the legitimacy of a client's claim, suggestions that the jury place itself in the client's position, comments on witness credibility based on personal knowledge, vouching for a client's credibility, or making an erroneous statement of law. DeAngelis v. Harrison, Del. Supr., 628 A.2d 77, 80 (1993). Mr. Drnec committed none of these errors in his closing statement regarding Allyson McCabe.
Russo contends that Mr. Drnec continually referred to non-evidence in his closing. Medlab correctly counters that "[p]laintiff's counsel's memory notwithstanding, Medlab's counsel did not exhort members of the jury to `remember what he told them the witness was going to say during the trial'." See Defendant's Opposition To Amended Motion For A New Trial. After reviewing the official court transcript of Mr. Drnec's closing argument on August 1, 2001, the Court finds that Mr. Drnec simply did not make the statements Russo alleges that he made in his closing summation to the jury.
Regarding Allyson McCabe's failure to appear to testify, Mr. Drnec simply said, "In my opening statement, I told you that you were going to hear from a witness by the name of Allyson McCabe. Ms. McCabe is a nurse that works for Doctor Borodulia's office. She was there the day that this incident occurred." See Trial Transcript at C-4. At this point, Russo's counsel objected, and both lawyers approached the bench. The Court instructed Mr. Drnec to restrict his statements regarding Allyson McCabe to an explanation of why McCabe did not appear. The trial resumed, and Mr. Drnec continued:
"As I was saying, I told you she was going to be here. I told you some things I expected her to say. She didn't show up. There were some scheduling problems. I apologize to you, because I look at my opening statement as a promise, not just what I expect the evidence to prove. But if I tell you that you're going to hear something from the witness stand, you can expect to hear it.
If you think back, if it's possible to sort through all of the testimony you've heard, all the speeches you've heard from attorneys, if you can think back to the things that I told you in my opening statement, aside from Ms. McCabe not being here to tell you those things, I've kept my promises to you. I have presented the evidence that I told you you were going to hear.
Now, fortunately, the really important part of Ms. McCabe's testimony-so it was going to be presented, and you did hear-is the note she wrote on December 18 when Ms. Woody returned to the office and they spoke. So that is the first thing I want to talk to you about before we get to the evidence."
See Trial Transcript at C-5 to C-6. After this portion of his closing, Mr. Drnec never again mentioned Allyson McCabe. He did not repeat his opening statements concerning Allyson McCabe that anticipated what she would have said had she appeared. He never said "Remember what I told you Ms. McCabe was going to say [when you begin deliberating]." He did not vouch for Alyson McCabe as Russo asserts. Because Mr. Drnec's statements were not improper, there is no need to assess whether they were unduly prejudicial under the Hughes test.
"Improper vouching occurs when the [attorney] implies that he possesses some personal superior knowledge-beyond that logically inferred from the evidence presented at trial-that the witness has testified truthfully." Miller v. State, Del. Supr., No. 434, 1998, Harnett, J., (February 16, 2000) (ORDER) at 12. See generally Saunders v. State, Del. Supr., 602 A.2d 623 (1984); United States v. Roberts, 9th Cir., 618 F.2d 530 (1980). Furthermore, vouching is not per se impermissable: the Delaware Supreme Court utilized the Hughes test in analyzing prosecutorial vouching and determined that vouching is not always grounds for a retrial. Thornton v. State, Del. Supr., 647 A.2d 382 (1994).
2. Medlab's Statements Regarding Dora Snowden
Russo next argues that Mr. Drnec committed plain error and violated the Delaware Professional Conduct Rules 3.4(e), Fairness to Opposing Party, when he asserted his personal knowledge of pre-trial meetings with Dora Snowden during his closing argument. Russo asserts that, to the best of her recollection, Mr. Drnec said "I'll tell you what happened during my meetings with her. I asked her what her practices and procedures were, she stated her practices and procedures as she had in her prior sworn statements; however, when given the opportunity to calm down, she went on to tell me just as she had at this trial all the correct procedures." See Amended Motion, supra, at 4.
Subsection (e) of the Rule provides that "A lawyer shall not. . . in trial, allude to any matter that the lawyer does not reasonably believe is relevant or will not be supported by admissible evidence, assert personal knowledge of facts except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused."
In the Argument section of her Amended Motion for New Trial, Russo asserts that Mr. Drnec made these statements about facts not in the record to bolster the credibility of Ms. Snowden's trial testimony. If Mr. Drnec would have made those statements, he would have bordered on impropriety. However, after reading the transcript, it is clear that Mr. Drnec did not make those statements in the manner described by Russo.
Mr. Drnec admitted that he spoke with Ms. Snowden prior to trial in order to prepare her for testimony. In his closing argument, he also explained that he asked Ms. Snowden to tell him the routine she goes through when she draws blood. Mr. Drnec then explained that Ms.
Snowden told him the same procedure that she had sworn to in her previous testimony. He then asked her to give him more details, as he was cognizant of an individual's tendency to gloss over some of the more minute details when describing a task she does repeatedly.
Mr. Drnec never asserted in his closing that Ms. Snowden's testimony on the stand was the correct one; he merely explained that her testimony on the witness stand was more detailed than the first description of the procedure he ellicted. He discussed the witness' demeanor on the stand as being nervous, which is something the jurors could have easily ascertained for themselves. He made a reference to her prior sworn testimony, which was also already in evidence. Therefore, he did not violate Rule 3.4 because he never asserted personal knowledge of facts that were not evident from other sources as the Rule requires. Once again, because Mr. Drnec's statements were not improper, there is no need to assess whether they were unduly prejudicial under the Hughes test.
For the foregoing reasons, Russo's Amended Motion for a New Trial is denied.
B. Medlab's Motion For Costs
Medlab claims that it should be awarded costs for its expert witness fees pursuant to Superior Court Civil Rule 54(d) and 10 Del. C. § 8906. Rule 54(d) must be read in conjunction with 10 Del. C. § 5101, which states that "generally a party for whom final judgment in any civil action, shall recover, against the adverse party, costs of suit, to be awarded by the court." Welsh v. Delaware Clinical and Laboratory Physicians, Del. Super., C.A. No. 98C-06-003, Witham, J., (March 19, 2001) at 10.
Super. Ct. Civ. Rule 54(d) reads: "Except when express provision therefor is made either in a statute or in these Rules or in the Rules of the Supreme Court, costs shall be allowed as 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."
10 Del. C. § 8906 provides: "The fees for witnesses testifying as experts or in the capacity of professionals in cases in the Superior Court, the Court of Common Pleas and the Court of Chancery, within this State, 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."
Determining whether to award costs under § 5101 and Rule 54(d) is a matter of judicial discretion. Id. In Donovan v. Delaware Water and Air Resources Comm'n, Del. Supr., 358 A.2d 717, 722-723 (1976), the Court found that the word "costs" is open to interpretation because the § 5101 statute uses the word "generally." The Court found that, because of this statutory language, final judgment "does not necessarily lead to costs being awarded to the prevailing party." Id. Occasionally, the Court has gone so far as to say that "it is right and just and fair for the defendant to bear the defense cost burden of the successful defense." Welsh, supra, at 10. (quoting Mosley v. Milner, Del. Super., C.A. No. 95C-06-093, Quillen, J., (April 8, 1999) (Letter Op.); Moore v. Garcia, Del. Super., C.A. No. 93C-08-26, Quillen, J., (July 10, 1995) (Letter Op.).
In the case at bar, Medlab has petitioned this Court for reimbursement from Russo for the costs of its experts, Susan Masoorli and Eugene D'Amico, M.D., in the total sum of $5,000. See Defendant's Motion For Costs dated August 15, 2001 at No. 6. Medlab asserts that Delaware case law requires the non-prevailing party to pay for filing and service fees, and expenses associated with providing testimony. Nygaard v. Lucchesi, Del. Super., 654 A.2d 410 (1994). "The reimbursement for expert testimony encompasses deposition testimony which is introduced into evidence as well as trial testimony." Nygaard, 654 A.2d at 413. This includes "fees paid court reporters for the Court's copy of transcripts of depositions, provided they are introduced into evidence." Id. An expert may also be compensated for "reasonable and ordinary" traveling expenses, but he should not be compensated for such at his hourly testifying rate. Stevenson v. Henning, Del. Supr., 224 A.2d 872, 874 (1970). An expert should not be compensated for "time spent listening to other witnesses for `orientation,' or in consulting or advising a party during a trial." Id. at 875.
Delaware Courts have established the following guidelines for renumeration of fees to the prevailing party. The Court will not award costs, however, if the request for a certain fee is not substantiated by the prevailing party. In Cimino v. Cherry, Del. Super., C.A. No. 98C-04-127RRC, Cooch, J., (May 24, 2001) (MEM. OP.) at 8, this Court held that a plaintiff must supply the Court with an hourly rate in order to receive costs. As in this case, the plaintiff in Cimino merely cited the Delaware code and asked to recover a specific sum. Id. The Cimino case found support in other Delaware cases which held that the "expert fee should be based upon the expert's hourly fee charged rather than a daily fee, especially where the expert has not testified for the entire day." Id. at 8 (citing Re v. Gannett Co., Del. Super., C.A. No. 81C-SE-65, Poppiti, J., (Feb. 20, 1990)). In Little v. Morgan, Del. Super., C.A. No. 86C-AP-1, Toliver, J., (April 10, 1991) at 2, the Court held that an expert was entitled to his hourly rate for six hours, which represented the time he spent testifying and the time traveling to and from the courthouse.
Although Dr. D'Amico only testified for two hours, Medlab claims that Dr. D'Amico had to cancel his entire schedule for the day because he was unsure how long his testimony would run. Russo has not disputed this fact. The Court assumes from Mr. Drnec's closing argument that Medlab's requested fees represent its experts' lost wages for an entire day. Medlab has not, however, submitted any documentation depicting the breakdown of costs incurred by expert witnesses. This Court is unwilling to award costs in the requested amount of $5,000 without valid substantiation of this amount. It would be both unfair to Russo and inconsistent with this Court's prior holdings on this matter to award the requested amount without any investigation into the calculation of the sum.
The Court has decided that Medlab, as the prevailing party, shall be awarded costs inclusive of expert witness fees for the time the expert actually spent on the stand testifying, travel time and waiting time prior to testifying. However, counsel for Medlab must furnish to this Court by November 30, 2001 an itemized list of all expenses before this Court will sign and enter the Order for Costs.
CONCLUSION
Based on the foregoing, Russo's Amended Motion for a New Trial is denied and Medlab's Motion for Costs is granted, subject to Medlab submitting to the Court satisfactory documentation of its experts' fees.
IT IS SO ORDERED.