Opinion
No. 95C-06-006 (JTV).
Submitted: November 22, 1999.
Decided: February 23, 2000.
Francis J. Murphy, Esq., Wilmington, Delaware. Attorney for Plaintiffs.
Anne L. Naczi, Esq., Wilmington, Delaware. Attorney for Defendants.
ORDER
Upon consideration of the plaintiff's motion for costs, the defendant' response and the record in this case, it appears that:
1. This is a medical negligence case in which the jury rendered a verdict in favor of the plaintiff. The defendants contend that they are not liable for costs because the action was brought in a county other than that in which the defendants resided at the time suit was brought. The facts which gave rise to the suit occurred in December 1993. At that time the defendant, Dr. Choon F. Lai, M.D., resided and had his medical office in New Castle County. In approximately April 1994, Dr. Lai retired from the practice of medicine in Delaware and, upon information and belief, returned to his native country in Asia. The plaintiff filed the suit in her county of residence, Kent, in June 1995. Thus when the suit was filed Dr. Lai was a nonresident. The other defendant is Dr. Lai's professional association. When he left, the association ceased business. It did not pay franchise tax for 1994 or any subsequent year.
Article IV, Sec. 16 Delaware Constitution of 1897, 10 Del. C. § 5102.
The rule that provides that a defendant is not liable for costs if sued in a county other than the county of the defendant's residence is obviously intended to offset, to some extent, the inconvenience that a defendant experiences when the defendant has to respond to suit in one of the other two counties. In order for the rule to apply the defendant must be a resident of one of the three counties. Here Dr. Lai was clearly a nonresident at the time suit was brought. Once he left the state, his professional association ceased to have any place of business or active presence in the state. When suit was filed, the corporation was in the process of going void or had gone void. I find that under the facts of this particular case the rule cited by the defendants is not applicable.
2. The prevailing party in a civil action is entitled to be awarded by the Court against the adverse party the incurred court costs. "The fees for witnesses testifying as experts . . . 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." Witness fees granted under this provision are limited to time spent in court for the purpose of testifying but not for listening to other witnesses for orientation or consultation with a party. However, time spent commuting to and from the courthouse as well as time spent while waiting to testify in court at the courthouse can also be considered as time spent in attendance at court.
10 Del. C. § 8906.
State v. 0.0673 Acres of Land, Del. Supr., 224 A.2d 872 (1970).
Stevenson v. Henning, Del. Supr., 268 A.2d 872 (1970).
3. The defendant has referred to the guidelines set forth in Sliwinski v. Duncan. However, that case recognized that the guidelines which it set were subject to "an up-to-date study of the matter." This Court has previously noted a 1995 study compiled by the Medical Society of Delaware's Medico-Legal Affairs Committee for guidance in assessing expert witness fees, at least in the medical field. The report advised that a reasonable range of fees for court appearances was from $1,300 to $1,800 per half day. The report further advised that for depositions a range of $500 to $900 for a two-hour deposition was reasonable, with a $150 to $250 charge for each additional half hour. The Court has also previously noted that between 1994 and 1997 the medical care price index grew by about 11.7% through June 1997. The Court now notes that since then the index has increased by an additional 6.2% through June 1999, for a total increase since the report was prepared of 17.9%. Based upon this information, the Court adjusts the figures stated above to $1,500 to $2,100 for court appearances per half day, $550 to $1,050 for a two-hour deposition, with a $175 to $290 charge for each additional half hour. These guidelines will be applied to each medical expert. In determining the amount to be awarded with respect to each expert, the Court is considering only time spent testifying, time in attendance to testify and travel time. Time in attendance to listen to the testimony of other witnesses is not considered.
Del. Supr., No. 260, 1991, Christie, C.J. (Jan. 15, 1992) (ORDER).
Id.
Clough V. Wal-Mart Stores, Inc., Del. Super., C.A. No. 94-C-05-030, Ridgely, P.J. (Sept. 9, 1997) (Letter Op.).
Id.
Id.
4. The plaintiff has applied for court costs totaling $23,524.40. The breakdown is as follows:
Court Costs $760.00
Filing fee $125.00 Sheriff's fee 35.00 Court filings 600.00Expert Witness Fees $ 22,764.40
Ananth P. Nabha, M.D. $ 1,750.00 Ronaldo Domingo, M.D. 2,600.00 John Levinson, M.D. 8,000.00 J. Wesley Clayton, M.D. 2,400.00 Carl I. Glassman, M.D. 4,500.00 William R. Latham, III, Ph.D 800.00 Robert L. Roessler (deposition) 214.40 Edward A. Trott, M.D. 1,500.00 Gregory Villabona, M.D. 1,000.00
Dr. Nabha testified in court for several hours and traveled to and from court for two hours. His fee of $1,750 is allowed in full.
Dr. Domingo was present in court for one half day and traveled for two hours. He charged $2,000 for his court appearance and $600 for traveling for a total of two hours. His total time exceeded one-half day and his fee of $2,600 is allowed in full.
Dr. Levinson testified for much of one day and was present in court for another day in anticipation of rebuttal, although he was not called due to the late hour. Arrangements could not be made for him to return the next day. He has charged $4,000 for each of these days including his travel time. I will award $4,000 for his one day of testifying and traveling. With regard to the second day, while in an appropriate case it might be reasonable to allow as costs the fee of a doctor who was in attendance to testify but who did not testify, the Court is not inclined to do so in this case. In this case Dr. Levinson was also present to listen to Dr. Dorsey's testimony to provide possible assistance in plaintiff's cross examination of Dr. Dorsey or in preparing for rebuttal.
Dr. Clayton charged a total of $2,400 including time waiting to testify, in court testimony and travel time. I note that this individual traveled to court on three different occasions for a total of six hours travel time. His fee of $2,400 is allowed in full.
Dr. Glassman charged $4,500 for testimony over two separate days. His time testifying and traveling clearly exceeded two half days. His fee is allowed in full.
Dr. Latham assessed a fee of $300 for providing testimony and $500 for travel time from Newark, Delaware to Dover. He testified for approximately one-half hour. The defendants state that they had stipulated to the issue upon which he testified. The plaintiff responds that there was a stipulation as to the plaintiff's life expectancy but not as to the amount of plaintiff's special damages, an issue upon which Dr. Latham also testified. While one would think that ordinarily two sides should be able to agree on what they have or have not stipulated to, this was a contentious trial where neither side was in a position to take anything for granted. Therefore, the Court does not fault plaintiff for calling Dr. Latham as a live witness. However, his fee of $800, which includes $500 for traveling to and from Newark, does seem a little high. The Court will allow $500 of his fee.
Dr. Trott has submitted an expert witness fee of $1,500 for providing testimony; I note he traveled from Wilmington on this day. His fee is reasonable, falls within the guidelines and is fully awarded.
Plaintiff requests $1,000 for four hours of court time provided by Dr. Villabona. This figure is reasonable, within guidelines and is awarded in its entirety.
Prior to trial Robert Roessler, a PHICO employee, was deposed and this deposition was read into evidence. The deposition fee of $214.40 is fully compensable pursuant to court rule and is awarded.
Super. Ct. Civil R. 54(f).
Interest is allowed at the legal rate of 9.75%.
Therefore, plaintiff's motion for costs having been considered, the Court awards plaintiff the sum of $18,464.40 for expert witness fees and deposition fees against the defendants Choon F. Lai, M.D. and Choon F. Lai, M.D., P.A., jointly and severally, plus all court costs as reflected in the records of the Prothonotary, together with simple interest at the legal rate of 9.75% per year on these sums from the date of this order.
IT IS SO ORDERED. ________________ Resident Judge
oc: Prothonotary cc: Order Distribution