Opinion
HHDCV146051273S
09-23-2019
Deitra BYRDSONG, Executirx of the Estate of Arlene Thaxton v. Roy KELLERMAN, M.D. et al.
UNPUBLISHED OPINION
OPINION
CESAR A. NOBLE, J.
On June 19, 2019, after trial in this medical malpractice action, the jury rendered a verdict in favor of the defendants against the plaintiff. The defendants, pursuant to Practice Book § 18-16 and General Statutes § § 52-257 and 52-560(f), filed a bill of costs as corrected. The plaintiff has objected to most of the costs. The following costs are not in dispute and are awarded:
1. Proceedings before trial [General Statutes § 52-257(a)(1)]
$ 50.00
2. Trial of issue of fact or law [§ 52-257(a)(2)]
$ 75.00
3. Difficult or extraordinary case [§ 52-257(a)(3)]
$200.00
4. Marshal service fees [§ 52-257(b)(7)]
$157.60
$482.60
The plaintiff objects to the following costs: deposition fees- claimed pursuant to § 52-257(b)(2); fees paid to depose plaintiff’s experts- claimed pursuant to § 52-260(f) fees paid to defense experts for deposition preparation- claimed pursuant to § 52-260(f); expert fees for trial testimony- claimed pursuant to § § 52-257(b)(1) and 52-260(f); and fees for copies of exhibits- claimed pursuant to § 52-257(b)(6). The objections are addressed below in order.
The court’s analysis of those costs the plaintiff contests is informed by the American rule followed by Connecticut that provides "that attorneys fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception ... The law expects parties to bear their own litigation expenses, except where the legislature has dictated otherwise by way of statute ... Costs are the creature of statute ... and unless the statute clearly provides for them courts cannot tax them." (Internal quotation marks omitted.) Aaron Manor, Inc. v. Irving, 307 Conn. 608, 616-17, 57 A.3d 342 (2013).
The defendants claim the following deposition fees pursuant to § 52-257(b)(2):
Scheuster Christie, M.D. (Party)
$ 30.00
Deitra Byrdsong (Party)
$ 30.00
Roy Kellerman, M.D. (Party)
$ 30.00
Richard Dupee, M.D. (Expert) (Massachusetts)
$ 40.00
Uwe Otto Peter Josef "Joe" Schoepf, M.D. (Expert)
(Deposed twice in South Carolina)
$ 80.00
Richard Hirschman, M.D. (Expert) (New York)
$ 40.00
Kim Giesinger, M.D. (Expert) (Mississippi)
$ 40.00
Walter Kernan, M.D. (Expert)
$ 30.00
Ian Karol, M.D. (Expert)
$ 30.00
Frank Detterbeck, M.D. (Expert)
$ 30.00
Paul Cohen, M.D. (Expert)
$ 30.00
$410.00
The plaintiff objects to paying the cost of those depositions, not noticed by the defendants, that the defendants merely defended. The plaintiff points to the language of the statute which provides that the prevailing party in any civil action shall receive for "each deposition taken out of the state, forty dollars, and for each deposition within the state thirty dollars." In the plaintiff’s view, the phrase "deposition taken" is to be interpreted as requiring a prevailing party to have noticed the deposition in order to recover. The court finds persuasive the reasoning of the court in Mayne v. Hindin, Superior Court, judicial district of Danbury, Docket No. 034001845S, 2007 WL 4577643 (November 29, 2007, Shaban, J.) (44 Conn.L.Rptr. 605, 608), which observed that "the statute does not distinguish in assessing this cost as to which party issued notice of the deposition and therefore does not limit the claim to those depositions noticed by the prevailing party." Indeed, the phrase employs the passive voice "taken" in which the word "deposition" is the subject. A contrast is usefully made with Practice Book § 13-4(c)(2) which directs that expert witness fees and costs be "paid by the party or parties taking the deposition." (Emphasis added.) In that phrase, "taking" is the active voice and the party is the subject. The objection is overruled and costs in the amount of $410 are awarded to the defendants.
The defendants seek $9,400 in fees paid to depose the plaintiff’s experts before trial and $9,050 in fees paid to their experts for deposition preparation. The defendants rely on § 52-560(f) and Mayne v. Hindin, supra, for the proposition that these costs properly are taxable. At oral argument, the defendants also referred the court to the decision of our Supreme Court in Levesque v Bristol Hospital, Inc., 286 Conn. 234, 943 A.2d 430 (2008) as additional support for their position. The defendants’ reliance on this authority is misplaced.
Section 52-260(f) provides in pertinent part: "When 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 ..."
The defendants have not identified any language in § 52-260(f) that authorizes the taxation of trial preparation time or fees to depose an expert. Our Supreme Court has resolved the scope of fees permitted by § 52-260(f). "By its express terms, § 52-260(f) treats as taxable only those costs that arise from an expert’s testimony at trial." M. DeMatteo Construction Co. v. New London, 236 Conn. 710, 717, 674 A.2d 845 (1996). Moreover, Levesque and Mayne, which both held that the fees paid for the deposition preparation time charged by an expert were properly taxed as costs, expressly relied on language formerly present in Practice Book § 13-4(3). That subsection, which addressed discovery, previously provided in pertinent part that "[u]nless manifest injustice would result, (A) the judicial authority shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subsections (1)(B) and (2) of this rule ... the judicial authority shall require, the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert." Practice Book (2007) § 13-4. The courts in both Levesque v. Bristol Hospital, Inc., supra, 286 Conn. 258-59; and Mayne v. Hindin, supra, 44 Conn.L.Rptr. 607, found persuasive the analysis of Judge Shortall in Rolfe v. New Britain General Hospital, 47 Conn.Supp. 296, 790 A.2d 1194 (2001), wherein he reasoned that the language in § 13-4(3) did not "limit the financial responsibility of the party seeking further discovery concerning an expert’s testimony to the expert’s time at the deposition and is broad enough to include payment of a reasonable fee not only for testimony but also for preparation ..." Id., 302.
These cases, however, considered a far different prior section of the Practice Book than that present today. The language relied upon by the above courts was eliminated in 2009. The current language addressing the payment of expert deposition fees provides "[u]nless otherwise ordered by the judicial authority for good cause shown, or agreed upon by the parties, the fees and expenses of the expert witness for any such deposition, excluding preparation time, shall be paid by the party or parties taking the deposition." (Emphasis added.) Practice Book § 13-4(c)(2). Thus, to the extent that the courts viewed the rules of practice as a path to tax the costs of an expert’s preparation time to the prevailing party, it is no longer viable.
The defendants also rely upon § 52-260(f) for the award of expert costs for non-trial testimony. However, our Supreme Court has definitively held that such are not recoverable. In Smith v. Andrews, 289 Conn. 61, 959 A.2d 597 (2008), the court reversed the trial court’s award of costs for an expert’s trial preparation time. The Supreme Court affirmed the vitality of its observation in M. DeMatteo Construction Co. that "[b]y its express terms, § 52-260(f) treats as taxable only those costs that arise from an expert’s testimony at trial." (Internal quotation marks omitted.) Smith v. Andrews, supra, 289 Conn. 87. The Smith court distinguished its holding in Levesque on the basis that Practice Book § 13-4(3) and rule 26(b)(4)(C) of the Federal Rules of Civil Procedure, upon which the Connecticut rule was modeled, contained clear language authorizing the award of costs associated with expert deposition preparation time. Id., 87-88. "[T]ime spent preparing for a deposition is, literally speaking, time spent in responding to discovery ..." (Internal quotation marks omitted.) Id., 88. Because there was "no applicable provision within the rules of practice to authorize the cost expressly, nor ... a corollary federal rule to support a different interpretation of § 52-260(f)" the court concluded that § 52-260(f) only covered the expense of trial testimony. Id. Accordingly, the $9,400 in fees paid to depose the plaintiff’s experts and $9,050 in fees paid to the defendants’ experts for deposition preparation are not recoverable as costs.
The plaintiff next objects to the defendants’ experts’ trial fees, not on the ground that they are not recoverable pursuant to § 52-260(f), but rather because in the plaintiff’s view they are excessive. The reasonableness of the fee to be paid to an expert, and taxed in favor of the prevailing party, is a question of fact. Holmes v. Hartford Hospital, 147 Conn.App. 713, 726, 84 A.3d 885 (2014). Our Appellate Court has approved a trial court’s reliance on a multifactor test to assess the reasonableness of a fee as derived from Fisher-Price, Inc. v. Safety 1st, Inc., 217 F.R.D. 329, 333 (D.Del. 2003). The elements of the test include: "(1) the [witness’] area of expertise; (2) the education and training required to provide the expert insight that is sought; (3) the prevailing rates of other comparably respected available experts; (4) the nature, quality, and complexity of the [subject of the testimony]; (5) the fee actually charged to the party who retained the expert; (6) fees traditionally charged by the expert on related matters; and (7) any other factor likely to assist the court in balancing the interest implicated by [the applicable rule]." (Internal quotation marks omitted.) Holmes v. Hartford Hospital, supra, 147 Conn.App. 727.
The court now turns to the application of the Holmes test elements. As an initial matter. the court finds that the trial of this medical malpractice case involved complicated issues including the standard of care of an internal medicine doctor, causation predicated on the progression of lung cancer and radiological evidence. All of the physicians are certified by the appropriate national boards.
The defendants seek $5,500 for the trial costs of Dr. Walter Kernan, a specialist in internal medicine, who testified as to the appropriate standard of care. He received his undergraduate degree from Harvard University, his medical degree from Dartmouth Medical School and received postgraduate training at Johns Hopkins. Dr. Kernan is a professor of medicine at Yale University School of Medicine, has been a reviewer of over twenty journals, is the author of sixty-seven papers, forty-five abstracts and has thirty years’ experience. Dr. Dupee, the plaintiff’s internal medicine expert, charged a similar amount of $700 per hour or $5,600 per eight-hour day for deposition testimony. A balancing of all factors yields the conclusion that the fee of $5,500 for Dr. Kernan is reasonable.
Dr. Frank Detterbeck, the defendants’ oncologist, charged $5,000 for his trial testimony. Dr. Detterbeck obtained his medical degree from Northwestern University, had residencies in general surgery and cardiothoracic surgery and a fellowship in thoracic transplantation. Dr. Detterbeck has lectured 592 times, 298 internationally, in the fields of thoracic surgery and oncology. He is the chief of thoracic surgery at Yale University School of Medicine. He wrote or contributed chapters to seventy-four books, eleven in the field of oncology, and has twenty-five years’ experience. Given the complexity of the area in which he testified, his education, training and experience, the court concludes that the $5,000 fee is reasonable.
The defendants’ pathologist, Dr. Paul Cohen, charged $1,500 to testify, at a rate of $600 per hour. Dr. Cohen received his undergraduate and medical degrees from Columbia University, is an assistant professor in pathology at the Yale University School of Medicine and is the chair of the Department of Pathology at Bridgeport Hospital. Dr. Cohen is the author of twenty-three articles and has forty years’ experience. The plaintiff’s expert pathologist, Dr. Kim Giesinger, charged $400 per day for deposition testimony, which is normally charged at a lower rate than trial testimony. The $600 per hour trial testimony is reasonable given all of the above.
Lastly, Dr. Ian Karol, the defendants’ radiologist, charged $5,250 for seven hours of trial testimony at a rate of $750 per hour. Dr. Karol is the chairman of the radiology department at Bridgeport Hospital, received his undergraduate degree from the University of Pennsylvania and his medical degree from Albert Einstein College of Medicine and has twenty-five years’ experience. Dr. Schoepf, the plaintiff’s radiologist, charged $8,500 for testimony. Dr. Karol’s fee is reasonable under the totality of the circumstances.
Accordingly, pursuant to § 52-560(f), the court awards the total sum of $17,250 for the trial testimony of Dr. Kernan ($5,500), Dr. Detterbeck ($5,000), Dr. Cohen ($1,500) and Dr. Karol ($5,250).
Finally, the plaintiff disputes the claimed cost of $1,071.21 for copies of exhibits used at trial pursuant to § 52-257(b)(6) which provides that a prevailing party "shall also receive: ... (6) for copies of records used in evidence, bonds, recognizances and subpoenas, court and clerk’s fees ..." The plaintiff objects on the ground that while the statute’s plain language provides only for the recovery of "court and clerk’s fees" associated with the enumerated records, the defendants are seeking taxation for costs not related to "court or clerk’s fees." In resolving this dispute. the court relies upon the analysis and research derived from Monge v. Acabbo, Superior Court, judicial district of New Haven, Docket No. 146046516, 2016 WL 7135072 (November 1, 2016, Ecker, J.) (63 Conn.L.Rptr. 340). While that decision involved a bill of costs seeking taxation of the $350 court entry fee, the analysis remains equally relevant to the present issue of document costs. Judge, now Justice, Ecker, commented on the stylistic "syntactical inversion" utilized in the entirety of subsection § 52-257(b)(6). Judge Ecker found significant the fact that the language of the statute does "not say that a prevailing plaintiff shall receive indemnity in the amount of X dollars for all Y proceedings. Rather, the statute inverts the order of the two component parts; using a comma to indicate the inversion, the provisions state that a prevailing plaintiff shall receive ‘for Y proceedings, X dollars.’" (Emphasis in the original.) Id., 342. A reversion of the component parts of § 52-257(b)(6) results in a plausible plain reading of the statute that a prevailing plaintiff is entitled to receive, "as a taxable cost, the court costs and clerk’s fees paid by plaintiff for copies of records used in evidence, bonds, recognizances and subpoenas." (Emphasis in the original.) Id., 343.
Subsection (b) of § 52-257 provides that "Parties shall also receive: (1) For each witness attending court, the witness’ legal fee and mileage; (2) for each deposition taken out of the state, forty dollars, and for each deposition within the state, thirty dollars; (3) on an application for the sale of property attached, the expenses incurred; (4) in any civil action affecting the title to real property situated in this state, or affecting any mortgage or lien thereon, the actual expense, not exceeding the sum of two hundred twenty-five dollars, of an examination of the land records concerning the title to the real property in question and such amount as the court or judge determines to be reasonable for the services of an expert on the value of the land when such value is in dispute; (5) for maps, plans, mechanical drawings and photographs, necessary or convenient in the trial of any action, a reasonable sum; (6) for copies of records used in evidence, bonds, recognizances and subpoenas, court and clerk’s fees; (7) for the signing and service of process, the legal fees payable therefor, except that a fee shall not be allowed for the return of a subpoena to court; (8) the actual expense incurred in publishing orders of notice under direction of the court; (9) for each interpreter necessarily employed in the trial of any civil action, twenty dollars per diem; (10) for premiums upon all bonds or undertakings provided pursuant to statute, rule of court, order of court or stipulation of parties, including bonds in lieu of or in release or dissolution of attachment, the actual amount paid, not exceeding a reasonable amount; (11) documented investigative costs and expenses, not exceeding the sum of two hundred dollars; and (12) for the recording, videotaping, transcribing and presentation of the deposition of a practitioner of the healing arts, as defined in section 20-1, dentist, registered nurse, advanced practice registered nurse or licensed practical nurse, as defined in section 20-87a, or real estate appraiser that is used in lieu of live testimony in the civil action, the reasonable expenses incurred."
The court noted that adherence to General Statutes § 1-2z required a court to apply the plain meaning of the statute and because it did not expressly provide for recovery of court entry fees such would not normally be recoverable. The court then considered the historical sources of § 52-257 under the scrivener’s error doctrine to answer the question of "whether an actual, literal mistake- a scrivener’s error of some kind- was made at some point in the legislative process, such that supplying the omitted term (i.e., including the court entry fee as a recoverable cost under § 52-257(b)) actually honors the legislative intention." (Emphasis in original.) Monge v. Acabbo, supra, 63 Conn.L.Rptr. 344. The statute’s historical antecedents included as taxable costs "for the signing of process, for bonds, recognizances. court fees and clerk fees, the sums fixed by law for such services respectively." General Statutes (1866 Rev.), tit. 53, § 7. The language remained largely unchanged through two amendments such that the 1888 version of the statute provided taxation "for copies of records used in evidence, bonds, recognizances, subpoenas, court and clerk’s fees, and for the signing and service of process, the legal fees payable therefor, except that no fees will be allowed for the return of a subpoena to court." General Statutes (1888 Rev.) § 3720.
Section 1-2z provides that "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered."
The court reasoned that the consideration of the earlier versions of § 52-257 was consonant with § 1-2z because that statute "instructs courts to ascertain the meaning of a statute from the text of that statute ‘and its relationship to other statutes, ’ without limiting that comparative analysis only to other statutes then in effect." (Emphasis in original.) Monge v. Acabbo, supra, 63 Conn.L.Rptr. 344 n.11.
Judge Ecker noted that the language was changed in 1893 with the enactment of chapter 83 of the Public Act 1893, § 2, which provided recovery "for copies of records used in evidence, bonds, recognizances, and subpoenas, court and clerk’s fees; for the signing and service of process, the legal fees payable therefore except that no fee shall be allowed for the return of a subpoena to court." Monge v. Acabbo, supra, 63 Conn.L.Rptr. 345. The enumeration of the component parts, which serves to further separate the original associated language, occurred in 1983, which rendered the recoverable elements in a bill of costs those "(6) for copies of records used in evidence, bonds, recognizances and subpoenas, court and clerk’s fees; (7) for the signing and service of process, the legal fees payable therefor, except that a fee shall not be allowed for the return of a subpoena to court."
The court concluded that an unintended change occurred in this version. "The 1893 amendment inexplicably inserted a semi-colon (and added the word ‘for’) immediately after the phrase ‘court and clerk’s fees.’ Because of the inverted syntactical structure used in the statute ... this amendment had the effect of removing the phrase ‘court and clerk’s fees’ from the list of items (including everything from ‘copies of items used in evidence’ to ‘the signing and service of process’) for which a party could be reimbursed ... Under the 1893 amendment, in other words, a party could recover only the amount of court and clerk’s fees charged for copies of records used in evidence, bonds, recognizances, and subpoenas. This change has been retained ever since, and appears today in § 52-257(b)(6)." Id., 345. The court concluded that the change was the result of a scrivener’s error and taxed costs for the court entry fee.
The concept of a scrivener’s error does seem the most likely scenario for the composition of the current statute and serves as a mechanism to interpret § 52-257(b) in such a manner as to read subdivisions (6) and (7) as if they were an undivided whole. This reading combines the constituent parts of the two subdivisions to read as it previously read before the probable scrivener’s error: "for copies of records used in evidence, bonds, recognizances, and subpoenas, court and clerk’s fees, the signing and service of process, the legal fees payable therefor, except that a fee shall not be allowed for the return of a subpoena to court." A reversion of the syntax would render the statute "parties shall receive legal fees payable for copies of records used in evidence, bonds, recognizances and subpoenas, court and clerk’s fees and the signing and service of process." This construction permits the taxation of costs for the documents and records used in evidence for which the defendants paid a private vender to produce.
If the unavailability of the application of the scrivener’s error doctrine is presumed, another tool of statutory construction permits the court to construe § 52-257(b)(6) and (7) as an undifferentiated whole. "It is a basic tenet of statutory construction that the legislature [does] not intend to enact meaningless provisions ... [I]n construing statutes, we presume that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous ... Because [e]very word and phrase [of a statute] is presumed to have meaning ... [a statute] must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant." (Internal quotation marks omitted.) PJM & Associates, LC v. Bridgeport, 292 Conn. 125, 138, 971 A.2d 24 (2009).
A close examination of § 52-257(b) discloses that much of the subsection is rendered meaningless if it is taken literally. A review of statutory provisions enumerating costs recoverable in a bill of costs, including § § 52-257 (fees of parties in civil actions), General Statutes § § 52-258 (jury fees), 52-259 (court fees), 52-260 (witness fees) and 52-261 (fees and expenses of officers and persons serving process or performing other duties), reveals no court or clerk’s fees associated with bonds, recognizances and subpoenas. While § 52-259(f) requires payment to the court of the fees allowed under the provisions of the United States statutes for making all necessary records and certificates of naturalization, it is difficult to conceive of a circumstance in which such a cost would be incurred in any litigation. In the absence of any applicable court and clerk’s fees, the text of § 52-257(b)(6) is rendered meaningless. Such a result is absurd and unworkable which, pursuant to § 1-2z, permits reference to extratextual considerations. See Tappin v. Homecomings Financial Network, Inc., 265 Conn. 741, 758-59, 830 A.2d 711 (2003) (equating construction of statute such that it is rendered wholly meaningless as effecting an absurd result); Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 31 n.26, 717 A.2d 77 (1998) (rejecting defendant’s broad definition of "use" because proffered definition would render statutory distinction between accrual of cause of action for units and common elements meaningless, and principles of statutory construction require court to construe statute in manner that does not lead to absurd results); Yeager v. Alvarez, 134 Conn.App. 112, 120-21, 38 A.3d 1224 (2012) (construction of General Statutes § 31-293(a) distinguishing "taxable costs" and "employee’s reasonable and necessary expenditures" which are deducted before employer is entitled to reimbursement for workers’ compensation payments under apportionment provision of Workers’ Compensation Act, did not lead to absurd result and avoids construction of statute in a manner rendering provision meaningless). Under these circumstances, the extratextual consideration of the legislative antecedents of § 52-257(b)(6) and (7) yields the conclusion that the legislature intended that third-party costs for records used in evidence are taxable costs. The court therefore awards the requested sum of $1,071.21 for this expense.
While § 52-259(k) provides for the payment to the clerk a fee of $350 as a fee for the filing of an application for a dissolution of lien upon the substitution of a bond, the court or clerk fee is for the filing of the application, not the bond.
For the foregoing reasons, the court awards the defendants $482.60 attributable to the aggregate costs for proceedings before trial pursuant to General Statutes § 52-257(a)(1), the trial of issue of fact or law pursuant to § 52-257(a)(2), difficult or extraordinary case pursuant to § 52-257(a)(3) and marshal service fees pursuant to § 52-257(b)(7). The court also awards the defendants, pursuant to § 52-560(f), costs in the amount of $17,250 for the trial testimony of their experts. Finally, the court awards $1,071.21 for copies of exhibits entered in evidence. Total costs taxed are accordingly $18,803.81. So ordered.